Can it be a good strategy for companies building new-age technologies?
The world right now appears to be split between two groups of people having different set of ideologies when it comes to the future of innovation and proprietorship of technology. The first kind are the open-source evangelists and the second, the pro-patent capitalists.
Open-source evangelists believe that knowledge pertaining to new and emerging technologies and technological innovations should be freely shared and made available to all who wish to use it rightfully and fairly. The core ethos behind this is that it could potentially push innovation and development in emerging fields much farther and faster than if such knowledge were stone-walled by proprietary patent rights held by companies or individuals.
In recent years, there has been considerable appreciation, support, and involvement from many forward-thinking companies and skilled individuals, towards this cause. To name a few, technology giants like Google®, Apple®, and many more have contributed significantly to open source. Android®, the mobile operating system that now resides on most mobile phones was open sourced by Google®. Swift®, a front-end programming language that was initially proprietary to Apple® was also open sourced by Apple®. The result of all this is evident today in the wide-spread adoption and innovation built upon such popular open-sourced technologies.
Open sourcing has allowed several new companies to freely use and customize such technologies to offer unique user experiences that, by themselves, have become catalysts for competitive differentiation and advantage. As for many individual innovators, their new contributions to the open-source community have been widely appreciated and has saved thousands of hours of time and effort for millions of other innovators who have gone on to build greater and better things on top of it. So much so, many individual innovators are now being generously rewarded by fans and admirers in the open-source community by way of completely voluntary donations. This has not only helped such innovators sustain themselves financially but also motivated them to continue to contribute to open-source.
Open-source communities have also immensely helped several companies in tackling patent trolls. Publicly available and verifiable open-source repositories such as GitHub® and GitLab® have proved to be invaluable resources in invalidating troll patents. Thus, open-sourcing new technologies has undeniably helped propagate mass-adoption and innovation in emerging fields for the greater good of moving mankind forward.
However, not everyone agrees. Pro-patent capitalists believe that in today's fast-paced world, it is important to protect your intellectual property (IP) and prevent competitors from blatantly copying your ideas and innovations without effort. This category of people also believes that in such an environment, there would be no incentive to innovate, since doing so may not provide any added advantage to the individual or the company in the market, and all the effort, time and money invested in research and development would be a needless endeavour. Pro-patent capitalists expect that companies invest heavily in acquiring patents for their inventions and innovations since doing so would provide them with sufficient legal backing to enforce their patent rights on infringing entities and help them safeguard themselves from other competitors and patent trolls. Thus, patent protection may be equally necessary and prudent. To this end, the concerns raised by the pro-patent capitalists are equally valid in view of the extremely competitive nature of businesses today.
More recently, a third group appears to be emerging, which is trying to bring both these worlds together by taking a more holistic view of what is in the collective best interest. This group is open sourcing their patents! This is done under open-source licenses with special clauses and/or conditions for use and modifications of patented inventions. More specifically, an open-source license may allow anyone (licensor) to use, modify and/or commercialise the patented invention on a special condition that the licensor will never initiate any legal proceedings against the licensee at any time in the future and vice versa, i.e., the licensee also agrees to not initiate any legal proceedings against the licensor, thus building two-way trust. Besides the trust and goodwill factor, this could turn out be a huge cost saving exercise for innovative companies in the years to come. This is because in the field of business, patent lawsuits are an extremely costly affair and often run into several years of litigation. By open sourcing patents under such conditions, companies can protect themselves adequately and yet contribute immensely to the open-source movement. The most famous of these open-sourced patents are those from Tesla Motors® who, in the spirit of the open-source movement, have pledged to not initiate patent lawsuits against anyone who, in good faith, wants to use their technology. According to Tesla Motors®, this was done to accelerate the advent of sustainable transport. Their heavily publicised notification (by way of a blog post) on this was aptly titled "All our patents belong to you", that clearly outlines their intention, their reasons, and their hope for open-sourcing their patents.
Although there appear to be many paths going forward, there is arguably no right way in going about this, and one should not be in haste in picking a side. It is important to remember that none of these paths have really been tested, and any analysis of effects (social, economic, etc.) will have to be conducted over a long term to be satisfactorily conclusive.
Open sourcing patents is a business decision, and its usefulness may vary from one industry to another. For example, open sourcing patents may not be very helpful in extremely competitive industries such as consumer electronics where it is easier to mimic and manufacture products and beat any competition purely on price. However, open sourcing patents may be extremely valuable for emerging technologies such as those in renewable energy including solar and nuclear fusion technologies, battery and sustainable transportation technologies, space technologies, Artificial Intelligence (AI) based technologies, robotics, healthcare and medical technologies. Open sourcing patents in such emerging technologies may ensure that innovation in those domains can progress and flourish unhindered by restrictive patents, patent lawsuits, and unhealthy competition. In truth, all strategies around open-sourcing and patents are in play, and the future is open to all kinds of possibilities.
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