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Glyn Moody

Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

Of Microsoft, Netscape, Patents and Open Standards

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I still remember well the day in October 1994 when I downloaded the first beta of Netscape's browser. It was instantly obvious that this was a step beyond anything we'd had until then, and that it was the dawn of a new Internet era.

Netscape went on to become the key Internet company – indeed, its highly-successful IPO probably did much to establish the credibility of this new-fangled cyberspace thingy with the business world. Of course, after just a few years of glory, Netscape's management made a series of missteps, and the company gave up its leading position in the browser world to Microsoft, which retained it until Mozilla came along to claim back the crown that its progenitor Netscape had lost.

Against that background, this news is pretty rich:

Here's a deal that would have made many minds explode back in the 1990s: Microsoft is buying Netscape. Or at least most of the important parts of the company that used to be synonymous with "Internet."

That's a side component of the $1 billion patent sale that AOL and Microsoft announced this morning. As part of the transaction, AOL announced that it was selling off "stock of an AOL subsidiary" at a loss, in a move that's supposed to reduce its overall tax bill.

AOL didn't disclose the name of that subsidiary in its press release, but a person familiar with the transaction has clued me in: It's Netscape.

Microsoft will buy the underlying patents for the old browser, but AOL will hang on to the brand and the related Netscape businesses, which make up a grab bag of stuff these days: An ISP, a URL, a brand name, etc.

The question then becomes: which patents?

Jay Greene and Stephen Shankland have written a useful post that runs through the likely candidates. Here are some of the ones that could have the broadest impact on the online world:

Patent No. 6854085, which covers technology to fill out forms on Web pages automatically.

Patent No. 5657390, for the technology called Secure Sockets Layer (SSL), now called Transport Layer Security (TLS), which sets up an encrypted communication channel between browsers and the Web servers they connect to.
...

Patent No. 7478142, a technique for packaging applications that are delivered over a network and run inside a Web browser.

Patent No 5774670, which governs how Web servers and browsers can cooperate to preserve "state" information

...

Closely related is the broader Patent No. 5826242, which concerns the use of ability of a Web browser communicate about state with a Web server using HTTP, the Hypertext Transfer Protocol on which the Web is built.

Here's what Netscape said in 1997, when it received the SSL patent:

Netscape Communications (NSCP) quietly received a patent last month for one of the most popular types of encryption on the Internet, but the company says it will continue to give it away for free.

The encryption in question is the Secure Sockets Layer protocol, or SSL. Both Navigator and Internet Explorer browsers use it to secure Web-based information, including credit card numbers, stock information, and private documents. Netscape applied for the patent back in 1995. The U.S. Patent and Trademark Office granted the patent last month.

Even though SSL is heavily used in servers, browsers, and other networked products, Netscape said it has no plans to start charging developers for the source code or to impose other conditions.

"We don't want to discourage developers from using our platform," said spokesman Christopher Hoover. "An SSL license would be a real hurdle. It's not an income source that's necessary to exploit."

That's interesting, because it's exactly what Apple is doing with its nano-SIM technology: granting RF licences in order to drive uptake. Both it and Netscape understood that getting your standards accepted broadly is more important than squeezing the last drop of licensing revenue from them.

But that was then; now the question is: what does Microsoft intend to do with these patents, assuming that it has indeed acquired some or all of the ones listed above? After all, as its aggressive efforts to license patents to companies using Android in their products shows (despite the fact there is no evidence that Google's code infringes on any of them), Microsoft is turning more and more to patents as a revenue source. So if it pays the not-insignificant sum of $1 billion for a bunch of patents that lie at the heart of the modern Internet, there is a natural fear that it might start threatening to sue companies that don't pay up, to say nothing of using them to put pressure on open source projects.

This latest turn of events emphasises once more why it is absolutely critical for open standards to require RF licensing of any patents, as the W3C patent policy now rightly requires. If not, then major parts of the computing world can be held to ransom by owners of crucial patents that can't be coded around.

And that's the key point: if a standard includes technology on which a company claims a patent, it is being given a blocking monopoly on that standard, and thus a licence to print money. That is not what standards are supposed to do: they are there to promote competition on a level playing field – which is only the case if RF licensing of claimed patents is mandatory.

So, once again, I urge you to respond to the UK government's consultation on open standards, discussed earlier on Computerworld UK. As I noted there, you can answer the consultation's questions directly, online, choosing only to respond to the issues about which you have views – it really couldn't be easier.

Please do this if you can: I'm hearing rumours that, as I feared was planned all along, there has been a huge lobbying exercise in favour of FRAND standards by certain large software companies, and that unless more people speak up for RF licensing, we will end up with a regime that is inherently biased against open source. Now is the time to stand up for openness – we have until 3 May to do so.

Follow me @glynmoody on Twitter or identi.ca, and on Google+.

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