This article by Hunter Jensen, CEO of Barefoot Solutions, was originally published in the July 2008 edition of PHP Architect, a print magazine for PHP Professionals. It is the fourth article in a five part series on some of the different legal issues surrounding the web development industry. Modern day patents originated from a specific form of Letters Patent. These were decrees handed down by a monarchy granting exclusive monopoly rights to the recipient for a specific and often broad range of business activities. Patent laws have come a long way since then, but the basic premise is the same. A government provides monopolistic rights to the creator of an invention for a limited time. The justification here is to provide an incentive structure that is conducive to promoting progress and innovation. But why, as professionals working with PHP, do we need to care about patents? Most small software development shops and startups will run their entire course without ever securing a patent. We should care because most small software development shops will infringe upon a software patent during the ordinary course of business. Patent infringement lawsuits, regardless if you win or lose, are expensive propositions. Further, we should care because they are threatening the software development industry as a whole. They are stifling innovation and creating massive barriers to entry. Major changes need to be made to fix the current system in the U.S. and across the world. First, a little background on intellectual property laws and patents. The U.S. system will be discussed here because it has one of the broadest covering patent systems in the world, and is the basis for many of the software patent issues that are affecting the industry globally. The United States Constitution states that: “Congress Shall Have Power To […] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. This one sentence contains the entire justification for the U.S. copyright and patent system. Patents are not the right to use your invention, but rather the right to exclude others from making, using, selling, or importing patented goods and services. Inventors must apply for patents which are then reviewed by government officials and awarded or denied based on their merit. In the United States, this is handled by the U.S. Patent and Trademark Office (U.S.P.T.O). They base their judgments on three main criteria. In order to be awarded a patent, the idea presented must be novel (new), useful, and nonobvious. A patent will not be considered new if: The invention was publicly known before it was supposedly “invented” by the patent applicant The invention was explained or described in any publication more than one year prior to the date that the application is filed The invention was used or offered for sale in a public manner more than one year prior to the filing date. The actual rules are more detailed than this, but are fairly clear in their application. The Useful requirement for patents is generally used only to throw out frivolous applications and is most often very easily met for software patent applications. The Nonobvious requirement is by far the most difficult to predict and judge properly. The rules state that not only must the invention be different from any prior art (novel), but it must also be a nonobvious extension or improvement on any prior art. This is judged by determining whether a person “of ordinary skill in the art” would consider something obvious. For example, as a person of excruciatingly ordinary skill in the art of computer programming, it seems obvious to me that, in an online shopping system, the less clicks required to checkout the better. Therefore, given prior art of a two-click checkout process, a one-click process seems to be an obvious extension. Unfortunately, as we will see, the judgments of the USPTO do not always follow my intuition. A common misconception is that you have to actually copy another person’s invention in order to infringe on a patent. While this is true for copyright, it is possible to infringe on a patent while being completely unaware of its existence. Lack of knowledge is considered irrelevant in a patent infringement case. Another area of confusion is where exactly patents are enforceable. While it is true that patents are only enforceable in the country in which they were issued, international trade agreements make it very reasonable to obtain similar patents in many other countries, thereby making them internationally enforceable. Software patents are only one specific form of patents. Surprisingly, they are available in most countries with a mature set of intellectual property laws; Even those countries that specifically do not allow them. This is achieved by working around the letter of the law and ignoring the spirit entirely. For example, in the United States software patents were not valid in the 1980s because they were regarded as “printed matter”. The federal government ruled that they were simply written instructions on how to perform a task and therefore outside the scope of the patent office. Further, the USPTO has always held that scientific truths or algorithms expressing those truths cannot be patented. No corporation can own e=mc2. In the mid-90s the “Beauregard Claim” was developed and shown to be lawful, and it changed the landscape of software development for the worse. While it was still unlawful to patent a set of written instructions, the Beauregard claim sought patent protection for a computer readable storage device (hard drive, floppy disk, CD-ROM) which contains the specific written instructions. This patent was awarded, creating a precedent that was further litigated, and now nearly all software patents contain some form of the Beauregard claim. Armed with some general knowledge on software patents, we can now examine where the problems lie. As I said above, the purpose of patents in the United States is to promote progress. Most generally, the problem is that software patents do not achieve their purpose. In fact, the argument can be made that they actually stifle innovation, having the opposite of the intended effect. They are stifling innovation because the USPTO awards patents for very standard software development methodologies. Techniques that any PHP programmer uses in their day-to-day coding can quite often be patented. This makes creating web applications an intellectual property minefield where one misstep could lead to a patent infringement lawsuit. The most highly publicized case that illustrates this issue is the notorious Amazon one-click patent. The invention they claimed was the concept of storing a user’s personal and payment data so that, in one click, they could complete a checkout. They considered this idea so innovative that they applied for a patent. The scary part is that it was awarded. No prior art could be found, and it was considered nonobvious by a patent reviewer. Later, Amazon sued Barnes and Noble for patent infringement for providing similar functionality on their application. The lawsuit ultimately ended in a settlement requiring Barnes and Noble to remove this feature from their website. It now takes at minimum two clicks of the mouse to checkout on barnesandnoble.com. Anyone can imagine the millions of online stores which could benefit from this feature, but the Amazon patent prevents this from happening. As developers, an example that might hit closer to home would be the lawsuit filed by Eolas against Microsoft Corporation. The lawsuit claimed that Michael Doyle, the president of Eolas, successfully developed a manner to seamlessly embed content into a Web page. We know these as the <embed>, <object>, and <applet> tags. Because of the victorious lawsuit and Microsoft’s failure on appeal, Microsoft was forced to change the functionality in Internet Explorer 6 surrounding how they activated ActiveX controls. Microsoft released the patch in 2006, and many websites stopped functioning correctly. Microsoft’s solution was to require the user to click any ActiveX control first to activate it, and then they could interact with it. My company, Barefoot Solutions, was managing several projects at the time that were affected. Most notably, embedded video players now had to be clicked twice in order to be played – once to activate, and again to play. This was infuriating. Fortunately for developers and users, someone developed a workaround in which Javascript was used to output the embed tags, and Microsoft never plugged that hole. But as Tim Berners-Lee pointed out in a letter to the Director of the United States Patent and Trademark Office in 2003, the problem was severe considering the millions of websites with historical significance that are no longer being managed. These were affected and never updated. Regardless, we see how much damage one patent can have on the Web. These are only two examples of software patents with major implications in which ultimately the common internet user is the loser. Netcraft estimates that as of January 2007, 155,583,825 websites are violating at least one software patent. When these magnitudes of people are violating the law, it is natural to suspect that the law itself might be the problem. Another major issue with software patents is that avoiding liability is impossible. Not just difficult, but literally impossible. First, there are millions of patents. The idea of reviewing all patents to ensure that your new invention does not infringe on one is just not feasible. The tools for patent research are still very ineffective. More importantly, in the United States, patent applications are not publicized. Even if it were feasible to research every patent to ensure that your invention did not infringe upon one, it would still be possible for a patent to finally be awarded – the application review can take several years – in which case your invention would then be infringing on a valid patent. This is a major flaw in the logic of the U.S. system and is unfair to any inventors, including software developers. Finally, software patents are causing a huge drain on resources that otherwise could be used on innovation. The End Software Patents project estimates that 15% of all new patents are software patents. Their report shows that approximately $11.2 billion is spent annually on software patent litigation. This number refers only to those lawsuits which actually make it to litigation. Legal fees in the many lawsuits or licensing agreements that are reached before ever getting to litigation are not included, so the actual expense is much higher. One significant cause for this drain on resources is the existence of so-called patent trolls. These firms buy up patents and seek out infringement cases as their primary means of revenue. Bruce Perens, a leader in the Free Software and Open Source community, dubs these firms patent parasites. Yet we cannot place the blame with these firms, but rather the system that incentivizes this behavior and makes it lawful. These parasites force patent holders to spend their resources on legal fees, as opposed to research and development, thus stifling innovation on a large scale. Many would say however that we need software patents in order to protect inventors and provide incentives for major investments in innovation. There is evidence however that innovation will occur without the existence of software patents. Through the 1980s, software patents did not exist in the United States. Some of the most important concepts that we rely on today were created during this time, showing that we do not need a software patent system to allow for progress. These concepts include: the word processor, spreadsheet, database, email, the World Wide Web, audio-video compression/decompression, the basic elements of the graphical user interface and the fundamentals of all modern operating systems. Why then do we continue to support a system that stifles innovation and is unnecessary? As Bill Gates wrote, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” This paints a dismal picture for the future of the web development industry. So as developers, what can we do to protect our business? Unfortunately, the answer is not very promising. First, many lawyers will advise you to not read up on software patents. This seems counterintuitive, but is often the safest play. The reason is that willful infringement of a patent can involve much larger damages awarded in an infringement lawsuit. Further, U.S. law states that only patent attorneys can judge whether or not your concept infringes on a certain patent. Laymen are unable to properly determine the scope of a claim in any patent. So, if you were to read a patent and decide that your concept does not infringe, the federal court would not agree that you were able to make this judgment, and you could then be sued for willful infringement. Thus, in nearly all cases, the risks greatly outweigh any benefits, and it is best to not educate yourself on the current patents in software development. Another recommendation is to be sure to place the liability for patent infringement in the hands of the owners of the intellectual property. In an earlier article I suggested that for a freelance PHP programmer, your development agreement should include a ‘Work for Hire’ clause that provides all intellectual property rights to the client. It is also important to include an Indemnity clause stating that the client will pay any legal fees or damages awarded due to a lawsuit for copyright or patent infringement. This will help shield you from some of the liability in the case that you unknowingly infringed upon a patent. Another method of shielding yourself or your company is to purchase patent infringement insurance. These policies will pay for legal fees and/or any damages that are incurred as a result of an infringement lawsuit. Unfortunately, the premiums for this kind of policy are often very high, and as such this is not very feasible for freelance developers and small businesses. In reality though, there is not much you can do to fully protect yourself from liability. In medicine, malpractice lawsuits are just part of the risk of being a doctor. In software development, patent infringement lawsuits are currently part of the risk as well. Ultimately what we must do is get involved to fix our broken system. Supporting organizations like End Software Patents (ESP) and the Free Software Foundation that fight software patents is a good start. Our very livelihood is in danger, and it is our responsibility to protect ourselves, our business, and the Web.

When Facebook disclosed in mid-February that they had bought the messaging application WhatsApp, they had people asking “Who’s WhatsApp and why are they worth buying?” FB purchased the firm with a combination of cash, stock and shares for a total of $19 Billion. While other parts of the world were pretty familiar with the WhatsApp application, that was not so much the case in America. But the fact is that at the time of its acquisition by Facebook, WhatsApp had 450 million users and that user list was multiplying rapidly. The buying of WhatsApp gave Facebook a huge messaging footprint in areas where they were lagging behind. Blogger Gary Warner states,  “Apparently WhatsApp has been growing in popularity in other parts of the world, as documented by a survey released in November by OnDevice Research which was headlined as Messenger Wars: How Facebook Lost Its Lead,  which talked about the top Social Message Apps for mobile devices in five major markets: US, Brazil, South Africa, Indonesia, and China. While Facebook still led in the US, and WeChat clearly dominates China, WhatsApp was the leading app in Brazil 72%, South Africa (68%), and Indonesia (43%).” WhatsApp designed a crowd pleasing smartphone application that lets people using a variety of devices -  like iPhones and Android phones -  to text and send pictures seamlessly without having to pay for the fees carriers charge for SMS messages. It does have a miniscule price tag. It’s is free for the the first year, then it costs a dollar each year after that. Handling this new member of its family like it handled Instagram, Facebook plans to let WhatsApp operate largely as an independent firm. But Facebook will capitalize on what WhatsApp will bring to the table in mobile phone reach and in opening up doors that were closed in China (where Facebook is blocked, but Instagram and WhatsApp are allowed in.) There are some concerns about what doors the acquisition will open for spammers. In his blog written for the site Cyber Crime and Doing Time, Warner says that folks who keep track of spam and email threats have heard the name WhatsApp in the wind for months and call it a popular spam lure. He states. “At least three distinct spamming groups have already used WhatsApp as a lure for their scams.” But Jan Koum, who started WhatsApp, answers that concern on the WhatsApp Blog by saying, "We don’t know your likes, what you search for on the internet or collect your GPS location. None of that data has ever been collected and stored by WhatsApp, and we really have no plans to change that," he went on to say, "Everything that has made WhatsApp the leader in personal messaging will still be in place. Speculation to the contrary isn’t just baseless and unfounded, it’s irresponsible. It has the effect of scaring people into thinking we’re suddenly collecting all kinds of new data. That’s just not true, and it’s important to us that you know that." Koum is now a director with Facebook. On the life-is-Karma side of things, years ago Koum applied to work at Facebook, but didn’t get the job. Sources: http://www.businessweek.com/articles/2014-02-19/facebook-acquires-whatsapp-for-19-billion

You’ve made the decision to create an internal app for your company. You’ve done your homework, examined opportunities to bring value to your employees, and worked with either internal resources or an outsourced development team to bring that value to life. Developing an app for your business is exciting, but achieving a working product isn’t the end of the road. Now you need to launch it, and get employees to use it. Deployment should be planned just as thoughtfully as development. Even if your team has built a beautiful, user-friendly, advanced enterprise app, it can crash and burn during the deployment process. If employees can’t easily download it or sync it across their various platforms, your app will sit on the digital shelf gathering cosmic dust. Here’s what you need to think about before you deploy your new enterprise app. Internal Testing Employee feedback is vital. The point of creating an internal enterprise app is to make your employees jobs easier — and the best way to ensure your app serves its purpose is to ask employees what they think of it directly. You should have already done extensive research on your employees’ needs before beginning app development, but it’s important to test your app as you approach deployment. Things change during the development process — features are added or removed and UI design is adjusted accordingly — and these changes may inadvertently make the app less intuitive for users. Seek employee feedback on whether the latest version of your app does in fact serve their needs. The best way to do this is to deploy an early version of the app, and distribute it to a sample of employees for testing. To do this, you may use ad-hoc distribution through Android or iOS, which allows a company to deploy an app to select users via email invite or a website. If you don’t want to go through Google or Apple, consider using third-party distribution via an outside platform (like Fabric.io) to deploy your app to select employees. Security and Support Android and iOS have different security protocols from traditional IT infrastructures. Your company’s IT team should understand these differences and how to handle them. While both companies offer their own security solutions, you can also turn to third-party options like Samsung Knox and Bluebox for Android. Once the app is deployed, employees will inevitably have questions on how to use it properly and how to resolve issues that come up. Ensure that your IT department can handle support for your app on all relevant devices (mobile, desktop and more). This should be something you talk to your IT team about before you begin development. If your IT staff doesn’t have the resources, you’ll have to consider the costs associated with bringing on third-party mobile-specific support. Availability The method of deployment isn’t always a straightforward choice, especially when you consider the different devices your employees use. When it’s time to release the app to your entire company, what’s the best way to make it accessible on all devices and platforms? An enterprise app is for internal use only — should you make it available on a public app store? Your available deployment options include: Public Stores Making your app available on Google’s Play Store and Apple’s App Store ensures all employees will be able to find and download your app. This easy accessibility is also great for employees who end up changing phones. Google charges $25 for a developer license, and Apple charges a $99 annual fee for an Apple Developer Program license. All apps will have to go through both companies’ app approval processes, before being published to their respective app stores. Enterprise Programs Joining an enterprise program with Apple or Google means your app will be distributed internally to employees (where your company acts as the licensee). While Android doesn’t charge anything to use app licensing features, Apple does charge a $299 annual fee for its Apple Developer Enterprise Program license. Private B2B Store For iOS apps, Apple’s Volume Purchase Program (VPP) allows companies to set up their own private app store. Using internal app binaries, you can restrict access to employee-owned devices only. Companies can also share their apps with other VPP-participating companies. Keep in mind, however, that apps still need to be submitted for approval on this platform. Start Planning for Deployment at the Start Don’t wait until your app is designed and built to start planning for deployment. In your very first conversations with your development team about creating your enterprise app, be sure to discuss deployment strategies, potential challenges and solutions. The result will be an app your employees will enjoy using. This isn’t an easy task: while 83% of enterprise app users in a recent study said apps help with productivity, only half said their enterprise app was intuitive. This points to a huge opportunity for yours to stand out from the rest, with proper planning for the design, development and deployment. If you are considering developing an enterprise app for your company, or already have an enterprise app and have questions about how best to deploy it to your employees, reach out to us for a free consultation.