[LINK] CSIRO, 'the invention of WiFi', licence fees

[Roger Clarke]

[A chap called Joe Mullin has written an article highly critical of 
CSIRO's claim to Wifi patents and its grab of nearly half a billion. 
After a large number of comments on the first article, he's published 
a second.

["Joe Mullin is a reporting fellow at the Investigative Reporting 
Program of the UC-Berkeley School of Journalism".]


How the Aussie government "invented WiFi" and sued its way to $430 million
By Joe Mullin | Published 4 days ago
ArsTechnica
4 April 2012
http://arstechnica.com/tech-policy/news/2012/04/how-the-aussie-government-invented-wifi-and-sued-its-way-to-430-million.ars

...

CSIRO's idea of using "multicarrier modulation" to defeat the problem 
of indoor interference with radio waves was way ahead of its time. 
However, the "multicarrier" strategy was met with skepticism by a 
tech industry going in the wrong direction. They didn't even start to 
"get it" until a key, almost magical, date: January 23, 1996. That's 
when the US Patent Office granted CSIRO US Patent Number 5,487,069. 
"After that things began to change, not rapidly right away, but they 
did change," said CSIRO's attorney at the time Dan Furniss, a 
well-respected San Francisco patent lawyer (Furniss died in 2010, 
surely a blow to CSIRO's new case).

The five CSIRO scientists named on the '069 patent changed the world, 
in Furniss' eyes. "CSIRO did not invent the concept of wireless LAN, 
it just invented the best way of doing it, the best way it's used now 
throughout the world," Furniss told the jury in 2009. CSIRO 
scientists had tirelessly tested hundreds of techniques until it 
found a "unique combination" that worked at high speeds.

That combination involved multicarrier modulation (also called OFDM) 
as well as two techniques called "forward error-correcting" and 
"interleaving." The combination was CSIRO's intellectual property and 
deserved protection. "In some ways it [the intellectual property] may 
be the most important property we have, because it protects our 
ability to go forward in the future," said Furniss. "It protects 
innovation."

When the IEEE adopted the 802.11a standard in 1999-and the more 
widely-used 802.11g standard years later-the group was choosing CSIRO 
technology. Now CSIRO had come to court to get the payments it 
deserved.

...

The closest thing CSIRO ever had to a commercial product was a 
"demonstration chipset" produced by Radiata, an Australian wireless 
company formed by ex-CSIRO employees. Radiata was acquired by Cisco 
in 2000 for $295 million but turned out to be a dot-com era boondoggle

...

In 2003 and 2004, the organization sent letters to 28 different 
wireless companies asking for money but was rebuffed by all of them. 
In 2005, CSIRO picked a "test case" against a small Japanese company 
called Buffalo Technology. Buffalo wasn't like US tech heavyweights, 
already used to dealing with a barrage of patent litigation. Instead, 
Buffalo stood out for its impertinence. CSIRO official Nigel Poole 
said the company had practically "picked itself" as the first victim 
by accusing CSIRO of being "swindlers." Even if other companies had 
thought it, Buffalo said it.

The case was filed in the Eastern District of Texas. Advantage: 
patent-holders. Buffalo asked to change venues, but Judge Leonard 
Davis (who has overseen all the CSIRO lawsuits) wouldn't allow a 
move. The Buffalo case didn't even get to a jury. Davis ruled on 
summary judgment that the company had infringed CSIRO's patents. He 
even issued an injunction that would have banned the company from the 
US market. Buffalo appealed but ultimately settled.

The Buffalo case itself probably wasn't a huge money-maker, but as a 
"test case" it worked well.

...

All of the elements of the "unique combination" CSIRO proffered in 
court as a breakthrough weren't merely old by tech standards, they 
were decades old.

...

Terrance Percival, spoke on the stand. He acknowledged his team 
hadn't invented any of the core elements of its wireless strategy. 
But he insisted their solution to the "multipath problem"-that is, 
interference that gets in the way of radio waves indoors-was uniquely 
successful and speedy.

"We had those concepts, but we had to work out how to glue them 
together, which is a term we use," Pervical said. "There were all 
these parameters I talked about, that you had to fine tune and adjust 
to make sure you got the best possible performance out of the system."

The 2009 trial ended after four days of testimony, when the parties 
settled over the weekend. The jury never reached a verdict.

...


Responses and clarifications on the CSIRO patent lawsuits
By Joe Mullin | Published 3 days ago
ArsTechnica
5 April 2012
http://arstechnica.com/tech-policy/news/2012/04/op-ed.ars

...

The idea that any individual institution should be able to claim 
inventorship of WiFi, and make that kind of money from such a claim, 
is a big stretch. Yet, in a press release sent out this week, the 
Australian Minister for Science and Research, Chris Evans, said: 
"People all over the world are using WLAN technology, invented right 
here in Australia, to connect to the internet remotely from laptops, 
printers, game consoles and smart phones in their homes, workplaces 
and cafes."

In truth, the WiFi standards were voted into existence by a world 
engineering body that had a wide array of proposals to choose from at 
each stage of the process. IEEE is an open membership organization 
and more than 300,000 engineers belong to it. Yet while dozens of 
companies made proposals to the various 802.11 committees, CSIRO 
never submitted a single proposal-not for the original 1997 standard, 
not for 802.11a, not for 802.11b, not for 802.11g, and not for 
802.11n.

...

The cost to defend a high-stakes patent claim through trial now 
averages $4-5 million [only?] , and that doesn't include the risk of 
massive damages for a losing defendant. It's just too expensive and 
risky to defend all the cases. It's become part of the cost of doing 
business in the US tech sector. Nearly all settlements just represent 
expedient decision-making-not a comment on truth claims.

...

[Mullin does overlook, or perhaps worse misrepresent, an important 
aspect of patent law.

[It's completely irrelevant whether the patent-owner ever offered to 
assist a standards-setting organisations when it was developing a 
standard.  And it's completely irrelevant at what stage the 
patent-owner approached the organisations that implemented the 
standard in products, demanding a licence fee.

[That may be a dreadful feature of patent law and practice;  but 
that's how it is.]


-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
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Visiting Professor in the Faculty of Law               University of NSW
Visiting Professor in Computer Science    Australian National University