There has been an intense debate on the Drools and jBPM blog with two posts by Mark Proctor http://blog.athico.com/2011/11/decision-model-ip-trap.html and http://blog.athico.com/2011/12/decision-model-ip-trap-part-deux.html.
At the same time another intense debate on the TDM patent was going on in “The Decision Model” Linkedin group. Mark saw fit to place of copy of the complete discussion thread, of a closed Linkedin group, on his public website against what I feel is the spirit of a closed Linkedin group of which he is a member.
Personally I respect Mark’s contributions to the open source community, the recent software patent that he was awarded (US Patent 7904402) and his significant contributions to the Drools project at Red Hat. And whilst Mark has sought to interpret some of my arguments in the Linked discussions as trying to “belittle him” this was not my intention.
It is not my intention in this post to provide a point-by-point rebuttal of all Mark’s arguments. What I hope to do is to outline the central plank of Mark’s arguments and that is his position on software patents, and, then look at some of the key arguments he has used to support his assertion that The Decision Model IP is a trap.
The world can be divided in to three groups, from a patent perspective; those who believe passionately that software patents should be abolished; those who believe that software patents should or will continue to exist, and, those who do not care either way.
Now Mark believes passionately that software patents should not exist. He also believes that until the day where software patents are abolished world-wide that the only people who have the moral right to own patents are open source software companies who will naturally use their patents defensively. Because they are open source companies.
There is nothing wrong in Mark holding this passionate belief.
However his position is not the only moral position. Other refutable non-open source IT companies own software patents and they also claim a moral position in that they say that they hold these software patents only to use defensively to protect their investments and ideas from misappropriation and to protect their company from aggressive patent actions from other companies.
So why should KPI be prevented from owning a USA patent if it is ok for the “big boys” to do so?. Clearly the US Patent office believed that TDM patent owners had merit in their application for a patent and awarded them the patent. In fact the sales of the biggest IT services and software companies are mostly based on proprietary patent-protected products. Reputable companies such as IBM, HP, Oracle, Apple, Tibco, Google, etc. individually hold many thousands of software patents. So software patents are not going to disappear from this world any time soon. There are too many powerful global companies supporting software patents to prevent this from being a realistic possibility.
Now it appears that Mark prime problem with The Decision Model (TDM) is that a patent was awarded to Larry Goldberg and Barbara von Halle the authors of “The Decision Model” book and co-founders of KPI on the 6th December 2011. Mark believes that this TDM patent should be made available to the wider community on an Apache licence because I believe (but I cannot prove this belief) that Mark would have liked to integrate TDM with Drools in some way and therefore argues that an open source project should not be encumbered with any software patents.
Now this is strange position to take because Drools is written in Java and there are over 2,500 Java patents owned by Sun, which is now owned by Oracle, and this was before Oracle recently granted OpenJDK an GPLv2 licence to use some of its Java patents. So it can be shown that before OpenJDK Drools was written in Sun’s patent encumbered Java and Sun was not an open source company. So if Drools could work with Sun’s Java then why not KPI’s TDM?
However the open source Java patent grant from Oracle to OpenJDK have many exceptions including that OpenJDK must comply fully with Java Language Specification and that no supersets, subsets and other modified Java versions are permitted and one must pass all test suites 6 moths before release of a beta version, etc. In fact Oracle has now taken legal action against Google in August 2010 for breaching its Java patent in the development of the Google Android operating system despite the existence of an open source Java.
The point that I am trying to make is that Red Hat and the Drools project have used software that was protected by patents, namely Java originally. So why should Mark make such a fuss now over the TDM patent?
I think that Mark’s counter argument here would be that he believes that the TDM patent owners would not grant usage licences on fair terms. I argued in the TDM LinkedIn group that whilst this may have been a reasonable concern that he should wait a short while for the owners of the TDM patent to produce a public patent usage statement.
However on 22 December 2011, just a short 2 days after the discussion started on the TDM LinkedIn group, KPI released its public statement on it’s website (http://www.kpiusa.com/index.php?option=com_content&view=article&id=170 ), a copy of which is below:
Statement by KPI and the Patent Holders in connection with U.S. Patent # 8,073,801
Objectives of the Patent Policy
To share the ideas behind The Decision Model in an orderly way,
To protect its rigor, hence its reputation, and
- To ensure that we are able to evolve what we started without risking an infringement of someone else’s patent.
Individuals, practitioners, and company/organization employees who wish to use TDM in practice are free to do so. This is aimed at practitioners selling TDM services and employees practising TDM within their organizations, as well as organizations adopting TDM in projects. This is a public commitment, and we will post the terms of the end-user license, on the website. We have a program of Decision Model Analyst certification, for which all decision modelers are eligible, details of which may be found -> here. End users are also free to incorporate TDM in any software that they use.
Those who wish to sell software incorporating TDM, may choose among the following required licenses:
Vendors who wish to include only TDM notation without TDM principles can obtain a royalty-free license (e.g., MS/Visio stencils, MS/Excel templates, modeling tools etc.).
Vendors who wish to incorporate the TDM with all the covered methods and theory (e.g. 15 Principles) must obtain a license with fair royalties, which includes software certification as part of the license. This license includes other advances and methods in addition to those included in the book and the patent.
Vendors who provide Open Source Software, and who wish to incorporate TDM can obtain a royalty-free license for Open Source software. There will be a certification fee and process for Open Source vendors who desire this optional software certification. here
- All are encouraged to contact us for details. Please click -> here
Link to United States Patent: 8,073,801. Please click ->
It is very clear from the above statement that there is nothing to prevent Open Source vendors from incorporating TDM on a royalty free basis. Certification is optional. The rights of the other stakeholders, namely, TDM end-users, TDM consultants and TDM product vendors are also clearly defined on fair terms and at this stage I believe that the patent owners of TDM has done nothing to restrict the emergence of the TDM industry or to create a TDM IP trap
At the end of the day the really important things is does The Decision Model provide value for customers? Clearly some people must believe it does provide value because if it were not so then all this passionate debates on the TDM patent would not exist.
People clearly see value in the TDM methodology and the intense patent debates are only saying to me that some people are concerned that the patent would prevent them from using the TDM within their software or why bother arguing about the TDM patent?
For those who would like to understand how TDM enhances the integration of BPMN with business logic (rules) should read the post by the BPM guru Bruce Silver http://www.brsilver.com/2010/01/05/integrating-process-and-rules-part-2/
Now Jacob in the TDM Linkedin group responded to the release of the TDM Patent Usage announcement by KPI (and I quote this only because Mark has copied the entire thread of the TDM group and placed it in the public domain and also because it was Jacob whose valid question had initiated the TDM LinkedIn group patent discussions) with his final post as follows:
Barbara & Larry,
Thank you for your clarification. It is good to know that Open Source vendors “who wish to incorporate TDM can obtain a royalty-free license for Open Source software” with “optional software certification”.
Let me here say that I believe that Jacob Feldman has made an enormous and significant contribution to TDM by the incorporation within OpenRules of substantial technical enhancements to support the execution of TDM models and the evolving new TDM features. I am very impressed with how Jacob have merged TDM with constraint optimisation to provide solutions to difficult constraint optimisation problems. I would urge all to read his brilliant paper “Representing and Solving Rule-Based Decision Models with Constraint Solvers” http://openrules.com/pdf/RuleML2011.JacobFeldman.pdf
Clearly this paper shows that the TDM patent has not restricted the evolution of the usage of TDM within new application domains and therefore is not an IP trap.
So Mark if KPI TDM patent usage rights statement appears to be acceptable to Jacob at OpenRules – an open source decision management company www.openrules.com ) what is there to prevent you from using TDM within Drools?