During the OVHcloud Summit last October, we announced the recent filing of 50 patent families.
These patent applications obviously concern our “hardware” innovations (you know that we manufacture our servers, racks, cooling systems…) but also software patents, because contrary to popular belief it is possible to patent certain software (under certain conditions, but this is not the subject of this article).
So, obviously, you are wondering why OVHcloud decided to launch this patent program when open source has been in OVHcloud’s DNA since its creation.
That’s a very good question indeed!
The purpose of this article is to explain why a company like ours cannot avoid filing patents and why patents and open innovation are not incompatible
Why patent filing is essential
There are multiple studies listing the reasons why companies decide to file patents (anti-aggression tool, communication tool, talent recruitment tool, financial valuation tool, competition blocking tool…).
From all these reasons, the mains ones are:
There are 2 major threats to a company like ours:
- The giants who can afford to file hundreds of patents a year to attack any company trying to compete with them
- Patent Trolls, which are companies whose only business is to buy patents and sue companies to force them to pay them licence fees.
Patenting is relatively expensive, and it is not usually a priority for companies when they are in the launch phase.
Moreover, as long as they remain small, they can hope not to attract the attention of big competitors or patent trolls.
When we started to grow and decided to open a subsidiary in the US, the territory by definition of patent trolls and GAFAM with thousands of patents, we thought that crossing our fingers in the hope of not being noticed was clearly not the right strategy, so we rolled up our sleeves, drafted a patent program, an associated reward policy, trained our employees on intellectual property and we quickly started to see the benefits: nearly 50 patent filings in 18 months! And trust me, it’s only the beginning!
Maintaining our freedom to operate
Trade secret is an interesting protection and is often preferred by companies because it is much less expensive than filing patents (well it appears to be much less expensive, but an effective management of secrecy might be very expensive too…)
But it should be noted that if a third party had (even in good faith) filed a patent for an invention kept secret for several years by another company, the latter would become a counterfeiter if it continued to use its invention, frustrating no?!
Enabling us to participate in patent pools and other open-innovation communities
It is well known that there is strength in numbers!
It was therefore natural that companies began to join forces to innovate.
Either they wish to work together (co-development, cross-licensing…) and in this case it is preferable to file patents upstream to allow for free discussion afterwards,
Or they decide to join forces against attacks by patent trolls and other aggressive companies and decide to pool their patents to serve as a bargaining chip in the event of an attack by one of the group members.
Thanking our employees
Because we believe that our first value is our employees, and that it is thanks to them that we innovate every day, we have set up an attractive reward system and we celebrate them all together when their invention is patented.
We have also created Innovation Awards to reward employees of certain projects that do not meet the criteria for patentability, but which are nevertheless essential to our innovation.
When the patent promotes open innovation
Many recent studies have shown that paradoxically, the patent system promotes open innovation by stimulating inter-company collaboration in research and development.
We have just seen above that this allows companies to work more peacefully on joint projects without fear of their previous know-how being stolen.
Today, OVHcloud is committed to opening up more technological partnerships with other companies, universities and research laboratories.
Software and open-source patents
In software, it must be understood that patent and copyright protection do not have the same purpose.
Copyright only protects the form (i. e. source code, object code, documentation, etc.) while the patent protects the process, the method, regardless of the language used.
Two software programs producing strictly similar effects but with different forms do not infringe upon each other in terms of copyright.
While a patent protecting the process will prohibit its reuse regardless of the form used.
But why file a patent and then give access to the sources?
- To prevent a third party from deciding to replicate the functionality of open-source software (in a different form) and distribute it under proprietary license.
- To prevent a third party from filing a broad patent on a process before we have had the opportunity to distribute the application in open source.
- To focus community efforts around a method. Indeed, since the code is open, the whole community can use it, correct it, optimize it, and thus innovation goes faster and further. As the concept remains protected by the patent, this avoids the multiplication of methods for the same purpose and the dispersion of innovative resources.
The “Economy of Peace”
When Tesla allowed its patents to be used without having to pay licence fees, Tesla did not give up its patents, Musk said, “Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology”.
Tesla considered at that time that there was more to be gained (for the sake of saving the planet) by having the community work on their technology than by keeping it to themselves, but patents still exist and if a company does not act in good faith (probably Tesla is targeting patent trolls), then the company reserves the right to attack it.
This new way of thinking and acting is in line with what the author Thierry Couzet calls the “economy of peace” which he opposes to the “economy of predation”.
This is also what we at OVHcloud think and that’s why we advocate a SMART Cloud – a reversible, open and interoperable cloud through open innovation.
Don’t worry, OVHcloud has not forgotten its values and intends to participate as much as possible in open innovation and promote this “economy of peace”.
After ten years as an Intellectual Property lawyer with Ralph Lauren and BIC, where she developed her experience in IP portfolio management and anti-counterfeiting, Audrey decided to focus her expertise on new technologies by joining Sage, the world’s 3rd largest editor of management software, in 2010, where she set up the IP Department, and OVHcloud since 2017, as Head of IP, in charge of capturing and protecting innovation and managing all the IP assets of the company.