Tech companies are seeking lawyers who don’t just understand open source code — but know how to balance it with the preservation of intellectual property rights.
Some Silicon Valley lawyers have already mastered this balancing act. They’ve discovered ways to protect IP and innovations while contributing to the open source community engineers and customers are passionate about.
The first step to this sense of balance is education, according to Michael Moore, associate general counsel, products and patents for Mountain View-based Pure Storage.
“Patents and open source are not mutually exclusive,” Moore said. “You can do both and do both correctly, but it takes education, especially for people who are newer in the industry.”
Moore said engineers often join Pure Storage from companies that were not engaged in open source projects, and expect a similar policy. Others are pro-open source, but may not know the benefits of patents.
That’s one reason why Gideon Myles, lead IP counsel at San Francisco-based Dropbox Inc., said his company educates new employees on both processes.
“We make sure that when our engineers start at the company we educate them on our philosophy around patents and open source and the interplay between them, making clear that to us it’s not a one or the other, that we support both programs and they actually work together,” Myles said.
Moore, like Myles, said his company does regular training with new engineers around open source. Both Pure Storage and Dropbox openly discuss and promote the use of open source, going so far as to provide public recognition at work for engineers that contribute to open source projects.
Moore said Pure Storage also recognizes engineers who go the patent route, if that’s what the situation calls for, giving them free gear like sneakers or hoodies as a reward. It’s a strategy that has inspired more engineers to push for innovation, even more than a cash bonus, because they want the public recognition (and cool clothes).
This promotion of open source can lead to greater acceptance of patent use among engineers with strong stances, Myles said, because it makes it easier to have conversations about the purpose of both strategies.
“If you can explain from the business side why [you should be] taking a particular IP strategy in that particular case, you can generally get buy in,” Myles said. “Taking a hard line stance one way or the other generally doesn’t work.”
Moore and Myles noted the separate benefits IP and open source can provide. Patents can help protect internal, unique parts of a product, Moore said, but open source code is useful for additional complementary features that help grow a product or brand’s ecosystem.
Heather Meeker, a technology transactions partner at O’Melveny & Myers compared common open source strategy to razor sales — companies can give away the razor and sell the blades. She said companies may choose to go the open source route for software that helps customers use their main product.
According to Myles, using an open source strategy can also help companies avoid reinventing the wheel when developing new products, and help them to both detect bugs in software and pool resources to use functionalities a company may not have on its own. He said it’s important for a company to decide what it wants out of an open source program before it launches one.
“Think about what your goals are, how you want to make use of open source or contribute back to the open source community,” Myles said. “When you really drill down on your goals around product development and open source, that sheds a lot of light on how you should move forward with a program.”