What follows is a brief response to comments on my article published last night, “How the Aussie government 'invented WiFi' and sued its way to $430 million.” I appreciate the feedback, both positive and negative. I apologize in advance that I cannot deal with every issue raised in the nearly 300 comments on the story, but I do believe the most significant criticisms are addressed here.

Of patent disputes and nations

US Patents are awarded to people of any nationality, and can be abused by people of any nationality. While my story about CSIRO pinpointed what I consider to be an abuse by an Australian organization, I have reported on abuses by all kinds of entities. Earlier this year, I reported on certain Web patents owned by the University of California, a public US institution I personally have strong (positive) associations with. It's where I went to college and journalism school. I was critical of those UC patent claims, regardless.

So why did this article deal with nationality at all? CSIRO and the Australian government are both now making a strong public-relations push that WiFi is a flat-out “Australian-invented technology,” period. That’s a claim that needs to be seriously questioned.

Dubious inventorship

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.

CSIRO claims it had the best, fastest way of doing things. Fair enough. But then why did CSIRO bypass the only meaningful way to determine the best method—submitting an IEEE proposal that could be voted on? Instead, CSIRO went to a US court, years after the fact, looking for a (very expensive) 'second opinion' on how innovative they were.

Mistaking practicality for truth

Some readers have suggested that the companies sued by CSIRO wouldn't have settled for big money if the claims weren't valid. The reality is, as lawyers in this space know, questionable patent claims get settled all the time. Companies settle for myriad reasons, almost all of which are about doing business.

The cost to defend a high-stakes patent claim through trial now averages $4-5 million, 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.

This past February I reported on the recent developments in the long running UC/Eolas patent battle. UC/Eolas had a similarly broad, widely challenged patent claim over the entire "interactive web." These patents were invalidated by the jury, but only after UC and Eolas had reached settlements with and extracted considerable sums from more than 20 companies—Adobe, Go Daddy, Staples, Playboy, and many others—which decided the smart thing to do was to hedge their bets.

CSIRO licensing practices

Additionally, one commenter noted that CSIRO made the IEEE aware of its patent, and says it was willing to license it on fair terms. That's true, but something of a side issue (the issue of whether CSIRO’s terms were “fair and reasonable” was actually litigated at a separate 2009 trial, which was also left unresolved when the case settled.) Dozens of organizations notified the IEEE that they may have patents relating to the 802.11 standard, and made the same “fair and reasonable” licensing assurances as CSIRO. That doesn't change the fact that CSIRO was not substantively involved in the creation of the 802.11 standards.

Anyone interested in getting into this further should take a look at the testimony and cross-examination of Albert Petrick and Matthew Shoemake, both of whom were extensively involved in the IEEE standard-setting process. They testified at the 2009 trial; as did Hitoshi Takanashi, who submitted the proposal for 802.11a that was eventually adopted. (CSIRO Trial Transcript, Day Two, beginning at page 150.)

Finally, some readers made a big deal of the pronunciation of CSIRO. It's clear that while many folks have never heard the "si-roh" or "sai-row" pronunciation, there are others who have, including folks who worked at CSIRO. I shouldn't have assumed that everyone uses this pronunciation, but I do know that it was pronounced as "si-roh" during the 2009 trial I focused on in this article.