Disruptive Tendencies

Can't see the forest for the weeds (Board governance at start-ups)

Why is it that management teams in start-ups assume their Boards want to get down into the weeds every Board meeting and why do Directors buy into this approach and behave like weed inspectors? Board governance isn’t about inspecting everything that management is doing; it’s about holding management accountable for those things that are material.

Start-ups are high risk, but materiality should be those things that have the potential to impact valuation or derail a liquidity event. Sure, the product roadmap (aka Feature List eye charts) is important, but is it more important than GPL compliance?

What impacts valuation more than revenue? Yet how often do you see a Board congratulating management for “hitting their numbers” rather than asking whether these are the right numbers to be hitting? There’s no point in patting management on the back for a year in which a company grew 10%, if the market and their competitors are growing at >50% year over year.  Underperforming the market equates to declining market share, which will ultimately impact valuation, multiples, and liquidity opportunities, none of which deserve a pat on the back.

Rather than showing slides that show how the company is “performing to plan”, how about a slide showing how the company is “performing to market”?

It’s a fact of life today that companies leverage open-source software. There’s tremendous pressure to hit dates and add features, and many engineers will look to SourceForge, or similar, for code to help meet development timelines. Without a robust open source license tracking process, it’s very likely that, over time, one’s code base may not comply with all of the license obligations associated with the bits.

Non-compliance is material. Just ask Cisco, which had to publish the source code for its Linksys line when found to be in violation of its open source license obligations. Every licensing and M&A deal that I’ve done has required a representation, signed by an Officer, warranting compliance with copyright licenses. Sophisticated acquirers will require a 3^rd-party compliance assessment using a tool from a company like Protecode or Black Duck, and being “caught” during a due diligence will cripple any deal.

So rather than spending the R&D section discussing feature lists, shouldn’t Boards be focused on mitigating the risks of non-compliance with open-source license requirements? Why shouldn’t R&D be required to provide a slide, every meeting, summarizing the open-source licenses for code being used in shipping product?  Shouldn’t the CFO and CEO be required to sign-off that the company is in compliance, every quarter? Just as Financial Statements are provided and signed off on, so should GPL compliance, and as with annual audited financials, management should prepare and provide an audited 3^rd-party compliance report annually as well.

Non-compliance puts the company and its investors at risk and should be a firing offence, first time, no questions asked. It’s not the engineer that should be fired, unless he/she knowingly violated company policy (that is monitored and real and not “vapor”), rather it is any Officer of the company that was aware of non-compliance or who has oversight and ultimate accountability. This means, in most cases, the CEO.

Many start-ups take a very ad hoc approach to intellectual asset management (IAM), which is odd since it is an asset class that forms the essence of a company’s value. You may see a slide in a Board deck that lists patent applications, but rarely do you see any level of competitive analysis, either in terms of competitors’ patent positions, or potential infringers of one’s own patents. Significant money is spent on patents, without an understanding of the business objectives for so doing. As a result, many patents end up sitting in a filing cabinet or as a plaque on a wall and are never used to the company’s benefit.

So why is this material? Once again, it has the potential to impact valuation. Having been directly involved in a multi-hundred million dollar M&A transaction, where the justification of the 30X revenue multiple was based on IP portfolio strength, I can attest to the power of a coherent, well-documented IAM process. When this is supported by the knowledge of 3^rd-party IP in your space, as with a patent landscape analysis, you have a powerful justification for including IP in any discussion of valuation.

Furthermore, Directors and Officers have a duty of care with respect to the management of corporate assets. Recently, I read an article that suggests a corporate officer or director, who is aware of an infringement of some patents owned by his or her company and who fails to enforce these patents, may be held liable for breach of the duty of care with respect to the management of corporate assets. I’m not sure whether it’s ever happened, but it makes sense for Directors to expect more than a simple list of patents.

Rather than a slide documenting a company’s patents (which I can Google or BING anyways), how about an analysis of your IP and your competitors’? How about a discussion on enforcement of IP with some clear guidelines around it? How about pushing management about disciplines related to invention documentation? Are the engineering notebooks signed and dated? What about an international filing strategy? Which markets? Why?

Board members have visibility into a company’s liabilities; monthly Balance Sheets show this, but what of off Balance Sheet liabilities? Many SmallCo’s are disadvantaged at the negotiating table and as such, sign deals with indemnification clauses that effectively “bet the company”. Any contract that includes clauses for liquidated damages or in which the company provides an uncapped indemnity, should require Board approval. At a minimum, it is the CFO’s responsibility to advise the Board as to the existence of these hidden, potential liabilities, but it is the Board’s responsibility to require this of the CFO.

Lastly, I’d like to point out that Directors and Officers have an obligation to all shareholders, regardless of share class. Most Board members are representatives of investors, and often have preferred rights of some kind. But it is incumbent on Directors to represent all classes of shareholders, including common stock holders, and not simply to represent their own stock class.

So what’s my dream Board meeting?

It’s one in which the company is measured, objectively, against those metrics that matter. It’s one that isn’t comprised of 100 eye charts describing the minutiae of the business, but which is focused on issues of materiality.

CEO/Sales: How fast did the business grow relative to the market and its competitors?

CEO/R&D: Are you monitoring open-source license compliance? Will you stake your job on it?

CEO/CTO:  How are you leveraging IP to limit competition, grow revenues, create value?

CEO/CFO: What “bet the company” contractual indemnifications exist? What contracts currently under review have “bet the company” clauses?

Ultimately, it’s the Board that needs to convey to the CEO that these are issues of paramount importance to the company, its Directors, investors and all shareholders and that he/she will be held accountable. Don’t take us down the garden path every meeting and don’t pull us down into the weeds. Show us that you have your finger on the pulse of those things that matter.

To paraphrase Peter Parker, “With great power comes great responsibility”, but that’s why CEOs make the big bucks.

That’s my .02!

Martin Suter

 

Microsoft: SteveB or Not SteveB

That is the question.

As I saw Apple reporting record numbers yesterday, I was reminded that nearly thirteen years ago, Microsoft invested $150m in Apple to help keep it afloat because it needed to maintain the semblance that it had “competitors”? Be careful what you wish for!

In July 1997, prior to the Microsoft investment, AAPL was trading at $4.375 (split-adjusted). Overnight, it was up to $258.00, a 58X gain in twelve and a half years. Had Microsoft held onto its shares, they would be worth $8.8b in the open market today, or 26% of the cash on its Balance Sheet as at Q3/2010.

When Microsoft made its investment, its shares were trading at $17.50, and today? They closed up overnight to $31.50, up almost 1.8X over the same period as Apple’s 58X gain. Apple’s market cap today is $234b to Microsoft’s $275b. How times have changed!

It’s interesting to look at other things that were going on around the same time as Microsoft was investing in Apple.

1997 was also the year that Microsoft entered the mobile device market, with the release of Windows CE. This gave them a ten-year head start on the iPhone and a twelve-year head-start on Android! It predated RIM’s IPO. And today? Windows Mobile market share is Palm-esque, and Microsoft is betting on Windows Phone Series 7 to rejuvenate its mobile business. But if branding and momentum are any indication, it seems like a real longshot.

I’ve sat through many Microsoft Executive Briefings, dating back to 1997. Over this period, I have heard it said that Microsoft spends “$1m/hour on research”. I have seen presentations from Microsoft Research staff describing and demonstrating technologies like ClearType (also announced in 1997), a sub-pixel rendering technology designed to improve readability of rendered type on screen.  The obvious application (and one described in the early presentations) was eReaders. In 2007, ten years later, Amazon released the Kindle, ostensibly revolutionizing the delivery of content and forever changing the economics of publishing. Where’s Microsoft at this inflection point? Nowhere to be found.

What other market disruptions has Microsoft missed? (In no particular order)

Search is an obvious one. While Microsoft (and others), was focused on search technology, Google was figuring out that “Search” was all about advertising and catalysed a massive disruption in the media space, billions of dollars in revenue for Google, and hundreds of billions of dollars in shareholder value.

Maps and location services is another one. While Microsoft was focused on producing and selling CDs of MapPoint (a model it still clings to today which it “offers” at $245 on-line), Google was out producing high-resolution street-level images and has catalysed another disruption in location-based services. Today, mobile location is front and center on the Droid platform (and on Droid devices), on iPhones, and incorporated into applications across both ecosystems.

Set-Top Boxes and “owning the living room” Also in 1997, Microsoft acquired WebTV for $503m, predating the launch of Tivo. But while Microsoft apparently struggled with the thought of an appliance that wasn’t Windows-based PC (and encumbered by its emphasis on 3^rd-party OEMs to build on its platform), WebTV evolved to MSN TV (anyone remember this?!?) and has completely disappeared today.

SaaS is one to which Microsoft paid lip service throughout the late ‘90’s with its .NET push. But while it was evangelizing .NET (and SOAP, XML, web services), it was acquiring companies like Navision and Axapta (in 2002 for $1.4b) to expand its CRM and ERP offerings. But was it web-based like Saleforce.com which was founded in 1999 and which didn’t go public until mid-2004? Once again, Microsoft didn’t want to jeopardise Windows Server licenses, so it failed to embrace a market disruption despite having ample warning that it was coming.

Media Players created a seismic event and a brand new market that Microsoft completely missed. While it was focused on defending the tight integration of Windows Media Player in anti-trust lawsuits (in a vain attempt to preserve its “Windows” franchise), Apple came out with iTunes on Windows. More importantly, however, was that Apple also created the iPod, the Trojan Horse that enabled the iPhone.

Developers and App Stores: Microsoft has known since the early battles for OS supremacy (against MAC and OS2), that the selection of a platform is driven by application support. Even with a 30-year history of supporting software developers with incredibly rich tools to build 3^rd-party apps, Microsoft never provided a route to market for developers as Apple has done with the App Store. Apple also figured out how to monetise content and through the creation of a distribution system (iTunes Store), got people comfortable with micro-payments. What’s the difference between .99 for a song or an app? Ultimately, not a thing.

Obviously, there are other examples too. Microsoft completely underestimated the impact of open-source software, missing Linux, Apache, MySQL, etc. It evangelised tablets, but from a Windows bias. It would seem that Apple (and soon others) will trump Microsoft here as well.

It is fair to say, that Microsoft is losing on all fronts.

While it was focused on fighting the DOJ battle, it may ultimately have lost the war. Some, including “the late Nobel economist Milton Friedman believed that the antitrust case against Microsoft set a dangerous precedent that foreshadowed increasing government regulation of what was formerly an industry that was relatively free of government intrusion and that future technological progress in the industry will be impeded as a result.”

I have to agree. The government’s action against Microsoft was ill-advised, in that it is irrelevant that Microsoft may have had a monopoly on the desktop OS. The market isn’t stagnant. Some, like Apple with iTunes and Google with a toolbar, found ways to work within the constraints of a “Windows monopoly”, and still thrive. Others, like Salesforce.com just changed the rules.

Microsoft once had mojo but, for the past decade, has behaved like a neutered puppy. Where it was once aggressive and nimble, today it is passive and slow.

When Bill Gates relinquished the CEO reins to Steve Ballmer in January 2000, Microsoft’s stock was at around $56. With Steve B at the helm, the company has delivered a -44% return, despite being a cash flow machine and having a Balance Sheet that is (was) second to none.

 

If a patient’s ECG flatlined like Microsoft’s stock price, someone would call for the crash cart, get out the defibrillator and try to shock the patient back to normal rhythm. Where’s the crash cart in Redmond?

With a record of having missed so many opportunities to create new markets, where does the buck stop?

SteveB or not SteveB? That is the question.

That’s my .02!

Martin Suter

Microsoft & Interop in Action

Earlier this morning, Microsoft brought out all the big guns to make a major announcement around, what it called, "Strategic Changes in Technology and Business Practices to Expand Interoperability". Its 3 guiding interoperability principles are:

• Open connections
• Standards support
• Data portability

Now I've often felt that Microsoft has never been given (nor taken) enough credit for its interoperability efforts and its support for standards. With its entree into the enterprise in the late 90's, Microsoft acknowledged implicitly and explicitly that IT is, by its very nature, heterogeneous. Active Directory uses LDAP and Kerberos. Office 2007 has moved to XML as a standard file format. Even in consumer applications like Windows Media Player, where Microsoft supports its own proprietary media formats, it does an equally good job of playing .mp3 or .avi files as well.

Notwithstanding all that, today's announcement is an important one, if only to further assuage the EU and the Open Source community that Microsoft continues to increase its transparency.

As I spent time digesting this announcement on Microsoft.com, I came across a free download - Windows Live Writer, a very cool, free, blogging application that allows me to do WYSIWYG blog authouring and save it offline. No more creating Word docs on planes and then cutting and pasting to the web. What's even more impressive, is that it seamlessly integrates with WordPress, my Linux-based hosted blog. The set-up process scanned my site, uploaded all the relevant formatting and gives me a far richer, more flexible authouring platform. It has optional Plug-Ins, which are downloadable from the Windows Live site. To date, there are 80 3rd-party plug-ins, including plug-ins for Firefox, RealPlayer, Flickr, Picassa and even Google functionality.

So just to get this straight, I can create an XML blog article on my Windows laptop, insert Google capabilities (if I so chose), save it to NTFS locally and publish it to a Linux server. Who knew?!?

Interoperability in action. It rocks.

That's my .02!

Martin Suter 

martin.suter (at) iplicensing.net

 

 

The Open Source Red Herring

The biggest problem that I have with the open source ecosystem is that it obfuscates its commercial motives behind this banner of altruism.

The attempted distinction between commercial vs. open-source, with the implication that open source is somehow not commercial, is a red herring. Open-source is also commercial. Look at the companies behind Linux - IBM, Google, Oracle, Sun, Novell, Red Hat. Does anyone really believe their support of Linux is altruistic or that they’re motivated by the distribution of “free” software? If profit is not their motive, someone better tell their shareholders! 

In the mid-80’s, the Canadian government reduced the patent protection afforded to pharmaceutical companies from 20 years to 10. From this, tremendous wealth was created for the owners of two generic drug manufacturers, Apotex and Novopharm. Were these companies acting out of the interest of the general population or were they parasitic offspring from a flawed premise? Each of these companies chose to remain private, and therefore able to keep their financial records away from public scrutiny, while the “commercial” pharmaceutical companies opened their books to the market, and to criticism. The owners of the generics became billionaires, not because they were running charities, but because they were able to monetize others’ IP and risk capital. 

Sure, Big Pharma is profitable, but it is not at the expense of society. Rather, it is frequently to the benefit of society. Look at how the invention of H2 receptor antagonists changed the treatment of ulcers and reflux esophagitis. Twenty five years ago, ulcers often required surgical intervention, but Tagamet changed the rules of the game. Did the profit that SKF made come at the expense of society or did the invention of a disruptive technology (if you were a GI surgeon!) warrant these profits? 

Under what terms does Google license Linux? How much does it “give back”? I’m suggesting that it is highly selective as to what it “gives back” to the open source community, and makes these decisions based on its own self-interest, not out of some altruistic motive. Google search algorithms are deeply guarded secrets, and its vaunted server farm architecture is “proprietary”. Is there anything wrong with this? Of course not. Just don’t pretend that you’re somehow better than the “commercial” vendors because you promote open source development opportunistically.

"This is what [Summer of Code] is really about: infecting students with the free software spirit, giving them the opportunity to grow into a community like ours."

There's another more subtle benefit, as DiBona explains. Thanks to the Summer of Code, "Google now knows all the people working on all these software projects, on which it depends," he says. "That's incredibly useful to us. Every once in a while we'll come out with a new API and there'll be some projects in the open source world that might be useful in either using that API or being a customer. You can just call them up and say, 'hey guys, it's Google, we're your pal,' and let them just check it out."(http://redmondmag.com/features/article.asp?editorialsid=2395)

I have never heard, nor do I ever expect to hear, any allusions from Microsoft that it is anything but a profit-driven, commercial software vendor. As a shareholder, I expect nothing less.

That’s my .02!

Martin Suter

martin.suter (at) iplicensing.net

 

 

Ethical Dilemma Over Linux-based Website

This past week, I decided to add blogging capabilities to this site and was surprised to find that my web hosting service (1and1.com) only has blogging options in its Linux Hosted Business offering. Coming from the commercial software business, I made a conscious choice 4 years ago to opt for the Windows Hosted service. But, I was now confronted with a choice that required some serious thinking about whether the move to open source was compromising my moral code.

"What's he talking about?", I can hear you asking. As an Objectivist (by choice), a capitalist (by default), and an IP licensing executive (by profession), my quandary over open source software really sits at the intersection of these three areas. My moral compass has largely been set by the influences of Ayn Rand in my formative years. Her views on individuals' rights to their own work motivated me to gravitate towards IP licensing. Her view on capitalism (in its purest form), is that it's the only moral economic and political ideology and is the manifestation of an individual's right to their work as well as their ability to profit from it. As a consequence of the nobility of the profit motive, she profoundly mistrusted altruism. Is Linux/open source, software for socialists? Are those involved in its development doing so out of an altruistic agenda? Does its use equate to theft of someone else's IP?

I opted to start with the last question first, and printed off the GNU General Public License that I was required to enter into if I were to switch over to Linux. It's highly readable, much more so than most commercial EULAs, and is eminently clear about the rights and obligations assumed by developers who choose to modify the code base. While everyone has the right to do so, any changes they make must also be made available, as source code, under the exact same terms as the original license - free of charge and without warranty.

Now as a named co-inventor on only 1 patent, I'm not smart enough to be called an inventor myself. I do know, however, that most inventors will say that their work builds on the work of others. "Prior art" is an important concept in intellectual property, requiring citation in academic publications and patent filings. Is the source code that one gets not the same as prior art? What about derivative works based on this prior art?

Two of my favourite words to help answer this are "but for". In discussions about IP licensing, a key principle that arises regarding ownership of derivative IP can be summarised as follows: "But for the existence of the background IP, the derivative work could not have been created." This gives the background work foundational status and means that the creator of the derivative works has a legal obligation to the owner of the background IP. In this regard, I guess that I'm OK with the requirement to forgo any claims to derivative works. Developers decide, of their own free will, to build on top of open source knowing full well what the implications are for their IP.

Next time I'll take a swing at the question: Is open source software for socialists?

That's my .02!

Martin Suter

martin.suter (at) iplicensing.net