Patent Poison Inside Our Standards
One good (or very bad) example of software patents in a candidate for standardisation is Microsoft’s OOXML, which might receive the go-ahead in June despite extensively documented corruption. In order to understand the impact of patents in something everyone must use, look no further than Rambus, which has just returned to the headlines.
Rambus, the fast memory designer, has won its appeal to overturn a 2004 Federal Trade Commission anti-trust ruling.
The DC Court of Appeals today decided that the FTC had not established that Rambus had harmed the competition and “therefore that the Commission failed to demonstrate that Rambus’ conduct was exclusionary and thus to establish its claim that Rambus unlawfully monopolized the relevant markets”.
There is a similarly interesting story which is briefly covered by Digital Majority (most links from this point onwards were extracted from there). It speaks of litigation as a barrier to implementation of IEEE standards and it is summarised thusly:
Regrettably, the Court of Appeals has decided not to stay the injunction in the CSIRO v. Buffalo et al litigation during the appeal period. Although Buffalo is confident that the final decision in the appeal will be favorable and that the injunction will be lifted, Buffalo is presently unable to supply wireless LAN equipment compliant with IEEE 802.11a and 802.11g standards in the United States until that decision is issued.
Need for Change Negotiated
At IT World Canada, an article that refers to issues such as RAND's incompatibility with FOSS are debated further. An interesting concept analogous to “fair use” for patents is proposed and then raised as a possible way to resolve this.
Patent quality is very low in some subject matter, such as software, which creates a practical problem. Patent quality must be assured in each subject matter area., possibly with a rule saying that 50% must be good quality in order for patents to be granted and/or enforceable in that subject matter? It is competition and first mover advantage, not exclusive rights, that drive innovation in software
We need a “Fair Use” doctrine for patent law, possibly carving out interface patents, royalty-free FLOSS implementations, and the activities of private citizens in their home or as amateurs and tinkerers. Patents for producing hardware or other tangibles are often opened up to competitors using RAND (Reasonable And Non-Discriminatory) licensing terms where there is a low per-copy royalty which is offered to anyone. While RAND is appropriate for tangibles, it is inappropriate for software which has a natural marginal cost of zero. RAND excludes from implementation any businesses using peer production methodologies.
As mentioned earlier, however, a patent reform seems to have been given the elbow. The bill is on the ice, but as the article below points out, it’s mainly about stopping patent trolls, not monopoly abusers that defend their territory from friendly ‘intrusion’ and fair co-existence with FOSS.
Patent overhaul spurred by the technology industry is in jeopardy of dying, after facing stiff competition from the pharmaceutical industry.
The technology industry, which relies a large number of patents, says it wants to change the law to deter “patent trolls,” or firms that hoard patents with the sole intent of enforcing them against infringers – regardless of whether or not the firm has any R&D resources or even a product utilizing the patent.
Formally known as S.1145, the Patent Reform Act opened a rift in the business world: biotech companies, labor unions, inventors, and capital firms squared off against the high tech and financial services industry, with companies like Cisco, Microsoft, Intel, and Bank of America fighting for the bill’s passage.
The ‘Troll Apologists’
Litigious leeches of science and technology still receive the sympathy of a few and the word “troll”, as mentioned above, still angers some people, who see nothing wrong with the practice.
In recent times, there have been concerns that the patent system been abused by opportunistic companies known by the phrase “patent trolls”. It has been alleged that such entities have stunted innovation and spurred unnecessary patent litigation.
Not everyone fears “patent trolls”. James McDonough of Emory University School of Law prefers to use the euphemism, “patent dealers in the ideas economy”. He has argued that, contrary to popular belief, “patent trolls” actually benefit society: “Patent trolls provide liquidity, market clearing, and increased efficiency to the patent markets – the same benefits securities dealers supply capital markets.” He maintains that “patent trolls” are a useful intermediary in the marketplace.
Others question the very existence of “patent trolls”, suggesting that they are little more than mythological creatures designed to frighten the executives of technology companies at night.
Over in Europe, we previously saw how Microsoft lobbyists try to phase in software patents by lowering barriers (and potentially quality too). This latest push for the Small Business Act might not actually help small businesses. In fact, it will add further restriction and increase legal activity.
Speaking at the Informal Meeting of ministers for Competitiveness in Brdo (Slovenia) today, Arnaldo Abruzzini, Secretary General of EUROCHAMBRES, reiterated the need for a political commitment at all levels in favour of Small and Medium-sized Enterprises (SMEs), in particular in relation to the forthcoming Small Business Act.
Further complication of the system would hardly help small businesses, let alone established vendors of low-cost (or free) products. Another danger is unification of the systems, which can have software patents pentrate countries where they are currently not legal. █
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There is no substantial news here other than development of discussions, which seem to spread fairly fast from one blog to another blog and soon onto the press. To repeat criticisms from yesterday about Novell’s announcement on China [1, 2], Novell and Microsoft keep spreading software patents to all parts of the world (never mind the legality), using SUSE Linux (Ballnux).
As another article to consider, there is this one from The Boston Globe.
Because Linux software is available free of charge, many Chinese businesses use it without paying. These companies miss out on the service, support, and upgrades that companies like Novell can provide. By encouraging Chinese firms to pay for Linux, Microsoft is helping Novell tap a valuable revenue stream.
It should really say “Microsoft tap a valuable revenue stream.” Novell’s Linux is actually Microsoft Linux in the sense that it’s only a ‘surrogate’ that replaces Free Linuxes with one that Microsoft owns in the ‘intellectual’ sense. It’s a trap.
Meanwhile, returning to the discussion about Microsoft taxoperability program [1, 2, 3, 4], Centrify stirred up some discussion with this analysis of Microsoft software patents.
The motivation for this blog entry is that given that so much has been written about Microsoft and patents vis a vis Linux and vis a vis the European Commission decision, I found it interesting that it seems no one in the industry has actually rolled up their sleeves and analyzed and published how many patents Microsoft actually holds within their Windows server protocols and what functional areas these patents cover. I think this is key information to know in order to help address Gartner Group’s advice to open source developers to “not use Microsoft’s [protocol] documentation unless you have rigorous processes to keep track of applicable patents.” Having this supplementary information could also benefit commercial software developers by helping them better understand what Microsoft has to offer protocol-wise and what they potentially may need (or may not need) to license from Microsoft.
This soon got the attention of ZDNet’s Between the Lines and the Microsoft Blog. What we see here is probably increased pressure by staged introduction of clues. Microsoft hopes not only to replace all those ‘nasty’ Linuxes that Microsoft does not control and or make money from, but it also hopes to set legal traps for them.
Where does that leave Novell? On Microsoft’s side, of course, with a frontal assault on the Freedom of software (not the same as Linux).
Quite appalling are some of the things which Gates said just a couple of days ago about open source, Free software and the GPL.
One thing Gates won’t be leaving behind in retirement is his distaste for open source software. After one scientist asked if Gates would consider open source uses in health research, the man who built his $280 billion company on the power of intellectual property bristled.
“There’s free software and then there’s open source,” he suggested, noting that Microsoft gives away its software in developing countries. With open source software, on the other hand, “there is this thing called the GPL, which we disagree with.”
Open source, he said, creates a license “so that nobody can ever improve the software,” he claimed, bemoaning the squandered opportunity for jobs and business. (Yes, Linux fans, we’re aware of how distorted this definition is.) He went back to the analogy of pharmaceuticals: “I think if you invent drugs, you should be able to charge for them,” he said, adding with a shrug: “That may seem radical.”
it’s very revealing that Microsoft tries to separate Free software (it tries to characterise it as gratis, i.e. zero cost, cheap, shoddy) from open source. Open source is, to Microsoft, mainly about visibility, but it wants it to be subjected to the same rules, including software patents. Where are those geniuses who defended Microsoft’s seemingly-friendly approach towards the OSI? █
“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio.”
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Geir Isene has been one of the main people who covered the OOXML scandal in Norway. He covered earlier controversies and incidents too. It is encouraging to find that he has caught up to the point of realising Novell’s role in the whole thing. He asks Microsoft the following good question:
Here we go:
“Dear Microsoft, how is this good for your shareholders Return On Investments?”
A public company has an obvious commitment toward its shareholders ROI. It has a business and moral obligation toward those who has invested in the company. All strategic decisions must focus on a greater monetary return.
So, ask not how the deal is good for Novell. Ask how the deal is good for Microsoft. Ask not how OOXML as an ISO standard is good for the world. Ask how it benefits the Monopoly’s profit.
It’s a sure thing that Microsoft underpaid for Novell’s soul. Novell has given so much to Microsoft, whose only ‘help’ to Novell has been coupons that it now calls “patent royalties”. In other words, Novell, which now sees itself as a Microsoft partner, makes Windows, Office, XAML, .NET and so many other things the ‘standard’. It empowers a monoculture. It also gives Microsoft all that anti-Linux fuel it craved for and in return it gets the ‘privilege’ to collect software patent money on behalf of Microsoft, for unsubstantiated claims even where these unreasonable claims are invalid [1, 2]. Talk about reciprocity.
In Microsoft’s journey to assemble everyone around its de facto standards (or down-your-throat international ‘standards’, e.g. OOXML), it creates other programs, such as the “Interop Vendor Alliance”. Call it the “New Trust” if you will, the equivalent of the rationale for anti-Trust laws (video). It’s unfortunate to find another vendor being consumed by it.
Symark International Joins Microsoft Interop Vendor Alliance
Strengthened Interoperability Enables Organizations to Extend Microsoft’s Group Policy Functionality to UNIX and Linux Systems using Symark’s PowerADvantage to Enhance Security and Compliance Posture
AGOURA HILLS, Calif.–(BUSINESS WIRE)–Symark International, developer of the PowerSeries™ information security solutions for managing privileged account access, today announced its membership in the Interop Vendor Alliance (IVA), a community of software and hardware vendors working together to enhance interoperability with Microsoft systems. Enhanced interoperability with Microsoft’s Group Policy will strengthen the benefits of Symark’s PowerADvantage, an integrated authentication and configuration solution that extends Microsoft® Active Directory’s functionality to UNIX and Linux systems.
About The Interop Vendor Alliance
The Interop Vendor Alliance is an industry-wide group working to identify and share opportunities to better connect people, data and diverse systems through better interoperability with Microsoft systems and to jointly market interoperability solutions of its members. The organization serves as a collaborative forum for developing and sharing common technology models, facilitates scenario-based testing of multivendor solutions and works to communicate additional best practices to users. Since its formation in 2006, alliance membership has more than doubled as the IVA has developed five interoperability labs for Systems Management, Centralized Directory, Federated Identity, Content Management, and Open XML. Additional information about the Interop Vendor Alliance can be found on its Web site at http://www.interopvendoralliance.org.
All of this makes a consortium equivalent where the chairpersons are all from Microsoft. Everyone needs to pay Microsoft. Microsoft is the one to decide on how technology evolves and all others must simply comply and pass Microsoft-predefined royalties. It supersedes and even stomps on the existing frameworks and also what we know as standards bodies. It’s truly not the way to go and for reasons that are mentioned in this new Op-Ed it makes it harder to have GNU/Linux adopted on the desktop.
The problem again? No one is willing to put out the money or the effort to unseat Windows as the dominant Desktop Operating System. It’s a sad Catch 22 situation: No one will put out the money until there is acceptance and you won’t get acceptance without a commitment from commercial Linux vendors.
Unless Linux remains free, as in based on truly free (and RAND-free) standards, it will be harder for it to compete. Microsoft knows this, so it’s merely part of its plan of com batting the #1 competitor. Luckily, the European Commission is coming to grips with this plot and it’s far from satisfied.
Microsoft hopes to defeat Free software using laws. But it’s a two-edged sword and as Microsoft will continue to find, regulatory law will have it punished for it. If not in the United States, whose government is pathetic, then elsewhere. █
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“I’ve heard from Novell sales representatives that Microsoft sales executives have started calling the Suse Linux Enterprise Server coupons “royalty payments”"
–Matt Asay, April 21st, 2008
Isn’t is both sad and ironic that a nation where copyrights infringements is prevalent and not many people pay for Windows might actually pay Microsoft for GNU/Linux, which Microsoft contributed absolutely nothing to (other than smears, threats and technical sabotage)? Well, that’s just what Novell helps Microsoft achieve. Here is the press release, which we have not linked to before.
This increased demand is exemplified by the People’s Insurance Company of China Group (PICC), The Dairy Farm Company Ltd. (Dairy Farm) and Dawning Information Industry Co. Ltd. (Dawning), which have agreed to receive Microsoft certificates for three-year support subscriptions for SUSE Linux Enterprise Server from Novell(R).
Once again, Novell truly ‘impresses’ the world by managing to extract patent money not from the use (let alone licensing) of Microsoft Windows, but from the use of GNU/Linux, built to a large extent by volunteers. We wrote about such an oxymoron earlier this week [1, 2].
Here is Dana Blankenhorn’s take on this:
The news peg is that Microsoft and Novell extended their existing agreement on IP to China. They call it “an incremental investment in their relationship” aimed at selling SUSE Linux contracts there based on interoperability with Windows.
From the viewpoint of history, of course, all this “piracy” and “theft of intellectual property” is, well, charmingly American.
Here is what Pamela wrote in Groklaw: “I’m sure this is gospel indeed, since we all know China is internationally famous for requiring IP peace of mind and for their scrupulous care regarding patent and other IP rights. I wonder if they are telling them about the GPLv3 thing?”
Novell and Microsoft hardly talk about GPLv3 nowadays, but increasingly it becomes the reality they cannot escape. █
Image from Wikimedia
Update: check out this good new article, and especially its headline.
Microsoft, Novell Tag-Team Against Chinese Distros
Currently, the major Linux players in the China market are home-grown Red Flag; Hong Kong-based Sun Wah Linux; Japanese player TurboLinux; and Red Hat.
Of the other players, only TurboLinux has joined Microsoft’s Interop Vendor Alliance, which seeks to help vendors insure interoperability between their applications and Microsoft’s; the rest remain independent.
Put simply, Novell and Microsoft fight all those ‘nasty’ distros that don’t pay Microsoft for Linux. Does anyone still think that Novell is good for Free software?
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The so-called reform, which was proposed as an Easy Fix™ to be applied to the USPTO, has always been rather impotent. It kept the problems in tact where intellectual monopolies could benefit and perhaps harmed some of the smaller players, including the patent trolls. It is therefore not so unfortunate to find that, along with the Government's consent, changes seem unlikely,
The broken state of this system is likely to persist and perhaps once a real reform is proposed (not ‘snake oil’), then it will pass. Perhaps an economic collapse is the only way to bring change so long as the large corporations run the government and — by association — set the rules for the entire country, benefiting themselves.
A Eulogy For Patent Reform?
Now that high-level talks in the Senate Judiciary Committee have broken down, the opportunity for the patent system’s first major overhaul in 50 years may have been lost — at least for the current legislative session.
There is an interesting new story (an interview) over at Free Software Magazine which shows you just how an already-established intellectual monopoly pushes away disruption using intellectual property law. It’s a fence set up in very much the same way that Microsoft tries to create barriers to GNU/Linux, such as RAND.
Kurt Denke is the owner of Blue Jeans Cable; Monster Cable attacked Blue Jeans Cable on the basis of “Intellectual Property violations”. You should read Kurd Denke’s response. It’s a very enjoyable read, which makes you realise just how knowledgeable Kurt Denke is, on intellectual property law and on cables (!).
Apple is no angel in that regard, either. It keeps the life supply of software patents going.
The filing is titled “Portable Electronic Device for Instant Messaging “, and covers methods for sending, receiving, and viewing ongoing conversations. The proposed GUI is similar to Apple’s current interface for SMS.
It is important to at least be aware of the role of software patents in preventing new entrants into the scene. It’s a status quo padlock. █
“Hey, Steve, just because you broke into Xerox’s store before I did and took the TV doesn’t mean I can’t go in later and steal the stereo.”
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On a couple of occasions over the past few weeks we wrote about the problems Samsung was having [1, 2]. Accusations were made about crime and anything that weakens those who liaise for Microsoft’s “royalty payment” schemes for Linux would be good news. That includes Samsung.
Here is the report from The Register.
Samsung chairman quits in corruption scandal
The disgraced chairman of Samsung quit the firm today in a bid to save its reputation, after he and nine other senior executives were indicted on tax dodging charges.
It seems likely that more CEOs who signed Linux software patent deals with Microsoft will see themselves dismissed. We already saw that happening before when Kevin Carmony left Linspire just months after signing the deal. With new leadership comes new philosophy sometimes. █
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