12.27.08

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The End of an Era (SCO), The Beginning of Another (Microsoft & Patents)

Posted in Courtroom, Europe, Law, Microsoft, OIN, Patents, SCO, Standard at 1:11 pm by Dr. Roy Schestowitz

Patents Roundup: Microsoft’s Plan Foiled; News from US, UK and EU

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

Larry Goldfarb, Baystar, key investor in SCO

So, yet another year ends. After almost 5 years in the courtroom, down goes SCO, whose legal death is now being tidied up in Groklaw (that’s why there are no new posts over there). Here are the latest filings.

PJ is obviously having a well deserved break. While she is resting, Groklaw’s timelines are still maintained. To keep you up-to-date, here is a raw summary on the recent filings.

No matter how much money Microsoft allegedly threw at SCO [1, 2, 3, 4, 5, 6, 7], Linux kept growing and the monopolist is now clinging onto software patents, which are softer than copyrights and are incidentally blowing up (c.f. In Re Bilski [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14]).

Sadly for Microsoft, almost nothing seems to work for it these days; not much in terms of tangible assets, debt lurking around the corner, and even layoffs, assuming the corroborating rumours are true.

US

Software patents are similar to all that imaginary property which torments the economy at the moment. The ongoing demise of the US economy, mostly due to corruption (aided by deregulation) and greed, affects everyone because nations are more interconnected than they were back in 1929.

“…[E]ven in the United States, software patents have become a tad iffy.”Where do we stand on the issue of patents post the ‘Bilski era’? Well, even in the United States, software patents have become a tad iffy [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19]. They can more easily be challenged or altogether blocked.

Regarding patents-encumbered ‘standards’ like OOXML, to exemplify the problem we last wrote about Rambus in [ref 5586 this post] where Andy Updegrove was referenced. He currently has an update on the subject.

19 Standards Orgs. – and Over 13,300 Members – Support Rambus Brief

Yesterday I filed a pro bono amicus curiae (“friend of the court”) brief with the United States Supreme Court in support of the Federal Trade Commission’s petition for writ of certiorari in its suit against Rambus Technologies. I’m pleased to report that 19 standard setting organizations (SSOs), representing over 13,300 members, joined as amici curiae supporting this brief; the list of participants appears later in this blog entry. As noted in the brief itself, these SSOs:

…represent a broad range of SSOs that participate in the standard setting process, and each is greatly concerned by the adverse effects that it anticipates will result from the [lower court reversal of the FTC's sanctions of Rambus]. Those effects will reach virtually all aspects of modern society, commerce, education and government, because all of these interests rely heavily upon the efficient development and broad adoption of standards by the private sector.

[...]

More specifically, amici curiae wish to acquaint the Court with the following facts, as developed in greater detail in the arguments that follow:

[...]

4. SSOs adopt IPR policies that are intended to identify patent claims that would be “necessarily infringed” by an implementation of a standard under development, and to ensure that such “necessary claims” will be made available to all would-be implementers under at least RAND terms. Absent such knowledge and commitments, a patent owner may gain a degree of monopoly power over the implementation of a standard that can be greatly abused, to the detrime

According to the wording, IBM is against patent ambushes in standards, but the Linux Foundation, which employs Updegrove, uses “RAND” in this letter. They ought to put forth an open letter saying, “please define RAND”. Jim Zemlin (also of the Linux Foundation) gave an interesting answer in this very recent interview:

Q10 — So is there nothing that can stop the Tux juggernaut? No legal threat or other doomsday scenario lurking in the wings?

A10 — [Jim Zemlin:] I don’t think there’s anything to slow it in the near future. Certainly, it could slow over a long period of time if Linux was unable to innovate, but there’s no sign of that. The other potential problem is the lack of skilled labor. That’s why we’re trying to run LF events that offer training programs. Labor is going to be the big bottleneck for these companies using Linux. If you are an engineer who was recently laid off, I would go learn Linux. There is no shortage of jobs for Linux developers.

What to make of it? He does not talk about patents. We need to research this a little bit further, as we already have to an extent. “So it probably means that he does not clearly see it as a threat. Maybe because IBM is behind Linux Foundation software patent policy. Look for all patent related stuff on Linux Foundation, you will quickly understand,” said one of our readers and informants.

Well, we already know that they are not exactly a foe of intellectual monopolies. The Linux Foundation’s policy on patents is similar to IBM’s, but they rarely say this out publicly. Their funding sources, after all, are big fans of this monopolistic agenda, never mind if it’s contradictory to notions of freedom and equality. This does not embody the principles of Free software either, but they consistently say “open source” to distance themselves from GNU.

“This idea of self-centered paths harms programmers, who already have copyrights.”Speaking of IBM, we’re almost pleased to see that former IBMer Irving Wladawsky-Berger will be advising the new administration because he stood behind GNU/Linux, but we truthfully hope that he has changed his mind about software patents since 2005 when he wrote about it [1, 2]. This idea of self-centered paths harms programmers, who already have copyrights.

OIN mailed me, offering the opportunity to do an interview with their CEO. They happily accepted the questions, which were bold enough to dig down into the challenges rather than blindly praise OIN. The interviewees typically do not like this. They prefer ‘promotional’ interviews (Glyn Moody opposes such conformist passivity). Anyway, for future reference, here are those questions that OIN decided it could not address:

1. OIN has already attracted some fairly large companies that contributed their patent portfolios. Do you foresee more large companies joining?

2. What is OIN’s interpretation of the decision reached in the re Bilski case and how does it apply to software patents?

3. What do you consider to be a high quality software patent and how is it different from any other business method patent? How many of the world’s software patents are high quality?

4. Do you believe that software patents should be extended or limited in terms of scope?

5. Is it fair to say that OIN’s aspiration is not to have software patents eliminated altogether?

6. Richard Stallman once said, “fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.” What is your take on such point of view?

7. How would OIN respond to companies which choose litigation or licensing but do not have any products that require them to cross-license?

8. The firm Intellectual Ventures was founded by a former Microsoft executive with Microsoft assistance. How can OIN respond to threat from Intellectual Ventures, given that the company has no concrete products and is hostile to GNU/Linux?

9. OIN stepped up to the defence when Microsoft threatened GNU/Linux in May 2007. Jim Zemlin of the Linux foundations explicitly mentioned OIN’s role in a memorable article that he published in Business Week. A year and half later the threats remain, as they were never retracted. Can OIN respond proactively as opposed to defensibly in order to reduce the effect of fear, uncertainty and doubt that still linger?

10. If a situation arises where a project that OIN covers get forked, will the protection be extended to this fork?

11. One common criticism of OIN is that it legitimises software patents whereas other groups challenge the validity of this class of patent. How do you respond to critics who insist on the latter route to challenging threats?

12. The cost associated with acquiring patents is too high for some small businesses to afford and OIN does not protect Free/open source software projects beyond Linux. Is it possible that scope of protection will change in the future?

13. Do you think the new US administration will change anything regarding patents and enforcement?

Just for the record, we were never huge fans of OIN’s “Linux Defenders” [1, 2, 3, 4, 5, 6], so it makes OIN view us as slightly hostile.

UK

As mentioned the other day, although with less certainty, the UK-IPO is not really moved by what happened with Symbian a few months back, so it will continue to reject software patents as a matter of policy (practice is an entirely different matter).

We kick off this week with the news from Out-law that the UK IPO has announced it will not be revising its approach on software patents in the light of the findings of the Symbian case. The announcement comes after UK IPO’s decision to deny a patent to Symbian was overturned on appeal back in October in a judgment many took to be critical of the UK IPO’s approach. The decision has drawn criticism from the Chartered Institute of Patent Attorneys, who claim the current guidance creates uncertainty for patent applicants.

There is also this report from South Africa, where Microsoft is violating patent laws.

The UK’s Intellectual Property Office (IPO) will still use a previously formulated test on software patents despite a court ruling which many took to be critical of its approach.

[...]

The judge in the case, Lord Neuberger, did not follow the process set out by the IPO, which was derived from cases involving Aerotel and Neal Macrossan, but the process set out in an earlier judgment, in a case involving Vicom. Many observers saw the ruling as a rejection of the IPO’s previous methods of judging software patent claims.

The petition to prevent software patents from invading Europe is gaining new traction, whereas in the UK there is still this disproportional obsession with intellectual monopolies, which are enforced quite unnecessarily using taxpayers’ money.

Software copyright inspection powers used for first time

[...]

The Government pledged £5 million of new money to help the existing 4,500 Trading Standards officers to undertake their new duties.

Free software would be a better and more economic solution. It ‘solves’ this problem.

EU

Software patents are not the only menace to be reckoned with. The ACTA, which we wrote about quite extensively [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17], is becoming a little less secretive right now, so FFII has obtained a copy of this video where the ACTA is being discussed (in Europe). “The problem is that each time they talk about “counterfeiting” and “piracy”, it applies to patent infringements,” says Benjamin from FFII. Maybe they long for some more Sisvel combatants [1, 2, 3, 4, 5, 6, 7, 8, 9, 10], who will be running around with guns to ‘fight’ blokes who sell portable music players.

What type of ‘precious’ patents are they talking about (or ‘protecting’) anyway? Let us turn to the news and find this one-man company — possibly a patent troll/opportunist — suing and extorting money out of giants

Mangosoft Inc. has settled a patent lawsuit for $2.3 million with Skype Software and eBay.

The settlement, while sizable for a one man company down to its last $500,000 in assets, is a small percentage of its accumulated deficit – the $90 million stockholders have invested in the Nashua company.

[...]

It has invested most of its resources on litigation with software giants.

The company originally filed suit in Concord against Oracle in 2002 for patent infringement, but it was thrown out by the U.S. District Court in March 2007. That decision was upheld in the Court of Appeals on May 14.

There are similar new examples.

Will a meltdown be needed to make people realise that software patents are a bubble created by mankind?

“There is much pleasure to be gained from useless knowledge.” —Bertrand Russell

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