01.17.09

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New Software Patents for Novell

Posted in Novell, Patents, SLES/SLED at 8:10 am by Dr. Roy Schestowitz

Hypocrites

Is Novell antagonising software patents? Clearly it does not. In the pipeline Novell still has many more, including this latest:

Administration of protection of data accessible by a mobile device, patent No. 7,478,420, invented by Michael Wright of Sandy, Peter Boucher of Orem, Gabe Nault of Draper, Merrill Smith of Riverton, Sterling K. Jacobson of Saratoga Springs, Jonathan Wood of Orem, and Robert Mims of West Valley City, assigned to Novell Inc. of Provo.

It has been only one week since we last mentioned Novell's attitude towards software patents. It’s problematic in the Free software world, especially since Novell uses these patents to create fear of non-SLE* GNU/Linux distributions.

TechDirt has this good post about the desire of lawyers to have excessive patentability, whereas engineers don’t need or want this (a point that was stressed before, using evidence).

The Cultural Gulf Between Lawyers And Technologists On Patent Law

On Wednesday I attended the Brookings Institution’s conference on “The Limits of Abstract Patents in an Intangible Economy.” The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other.

Over at Linux Today, Carla has just called Intellectual Monopolies “a mental illness” — a point that she explains thusly:

This whole “intellectual property” mania is a mental illness that deserves its own entry into the Diagnostic and Statistical Manual of Mental Disorders. It’s like that great movie, “Aguirre: The Wrath of God.” Give yourself a treat and watch it; it’s a wonderful film that takes place after the fall of the Incan empire. Lope de Aguirre, played by the perfectly mad Klaus Kinski, leads a band of Spanish conquistadors on a quest for El Dorado, the legendary City of Gold. The quest is doomed, of course, as they struggle through hostile terrain and hostile locals, pushed onward by their own greed and ruthlessness.

[...]

The tech industry is notorious for thuggish Tony Soprano tactics. How did this come about? Pepsi doesn’t make you agree to a EULA. DeWalt doesn’t tell you what you can and cannot do with your own DeWalt tools that you have purchased. The fashion and automotive industries copy each other openly, and don’t waste time suing each other for poaching ideas. Instead they stick to the business of trying to win customers the old-fashioned way– by making cool things that people want to buy.

The proprietary software industry nearly succeeded in killing off the second-hand software market, and then had the two-faced gall to whine about copyright infringement– they tolerate it when it opens new markets and shuts out the competition, but sooner or later those bad pirates have to pay up. Every other industry has a thriving second-hand market, instead of this loony game of wink-nudge “piracy”, and it benefits everyone– it opens new markets, and reduces the financial risks of early adopters and customers who buy new.

Microsoft has devoted considerable energy to trying to kill off the second-hand hardware market as well by going after schools and non-profits that use old, donated equipment, and forcing them to purchase new software licenses. Most OEM Windows PCs come with crippled versions of Windows that can’t be moved to different PCs, but are locked to the original.

We saw a very major example of this yesterday.

“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?” —Marco Schulze, Nightlabs Gmbh

Steve Ballmer license

Image from Wikimedia

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20 Comments

  1. Dan O'Brian said,

    January 17, 2009 at 8:33 am

    Gravatar

    It’s not hypocrisy to file for patents, it’s just the Smart Thing To Do to protect yourself against other companies that might attack you with patents.

    What matters is what they do with those patents. If they attack people with their patents, then yes, they would be hypocrites (since they are working with the EFF to get rid of patents afaik).

    If they only use their patents for defensive purposes, then that’s not hypocrisy nor is that a bad thing.

  2. Roy Schestowitz said,

    January 17, 2009 at 8:38 am

    Gravatar

    It’s not hypocrisy to file for patents, it’s just the Smart Thing To Do to protect yourself against other companies that might attack you with patents.

    Who from? Patent sharks/trolls? They have no products.

    What matters is what they do with those patents. If they attack people with their patents, then yes..

    That’s exactly what they already do. They attack Ubuntu, Red Hat and others using patents. But they use their friend, Big Mike, to do most of the scaremongering. Novell joined Big Mike several months ago (“intellectual property peace of mind”).

  3. Dan O'Brian said,

    January 17, 2009 at 8:49 am

    Gravatar

    Having patents obviously doesn’t protect you from patent trolls. I never claimed otherwise.

    However, it does protect you against other companies with real products. Until the patent system is reformed (which may require getting rid of it altogether), companies need to file for patents for their own protection, otherwise he-with-the-most-patents-and-willingness-to-use-them wins.

    That’s exactly what they already do.

    Uh, no they don’t.

    They attack Ubuntu, Red Hat and others using patents.

    Please show me evidence of Novell attacking Canonical or Red Hat with patent lawsuits. Oh wait, there aren’t any.

    Yet another instance of Roy making up the “facts” as he goes.

    But they use their friend, Big Mike, to do most of the scaremongering. Novell joined Big Mike several months ago (”intellectual property peace of mind”).

    “Big Mike” was scaremongering before they made a deal with Novell, which was not about attacking people over patents, it was about them not attacking each others customers over patents.

    Get a clue.

  4. Roy Schestowitz said,

    January 17, 2009 at 9:00 am

    Gravatar

    Please show me evidence of Novell attacking Canonical or Red Hat with patent lawsuits. Oh wait, there aren’t any.

    Please show me evidence of me saying that “Novell [was] attacking Canonical or Red Hat with patent lawsuits.”

    Novell uses Microsoft to do this and it fuels Microsoft’s verbal attacks (FUD and extortion).

    “Big Mike” was scaremongering before they made a deal with Novell, which was not about attacking people over patents, it was about them not attacking each others customers over patents.

    Your revisionism does you no favours.

    Novell was Microsoft’s golden pellet:

    In mid-November, shortly after the pact was announced, Microsoft chief Steve Ballmer said companies that sell or run Linux, but aren’t covered under the Novell deal, are illegally using Microsoft’s IP. “We believe every Linux customer basically has an undisclosed balance-sheet liability,” he said.

    He said in a later meeting: “I do think it [Novell deal] clearly establishes that open source is not free.”

  5. Dan O'Brian said,

    January 17, 2009 at 9:19 am

    Gravatar

    Please show me evidence of me saying that “Novell [was] attacking Canonical or Red Hat with patent lawsuits.”

    It seemed pretty clear to me that the “They” in your statement “They are attacking Ubuntu and Red Hat” was referring to Novell, and that “attacking” must have meant attacking over patents. How do you attack with patents? Lawsuits. You certainly don’t flog them with the printouts.

    Novell also isn’t threatening anyone with patents.

    (Microsoft may be, but they were doing that before – and certainly aren’t doing it because Novell told/asked them to).

  6. Yfrwlf said,

    January 17, 2009 at 9:20 am

    Gravatar

    “Administration of protection of data accessible by a mobile device.”

    When will this stupidity end.

    I’m going to patent making toast while baking a flan in the oven at the same time. They’re both completely and totally obvious and old separately, yet because the USPTO is a bunch of retards working for corporate interests and no one else, it’ll pass through just fine.

  7. Roy Schestowitz said,

    January 17, 2009 at 9:20 am

    Gravatar

    Dan O’Brian,

    Novell does this with words (“IP peace of mind”) and deeds (patent deal with Microsoft). It’s like a whispering campaign.

  8. Dan O'Brian said,

    January 17, 2009 at 9:24 am

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    In a world where companies do sue over patents, offering their customers “IP Peace of Mind” is something customers want. Microsoft has been spreading IP FUD about Linux for a decade or more and after SCO sued IBM, there are a lot of companies who are afraid that they could be sued by Microsoft for using Linux due to patents. They don’t want to take chances, so “IP Peace of Mind” is something that they want.

  9. Roy Schestowitz said,

    January 17, 2009 at 9:31 am

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    Does IBM boast “IP peace of mind” for IBM’s ‘version’ of Linux?

  10. Shane Coyle said,

    January 17, 2009 at 9:34 am

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    Novell FUDs Linux too, to their unique advantage.

    This was Stafford Masie at the CITI forum, just after the deal was announced:

    …when the covenant was not there, there was the inherent potential liability of patent infringement when the covenant wasn’t there. So, now we’ve created this covenant in the interest of our customers, not as a competitive advantage, the little guy, etc We’ve done it in the interest of big companies wanting us to explicitly state that they’ll never have this liability associated with Microsoft, because Microsoft is on 100% of their desktops.
    […]

    Yeah… I think this does give us a competitive edge. Yeah, it does and we’re gonna compete, and we want to compete, and we’re gonna do what it takes to compete- not to violate the GPL, not to violate the community members, etc But, with Red Hat toe-to-toe, with Ubuntu toe-to-toe we’re gonna do what’s necessary for our customers, based upon their demand. Now, if we do whats right for our customers, and they(Red Hat, Ubuntu, etc) choose not to, and what we’ve done is not exclusive, that’s their prerogative, I can’t be held liable for them not doing what we believe enterprise customers are asking us to do, I can’t be held liable for that, ok?

  11. Yfrwlf said,

    January 17, 2009 at 10:18 am

    Gravatar

    The point is that no one should want or need patent “protection”. This is racketeering. Either challenge someone about it, or STFU. Challenges can (not sure how often) result in removing the patent in question which was most likely “invalid” to begin with by USPTO standards even, and ALWAYS invalid by anyone’s sane standards.

  12. Roy Schestowitz said,

    January 17, 2009 at 10:24 am

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    Yfrwlf,

    That too raises important questions.

  13. Yfrwlf said,

    January 17, 2009 at 10:42 am

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    Dell had established a “marketing program” to convince Linux users to migrate to SLES? Ha.

    Sure wish more companies would join together and say FU to software patents, among other kinds of patents…

    Also wish they’d take MS to court for all the threats and for doing this racketeering in the first place. They should have to refund that “patent protection” money back to all the customers who bought it.

  14. Roy Schestowitz said,

    January 17, 2009 at 10:44 am

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    Dell and Linux are a complicated story, but this is not a SLES marketing program AFAIK.

  15. Andre said,

    January 17, 2009 at 2:26 pm

    Gravatar

    It’s not hypocrisy to file for patents, it’s just the Smart Thing To Do to protect yourself against other companies that might attack you with patents.

    What matters is what they do with those patents. If they attack people with their patents, then yes, they would be hypocrites (since they are working with the EFF to get rid of patents afaik).

    1) It doesn’t work that way. “Patent defense” means litigation.

    You cannot defend yourself against land mines by setting your own. Between large companies cross-licensing works, that is like an exchange of the land mine maps.

    If your opponent in a litigation has not a product of its own he can litigate you to the ground because without a product he cannot infringe.

    Nuclear or bio weapon deterrence does not work against terrorists who bear these arms.

    II. ) The EFF project is an embarrassement, they sold out. It is a premature fix. You would not expect that from the EFF. It is a project to raise money with ans play the fool.

  16. Roy Schestowitz said,

    January 17, 2009 at 3:11 pm

    Gravatar

    “Fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.”

    Richard Stallman

  17. Dan O'Brian said,

    January 17, 2009 at 6:16 pm

    Gravatar

    Andre: Yes, “patent defense” usually does come as litigation, but not always. Besides, would you not argue that having a defense is better than having nothing?

    I’m also well aware of patent trolls, but attacks by the trolls never goes to court, they are all settled before it ever goes that far because patent trolls are smart, they know:

    1. that it’s best to go after the big guys, because they have money and will be a lot less likely to take things to court

    2. to settle for a small amount (e.g. less than a quarter million USD, because it’d cost at least that much for the defendant in lawyer fees even if they win the case).

    3. if it does go to court, there’s a good chance they’ll lose

  18. Ian said,

    January 17, 2009 at 6:51 pm

    Gravatar

    “Fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.”

    –Richard Stallman

    I don’t think anyone would really claim otherwise. Regardless of your position on Novell filing for patents, whether they file or not won’t change the patent system without legislative change in the US.

  19. Roy Schestowitz said,

    January 17, 2009 at 7:05 pm

    Gravatar

    I think it’s better as a reference to the EFF’s project, which Glyn Moody criticised too. The “Linux Defenders” initiative adopts a similar(ly symbolic) approach.

  20. Ian said,

    January 17, 2009 at 7:29 pm

    Gravatar

    Fair enough.

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