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Summary: Lawyers masquerading as innovators lose their case against Google; many new reports from the US show a patent case against search engines; Europe still faces risks of UPLS and India’s CIS protests against software patents
THERE is a lot of patent news we haven’t found the time to cover, so here it is very quickly.
Google’s important patent trial involves “a pair of entrepreneurs with one failed business idea [and] almost no computer programming experience,” to use the words of the president of the FFII, Benjamin Henrion (or as TechDirt put it, “Google Fights Back And Wins Against Bogus Patent Lawsuit From Guy Who Couldn’t Even Code His ‘Invention’”). Here are some of the details:
This week: the software giant’s hard-nosed strategy for dealing with patent-holding plaintiffs gets put to the test—and proves successful.
Late last month, Google won its first patent infringement lawsuit to go to a jury trial, in the Eastern District of Texas. The plaintiff was Function Media LLC, a patent holding company owned by husband-and-wife inventors Michael Dean and Lucinda Stone. Unlike like many of those who file patent suits in the plaintiff-friendly venue, Dean and Stone actually live in the Eastern District, residing in Tyler.
“A “disturbing” number of the lawsuits come from companies controlled by patent lawyers, sometimes asserting the lawyers’ own “inventions”,” says Henrion. But Google has also just been sued by a real company whose implementations Apple and Microsoft famously copied:
Last Friday, Xerox filed a lawsuit seeking compensation over patent-infringement claims. The copy giant claims that Google and Yahoo have been using its own technology for search queries and data integration. A spokesman for Xerox said that, following failed jaw-jaw, it was time for war-war.
Google is no innocent victim though. Hadoop’s patent issue is one that we wrote about last week when we called Google to stop patenting of software. Google perhaps insists that Hadoop is “safe”, but this is not a legal guarantee and there is no reason for one company to be put at the mercy of another because of the burden of patents.
In mid-January, Google won a patent for MapReduce, the distributed data crunching platform that underpins its globe-spanning online infrastructure. And that means there’s at least a question mark hanging over Hadoop, the much-hyped open source platform that helps drive Yahoo!, Facebook, Microsoft’s Bing, and an ever-expanding array of other web services and back-end business applications.
Hadoop is based in part on a MapReduce research paper Google published in 2004, about six months after it applied for the patent.
Here is an opinion piece just published by IDG. It calls for elimination of software patents.
Software patents make no sense. Like music, art, and other creative pursuits, software is almost always derivative work. There is not a chance in hell that Facebook invented this idea. I am certain there have been social news feeds around for at least a decade or more. I am not going to spend the time finding all the prior art, but I am sure there are patent lawyers doing that already for various social networks who are now potential subjects of patent litigation from Facebook.
The Washington Post has another new opinion piece that speaks of “dangers of over-zealous intellectual property cops” and says:
The industrial inventors of the nineteenth century, too – heirs to the heroic ideal of James Watt – would have understood today’s enforcers. They complained loudly that patents needed to be easier to police and longer-lasting, denouncing rival industrialists as piratical. Their campaign to secure patentees’ prerogatives had many implications, one of which was the passage of Britain’s first modern patent law.
But it also sparked a counter-campaign to abolish patenting altogether. Led by Victorian Britain’s principal arms manufacturer, it denounced the very idea of a patent as monopolistic, retrogressive, and philosophically absurd – and it identified the practice of enforcement as a serious impediment to the nation’s progress. Although it came very close to triumphing (and a parallel bid in the Netherlands did triumph), the campaign against patenting eventually failed.
In principle, there is no reason why not. Conflicts over intellectual property in its various domains — gene patenting, GMOs, pharmaceuticals, and digital media, to mention only a few — are an everyday presence. Criticisms and piratical practices in any of these realms have the potential to ramify into major challenges to the conceptual structure of modern intellectual property itself. What has been missing so far has been a sufficiently general trigger. The practice of policing could supply it. It would be ironic if the greatest revision of intellectual property’s nature in 150 years were to be set in train by the very measures adopted to preserve it sacrosanct.
“A counter-campaign to abolish patenting altogether, it denounced the idea of a patent as monopolistic retrogressive absurd,” adds Henrion to the above.
This patent system has been hijacked by lawyers who do not invent anything but instead just feed on the system. "Patent Watchtroll" (lawyer/lobbyist for software patents, Gene Quinn) says: “Patent attorneys have always been at least one step ahead, and even if the Supreme Court tries to kill software patents we will figure out a way to characterize it so that it will be patentable.”
“This patent system has been hijacked by lawyers who do not invent anything but instead just feed on the system.”Here is Black Duck’s CEO Tim Yeaton (former marketing person at Red Hat) explaining or at least justifying [1, 2] the application for a software patent that his company received rather than acquired. It’s the usual excuses. Red Hat is not innocent, either. In fact, it participates in Peer-to-Patent and Henrion says that “those who invest in projects like Peer-to-Patent are part of the conspiracy.”
The immense popularity of musical video games such as Guitar Hero, Band Hero and DJ Hero appears to have generated some unwanted attention for Activision Publishing, Inc. (“Activision”). In particular, on February 12, 2010, Patent Compliance Group, Inc. (“PCG”) filed a qui tam action against Activision, alleging that Activision has falsely marked many of its video games including Guitar Hero 5, Band Hero, DJ Hero and Guitar Hero Smash Hits (collectively “Activision video game products”) as patented or patent pending.
BerryReview wonders if the BlackBerry flashlight application can be patented too.
Now I am curious what you all think. Even if it were possible should developers be able to patent a way of performing a function programmatically on your BlackBerry? I personally think that would be ridiculous and I know for a fact that it is VERY difficult to get a software patent. From what I understand at most developers can get copyright for the written code but that is only relevant if another person copies the actual code which is hard to prove…
There seems to be this silent consensus that the patent system does not serve the interests of the right people. “The USPTO grants patents for business methods, so that you can exclude your competitors from doing business the same way,” adds Henrion with some timely proof.
Software patents may become a problem in Europe unless they are fought against. Henrion has collected a lot of new evidence that includes his observation that the “European Commission awards study on software patents and standards to Fraunhofer, OOXML proponent and Microsoft proxy”; to quote the relevant part:
V.3) NAME AND ADDRESS OF ECONOMIC OPERATOR IN FAVOUR OF WHOM A CONTRACT AWARD DECISION HAS BEEN TAKEN:
Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V. as legal entity acting for Fraunhofer Institut für System- und Innovationsforschung, Hansastraße 27 c, 80686 Munich, GERMANY.
Fraunhofer consistently serves Microsoft's interests. Henrion has also noticed that “BusinessEurope [is] pushing for patent harmonisation with Free Trade Agreements” and a “conference in Starsbourg
[PDF] [will cover] the UPLS central patent court and software patents via the backdoor”; then there is what he considers “the European Commission’s report
[PDF] [which is] hostile to Free Software, promoting software patents in standards and the undefined RAND term”
We at Boycott Novell are very grateful to Henrion, who caries on along the footsteps of Hartmut Pilch. As Pilch put it at one point, Microsoft is part of the problem; it has been a major part of it for a long time.
CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.
Summary: Panasonic signs an exFAT patent deal with Microsoft, Amazon continues to abuse, and Nathan Myhrvold’s abuse of the system is still being discussed
Microsoft has made a second intellectual property (IP) licensing announcement this week. After announcing a cross-licensing deal with Amazon.com (which had lots of NDA stipulations), Microsoft revealed on February 25 it had struck a deal with Panasonic for its exFAT technology.
Maybe Amazon was just licensing exFAT/FAT, some argued. Sure, maybe Amazon licensed those technologies too; it’s impossible to tell, given what Microsoft disclosed and Amazon refused (or was not allowed) to discuss. But as I mentioned to some readers, when Microsoft is simply licensing exFAT/FAT, it calls that out specifically in the release, even if the licensee isn’t talking about how/what they plan to do with the technology.
In Amazon’s case, Microsoft called out the fact Amazon is using open-source technology (Linux, specifically) in the Kindle and on its back-end servers. Some open-source backers said they believed Microsoft did this to spread fear, uncertainty and doubt (FUD) to hurt Linux.
Regarding Amazon’s patent deal with Microsoft [1, 2, 3], there is another new development justifying boycott of Amazon, which is one of the notable abusers of the USPTO (and patent offices in other countries too, Canada for example). Amazon is clearly part of the problem.
How Hard Is It To Realize That One-Click Buying Doesn’t Deserve A Patent?
Amazon and Jeff Bezos (who a decade ago was a founder of a project to bust bogus patents) have aggressively fought to keep the patent alive. And so we’ve now entered the fifth year of the review process, which seems to involve some rather annoyed USPTO patent examiners, who are fed up with what appears to be Amazon simply dumping busywork on the examiners to avoid a final rejection of the patent.
You can imagine my laughter when Microsoft was declared by the courts to have violated a patent in their OOXML file formats. The patent owners, i4i of Canada, asked the courts to have Microsoft remove the features that were found to be in violation of i4i’s patents.
Now, what about all the customers that chose to use Microsoft’s Office product just to get the OOXML feature? If they suffer loss because of this Microsoft compensate them? What about the documents they created with OOXML, will they have to be converted? What about the people that refuse to let Microsoft remove the patent violating code to protect their investments and documents? Could i4i sue them?
Then there is Microsoft's patent troll Nathan Myhrvold, whose extortion racket we explained and shed light on earlier this week [1, 2]. Other people — including patent lawyers — have something to say (well, usually complain) about this patent troll and TechDirt cites a lawyer as follows:
Sawyer also points out that, contrary to claims of the system’s supporters, that “having a patent doesn’t mean that you really invented anything, or that the person you’re suing would actually infringe in a rational world.” Some of you may have seen some of the regular commenters here claim that there the only way to prove you’ve invented something is if you get a patent on it — and that anyone accused of infringing has clearly “stolen” the idea. Neither of those things are true. What Sawyer is pointing out is that getting a patent is just a sign that you were able to convince the USPTO (through a “pseudo-adversarial administrative procedure”) that you deserved such a monopoly privilege. It doesn’t mean you actually invented anything — and it certainly doesn’t mean you’ve done anything to promote the progress or innovation in general.
Summarising the above, the president of the FFII adds that “patent trolls are financed by traditional investment banks and hedge funds,” but even some VCs have no faith in software patents, based on another post from TechDirt (published a day beforehand):
VC Explains How Damaging Software Patents Can Be
Despite claims that no VCs would ever invest in companies without patents, we’ve been seeing more and more VCs moving over to the side of recognizing that patents are more often hindering their portfolio companies rather than helping them — and these are some of the most respected VCs around these days. Brad Burnham, who has already called for an independent invention defense for patents has responded to Nathan Myhrvold’s ongoing campaign to legitimize patent shakedowns.
It is worth emphasising that this whole debate started because of Microsoft’s patent troll who was running amok with an extortion racket. This shows just how much of a problem Microsoft has become to scientists and developers. It retards more than just the field of software right now and so does Bill Gates. █
“Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke.” —Kelledin, PLI: State Street Overruled… PERIOD
Summary: Latest information about ACTA includes explanation of the secrecy, or at least those who insist on secrecy while they conspire against the public
The top EU official responsible for data privacy slams the ACTA process. This report says that a warning from Peter Hustinx “comes as nations negotiating the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded the seventh round of talks at a meeting in Guadalajara, Mexico.” That was a while ago. There is now a Dutch ACTA leak (see article in Dutch) and the following new reports reveal some new information worth highlighting:
Throughout the debate over ACTA transparency, many countries have taken public positions that they support release of the actual text, but that other countries do not. Since full transparency requires consensus of all the ACTA partners, the text simply can’t be released until everyone is in agreement. Of course, those same countries hasten to add that they can’t name who opposes ACTA transparency, since that too is secret.
Countries negotiating the secretive Anti-Counterfeiting Trade Agreement are clashing over a proposed three-strikes regulation, the legal basis for such a treaty and the lack of transparency in the process, according to newly leaked documents.
The European Parliament is demanding answers from the European Commission about ACTA, while public outcry and criticism are driving many European countries to demand clarity about the secret talks, which have been ongoing for more than two years. But these E.U.-member nations are being frustrated by the European Commission.
The oddest thing about the Anti-Counterfeiting Trade Agreement (ACTA) secrecy is that, whenever we see leaked drafts of the text, there’s nothing particularly “secret” about them. That was also the case with this weekend’s leak of the “Internet enforcement” section of the ACTA draft; as we’ve noted in the past, ACTA appears to be a measure to extend the US Digital Millennium Copyright Act (DMCA) to the rest of the world, and that’s exactly what the Internet section tries to do.
“ACTA is legislation laundering on an international scale, trying to covertly push through what could never be passed in most national parliaments” declared the socialist Member of the European Parliament Lambrinidis in his presentation of a written declaration that aims at establishing the official oppositon to ACTA of Europe´s elected representatives. He also criticized ACTA´s intention of “systematic monitoring of citizens in the hands of internet service providers, giving them more power than police have in anti-terror operations”.
The European Commission has pledged to make sure the Acta global treaty will not force countries to disconnect people for unlawfully downloading copyrighted music, movies and other material.
“The EU Commission maintains that any criminal action should be for infringements on a large, commercial scale only,” says the president of the FFII. But the ACTA affects international patent law, thus it’s relevant to us. █
Summary: King of the bots wants special credit, admiration and media worship for its futile struggles to eradicate the problem it created (one botnet at a time)
THOSE who have Silver Lie installed (i.e. users of proprietary operating systems) will be able to watch the latest shameless spin from Microsoft. 1 trillion (that’s 1,000,000,000,000) spam messages per week are said to be spewed from Windows botnets, but Microsoft claims that “hundreds of thousands of computers” running Windows are being addressed (there are hundreds of millions of zombie PCs running Windows) to eliminate just “1.5 billion spam emails per day”. So how much is that? Like 1% of all spam? Nessuno quotes the following portion from Microsoft’s latest propaganda:
Waledac is estimated to have infected hundreds of thousands of computers around the world and, prior to this action, was believed to have the capacity to send over 1.5 billion spam emails per day. In a recent analysis, Microsoft found that between December 3-21, 2009, approximately 651 million spam emails attributable to Waledac were directed to Hotmail accounts alone, including offers and scams related to online pharmacies, imitation goods, jobs, penny stocks and more.
“The part I’m quoting,” writes Nessuno, “lies underneath the Silverlight advertisement. You can read it here without having to download Silverlight.”
Microsoft’s claims are almost hilarious; they try to be seen as though they are doing something. But it’s a losing battle which was lost because Microsoft was not interested in making its platform secure. Here is the MSBBC describing Microsoft as the good guy (using the above PR/propaganda) while neglecting to say that those are compromised Windows PCs that Microsoft’s own negligence is breeding [1, 2, 3].
Microsoft has won court approval to shut down a global network of computers which it says is responsible for more than 1.5bn spam messages every day.
A US judge granted the firm’s request to shut down 277 internet domains, which it said were used to “command and control” the so-called Waledac botnet.
There is some more coverage like this in the British press [1, 2, 3] [via], so the MSBBC is not alone here (there are Microsoft boosters too). The press across the Atlantic still writes about the huge damages caused by those Windows botnets (estimated perhaps at over a trillion dollars) and the remote possibility of creating new laws — as though laws will address the lawless and stop botnets — is still floating.
“The press across the Atlantic still writes about the huge damages caused by those Windows botnets (estimated perhaps at over a trillion dollars) and the remote possibility of creating new laws — as though laws will address the lawless and stop botnets — is still floating.”Intel finally says that it has come under Web attacks, possibly just like the Internet Explorer attacks on Google [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. It happened on the same month, but Intel kept quiet about it (many firms do because this is negative publicity).
Speaking of Intel, the Wintel press enthusiastically played along with Microsoft's pitch earlier this week when it wrongly claimed that Firefox had a zero-day flaw. Mozilla is formally denying such a claim.
Verisign is working hard to maintain DNS in the face of spoofing, but it also has Windows botnets knocking DNS servers off service sometimes [1, 2], which is equally annoying. We are hearing from readers whose DNS servers are frequently unavailable.
Verisign tries to secure DNS
At the core of DNSSEC is the ability to verify the answers given by DNS servers. This should, in theory, make it harder for spoofing and poisoning attacks. The digital signing of answers mean that like SSL certificates for websites, it can be checked to see whether the DNS query has produced the legitimate answer.
Summary: The company formerly focused on GNU/Linux is decreasingly contributing to its development and instead focusing on .NET, Silverlight, etc.
The release of the 2.6.33-rc7 prepatch indicates that this development cycle is headed toward a close, even if Linus thinks that a -rc8 will be necessary. As has become traditional, LWN has taken a look at some statistics related to this cycle and where the code came from.
(None) 1535 14.6%
Red Hat 1223 11.6%
Intel 1011 9.6%
(Unknown) 868 8.3%
IBM 500 4.8%
Novell 390 3.7%
Nokia 319 3.0%
By lines changed
(None) 304895 26.7%
(Unknown) 109716 9.6%
Red Hat 92991 8.1%
Broadcom 54272 4.8%
Realtek 49951 4.4%
Intel 46302 4.1%
Nokia 37505 3.3%
Summary: Products that are labeled “7″ continue to falter (holes, delays, lack of acceptance, etc.)
THE reality behind Vista 7 suggests that it moves more or less along the same trajectory as Windows Vista (at equivalent times post release). More holes are being patched outside of Windows Update cycles and “Seven’s not always Microsoft’s lucky number,” says a Microsoft booster because there is another major delay (amid deaths of products) affecting Dynamics:
The number 7 isn’t lucky for every Microsoft team.
Microsoft has pushed back its delivery target for its Dynamics NAV “7″ by anywhere from a few months to a year, with final delivery now expected some time during calendar 2011 to 2012.
2012, eh? “7″ was hardly a lucky number for Windows Mobile based on press coverage [1, 2, 3, 4]. As regards Vista 7, Microsoft is faking sales numbers [1, 2], just as it did with Vista. “7″ is a success only in the eyes (or mouths) of overzealous PR agencies that Microsoft hires to indoctrinate the press. █
Summary: Microsoft abuses words of the English language in order for people to feel confused about the difference between one product and another
MICROSOFT’S “Software Choice” campaign was mentioned in this older post. To quickly repeat it, Bruce Perens wrote that “Microsoft’s new “Software Choice” campaign is all for your right to choose… as long as you choose Microsoft. It’s too bad that Intel and the U.S. Government couldn’t see through the rhetoric.”
“Yasmin Mahmood from Microsoft Malaysia used this type of lies repeatedly…”Those lies about choice are nothing new and right now there is this ballot which provides an illusion of choice (regarding browsers and ODF). Yasmin Mahmood from Microsoft Malaysia used this type of lies repeatedly (calling for “choice” between a proprietary format and a standard rather than between office suites). That was before she jumped ship. She didn’t quit the company before getting involved in the many OOXML scandals, e.g. [1, 2, 3].
Here again we see that Microsoft misuses the word “choice” to market its monopolistic, proprietary software.
At Microsoft’s Public Sector CIO Summit this week, Microsoft is promising governments “choice,” a theme normally reserved for the freedom-loving open-source set.
But Microsoft’s “choice” campaign is all about giving governments the option to step into the Google-blessed cloud realm without leaving the comfort of their Windows/Office/etc. environments. For some, and perhaps many, this may be just the sort of safe choice they’re seeking.
The word “open” (or the term “open source”) was also misused to confuse and IIPA/BSA slander Free software at the moment by claiming that it reduces "choice". They distort the language; they destroy the vocabulary and connotations that come with it. █
“If thought can corrupt language, then language can also corrupt thought.”
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