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08.02.10

Apple’s and Microsoft’s Robbery of Knowledge Using Patents, i4i Case Might Reach SCOTUS

Posted in Apple, GNU/Linux, Google, Microsoft, Patents at 9:04 am by Dr. Roy Schestowitz

Protest series

Summary: Apple and Microsoft, the two patent aggressors that want to accumulate Linux cash derivatives, are still blocking areas of software using new patents; Microsoft’s infringement of i4i patents not necessarily a done case

Apple’s thicket (when it comes to patents, not journalism) matters to us because Apple uses patents offensively against Linux. Consider some of the following numbers:

Take the iPhone as an example: it has over 1000 patents; yet Apple does not apply for patent protection in countries like Peru, Ghana, or Ecuador, or, for that matter, in most of the developing world. So entrepreneurs could use these patent filings to gain information to make an iPhone-like device that solves the unique problems of these countries. Apple has so far received 3287 U.S.-issued patents and has 1767 applications pending: a total of 5054 (for all of its products). Yet it has filed for only about 300 patents in China and has been issued 19. In India, it has filed only 38 patent applications and has received four patents. In Mexico it has filed for 109 and received 59 patents. So even India, China, and Mexico are wide-open fields.

As we pointed out last week, Apple continues to expand its patents arsenal and there is a lot of coverage about the latest examples [1, 2]. These are not ordinary patent applications; these are software patents that can cripple Linux-based phones. Software patents have already killed simple programs for Android.

Three new patent applications that just became public on the US Patent and Trademark Office (USPTO) website reveal that Apple is now patenting ideas for mobile applications. Specifically, these patents applications describe iPhone apps that would aid in making travel arrangements, booking hotels and shopping.

As Erica Ogg puts it:

It’s important to keep in mind that these are just patent applications. Lots of tech companies, including Apple, apply for patents just in case they might want to pursue a certain technology in the future. It’s not necessarily an indication that it’s something Apple is working on at the moment.

Whether or not Apple will have those patents accepted does not matter much; neither does the fact that Apple might not implement anything based on the patents. To Apple, this is just another shell to add to its arsenal before the next artillery attack on companies like HTC. Apple is no friend of Linux.

“Everything we think and say is essentially the fusion of things we saw, heard, read, etc.”Then we have Microsoft, which very much like Apple has many reasons to fear Linux. To those proprietary software giants GNU/Linux is a rising giant that takes over the market; it takes shape in companies like IBM and Google. The New York Times now carries a profile of the litigious side of Microsoft, which has a long history of legal abuse, including intimidation, extortion, and bribery.

Microsoft is now patenting some sort of six-axis remote, which sounds like a monopoly on hardware [1, 2, 3], perhaps intended to suppress what could be perceived as a knockoff. “Microsoft patent delivers dual mode Xbox 360 controller,” says another article amongst many others. Let’s consider for a second the fact that Microsoft imitated a lot of prior art when it made controllers. Nothing is without precedence in science and technology. Everything we think and say is essentially the fusion of things we saw, heard, read, etc. That’s how knowledge works. Exact replication of one’s rendition is already covered/stifled by copyright law; we don’t necessarily need to criminalise applied thought. That would just be… criminally unjust. In any case, some days ago we wrote about the possibility that Microsoft’s case with i4i will be escalated to SCOTUS [1, 2]. The ‘Microsoft press’ is now saying that Microsoft might do just that. Here are some quotes of interest:

Microsoft now appears ready to take the battle all of the way to the Supreme Court. On June 8, Microsoft petitioned the Supreme Court to delay its appeal (PDF download), and that delay was granted, according to Owen.

“As far as we know, Microsoft has declared its intention to file with the Supreme Court a petition for cert [certiorari]. And they actually obtained the permission of the Supreme Court to file it late,” Owen said. “So they asked, and they now have until August 27 to file their petition for cert.”

If Microsoft files with the Supreme Court, i4i will have time to respond, which is typically about 30 days, Owen said. After that time, it’s anyone’s guess what happens.

“We think their appeal path has been exhausted, but I never say ‘never,’ and you just don’t know what Microsoft will do,” Owen said.

A Microsoft booster has commented on this case as well.

With Microsoft, it’s the familiar story of taking other people’s ideas, not respecting software patents (in fact bragging about willful infringement in internal E-mails), and then whining about other companies ‘stealing’ Microsoft’s ideas and ‘violating’ their software patents. Another familiar story is Microsoft paying some patent aggressors. Eolas is a classic example of it [1, 2, 3, 4, 5, 6, 7, 8] and we saw similar stories happening in recent months. Here is another firm that Microsoft paid to walk away and is now suing other firms, buoyed by cash from Microsoft.

After suing Microsoft for patent infringement, Uniloc USA is now turning its sights on a host of other companies.

Microsoft Nick covered this by saying: “Uniloc, the company that won a $388 million patent-infringement judgment against Microsoft before it was overturned in September, is now going after Sony, McAfee, Activision, Quark, Aspyr Media and Borland Software in federal court.” There are many more articles like this one and the Uniloc-Microsoft case is one that we mentioned in [1, 2, 3, 4, 5, 6].

On we move with the news only to discover that Microsoft is patenting page flips (blame the failed Courier). From the New York Times:

On Thursday a tidbit of news circulated around the Web that Microsoft had filed a patent application in late 2009 hoping to lay claim to the look and feel of page turns on a touchscreen device.

Microsoft was not the first, but it doesn’t matter. Like Apple, Microsoft just wants more weapons in its arsenal and if the dead Courier helped create such a weapon, then why not, right? Patent settlements apply to patents in bulk, no matter their validity or quality.

“Microsoft Page-Turning Patent Could Spell Trouble For Apple’s iBooks,” warn some people and The Market Financial says: “Microsoft Claims Patent On Page Curl Feature Used By Apple iBooks App”

“Patent settlements apply to patents in bulk, no matter their validity or quality.”It’s good for the large companies but terrible for the all the small companies that manufacture Linux-based E-readers (and have little or no patents). Linux is already dominant in E-readers [1, 2] and the Kindle too is Linux based (Microsoft tainted it with ‘Linux tax’, using software patents it did not name when signing a deal with Amazon).

Software patents need to be stopped and venture capitalists like Feld could not agree more now that they have academic proof backing them.

For what it’s worth, Google too participates in the patent game, but it has no history of aggression (never suing companies with patents unless provoked and sued, which led to counter action). A few days ago we showed that Google won a monopoly on mouse-tracking for personalisation/search results refinement and it’s still in the news. Did Google really need such a patent on software? It’s already in OIN.

TechDirt makes a case against patents by rebutting disinformation as follows:

Author Claims Patents Made Industrial Revolution Possible; Then Shows Why He’s Wrong

[...]

Odd wording choices aside, the problem with patents is that they get in the way of this kind of incremental innovation. Patents are designed to protect the big breakthroughs… and then limit follow-on innovation for the course of the patent. If the big breakthrough is the most important thing, then you can maybe make an argument that patents make sense. But, most innovation is, as Rosen notes, about that incremental improvements, where “it takes a village.” But a patent denies the “village” the opportunity to make those improvements (at least without adding a significant cost) and thus delays innovation.

Also worth reading:

i. The mother of all patent battles

The two court cases aren’t new, but the action is certainly heating up. After winning a $40 million settlement from Amazon.com in 2005, Chicago-based Soverain Software LLC, which sells transaction management technology, filed suit against Newegg Inc. and other big web merchants in November 2007. At the time Soverain Software accused Newegg, CDW Corp., Systemax Inc., Redcats USA and Zappos.com of infringing on three of its patents that cover the underlying technology that e-retailers use to handle purchases and payments, as well as for their online shopping carts. Many retailers settled, but Newegg chose to fight in court. In May, a jury found that Newegg must pay $2.5 million in damages to Soverain Software for infringing on its e-retailing technology patents.

ii. Gene Patenting Produces Profits, Not Cures

Predictably, Myriad Genetics recently appealed a federal district court’s recent decision rendering seven of its lucrative BRCA1 and BRCA2 gene patents invalid. The battle will probably run long, ending only when it reaches the Supreme Court, so the appeal raised hardly a ripple. This stands in contrast to the semantic mayhem triggered by the original ruling

“Pigs fly!” a headline of the Genomics Law Report had wondered, going on to clarify, “Federal Court Invalidates Myriad’s Patent Claims.” In a ruling the GLR described as “jaw-dropping,” “radical,” and “astonishing,” Judge Sweet of the United States District Court invalidated the patents on the breast- and ovarian-cancer genes, declaring that they are not made by man and thus patent-ineligible.

The good news is that patent disdain is becoming quite common. More people realise that patents harm the Commons.

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