EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

10.07.10

Software Patent Lawsuits Around Linux (Roundup)

Posted in Apple, GNU/Linux, Google, Microsoft, Oracle, Patents, Red Hat at 6:09 pm by Dr. Roy Schestowitz

Watch the mines - billboard in Bosnia

Summary: The Nemesis of software freedom (or #1 threat to it) is summoned by Linux rivals like Microsoft and the Microsoft-occupied Acacia; Rebuttals come from the likes of Jason Perlow, Glyn Moody, Matt Asay, and Groklaw

THE world is upset to see Microsoft suing Linux-using companies. It just shows how incapable Microsoft is when it comes to producing real products. Jason Perlow receives praise for his response (he works for IBM) and Ghabuntu writes: “My friend calls him Steve “I’ll fcuking kill Google” Ballmer. And I think he is right. Microsoft has been rattling the saber at Android in the last week, demanding patent payment for all Android phones. To say this is an absurd claim is being very gentle.”

Microsoft appears to be double-dipping ActiveSync tax and FAT too is targeted (so Mono proponents should pay attention). Glyn Moody asks: “Is Microsoft running out of steam?”

One difference, of course, is that Watt’s patent at least related to a substantial technological development: in the case of Microsoft, we are dealing with the usual trivial and/or obvious patents – “scheduling meetings”, “changes in signal strength and battery power”. Even the synchronising email element, which presumably relates to Microsoft Exchange ActiveSync, is simply a question of dominant protocols, not market-enhancing improvements.

People forget that the central purpose of patents is to encourage real innovation, not simply reward people for being the first to file for even obvious ideas with over-stretched patent offices that set incredibly low bars. The world of patents has become perverted in recent years: patents are seen as valuable things in themselves – the more the merrier – irrespective of whether they do, truly, promote innovation. Worse: in the world of software, they are actually brakes on that innovation, particularly as they begin to interact and form impenetrable patent thickets.

As Moody has been showing for years, Microsoft is lobbying for RAND (along with its lobbyists) and it’s stuff like ActiveSync which shows the impact of RAND. Here is a nice diagram of patent lawsuits in the mobile space and another diagram of this kind. All these lawsuits contribute to the conclusion that patents are counter productive and hardly manageable, even for very large companies.

Motorola has meanwhile sued Apple for patent violations [1, 2, 3, 4, 5] and Moody responds to it by writing “welcome to the patent thicket”.

The legal landscape in mobile technology is getting a little bit crazy these days. Everyone is suing everyone, and keeping up with every claim and counterclaim is fast becoming a confusing endeavor.

Today, Motorola decided to keep the legal party going when it filed a complaint with the International Trade Commission (ITC) alleging that a number of Apple products infringe on 18 Motorola patents. Separately, Motorola also filed patent infringement lawsuits in the U.S. District Court for the Northern District of Illinois and the Southern District of Florida.

Here is the press release and accompanying LWN discussion (LWN has been disrupted by mobbyists recently).

We have also just learned that Apple is now suing Nokia in the UK, not just the US [1, 2].

According to Reuters, Apple has sued Nokia in Britain. Nokia said that it is investigating the claims, which appear to be based on nine implementation patents already in dispute between the two companies in the United States.

Microsoft’s CEO has just been in the UK where he urged to “harmonise” laws regarding so-called ‘IP’. In a new article from The Inquirer (titled “Ballmer gives LSE a masterclass in not answering questions”) it says: “Giving an indication of how hard any sort of global security architecture will be, Ballmer spoke of a need for the US, Europe and China to harmonise their laws to try to stop ‘piracy’.”

“Ballmer already has lobbyists working on these schemes of legalising software patents in Europe and they give the illusion that Microsoft is not involved.”He hopefully is not calling for patent law too to be harmonised. Ballmer already has lobbyists working on these schemes of legalising software patents in Europe and they give the illusion that Microsoft is not involved.

Then there’s the Oracle case, which is really about Java more than anything else. We wrote about it yesterday (the counterclaim) and now come some more sites [1, 2] including Groklaw [1, 2] with the analysis that’s mostly of interest to legalese lovers. We’ve heard even from a lawyer that Google’s papers are hard to follow/analyse.

Matt Asay, a lawyer by training, looks at this case from above and concludes that “Oracle is the least of Android’s patent woes, while Microsoft is the most offensive” (that’s his short summary). Here is his full punditry which says:

But Android particularly annoys Apple, Microsoft, and Oracle, albeit for very different reasons.

Apple, design purist that it is, disdains the momentum Android has seen. Apple is, of course, the early winner in the smartphone market, and its lawsuit against device manufacturer HTC seems to be a means to slow Android’s advances. It hasn’t worked. Not content to sit by and watch its market share erode as developers flock to open-source Android, however, Apple has loosened its grip on developers and is making a serious attempt to win in the market, not simply the courts.

Microsoft, a serial underachiever in mobile, despises Android for the same reason it has long wrung its hands over Linux servers: Microsoft doesn’t know how to compete with free. Google gives Android away, but Microsoft has repeatedly stressed that patent-encumbered Android isn’t free. As Microsoft CEO Steve Ballmer told The Wall Street Journal, “Android has a patent fee. It’s not like Android’s free. You do have to license patents.”

This is the same strategy Microsoft has employed in the server market, signing up licensees to its patent portfolio based on vague FUD (fear, uncertainty and doubt) that Linux violates its patents. If Microsoft can force Google to license its patents, it can make it harder for Google to keep Android free.

Wheeler talks about another one of Groklaw’s analyses and says that “so many software patents are patents of prior art”:

In short, “The bottom line is that patent applicants receive the benefit of favorable procedures and a resource-constrained review by the PTO and then assert presumptively valid patents that, according to the Federal Circuit, can be defeated only by clear and convincing evidence. That serves only to insulate patents of dubious quality from adequate scrutiny at any stage.”

A different brief shown in Groklaw was filed by the Electronic Frontier Foundation (EFF), Public Knowledge, Computer & Communications Industry Association (CCIA), and Apache. They point out some other unfair aspects of the patent process. In particular, they note that “patent owners assert that accused infringers must use the prior art’s source code to prove invalidity, but that source code is often unavailable years after the fact”.

Our reader Jose has read the submission from the Electronic Frontier Foundation and he argues that they defend software patents in principle, just not “bad” ones. If true, it’s akin to the position taken by the OIN. It would be wrong to suggest that Linux-using firms are all fundamentally against software patents. One of the biggest Linux-using aggressors is TiVo (notorious in Linux circles for other reasons), which has just gotten a shot in the arm because of a USPTO reversal:

The U.S. Patent and Trademark Office on Wednesday affirmed the validity of TiVo’s so-called Time Warp DVR patent, reversing the agency’s ruling this summer — after a second re-examination requested by EchoStar and Dish Network — that the patent was invalid because some of the claims were covered in two prior patents.

TiVo’s stock price shot up 9.7% for the day, to close at $10.08 per share Wednesday.

The decision by the PTO is final and cannot be appealed by Dish/EchoStar. Dish and EchoStar declined to comment on the latest ruling.

We covered the likes of these cases in [1, 2, 3]. TiVo deserves no sympathy here just because it uses Linux in its boxes.

Bradly Kuhn from the FSF has also just called Red Hat’s settlement with Acacia [1, 2] “Extremely disturbing” because they “bound themselves from saying how the[y] licensed/invented-around patent”. A reader of ours has explained that “Red Hat likely took the NDA approach and perhaps because Acadia/etc paid them.

“I’m not trying to get people off Red Hat’s back, but I would not want people to assume Acadia [sic] won because that could very well be the exact intended effect of an NDA and why Acadia would then have had to give Red Hat something of value.

“Yes, I don’t like NDAs. Maybe this one lasts for a modest term or Red Hat got something very valuable (that hopefully does not hurt the community or overly enrich their execs at our cost).”

We may never know the answer then. Either way, a Firestar lawyer has told me that when a Red Hat settlement extended to the whole community (see background in [1, 2, 3, 4, 5, 6, 7]) Red Hat bragged about it rather than signed an NDA. The silence around Acacia gives room for mobbyists to incite against Red Hat. Next time around, Red Hat ought to put transparency first. The person to push regarding the secrecy turns out to be Tiller, not Fontana. He may not be able to unsign an NDA, but the same mistake oughtn’t be repeated at a later date.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Tell Lawyers That 'Privilege' Without Encryption is Just a Mirage

    The sad truth that law firms claim to respect privacy and security; they do in principle, whereas in practice they respect neither



  2. Links 25/8/2019: Happy Birthday to Linux, Enlightenment DR 0.23.0 Release

    Links for the day



  3. Openwashing Report: It's Not Just Microsoft, But Microsoft is by Far the Biggest Facilitator of That

    A weekly roundup looking back at distortion if not intentional misuse of the term "Open Source"; Microsoft is still working hard and spending a lot of money to control the narrative (e.g. to limit "Open Source" to what's on its proprietary platform, GitHub)



  4. Patent Maximalists Refuse to Accept That Their War on Patent Quality Also Dooms a Pan-European Patent Court System

    The EPO‘s embrace of patent maximalists’ agenda, which necessarily means significant decreases in patent quality (and deviation/departure from the EPC), dooms patent certainty; it also, however, dooms the Unitary Patent (UPC) because an extension of this rogue regime to the court system won’t be tolerated



  5. Links 24/8/2019: Wayland’s Weston 7.0 and More

    Links for the day



  6. Outsourcing to Microsoft and Openwashing as a Service (OaaS): This is the Linux Foundation in 2019

    The concept of "Open" at the Linux Foundation gives room for thought; are things really being opened or mostly marketed as "Open" and, if so, is the Foundation more like a marketing agency?



  7. Links 23/8/2019: Wine 4.0.2 Released, Removing Qt 4 From Ubuntu

    Links for the day



  8. Links 22/8/2019: KDE ISO Image Writer, GNU Parallel ‘Jesper Svarre’

    Links for the day



  9. Guarding and Rescuing the FSF Titanic: A Free (as in Freedom) Library, and Federation of Advocates

    "This library is not just for cultural works, but also for software."



  10. Linux Foundation's Linux.com in 2019: Zero Articles (Nothing Original) and a Terrible, Rookie New Design

    Linux.com has become a curated syndicator of news (edited by one single Microsoft proponent); the site has also eliminated its traditional design in favour of something only 'hipsters' can appreciate



  11. Managing IP as Team UPC's Megaphone and Lobbying Front

    Managing IP is lying on behalf of Team UPC yet again; the site's long history promoting the UPC hasn't ended even when prospects of the UPC are slim to none



  12. No More Rights for EPO Staff?

    The oppression and the crackdown on labour rights in Europe's second-largest institution has deepened to the point where staff is paid as little as is legally possible



  13. Links 22/8/2019: GNOME 3.33.91, Systemd 243 RC2, Cockpit 201, Ubuntu Touch OTA-10, FreeIPMI 1.6.4

    Links for the day



  14. Some Patent Attorneys Dislike Techrights Not Because It's Wrong But Because Software Patents Are Wrong (and Sometimes Illegal)

    Odd rants which misuse common law and ignore alleged Fair Use (and misinterpretation of copyright law, for censorship purposes) would have people believe that we're wrong; but it's more likely that the person in question is jealous, insecure, or offended by our stance on patent scope, which is very much rooted in the law itself (and the views widely held by software developers globally)



  15. Guarding and Rescuing the FSF Titanic: Distro-libre and feature-schema

    "Every time a distro does not suit a user's purposes, and it is less work to adapt the distro on one's own than to affect the distro in any other way, a distro is born."



  16. Links 21/8/2019: Dell's XPS 13, Mesa 19.2 RC1, Librem Update

    Links for the day



  17. Links 21/8/2019: Open Source POWER, Alpine 3.10.2, Netrunner 19.08

    Links for the day



  18. Edward as a Nodder to Team UPC Kool-Aid

    Bristows LLP is at it again and it's getting pathetic, not just dishonest as usual



  19. Guest Post: António Campinos' European Patent Office Redefines Modern Slavery in the Heart of Europe in 2019

    The European Patent Office’s (EPO) President António Campinos — like his predecessor Battistelli — emulates Chinese labour practices



  20. Guarding and Rescuing the FSF Titanic: There is More Than One Iceberg Ahead

    "This strategy is not far from when Microsoft talked about "de-commoditizing protocols" in the late 90s, as part of their plans to control, dominate, and end Open Source and Free software."



  21. EPO Cannot Handle Patent Justice With a Backlog of About 10,000 Cases at the Boards of Appeal

    The EPO's long war on judges and on the law has proven to be costly; it's difficult to pretend that the EPO functions like a first-world legal framework



  22. The European Patent Office Increases Surveillance: Can't Get Food Without Being Spied on

    The infamous "War on Cash" has been 'won' at Europe's second-largest institution, where people's diet can now be monitored and indefinitely retained on the system



  23. To GNU/Linux, the Operating System, GAFAM (Google, Apple, Facebook, Amazon, Microsoft) is Not the Threat. Microsoft is.

    Don't let Microsoft get away with its bogus narration; GNU/Linux is primarily under attack from Microsoft, whereas Software Freedom in general is under attack from many directions



  24. The Free Software Foundation (FSF) Has the Full Support of Techrights

    Our support for the FSF is strong enough that we want to occasionally suggest improvements; there are growing frictions designed to isolate the FSF and cause self-restraint/censorship



  25. Why We Support Phoronix (Whereas Some Others Do Not)

    Some people try to characterise Michael Larabel as the 'bad boy' of Linux even though Michael is probably the hardest working Linux journalist out there



  26. Guarding and Rescuing the FSF Titanic: The Simplest Ways that AI will Change Computing

    "AI is already used to help kill people. We should be cautious, and know that the best rules we come up with (like no doing magic outside the school grounds) won't be followed all the time."



  27. Links 20/8/2019: DragonFlyBSD Developing DSynth

    Links for the day



  28. Guarding and Rescuing the FSF Titanic: Narcissism in The Community

    "Narcissists are drawn to intelligent people. They take great pleasure in attacking, controlling and defeating intelligent people because it makes them feel smarter and more important."



  29. Breaking the Law Has Become the Norm at the European Patent Office

    The European Patent Office’s ongoing practice of destroying critics/whistleblowers and crushing unions, judges, examiners etc. — as well as threats and bribery of the media — ultimately mean a perpetual state of lawlessness that, if it prevails, will let patent trolls raid the European economy and stall innovation



  30. Links 20/8/2019: KMyMoney 5.0.6, Kdenlive 19.08

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts