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. District Courts' Patent Cases, Including the Eastern District of Texas (EDTX/TXED), in a Nutshell

    A roundup of patent cases in 'low courts' of the United States, where patents are being reasoned about or objected to while patent law firms make a lot of money



  2. The Federal Circuit's (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

    The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)



  3. Patents Roundup: Metaswitch, GENBAND, Susman, Cisco, Konami, High 5 Games, HTC, and Nintendo

    A look at existing legal actions, the application of 35 U.S.C. § 101, and questionable patents that are being pursued on software (algorithms or "software infrastructure")



  4. In Maxon v Funai the High 'Patent Court' (CAFC) Reaffirms Disdain for Software Patents, Which Are Nowadays Harder to Get and Then Defend

    With the wealth of decisions from the Court of Appeals for the Federal Circuit (CAFC) wherein software patents get discarded (Funai being the latest example), the public needs to ask itself whether patent law firms are honest when they make claims about resurgence of software patents by 'pulling a Berkheimer' or coming up with terms like “Berkheimer Effect”



  5. Today's European Patent Office Works for Patent Extremists and for Team UPC Rather Than for Europe or for Innovation

    The International Association for the Protection of Intellectual Property (AIPPI) and other patent maximalists who have nothing to do with Europe, helped by a malicious and rather clueless politician called Benoît Battistelli, are turning the EPO into a patent-printing machine rather than an examination office as envisioned by the EPC (founders) and member states



  6. The EPO is Dying and Those Who Have Killed It Are Becoming Very Rich in the Process

    Following the footsteps of Ron Hovsepian at Novell, Battistelli at the EPO (along with Team Battistelli) may mean the end of the EPO as we know it (or the end altogether); one manager and a cabal of confidants make themselves obscenely rich by basically sacrificing the very organisation they were entrusted to serve



  7. Short: Just Keep Repeating the Lie (“Quality”) Until People Might Believe It

    Battistelli’s patent-printing bureau (EPO without quality control) keeps lying about the quality of patents by repeating the word “quality” a lot of times, including no less than twice in the summary alone



  8. Shelston IP Keeps Pressuring IP Australia to Allow Software Patents and Harm Software Development

    Shelston IP wants exactly the opposite of what's good for Australia; it just wants what's good for itself, yet it habitually pretends to speak for a productive industry (nothing could be further from the truth)



  9. Is Andy Ramer's Departure the End of Cantor Fitzgerald's Patent Trolls-Feeding Operations and Ambitions?

    The managing director of the 'IP' group at Cantor Fitzgerald is leaving, but it does not yet mean that patent trolls will be starved/deprived access to patents



  10. EPO Hoards Billions of Euros (Taken From the Public), Decreases Quality to Get More Money, Reduces Payments to Staff

    The EPO continues to collect money from everyone, distributes bogus/dubious patents that usher patent trolls into Europe (to cost European businesses billions in the long run), and staff of the EPO faces more cuts while EPO management swims in cash and perks



  11. Short: Calling Battistelli's Town (Where He Works) “Force for Innovation” to Justify the Funneling of EPO Funds to It

    How the EPO‘s management ‘explained’ (or sought to rationalise) to staff its opaque decision to send a multi-million, one-day ceremony to Battistelli’s own theatre only weeks before he leaves



  12. Short: EPO Bribes the Media and Then Brags About the Paid-for Outcome to Staff

    The EPO‘s systematic corruption of the media at the expense of EPO stakeholders — not to mention hiring of lawyers to bully media which exposes EPO corruption — in the EPO’s own words (amended by us)



  13. Short: EPO's “Working Party for Quality” is to Quality What the “Democratic People's Republic of Korea” is to Democracy

    To maintain the perception (illusion) that the EPO still cares about patent quality — and in order to disseminate this lie to EPO staff — a puff piece with the above heading/photograph was distributed to thousands of examiners in glossy paper form



  14. Short: This Spring's Message From the EPO's President (Corrected)

    A corrected preface from the Liar in Chief, the EPO's notoriously crooked and dishonest President



  15. Short: Highly Misleading and Unscientific Graphics From the EPO for an Illusion of Growth

    A look at the brainwash that EPO management is distributing to staff and what's wrong with it



  16. Short: EPO Explains to Examiners Why They Should and Apparently Can Grant Software Patents (in Spite of EPC)

    Whether it calls it "CII" or "ICT" or "Industry 4.0" or "4IR", the EPO's management continues to grant software patents and attempts to justify this to itself (and to staff)



  17. Links 21/4/2018: Linux 4.9.95, FFmpeg 4.0, OpenBSD Foundation 2018 Fundraising Campaign

    Links for the day



  18. As USPTO Director, Andrei Iancu Gives Three Months for Public Comments on 35 U.S.C. § 101 (Software Patenting Impacted)

    Weeks after starting his job as head of the US patent office, to our regret but not to our surprise, Iancu asks whether to limit examiners' ability to reject abstract patent applications citing 35 U.S.C. § 101 (relates to Alice and Mayo)



  19. In Keith Raniere v Microsoft Both Sides Are Evil But for Different Reasons

    Billing for patent lawyers reveals an abusive strategy from Microsoft, which responded to abusive patent litigation (something which Microsoft too has done for well over a decade)



  20. Links 20/4/2018: Atom 1.26, MySQL 8.0

    Links for the day



  21. Links 19/4/2018: Mesa 17.3.9 and 18.0.1, Trisquel 8.0 LTS Flidas, Elections for openSUSE Board

    Links for the day



  22. The Patent Microcosm, Patent Trolls and Their Pressure Groups Incite a USPTO Director Against the Patent Trial and Appeal Board (PTAB) and Section 101/Alice

    As one might expect, the patent extremists continue their witch-hunt and constant manipulation of USPTO officials, whom they hope to compel to become patent extremists themselves (otherwise those officials are defamed, typically until they're fired or decide to resign)



  23. Microsoft's Lobbying for FRAND Pays Off as Microsoft-Connected Patent Troll Conversant (Formerly MOSAID) Goes After Android OEMs in Europe

    The FRAND (or SEP) lobby seems to have caused a lot of monopolistic patent lawsuits; this mostly affects Linux-powered platforms such as Android, Tizen and webOS and there are new legal actions from Microsoft-connected patent trolls



  24. To Understand Why People Say That Lawyers are Liars Look No Further Than Misleading Promotion of Software Patents

    Some of the latest misleading claims from the patent microcosm, which is only interested in lots and lots of patents (its bread and butter is monopolies after all) irrespective of their merit, quality, and desirability



  25. When News About the EPO is Dominated by Sponsored 'Reports' and Press Releases Because Publishers Are Afraid of (or Bribed by) the EPO

    The lack of curiosity and genuine journalism in Europe may mean that serious abuses (if not corruption) will go unreported



  26. The Boards of Appeal at the European Patent Organisation (EPO) Complain That They Are Understaffed, Not Just Lacking the Independence They Depend on

    The Boards of Appeal have released a report and once again they openly complain that they're unable to do their job properly, i.e. patent quality cannot be assured



  27. Links 18/4/2018: New Fedora 27 ISOs, Nextcloud Wins German Government Contract

    Links for the day



  28. Guest Post: Responding to Your Recent Posting “The European Patent Office Will Never Hold Its Destroyers Accountable”

    In France, where Battistelli does not enjoy diplomatic immunity, he can be held accountable like his "padrone" recently was



  29. The EPO in 2018: Partnering With Saudi Arabia and Cambodia (With Zero European Patents)

    The EPO's status in the world has declined to the point where former French colonies and countries with zero European Patents are hailed as "success stories" for Battistelli



  30. For Samsung and Apple the Biggest Threat Has Become Patent Trolls and Aggressors in China and the Eastern District of Texas, Not Each Other

    The latest stories about two of the world's largest phone OEMs, both of which find themselves subjected to a heavy barrage of patent lawsuits and even embargoes; Samsung has meanwhile obtained an antisuit injunction against Huawei


CoPilotCo

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

CoPilotCo

Recent Posts