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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

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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.

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