Summary: Tonight we spoke about Samsung’s defence against an Apple lawsuit, ACS:Law, torrents for slow networks, and a whole lot more; Rusty joined us from the United States
In addition to the topics named in the show notes, it ought to be mentioned that Richard Stallman said he would love to be in a future show; we are also adding videos over SIP very soon, and the intention is to have them summarise some news, be delivered in decent viewing quality, and maybe have guests in them too. Hopefully our first video episode will be out tomorrow.
Last week, I reported that the new appropriations for the remaining five-months of FY2011 would force the USPTO to cut approximately $100,000,000.00 from its budget. That figure represents more than a 10% cut in what the office was expecting to spend during this period. Today, USPTO Director David Kappos confirmed my statements in a message to USPTO Employees. He writes:
In view of the funding cuts reflected in the final budget and affecting the U.S. government as a whole, we will be unable to expend the additional $85-100 million in fees that we will be collecting during this fiscal year—funds that we had anticipated being able to use to fund operations this year.
… Further, I am mindful of the fact that we may very well be operating at the FY 2011 level for the foreseeable future. As a result, we have had to make some difficult decisions in order to ensure the responsible stewardship of the agency.
Akamai Technologies Inc. (AKAM) persuaded a U.S. appeals court to reconsider whether Limelight Networks Inc. infringed a patent over software that speeds delivery of Web videos.
A three-judge panel of the U.S. Court of Appeals for the Federal Circuit said in December Limelight didn’t infringe the patent. In an order posted on the court’s website today, the Federal Circuit said the dispute will be considered by all of the court’s active judges.
A Nevada attorney and former tournament blackjack player says he invented—and patented—most forms of targeted online advertising. Now, Sheldon Goldberg has filed a lawsuit demanding royalties from 12 major media companies, including the owners of Conde Nast magazines and alt-weekly publisher Village Voice Media.
“For me and many others the patent battle was a case story that demonstrated to us that a critical mass of dedicated persons from all the European countries can have significant political influence when fighting for better regulations for our society. Now, under the latest European Treaty, Official Journal of the European Union C 115/21 Article 11, a group of one million people from different member states can ask the European Commission to take up a specific topic to initiate or change legislation.” –Anne Østergaard
“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win.”
Summary: A key participator in the OOXML fiasco mocks an attempt to establish real standards
MICROSOFT zealots are quite the bunch. Those zealots love to characterise freedom lovers as what they themselves are, carefully using stereotypes to portray appreciators of rights, standards and transparency as the “bad guys”. We saw many examples of that last week in ZDNet and days ago we got a reminder when we saw Microsoft's "fox" speaking utter rubbish again. Alex Brown [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] wants to be seen as a professional, but he keeps dodging the questions that matter. Moreover, rather than apologise for helping a corrupt process be corrupt (knowing all sorts of things which turned out to be true later, including patent traps), he carries on moaning and playing dumb. What does it say about him? With UK acceptance of ODF he must be rather bitter. After all, his reputation was burned like an effigy after all he had sacrificed everything for his beloved OOXML. Strong language is all he can descend to now, writing phrases like: “Faced with such clueless fuckwittery it’s tempting simply to ask: what’s the point?” The context is “UK Open Standards”.
Presumably, being involved in standards activities that are highly relevant to the consulting and implementation business of Alex’s firm, Griffin Brown, has no impact on its fortunes at all. And engaging in some other type of community service – say, volunteering at a homeless shelter, or becoming a Boy Scout leader – would avoid all that tedious travel to the excessively dreary locations where SC 34 (the format standard working group) insists on holding its meetings. Places like Tokyo, Stockholm, Paris, Copenhagen, and Prague.
The problem, it appears, is that Alex thinks that only those that participate in working groups like SC 34 are competent to judge what should be in a standard, or which among competing standards might be superior. Never mind, of course, that legions of formal standards have never been widely adopted at all, or that consortium standards are frequently adopted over formal standards. But forget that. Those who aren’t inside the formal standards process just don’t get what standards are really and truly all about, so why don’t all you ignorant sods just bugger off?
If the name Alex Brown rings a bell, don’t be surprised. Alex was the convenor of the one week OOXML Ballot Resolution Meeting held in 2008 – you know, the one that thought that a one week meeting was an intelligent way to resolve over 1,000 comments on an over 6,000 page specification in order to formalize an open standard. During that meeting, Alex made multiple decisions that were later condemned by many. Four countries filed formal appeals. Alex remains serene about that meeting, the decisions made, and the outcome.
Standards, you see, are not to be questioned by those that are expected to use them. They are to be accepted with the deference to which their developers are entitled. We, who are increasingly utterly dependent on what standards allow us to do, or not do, are never, ever to question the judgment of those that create these precious gifts.
Our role is to take what we’re given, and do what we’re told. Anything else would be “clueless fuckwittery.”
My God, Alex. Where is there an end of it?
“Do take a look,” remarks Groklaw, “and if you are in the UK, you might let the government know what standards are important to you. If you are not one for surveys, it says you can alternatively email cto at cabinet-office.x.gsi.gov.uk” █
Summary: Same script, new players; or how the Android case resembles the situation of Linux under SCO’s legal attacks
SCO is only history, but the lesson to be learned from the SCO case is that Microsoft, for example, will compensate other companies for attacking Microsoft rivals in the courtroom. One of the people who played along with SCO and Microsoft was DiDio from the Yankee Group and she is was quoted a lot by ECT over the years, even in Linux Insider. The same goes for other SCO friends, who wrote entire columns for ECT and also moved on to ZDNet where they pushed the SCO line/talking points. ECT still quoted DiDio last week (spreading FUD about “support” for GNU/Linux, in a Web site called Linux Insider).
One of our readers, speaking in IRC, suggested that Oracle, Apple, and Microsoft might be working together/in tandem, maybe even colluding to eliminate free platforms (they are all in CPTN after all). Pamela Jones linked to this new article and wrote: “That’s the same reasoning behind SCO’s attack on Linux, to make it cost. Where are the regulators, you ask? Where are *you*? If you refuse to buy from companies that behave like this, they’ll get the message, just as SCO got the point eventually.” From the article:
It’s the same reason why Microsoft is suing makers of Android phones: to give Android a price.
Android is free. In some cases, it’s even cheaper than free, with Google sharing some revenue from Google searches on Android phones with partners. This is hugely disruptive to both Microsoft and Apple’s business models; Microsoft because they make money on software licenses, and Apple on hardware. And this disruptive approach is winning: Android is surging past iOS in marketshare.
A lawsuit from a big company, even if doomed, still takes a lot of time, energy and money to fight off. So a Samsung or someone else might settle, accepting to pay some form of license. If that happens, Apple can go around the other manufacturers asking for the same license and have a much stronger claim. And now OEMs have to factor that cost into the decision to choose Android. And all of a sudden, Android has a price.
The rise of the Android operating system seems to have gotten the attention of just about everyone, as Google Inc. is under attack by various patent holders looking to derail the software and the company. The beneficiaries are Apple Inc. and Microsoft Corp.
Separately, Jones wrote that “Patent Verdicts Are Usually Appealed, Often Reversed”. Her comment in News Picks went like this (it is a shame that there cannot be permanent link to her insights in News Picks, therefore reproducibility matters):
I see Florian Mueller is once again predicting gloom and doom for Linux, this time due to a jury win for Bedrock against Google, but let me show you something that should calm the waters.
Here’s the website of the Federal Circuit Court of Appeals, which is the specialty court that hears appeals of patent infringement cases in the US, and the link is to the page on statistics, and here [PDF] are the latest statistics on what happens to patent infringement cases on appeal. I think you can see from the stats why patent cases so often are appealed — your chances are very good that you can get matters reversed on appeal, almost a 50-50 chance.
In fact, here’s the intro to a paper [PDF] titled TOWARD CERTAINTY AND UNIFORMITY IN PATENT INFRINGEMENT CASES AFTER FESTO AND MARKMAN: “The increasingly complex technology involved in patent infringement cases has lead many to question the ability of district court judges and jurors in such cases to issue uniform and predictable decisions. In fact, there is evidence that the Federal Circuit Court of Appeals – the appellate court with sole jurisdiction and accumulated expertise in patent law – routinely overrules district court decisions regarding claim construction and prosecution history estoppel under the doctrine of equivalents. Given the frequency with which the Federal Circuit overturns district court decisions, and the fact that nearly every patent infringement case involves a dispute over claim construction or prosecution history estoppel under the doctrine of equivalents, patent infringement cases are typically uncertain until after appeal.”
So calm down. There will likely be an appeal of the jury’s decision in the case brought by Bedrock against Google. And given the nature of the patent, I expect Google will prevail, frankly. In fact just today, Dave Farber wrote on his IP list: “I believe I used that technique in SNOBOL in the early 60′s,” meaning the technique that awed the jurors so. When it comes to tech, it isn’t so easy for juries, and this was in Texas, where the juries have a rep for finding for patent holders whether they deserve it or not. So, I’d suggest everyone just relax and let it all play out. It’s way too early to be worried. I’d also point out that $5 million isn’t very much for Google, even if it were upheld, and if that were the worst that were to happen in the Oracle suit, it hardly would spell doom and gloom for Android. Of course, the real problem is that a lot of stupid patents have issued, and real solution is that software and patents need to get a divorce.] – Federal Circuit Ct. of Appeals
Let us remember that Microsoft Florian is busy attacking Android (even today) while he mostly ignores what Apple and Microsoft are doing; instead he promotes cartels like CPTN — a cartel with Apple inside it. Here is something that Glyn Moody wrote a few days ago on this matter.
So far, I’ve held off from writing about the proposed sale of 882 Novell patents to a consortium “organised by Microsoft”, since there have been so many twists and turns – first it was on, then off – that making sensible statements about the likely impact on free software was well-nigh impossible. As is so often the case, the devil would clearly be in the details.
Again, it is pretty amazing to read in an official press release from the terribly serious German Cartel Office concerns about the use of patents to spread FUD, specifically against open source. This argues a widespread appreciation of the way in which broken patent laws have allowed what was designed to be a spur to innovation to become a weapon for hobbling competitors – not just directly through the courts, but as a vague but real threat to hold over them.
The fact that the US Justice Department clearly shares that view – and “will continue investigating the distribution of the Novell patents to the CPTN owners” – is significant; it means that all of those involved in the CPTN consortium will remain under scrutiny to guard against any future abuse of the patents involved, or FUD based on them.
Now that Microsoft’s gadgets die along with all the rest of its products (bar the cash cows), even ZDNet does an article about it, even though it spins it a bit (as expected). For example:
Microsoft declined to confirm the rumours, although plenty are speculating that the company will keep the Zune brand and continue to produce media player software for Windows Phone 7 and the Xbox 360. If true, that would relegate the much hyped device to the dustbin of failed tech products.
Zune is one example among many where Microsoft fails in gadgets. This is why it wants to tax Android, for example. Increasingly, Apple chooses a similar route because Android is taking over many areas, thanks in part to its licensing model and wide channel strategy.
As CPTN includes the company behind iPatent, its legal actions make it a suspect. Not only Microsoft had something to gain from the SCO case. Sun too paid SCO. As we explained before, there is some evidence that can suggest collaboration on patents between Microsoft and Apple (they are already cross-licensing), including the irrational litigation against Android.
This post hopefully contains enough pointers to encourage further reading. █
Summary: News suggests that amongst Indian companies it is Microsoft’s partners who file for the most monopolies (patents), not just lobby for those
DUE to the nature of today’s attacks on software freedom, Techrights is becoming more focused on legal issues and there might be a new site/subsite pretty soon — one that concentrates on legal issues. A couple of years ago we started assembling articles about software patents in India, which matters a lot when it comes to software.
The biggest filer of technology patents in India is not an Indian firm, but the US chip-maker Qualcomm, India’s Controller General of Patents and Trademarks, PH Kurian has revealed.
Unlike the US, Indian law considers software code as less of an invention and more of a literary work and are therefore protected under the copyright laws. Many technology industry veterans therefore argue that the regime allows companies to steal software technology by rewriting the code from scratch, known as ‘clean room’ re-engineering.
Kurian said this may be a factor in the poor track-record of patent-filings by Indian companies. “In some cases, I know some of our software companies are filing outside India because we are stricter about software patents,” he said.
The monopolists have been trying to change the law though. Microsoft plays a pivotal role in this and it is helped by its semi-subsidiaries — such as Infosys — which do a lot of the lobbying. █