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01.11.12

Linux/Android Still Faces Proxy Challenge

Posted in Apple, Microsoft, Oracle, Patents at 4:20 pm by Dr. Roy Schestowitz

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft

Summary: MOSAID and Oracle as seen in the context of Android; more new rants about the USPTO, which loses support from the US public

OUR resource page about MOSAID is being expanded as it becomes increasingly evident that Microsoft uses it as a proxy.

Groklaw has been following this patent troll since it took on Red Hat and according to this update, MOSAID’s case becomes ever more bizarre:

If you were a patent holder contemplating suing a bunch of companies for patent infringement, what’s the first thing you would want to know? Do you think maybe it would be that you actually own the patent(s) you are asserting. That thought obviously never crossed MOSAID’s mind when it brought suit back in August against Red Hat, IBM and others. (See Mosaid v. Red Hat – A new patent infringement complaint aimed at Linux).

And if that weren’t bad enough, your attorneys then demonstrate they have no clue that the America Invents Act (patent reform act) was signed into law on September 16, 2011, or that pleading patent infringement requires something more than saying I own a patent and you infringe it. These guys can’t get anything right.

Of course, what makes it all the worse is that MOSAID Technologies is that patent troll that has now climbed into bed with Microsoft and Nokia to try and cause more havoc with Android. There are a number of things I love about Canada – MOSAID is not one of them.

Let’s recap the history of this litigation. MOSAID brought its original complaint (PDF; Text] for patent infringement on August 9, 2011, against Red Hat, IBM, Alcatel-Lucent, Adobe, Juniper, VMWare, and NetApp. That original complaint asserted two U.S. patents: 6,505,241 (’241), allegedly infringed by Adobe, Alcatel, IBM, Juniper, and NetApp; and 5,892,914 (’914), allegedly infringed by Red Hat. Interestingly, although VMware is identified as a defendant in the heading and as a party to the suit, the complaint contains no specific allegation that VMware infringed either of the patents, despite the fact that VMware’s vFabric GemFire Platform is identified as an infringing product. Screw-up number one.

On September 16, 2011, President Obama signs the America Invents Act into law. More on that in a bit.

On September 27, 2011, purported defendants IBM, Juniper, Adobe, Alcatel-Lucent, NetApp, and VMware wrote to MOSAID informing MOSAID of its second big mistake – MOSAID didn’t own the ’241 patent. Oops!

After receiving the Complaint, defendants discovered that MOSAID could not assert the ‘241 patent because more than three years earlier—on June 30, 2008—MOSAID’s predecessor-in-interest, Network Caching Technology, LLC, had dedicated the entire patent to the public pursuant to 35 U.S.C. § 253.

Screw up number two!

For those who are new to it, MOSAID tried to get Nokia patents (with Microsoft’s help) through some dodgy route in a tiny European country. B&N complained about it. It saw what was happening there and the obvious target is Android/Linux.

The patent system is a big sham and the hype we see about patents in the news ought to stop because it kills the real, i.e. producing, industry. Ed Lazowska, writing for Xconomy, is one of the latest to complain about the patent system. He writes:

Just about everything about the system is broken. In my view it is working strongly against real innovation. Major companies amass enormous portfolios of questionable patents that they can use to bludgeon one another (until they sign cross-licensing agreements, at which point only the little guys are left to be bludgeoned). Organizations that are not in the innovation business acquire portfolios that they assert for profit alone. I have absolutely nothing against the licensing of substantive innovations by those in the innovation business, whether by major companies or little guys . But much of what goes on today does not fall into this category, and something needs to change. I am not sufficiently expert to make appropriate detailed proposals, but I am sufficiently expert to smell a rat.

Yes, this man is getting it. Then there are rats like Tuxera, which acts more like a Microsoft proxy (we are still working on it by speaking to XFS copyright holders). There is this new press release about this rat which helps Microsoft put a patent tax on Android and Linux. To quote:

Marvell and Tuxera’s joint solution is designed to reduce overall development cost and enable faster time to market for customers’ NAS platforms..

Only if your aim is to make Microsoft the standard (Microsoft’s file systems). This is one of the ways Microsoft currently extorts backers of Android, according to what we learned from the OIN (ActiveSync is another vector, but it’s under NDAs). Then there is Oracle’s attack on Android, the latest on which is summarised as follows:

A judge’s ruling on the Android Java patent battle between Google and Oracle has given both battling companies some wins and some losses. A potentially embarrassing email by a Google engineer has been allowed in as evidence. On the other hand, Oracle has been limited in its ability to introduce other evidence for its claim that Google has infringed on its Java language patents.

We still believe that the lawsuit may have been motivated by Steve Jobs, who is Larry Ellison’s best friend. Apple will hopefully get spanked in the courtroom for patent violations, to the point where Apple will need to rethink its stance on patents. One of the major lawsuits against Apple is from the dying Kodak, which turned into a patent aggressor in light of its failures:

The 132-year-old photography icon has been pummeled by consumers’ switch to digital. Its fortunes deteriorated further last year, and it said in November that it could run out of cash in a year if it couldn’t sell a trove of 1,100 digital-imaging patents.

Given that Kodak keeps suing Apple, we hope that Kodak keeps those out of the hands of trolls and keeps giving Apple reasons to reconsider its patent strategy.

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3 Comments

  1. mcinsand said,

    January 12, 2012 at 8:12 am

    Gravatar

    MS and Apple both have the same mode to stay in business, basically; intimidate and bully the markets while selling to lemmings that just don’t know that they can have better performance with more choices through FOSS. As long as FOSS market share stays low, Joe Public will not be aware that he can have far more for far less, which is why Android has Redmond and Cupertino in such a panic.

    Apple and MS don’t mind being parasites off of FOSS. For decades, I actually thought that MS had developed the Word for DOS interface that freed me from playing Twister with my fingers to use WordPerfect. When Apple introduced Bootcamp, a lot of my walled garden friends asked why Linux didn’t have multibooting ability. Yeah, we had that long before Apple. And, when we look at posted ‘evidence’ that IOS is strikingly new, all we see is proof that Apple is only incorporating what many of us have had for a long time.

    The point is that thuggery is all that the two have left, although Apple has more freedom for direct anticompetitive behavior than MS. The modes are the same, but, with a huge market share, MS has to be careful about using proxies. Apple escapes prosecution for market suppressive practices, especially on the desktop, because of low market share, which is a problem. If we don’t want bully monopolies, then we need to enforce consistently.

    Regards,
    mc

    Dr. Roy Schestowitz Reply:

    Another difference is, with patent aggression Apple wants to castrate or ban the competition, whereas Microsoft is trying to tax the competition, driving up its price to the point where it’s uneconomic or making a Microsoft cash cow out of the competition. Both are anti-competitive tactics that merit government intervention (if only the government was funded by people and not corporations).

    mcinsand Reply:

    The modes basically remain the same as they have been for decades, then. MS used to tax all PC manufacturers with the MS-Basic ROM deal on motherboards, to ride the wave of PC growth. Apple has always been a thuggish dictator, and I remember my friends with Macintoys having to pay 4 times what I was for basically the same 3½” floppy drive. The difference, of couse, was that the Macintoy was crippled to only take drives with the sacred Apple logo.

    And, both have not minded copying FOSS, as long as they didn’t have to pay for it, and as long as FOSS remained a minor player. I was happy to get MS-Word for DOS because of the interface… that I found later they had copied from EMACS. It certainly beat the way WordPerfect made me play Twister with my fingers. Apple was the first of the two to recognize that they don’t have the expertise needed for a modern, stable operating system, but then they turned BSD into a shiny, crippled toy by removing versatility and hardware support to make OSX. Of course, Apple didn’t mind journalists crediting them with Bootcamp, when the rest of us have been using boot loaders for years. And, the one time they did participate significantly in FOSS, with the Webkit project, they were a nightmare to work with, trying to get all that they could without giving anything useful back.

    I’ll be glad to see them both implode!

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