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While Attacking Android/Linux With FRAND and Lawsuits Apple and Microsoft Pretend to be the Victims

Posted in Apple, GNU/Linux, Google, Microsoft, RAND at 10:43 am by Dr. Roy Schestowitz

Chess game

Summary: Patents and new laws are being used by Apple and Microsoft in order to marginalise Linux, as evidenced by recent news

OUR focus on patents means that we will continue naming the culprits, wherever they are. There is more to it than Apple and Microsoft, but Apple and Microsoft are the prominent culprits.

Symantec with its spurious patent lawsuits joined the list of shame and FOSDEM looked broadly at the subject. To quote a new roundup:

On a legal aspect of the Free software issue I could see the presentation of the End Software Patent organisation. They militate to exclude software from patentability, claim for the EU to stay away of the temptation to give existence to software patent via court decisions and closely follow the interpretation of the judges when they come to decide what is patentable and what is not. There were concerned about the influence of patent lawyers from software patent owners on the courts decisions for their benefit, in particular in some court assessments in the US and in the UK , which recognise software patent and justify it by the need to follow the decisions from ”others” (experts from the European Patent Office- who is no jurisdiction-, or lower courts) in order to avoid controversy… Avoid controversy. What an arbitrary criteria! A higher court basically says: ”I decided this because others decided it so”. This seems to be a kind of negation of the independence and impartiality of the law. I am amazed this argumentation even appears in official case law documents. I have never seen something similar. Of course, Higher courts do sometimes follow experts and lower courts decisions but they always need to legally justify this by explaining why it was correct to do so. Then they talked about the future, possible unitary EU patent and the creation of the EU patent court. The project does not exclude software from patents and it gives substantial new legal powers to the European Patent Office, that is already delivering many software patents, see the concerns of Richrad Stallman. When End Software Patent warns against a kind of current risk of arbitrary ”expertisation” of patent law interpretation, to the benefit of software patent owners, we could be rather sceptical of the motivation behind such initiative.

There is also some new hammering [1, 2] from MPEG-LA, which is run by a patent troll. It is backed by Apple, Nokia, Microsoft, and several others. It’s merely a proxy like the MPAA or RIAA. When large companies risk being sued they band together under a sort of cartel that only large players are able to join. They are pooling ammunition in there. This includes companies like Apple, which while disrespecting trademarks (like in this new example) is also promoting a monopoly on media codecs. How convenient for a company with strong ties at the ‘entertainment’ industry. As a side note, ABC very recently did an appalling whitewashing report for its ally Apple — in this latest case it was revisionism over Foxconn (we won’t go into it now). Here is an Apple-funded (through advertising) Web site painting Apple as a victim of patents:

The voice mail system on Apple’s iPhone has once again become the target of a lawsuit from a company claiming infringement on one or more software patents.

Apple deserves this because Apple is perhaps the biggest aggressor right now when it comes to patents. It’s Steve Jobs' ugly legacy. There are a lot of software patents in the news [1, 2, 3, 4, 5], but nothing compares to the embargo war Apple has launched against Android/Linux.

Google may have some patents of its own [1, 2], but Google has no history of patent aggression.

While the patent buzz persists in the news we find that, based on Pogson’s interpretation, Oracle is not managing to make its patent case work against Google just yet:

The parties have now filed their joint statement on patent marking (721 [PDF;Text]), but it is hard to say they are any closer than before or that this entire exercise has substantially streamlined the issue of patent marking for trial. That’s the pessimistic view. The optimistic view is that they at least agreed upon a series of conditional stipulations, i.e., if Android is found to infringe, then the specified Oracle products also practice the patent and required marking. Perhaps that is the best they can do. In any case, there are clearly differences that remain as to how the claims are to be read and applied, and those issues will only get resolved at trial.

Here is more bad news for Oracle:

The parties filed a joint update with the court regarding the pending reexaminations of the asserted Oracle patents before the U.S. Patent and Trademark Office. (722 [PDF; Text]) Not surprisingly, Oracle has taken yet another hit. This time it is on previously reexamined patent number RE 38,104.

On February 16 the USPTO issued a non-final rejection of all of the claims of the ’104 patent that have been asserted by Oracle in this case. Oracle has until April 16 to file a response. Given the track record of Oracle’s responses in these reexaminations, don’t be surprised to see this reexamination result in a final rejection of all of the asserted claims of the ’104 patent.

Oracle takes a step back. As one journalist puts it, “Oracle has removed the last claim of one of the patents it has accused Google of violating, and downsized the amount of damages it estimated from Google’s alleged infringement of Oracle’s Java software.

“According to Groklaw, Oracle has withdrawn its claim against US Patent No. 6,192,476. The validity of the patent was in much doubt anyway after the Patent Office issued a final rejection of 17 of the 21 claims of the ’476 patent.”

“The Commission would remind the Honourable Members that the Unified Patent Court is envisaged to be established by a treaty between the EU Member States.”
      –Michel Barnier, patents maximalist
Apple is meanwhile pushing for FRAND along with Microsoft. It would impede Android through pricing. To quote: “Apple is attempting to stop the use of “standards essential” patents on 3G technology as legal bludgeons against smartphone competitors. To make its case, the company has gone directly to the standards body behind 3G wireless networking, the European Telecommunications Standards Institute (ETSI). In a letter to ETSI dated last November (but only recently uncovered by the Wall Street Journal) Apple suggested that patents offered as part of wireless networking standards should be governed by standardized royalty rates and barred from being used as the basis for legal injunctions.”

What this would mean is a patent fee. It is not compatible with Free software and Apple knows this. Over in Europe, the FRAND debate is very much alive right now and the unitary patent might play a role because it’s a form of treaty, expanding laws in one fell swoop. “EU will not be a contracting party to this treaty,” we learn from correspondence. “Consequently, the Commission does not comment,” quotes the FFII’ president who shows an unhelpful formal response. It says: “The Commission would remind the Honourable Members that the Unified Patent Court is envisaged to be established by a treaty between the EU Member States. The European Union will not be a contracting party to this treaty. Consequently, it would not be for the Commission to evaluate, recommend or decide on the possible candidacy of Milan for the seat of the central division of the Court of First Instance.”

How convenient for them. So while Microsoft lobbyists help Microsoft and Apple push for FRAND in Europe and Don Reisinger misleads with a wrong statement in the headline (“Microsoft sues Motorola Mobility, claims FRAND abuse”) we are led to believe that the Commission is not in a position to intervene. There is clearly an abuse here. After interference from the likes of Florian Müller it is not surprising that there is a FRAND push in the press, impacting Europe as well (it’s part of the propaganda from Microsoft):

Microsoft is the latest tech giant to take aim at Motorola Mobility–and thus, by virtue of its $12.5 billion acquisition, Google–in a FRAND (fair, reasonable, and nondiscriminatory) patent abuse claim.

The software giant today filed a formal competition law complaint with the European Commission against Motorola, arguing that the company is not offering essential patents on fair and reasonable terms. The complaint involves patents Motorola holds related to Web video and the way in which certain devices, like Windows PCs and the Xbox, access and play it.

The hypocrisy here is astounding. Essentially, the gangster calls its victim “rogue” in an attempt to justice its own abuse. As one good analysis puts it:

‘The crow calling the kettle black!’ as someone wrote in the comment section of the blog post of Microsoft where the company wrote about filing a competition law complaint with the European Commission (EC) against Motorola Mobility and Google.

Dave Heiner, Vice President & Deputy General Counsel, Corporate Standards & Antitrust Group, Microsoft, says, “We have taken this step because Motorola is attempting to block sales of Windows PCs, our Xbox game console and other products. Their offense? These products enable people to view videos on the Web and to connect wirelessly to the Internet using industry standards.”


Nice job Microsoft when it comes to signing bogus patent deals with Android players its NDA but when an Android wants Microsoft or Apple to pay its FRAND.

Now, who should be crying foul here?

The regulators should investigate Microsoft’s racketeering [1, 2, 3, 4, 5, 6, 7, 8], Google is merely the victim here. In later posts we are going to write more about Microsoft’s FRAND propaganda, which is paid for. It’s an ongoing lobbying/PR campaign.

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