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07.01.13

Software Patents and the FTC’s Red Herring

Posted in Patents at 11:24 am by Dr. Roy Schestowitz

Red herring

Summary: The core problem with the USPTO remains unchallenged because the wrong problem — or a symptom rather — is being described and slowly addressed

The USPTO has been harbouring a culture of patenting, motivated for the most part by large corporations’ desire to have mechanisms of protectionism in place, barring or weighing down emerging competition (sometimes domestic but especially foreign). The illusion of a ‘free market’ should be warped to speak of unregulated markets where large corporations are free to do as they please, always assured that the government that they pay will protect them when the need arises, be it by patent monopolies or even espionage overseas (see Cablegate on Boeing for examples). In this culture where offices like the patent office are run by people who came from large corporations (revolving doors) it is not surprising that even so-called ‘reforms’ are structured to benefit large corporations.

According to this report from the corporate media, the US government (a branch of it) “said it created a pilot program in which its six administrative judges will in some cases determine within 100 days if companies that sue for infringement have adequate U.S. production, research or licensing to use the court.”

“In this culture where offices like the patent office are run by people who came from large corporations (revolving doors) it is not surprising that even so-called ‘reforms’ are structured to benefit large corporations.”This is not the right thing to do [1, 2, 3, 4]. What they need to do is assess the quality and especially the scope of the patents, irrespective of the plaintiff. They are doing a sort of ad hominem disservice by looking at a real issue which is nevertheless not the core issue.

Well, citing the pro-software patents blog that lobbies on scope and defends trolls, Groklaw names David Kappos, former head of the USPTO and an IBM faithful. Pamela Jones writes: “This is why Kappos failed. He misunderstood what the criticism of the patent system is about. It has *nothing* to do with a reluctance to pay. It’s about protecting innovation in a system that has allowed such broad functional claiming, blocking off entire areas of software development, that no one can innovate safely any more. That damages the patent system and the economy and it brings innovation to a halt. The rest is ideology and daydreams.”

The FTC is not going to resolve the overall problem even if it tackles patent trolls. The problem is not correctly identified, just a symptom of this problem. As some wise person noted the other day, there is no good understanding of these issues, so the commission will fail. To quote:

First, it notes that the chairwoman of the FTC is expected to recommend an investigation of patent trolls (or “frivolous patent lawsuits” as specified in the headline). The promised further action has not been confirmed, so we will have to wait and see.

The Times then slid around the “patent troll” name and henceforth called them by the less pejorative “patent-assertion entity” or PAE. Still, adding some weight to the promise of action was the “several executive orders” from President Obama “directing executive agencies to take steps to take steps to ‘protect innovators from frivolous litigation.’”

The article goes on to describe patent trolls as typically having no operations other than collecting royalties on patents and says that they accounted for more than 60 percent of the roughly 4,000 patent lawsuits filed last year, up from 29 percent two years earlier.

But then the article notes one company that calls itself a “patent-licensing company,” raising the question of “what’s in a name”.

In any case, the Times expects the full commission (two Democrats and two Republicans, with one seat empty), to approve a study.

What they fail to see is that a large company like Microsoft is also engaged in patent assertion. Some say Microsoft makes billions of dollars this way, at the expense of those who actually sell products that customers want. It makes Microsoft not all that different from patent trolls. Sometimes Microsoft uses a proxy like Vringo, which Troll Tracker describes as follows today:

But is that really what Vringo is doing? Are they taking someone’s IP and making something useful out of it, because that person/company cannot? Or are they taking patents that were sold to them by, oh, I dunno, Microsoft just for instance, and using them as a bully stick with which to beat other companies who have already manufactured something of good use and likely didn’t even infringe but will settle so they don’t have to litigate? That’s what would be a bad thing, right?

To get an example of classic patent trolls, see this new article from Joe Mullin, who says that “With so many patents out there claiming rights to basic Web-based technologies, at this point there aren’t many businesses in America that are unaffected by so-called “patent trolls.” But one troll, ArrivalStar, found a fresh set of targets that earned it serious scorn: public transit systems.”

Here is another article about it. “For several years now,” it says, “a curious company called ArrivalStar – which has no website, appears to produce nothing, and is oddly registered in Luxembourg – has been systematically suing public transit agencies in the United States. As we wrote last April, the company holds a collection of dubious patents tied to the technology of tracking vehicles in motion. And it has been using them to claim patent infringement by transit agencies that … track vehicles in motion.”

“At the end of the day the largest corporations will benefit and everyone else will suffer even more.”This is starting to get a lot of national coverage.Public transit agencies across US say they’re being squeezed by questionable patent lawsuits, according to the Washington Post. Another article says that “A patent holding company has filed eight lawsuits against U.S. banking institutions in recent weeks, claiming patent infringement on products and services related to security and electronic banking.”

What makes this troll a problem is that it hurts the rich, and therefore politicians will go after it with great passion. To Quote further: “In some cases, the patents mentioned in these suits are alleged to cover basic banking functions and features used in ATM and online-banking transactions. In other cases, even cryptography methods used to conform to security standards, such as the Payment Card Industry Data Security Standard, have been brought into question, Denaro says.”

A simple ban on software and business method patents would resolve this, but the government goes after those entities not because of their patents but because of their business model. What a red herring this is. At the end of the day the largest corporations will benefit and everyone else will suffer even more.

Apple Bites the Bullet

Posted in Apple, Patents at 11:02 am by Dr. Roy Schestowitz

Apple Sued by Company Partly Owned by Apple’s Peripheral Lawyers

Bullets

Summary: Apple’s aggressive patent plot against Android is breaking to pieces and Apple is getting sued even by some of its own teams

Apple is unable to stop Android domination and the ITC now threatens to embargo Apple products, not Android products. To quote a report about the ruling:

Earlier this month, the ITC issued a landmark decision and exclusion order, ruling that certain Apple products should be excluded from entry into the United States because they infringe a Samsung 3G-essential patent. As we explained in a follow-up post, the ITC doesn’t have the final word, though — by law, the President has the power to disapprove of an exclusion order for public policy reasons. (This power has since been delegated to the Office of the United States Trade Representative (USTR).) In a high-stakes, high-profile case such as Samsung-Apple, you’d expect the parties to continue the fight at every level — and sure enough, that’s what has happened.

It sure looks like in 2013 Apple finally lost it altogether and its patent chief left. There is no hope of embargoing the best-selling Linux/Android devices any time soon as a “California judge [last] week denied Apple’s request to add the Galaxy S4 to an ongoing patent case it is fighting against Samsung.”

“Maybe if enough lawsuits of this kind get file, Apple will finally decide to fight against patents, not to fight against Android.”Meanwhile, says this report from a reliable journalist, “an array of documents from a patent lawsuit over Apple’s iPhone became public, revealing a stunning scheme: FlatWorld Interactives, a patent-holding company demanding a royalty on nearly every iOS device, is partly owned by an attorney at one of Apple’s go-to law firms for patent work.”

This is great news because it helps show loyalty to Apple declining not just on the customers’ side but also employees’/contractors’ side. Maybe if enough lawsuits of this kind get file, Apple will finally decide to fight against patents, not to fight against Android.

CAFC Impedes Progress and Helps Extortion Against Linux/Android

Posted in GNU/Linux, Microsoft, Patents at 10:50 am by Dr. Roy Schestowitz

CAFC

Summary: The role played by software patents at the CAFC (United States Court of Appeals for the Federal Circuit, seen above) and how this affects ongoing fights over the future of free operating systems

The software patenting boosters (led by Dennis Crouch) cover some developments regarding the Court of Appeals for the Federal Circuit (CAFC), a prominent booster of software patents in the US (and one of the culprit behind their very existence). According to Mark Lemley, who has a weaker position on software patents (he wants reform but won’t promote abolishing software patents), functional claiming may have just been adopted through the back door at the CAFC. Rader, who played a role in all this (Rader has been Chief Judge at CAFC since 2010 and may reign until 2017) does not want real reform (just bogus ones) and as long as that is the case we will continue to treat both him and the CAFC as foes of progress in software. They help endorse a system where extortion is prevalent. Rader’s position actually goes a long way back and the Bilski case is just one example. These are urgent matters because Linux/Free software cannot co-exist with software patents.

“These are urgent matters because Linux/Free software cannot co-exist with software patents.”According to this article, as we noted the other day, B & N is collapsing after Microsoft extortion and a deal/bribe. Pamela Jones writes: “Linux vendors who partner with Microsoft don’t know where up is. Linux customers, however, do. That is the simple explanation. That and Microsoft trying to kill Linux for over a decade now. I have a Nook. And I loved it. In fact, I used it more than the iPad I was given as a gift. I don’t use that any more either, actually. But the day Microsoft announced its settlement with Barnes & Noble’s litigation and its investment in Nook Media, I stopped using it and I’ll never buy another. To most Linux users, a partnership with Microsoft is the kiss of death and we leave the vicinity.”

Todd Bishop, a longtime Microsoft booster, continues to promote Microsoft’s patent agenda while big patent disputes from Microsoft (aimed at Google/Motorola) are trying to destroy Android. If the platform cannot stay free in the cost sense, then it becomes hard to (re)distribute. Microsoft and Apple use patent-stacking against it and the next post will deal with Apple in isolation.

Ingesting Microsoft Traps: FAT and Restricted Boot

Posted in GNU/Linux, Kernel, Microsoft, Patents at 10:31 am by Dr. Roy Schestowitz

Eating the bait like it’s candy

Sweet tooth

Summary: Acceptance of notorious vectors for patent extortion and denial of booting for free operating systems

Several years ago Tuxera signed an obscure Microsoft deal and began promoting Microsoft tax in Linux. “Tuxera is still pushing Microsoft products and patents into Linux,” says a reader to us.

“Further,” he adds, “it is injecting them *as closed source* into Linux”

According to TomTom, this will be trouble. Even TomTom is exiting this trap. This new promotion of Tuxera says “Tuxera announced a new FAT filesystem for embedded Linux- and Android-based devices claimed to deliver faster data transfers than previous FAT implementations. The Tuxera FAT technology offers improved application responsiveness and power savings, while providing features including fail-safe operation.”

This is not news, it is rehashed PR. Tuxera and Paragon do this all the time because new version are out, advancing Microsoft file systems at the expense of Linux ones. Over at Michael Larabel’s site, another exFAT booster is shown:

A Linux developer has released a native Linux kernel module for implementing Microsoft exFAT file-system support within the Linux kernel. This is different than earlier exFAT Linux modules that were implemented via FUSE in user-space.

Appearing on GitHub is a new exfat-nofuse project. This is a Linux non-FUSE read/write kernel driver for the Microsoft exFAT file-system.

This should not be embraced, it is a patent trap. A lot — if not all — Linux and Android patent deals that Microsoft signs involve FAT. The OIN told this to us.

Speaking of Microsoft traps in software, there is also UEFI restricted boot, which Debian and other freedom-respecting distributions are shunning (for UEFI shunning by Debian see [1, 2, 3]), excepting lesser-free derivatives like Knoppix or Ubuntu (on the Red Hat camp there is Fedora).

One reader told us: “There still is some conflation of Restricted Boot and UEFI. Have the UEFI people even begun steps to undo that?”

“Here is one example,” he says, pointing to Slashdot where not OpenBSD but FreeBSD is again being used to advance the UEFI agenda. To quote: “Microsoft has implemented secure boot for Windows 8, using cryptographic keys for authenticating the kernel that is being loaded. This means that any other operating system looking to load itself on a secure boot-enabled Windows 8 system has to also be able to authenticate itself.”

FreeBSD plays along:

FreeBSD will soon support secure boot, as per a report from itwire. Most new computers that come pre-loaded with Windows 8 have UEFI secure boot enabled which makes it difficult to install other operating systems. Some GNU/Linux distributions have found a workaround and are able to run on Windows 8 machines. However, this will be the first time a BSD derivative is being developed to support secure boot.

This is not good. Restricted boot need to be antagonised, not caught up with. The same goes for FAT, which is technically inferior to what Linux already offers and definitely helps Microsoft engage in racketeering against Linux and Android.

The British Military Gives the United States Back Doors Into All of Its Computers

Posted in Europe, Microsoft, Security, Windows at 9:58 am by Dr. Roy Schestowitz

The British “army/navy/RAF have surrendered sovereignty again” –Glyn Moody

Ministry of Defence

Summary: National security of the UK still in the hands of the NSA and other intelligence branches of the United States, new software procurement deals teach us

Microsoft gives the NSA back doors, as we recently learned. Last week we could called that espionage threat, but this week we know it is not just a threat but a reality, as the European Parliament got cracked by the NSA (see our daily links for many reports on this). The former chief of the NSA and the CIA publicly goes on the record admitting this, based on this weekend’s reporting.

“MoD signs Microsoft mega licensing deal for 180,000 PCs,” says a new headline from Paul Kunert in the Microsoft ads-filled British news site (a police deal too got signed not too long ago). For those who are not familiar with the MoD, we wrote about it some years ago, almost concurring with the time Techrights seemingly got infiltrated by British police. When our government pays almost $10,000 per Windows desktop per year we are left assuming these are inherently corrupt deals. Here is the latest: “The Ministry of Defence renewed a three-year Microsoft Enterprise Agreement late on Friday with Software Box Ltd (SBL) for 180,000 seats in a deal that sources value at roughly £15m per year.

“SBL has held the Microsoft EA with the MoD for the past nine years and channel folk are not surprised the Large Account Reseller won the latest tender, which had been issued to nine suppliers on Lot 3 of the Commodity IT Hardware & Software framework weeks ago.”

It is quite a clever way to subsidise Microsoft at taxpayers’ expense, leaving the international surveillance apparatus in place. And “so the army/navy/RAF have surrendered sovereignty again,” writes Glyn Moody in Twitter.

The incestuous relationship between the US war machine and that of the British, including surveillance at the wire level, e.g. on Germany and other EU members, sure is troubling. Given the ‘special’ Anglo-Saxon relationship, this is not shocking though. A lot of people knew about it for years and now we have many documents to show this.

For those who still think that security spin in The H can somehow suggest that Microsoft cares about security, it is important to explain that to Microsoft security means national (US) security, not security for computer users. With proprietary software this is easy to attain. The H shows how Opera (proprietary) became a security compromise only in Windows (proprietary). To quote: “Windows users seem to have been hit the hardest, since not all Windows versions check the certificate. Wilton-Jones tries to reassure users saying the malware did not affect the Opera installation itself; the autoupdate delivered trojan was
installed directly onto the operating system.” Here is the word from Opera.

For those who insist that the MoD chose Windows because it’s better, well, there is no actual reason for choosing Microsoft, definitely no technical reasons. Vista 8 is an utter disaster and even the same publication as above wrote some days ago that “Microsoft partners seriously underwhelmed by Windows 8.1″, providing the following as backing for what can be seen as generalisation:

Microsoft CEO Steve Ballmer promised a flood of touch-enabled devices to fill the market as he previewed Windows 8.1, but is the technology channel raring to snap them up? Not really, it seems.

Redmond’s very own bald eagle last night said the “rapid release” upgrade – which comes with a revolutionary Start button – will blend “desktop and modern computing experiences”, and the market should expect “literally an outpouring” of touch devices.

Major changes are expected amid Microsoft’s market decline and ZDNet, another Microsoft-friendly site, says that Windows is broken:

When the ecosystem is broken, you gotta blame the platform

[...]

This is another aspect of the broken Windows ecosystem. Microsoft makes a big splash with consumers building up the availability of Windows 8.1 and enticing mainstream customers to install it. The warning above was buried in a blog post and nowhere near the promotional material pushing customers to install the pre-release version.

Microsoft apparently knew that hardware partners might not be ready to handle the new Windows, but released it anyway. There’s no telling what will happen to owners of the devices listed above who install the new version, and I’m not going to find out, given the warning.

“Buyer beware” is always appropriate, but if you can’t trust the platform maker, then who can you trust to watch your back?

In this writer’s opinion, this is a clear example of Microsoft not putting the customer first and handling things in a way to guarantee a smooth experience. It’s another instance of Microsoft releasing an update to its own product, yet not allowing partners to get ready for it so customers have no problems. In a way, this instance is even worse than usual, as it’s obvious that given the warning statement above, Microsoft knew that owners of these popular devices should exert caution with the update installation.

To summarise, there is no reason for the British army to commit to Windows for years to come, neither for security-centric reasons nor for technical reasons. This seems like yet another sellout associated with people who reign over society and want to control/dominate. Isn’t that, after all, what militaries are about?

No intelligence apparatus should be complacent about working with NSA-controlled software. As the NSA already cracked ‘allies’ like the European Union, the NSA just cannot be trusted by anyone. Having spoken to some friends about it today, they too agree that the UK should foster its own IT companies and only ever deploy Free software whose integrity is assured domestically.

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