Retarding innovation in the name of profit

Summary: A look at recent developments in the fight against mobile Linux (notably Android these days) and whoever is behind the patent attacks (not always as obvious as people are led to believe)

THERE IS A lot to be said about the impact of software patents on Free (as in freedom) software, such as Linux or Android. Yet another OIN 'ad' (among others) has just been published because the OIN turned 10 and decided to start a publicity campaign, approaching journalists and yanking out press releases in a lot of Web sites. The OIN is, in simple terms, a conglomerate of software patent holders, led by lobbyists for software patents (notably IBM). It is trying to make software patents and Free software look mutually compatible, reconciling or ignoring the fact that the two are inherently in conflict. SJVN wrote that "One reason why Linux weathered patent attacks and trolls to become today's dominant server and cloud operating system is because the Open Invention Network united its supporters into a strong patent consortium."

No, that's not the reason. OIN might try to take credit for it, but that's utter nonsense. Free software and GNU/Linux succeeded despite OIN and software patents. In many ways, Free software and GNU/Linux continue to suffer from software patents and this will be the subject of today's post.

IBM is not the only company that supports GNU/Linux and software patents at the same time. As patent maximalists remind us right now, other large companies, even in China, are doing this. Consider Xiaomi's story. "Responding to a question about recent high-profile executive hires," writes IAM, "Lei said: “Former Qualcomm global senior vice president Wang Xiang joined Xiaomi in July. He’s in charge of our IP. We should be able to make progress in this. Xiaomi pays great attention to innovation. Last year we applied for 2,700 patents. This year’s goal is 4,000.”"

This won't protect them. The matter of fact is, those overall (aggregate) numbers are low compared to the likes of Microsoft, which uses patents to extort GNU/Linux and Android backers like Xiaomi (it's allegedly, based on numerous recent reports, working on a GNU/Linux laptop, not just Android devices).

Microsoft Versus Android

Microsoft continues to attack Free software using patents. Ewan Spence wrote about this the other day. He is syndicated in some large sites and most prominent was probably this article from Forbes, titled "Microsoft's Slow Yet Successful Infection Of Android". Spence is right to claim that "Once more Microsoft has announced an updated patent licensing deal around smartphone technology, and once more a Microsoft deal includes the pre-loading of Microsoft’s productivity software on a smartphone. As more partners come on board, Microsoft’s cloud-based services and applications are becoming more prevalent within the Android platform."

As we explained at the time, this is not a "patent licensing deal" but an extortion which targets a company from Taiwan, PRC. Microsoft is using blackmail (with patents) to get its way. Spence continued: "The more occasions that users encounter the software, the better the sign-up rate will be for Microsoft. Look back over the last year at Microsoft’s deals and you will find that many of the major manufacturers in the Android space have deals that include bundling Microsoft apps, with Sony, LG, Dell, and a number of other smaller manufacturers all signed up."

This is a large-scale campaign of extortion and it continues to widen. If it wasn't for software patents, this probably wouldn't be possible. China's government is trying to counter this (e.g. by publishing a secret list of Microsoft patents asserted against Linux/Android), but will this really help shield Chinese giants like Xiaomi and Huawei? It has not protected ZTE.

Speaking of patent attacks on Android, how about patent trolls? How about Microsoft's troll, Intellectual Ventures? It has been attacking Android backers over their use of Android this year. Such patent bullies obviously help Microsoft against Android while Microsoft says it opposes these (Microsoft is clearly supporting them, even arming them, or at least those that are working for Microsoft or attacking Google, e.g. MOSAID and Vringo).

There is a silent war on Android and Google going on, paralleling Microsoft's war on privacy.

Apple Versus Android

Several weeks ago the appeals court granted an injunction to Apple, banning some features from Samsung's Android phones, which are the world's best sellers. Here is another take on it, aptly titled "Appeals Court: It Is In The Public's Interest That Samsung Not Be Allowed To 'Slide To Unlock' Devices" (software patents).

To quote TechDirt: "The patent fight between Apple and Samsung has been going on for many years now with Samsung being told to pay a lot of money to Apple. But on one point Apple has been unsuccessful: getting an injunction barring Samsung from offering products for sale that include the "infringing" inventions -- such as the concept of "slide to unlock." I still have trouble understanding how "slide to unlock" could possibly be patentable, but there it is: US Patent 8,046,721 on "unlocking a device by performing gestures on an unlock image.""

It's a very simple concept, much like opening a gate that keeps cattle confined. The CAFC (Court of Appeals for the Federal Circuit) is once again helping software patents and Android antagonists like Florian Müller are visibly jubilant [1, 2, 3], even though this lobbyist with history of doing activism against Android (for money) seemingly flip-flops at times and occasionally criticises Apple, though not yet Oracle.

Just remember that Apple uses software patents against Linux. Here is an article titled "Samsung Infringed Apple Software Patent". It was very big news at the time. Even the BBC covered it, but poorly (too shallow). Britain's leading technology news site chose the clever headline "Apple VICTORY: Old Samsung phones not sold any more can't be sold any more".

What Apple did to Linux with patents in this case is more or less the same as patent trolling, except the size of the plaintiff is a lot larger and there are phones with the "Apple" name/logo on them (even though it's not Apple that makes them, Apple is not an Asian company and it has no factories of its own).

Watch this space for followups as this legal fight is far from over. Apple won this round [1, 2, 3], but Samsung continues to outsell Apple.

Bogus 'Peace'

At the end of last month some people were left with the false impression that Google and Microsoft had reached some kind of peace. See this analysis titled "Microsoft: Sacrificing Android Patents Licensing In Favor Of Platform-Agnostic Growth".

Well, Microsoft is not “Sacrificing Android Patents Licensing”, it still attacks (with software patents) many companies. The Microsoft-Google deal is only applicable to the Motorola litigation; every other company that uses Android is still attacked, sometimes by proxy.

FOSS Force wrote that "[a]lthough it’s certain that some money is exchanging hands in the process — an appeals court in July ruled against Motorola in a case Google was defending — no terms of the agreement have been released."

This kind of patent 'peace' between Microsoft and Google means that Microsoft proxies will do more suing. Android OEMs (not Google) will take the burden of extortion.

There were many articles about this, e.g. [1, 2, 3] and Müller, whom Microsoft had paid for Android FUD, wrote: "There's nothing in it that would suggest Microsoft made any headway in five years of suing. This one is structurally reminiscent of the second-class settlement Google reached with Apple last year from a position of mutual weakness: neither do Android's enemies hold patents that would represent a serious threat to the world's most widely-distributed mobile operating system nor are the patents for which Google bought Motorola powerful enough to force Apple or Microsoft into a cross-license covering the entire Android ecosystem."

The part that we didn't like to see reappearing is this: "Microsoft has the industry's best IP licensing team and is generating billions of dollars per year in Android patent licenses."

This is not true; nobody has evidence to that Microsoft earns anything this way. It's a leverage card for extortion and FUD.

BlackBerry Edging Towards Patent Trolling

BlackBerry is moving to Android these days (it won't admit that its own proprietary operating system is on its death throes yet), but it doesn't mean that it won't be using patents to attack competitors who use Android (like Sony does for instance). It is still possible that BlackBerry will become a patent troll based on some recent reports [1, 2, 3, 4, 5, 6, 7, 8], the most principal of which came from Reuters and was titled "BlackBerry CEO sees company patents as key to turnaround strategy".

BlackBerry's CEO has spoken of other things too [1, 2, 3, 4, 5]. It may be premature to judge BlackBerry's future direction, but either way, just like Nokia, it has the potential to do a lot of harm with its patents arm.

What we sorely need right now is a universal (global) end to software patents. Our next post will focus on India's patent policy and US patent policy we shall cover some time in the coming days. ⬆