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09.17.17

Microsoft is Promoting Software Patents in India in Another Effort to Undermine Free/Open Source Software, Microsoft-Connected Trolls Are Still Suing

Posted in GNU/Linux, Microsoft, Patents at 3:54 pm by Dr. Roy Schestowitz

Watch the men behind the curtain

Microsoft and trolls

Summary: The ongoing patent threat to Free/libre Open Source software (FLOSS) and the role played by Microsoft in at least much of this threat

THE company which claims that it “loves Linux”, Microsoft, unsurprisingly (given its track record on this) attacks GNU/Linux. It is still promoting software patents in India even though the rules are clearly preventing this. It is not allowed.

“…Microsoft, unsurprisingly (given its track record on this) attacks GNU/Linux.”How do we know?

See this report from a few days ago: “GNLU Centre for IPR in collaboration with GNLU-Microsoft chair on IPR and policy research, is organising a panel discussion on ‘Protecting software’s through Patents: Current Challenges and Future Solutions’ on 7th October, 2017 at Gujarat National Law University, Gandhinagar, Gujarat.”

Why would Microsoft organise a discussion on “Protecting software’s [sic] through Patents” in country that does not permit such patents?

“Why would Microsoft organise a discussion on “Protecting software’s [sic] through Patents” in country that does not permit such patents?”The matter of fact is, Microsoft is still an enemy of GNU/Linux, yet certain people choose not to see it.

Where is Microsoft when it comes to OIN? Non-aggression is not something Microsoft can commit to. As Simon Phipps keeps stating, he would not believe Microsoft unless or until it decides to join OIN. But that too would not be sufficient because we already know that Microsoft operates through trolls, too.

OIN made the headlines (again) a few days ago. But it required some digging to find (none of the major Linux news sites picked this).

According to the press release, JD.com Joins the Open Invention Network (OIN) ‘Community’, but OIN is not against software patents and it certainly cannot stop patent trolls, even by its very own admission, making itself susceptible to loopholes. To quote from the press release:

“The retail space is undergoing a significant sea change — perhaps the largest in its history — as consumers worldwide continue to accelerate their purchasing via online retailers. To meet this growing demand, sophisticated e-commerce platforms today are built on Linux and adjacent open source technologies,” said Keith Bergelt, CEO of Open Invention Network. “We greatly appreciate JD.com’s leadership in joining OIN and supporting patent non-aggression.”

OIN is still IBM-led (to some degree) and as we noted in our previous post, IBM lobbies for software patents. To patent aggressors, patent law firms and patent trolls that’s just extra business. Lawyers profit from both sides (plaintiff and defendant). To real companies that champion development/production these lawsuits are nothing but a money drain (lawyers’ gain). To OIN? Well, the greater the fear and uncertainty over patent lawsuits, the more money it will harvest. It just cares about its own relevance, i.e. it benefits from threat.

“Where is Microsoft when it comes to OIN?”Earlier this year we published many articles about Microsoft siccing trolls on its competition while offering ‘protection’ (or indemnification) from these trolls [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. A few days ago we also saw Finjan, a Microsoft-connected patent troll, suing some more companies while attempting to dodge PTAB, which we wrote a lot about earlier today (two articles about PTAB, published earlier today, explain the relation to software patents). Finjan even issued this press release about it to say (about its software patents):

Finjan Holdings, Inc. (NASDAQ: FNJN), a cybersecurity company, and its subsidiary Finjan, Inc. today provide an update on four separate, but related matters including a summary judgment, IPR proceedings, Germany trial and an oral argument against Blue Coat Systems, Inc. (Blue Coat).

[...]

Second, in post-grant proceedings before the United States Patent & Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB), the PTAB denied two additional Blue Coat petitions for Inter Partes Review (IPR), namely, IPR2017- 00996, which challenged the validity of U.S. Patent No. 9,141,786 (the “’786 Patent”) and IPR2017-00997, which challenged the validity of Finjan’s U.S. Patent No. 9,219,755 (the “’755 Patent”), and instituted trial on IPR2017-00995, which challenges the validity of U.S. Patent No. 9,189,621 (the “’621 Patent”). Notwithstanding institution, Finjan remains confident that the ’621 Patent will survive IPR. To-date only 20% of IPRs have been instituted against Finjan’s patents and, more impressively, after institution, 99% of Finjan’s claims remain intact.

Incidentally, a former adviser of Finjan is unhappy to see them turning to what he called “patent blackmail”. He wrote this a few days ago, right after reading our articles about it.

“Earlier this year we published many article’s about Microsoft siccing trolls on its competition while offering ‘protection’ (or indemnification) from these trolls.”Obviously, Microsoft wants to be seen as a friend of Linux, but all of Microsoft’s competitors seem to be sued by Finjan these days. Almost everybody except Microsoft (which used to lend a hand to this troll). Classy.

Incidentally, the USPTO is nowadays distributing its data in Microsoft OOXML format (which Microsoft famously corrupted ISO for). As Patently-O put it some days ago:

Beginning this week, the USPTO has transitioned its Private Pair system to include text versions of its office action rejections as well as notices of allowances (actual XML and DOCX versions). It is a straightforward step to move these documents into a searchable database available for public consumption.

I’ll note here that the XML/DOCX files are quite nice and, although not well tagged, will make it easy for patent attorneys to cut & paste from the OA in their responses or client emails. The system also includes a new mechanism for submitting documents to the PTO.

The bottom line is, Microsoft has long leveraged software patents to undermine the competition. None of that has changed, it just takes a little more effort to track or trace back to the source.

“The bottom line is, Microsoft has long leveraged software patents to undermine the competition.”We began this post by highlighting what Microsoft had just gone in India and Watchtroll too, only four days ago, did something similar, ascribing the term “IP integrity” to “software patents”. To quote:

Open source software can provide significant benefits to an organization—it can decrease product development time, distribute development across a community, and attract developers to your organization—but some organizations shy away due to perceived risks and disadvantages around intellectual property (IP). Too many people fear that once they’ve incorporated open source into their products or open sourced their own code they’ve surrendered control over their most valuable assets, or even worse, left themselves vulnerable to litigation with no defensive weapons to counter the threat.

It doesn’t have to be that way. Utilizing open source doesn’t have to be an either-or decision. It’s possible to simultaneously support an open source program while maintaining an active IP program. A smart organization can avail themselves of the ease of use and constant updating of code that open source provides, they can identify aspects of their software to open source which are of interest to a broader development community or that encourage adoption of their platform, and they can protect those aspects of their software which are unique to their business or provide a competitive advantage through various IP protections.

“As long as Microsoft so stubbornly pursues software patents, as it has done for well over a decade, it cannot be friends with GNU/Linux.”In reality, the Free software community/ies would rightly shun companies/people for bringing software patents. Just watch what is happening to Facebook and React these days (the latest development is, WordPress dumped React over it, as noted in our daily links).

Free software and software patents cannot co-exist. As long as Microsoft so stubbornly pursues software patents, as it has done for well over a decade, it cannot be friends with GNU/Linux.

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