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01.18.18

Microsoft, Masking/Hiding Itself Behind Patent Trolls, is Still Engaging in Patent Extortion

Posted in GNU/Linux, Microsoft, Patents at 7:34 am by Dr. Roy Schestowitz

Sleight of hand, but extortion is still extortion

Venice masks

Summary: A review of Microsoft’s ugly tactics, which involve coercion and extortion (for businesses to move to Azure and/or for OEMs to preload Microsoft software) while Microsoft-connected patent trolls help hide the “enforcement” element in this whole racket

THE ‘new’ Microsoft is no different from the company we wrote about back in the “Boycott Novell” days; only the marketing/PR has improved. The patent strategy is still similar; we just don’t see Ballmer’s face anymore. He was at least honest about Microsoft’s views about GNU/Linux. Nadella just shamelessly lies about those things.

“The patent strategy is still similar; we just don’t see Ballmer’s face anymore. He was at least honest about Microsoft’s views about GNU/Linux. Nadella just shamelessly lies about it.”Extortion using patents doesn’t work as most people assume; people tend to believe that patents are being used only when there’s a lawsuit. But no… that’s not how it usually works. As United for Patent Reform has just put it: “A report by @marklemley @kentrichardson @elosf found a silent tax on #innovation: 70% of #patent-related threats didn’t result in litigation, meaning the costs of over-broad litigation never go to court.”

For those who have patience and time (the Internet discourages reading of long articles), here is the paper from Professor Lemley, who is renowned for his strong views about patent aggression.

Abstract says:

How often do companies and individuals assert patents outside of litigation? No one knows for sure. The problem is that licensing negotiations and license deals that don’t result in litigation are almost invariably kept secret. The result is that patent litigation is like the proverbial tip of the iceberg – the observable piece sticking out of the water, but probably not all or even most of what there is. Various people have speculated that unlitigated (and therefore unobserved) assertions are a majority and probably as much as 90% of all patent enforcement.

We wanted to know how often companies were approached to take patent licenses without a lawsuit being filed. So we asked them. Using a simple survey, we got data from dozens of companies about how often they were sued, how often they were approached to take a license without being sued, and the characteristics of those licensing proposals. The result is the first real look at what goes on beneath the surface of patent enforcement.

We found that while patent litigation does not reflect everything that is going on, there was less unlitigated – and therefore unseen – patent enforcement than some of us had thought. Roughly one-third of all patent licensing efforts among our survey respondents end in litigation, significantly less than the 10% some had predicted. And, for the majority of respondents, about one half of the demands end in litigation. Our results allow us to get a handle on the actual size of the patent enforcement business and to try to estimate the total cost of responding to enforcement efforts. We offer some ballpark estimates of the cost of responding to patent assertions in Part III.

Our survey respondents are a significant segment of the economy, but they are far from all of it. And they differ in certain ways from companies as a whole. We hope to be able to expand the universe of respondents in a later round of surveys. In Part I we explain what we did. In Part II we explain what we found. And in Part III we consider some implications for business and public policy if we extrapolate our limited results to the broader economy. Under plausible assumptions, responding to patent assertions costs defendants between $80 and $100 billion per year.

This brings us to Microsoft; Microsoft not only pressures companies to pay money by threatening to sue them using patents; Microsoft is often siccing patent trolls (which it arms) on companies that refuse to play along. That’s racketeering; it’s like the Mafia burning down houses and businesses of those who refuse to pay ‘protection’ money. That’s just how extortion works, but Microsoft burns the victims’ money (legal fees) rather than the actual businesses (although they too will go up in flames if legal fees result in bankruptcy).

“Microsoft not only pressures companies to pay money by threatening to sue them using patents; Microsoft is often siccing patent trolls (which it arms) on companies that refuse to play along.”In the “Boycott Novell” days Microsoft was threatening companies that did not buy (i.e. pay Microsoft for) SUSE. SLES was the only ‘Microsoft-authorised’ distribution of GNU/Linux at one point. And now, instead of SLES/SLED what we have is Azure. Microsoft threatens those who do not pay Azure 'rents' that patent trolls (which Microsoft passes patents to) might come along and destroy their business. It’s the “cloud” equivalent of the Novell plot. IAM has just published this self-promotional ‘report’ that says “litigation involving cloud technologies has increased by 700%” (well, they just made up the term “cloud” and now everything that already existed is called “cloud”). Here is what they said, linking to an older ‘article’ (promotion) of theirs:

A recent study revealed that US patent litigation involving cloud technologies has increased by 700% over the past four years (for further information please see “Cloud computing patent litigation on the rise”)

Microsoft relies on such ‘articles’ to sell fear and to attract businesses to Azure (out of sheer fear). At the same time, Microsoft is lobbying for software patents. Less than a day ago, for example, the BSA (using “Enterprise Innovation” as a platform) wrote in its capacity as a Microsoft front group: “Patent protections: Governments should have non-discriminatory protection for software patents.”

“In the “Boycott Novell” days Microsoft was threatening companies that did not buy (i.e. pay Microsoft for) SUSE.”Well, actually it seems like only China offers that now. But Microsoft would like to change that. The extortion heavily relies on it.

Lost in the midst of Microsoft puff pieces about patents (see one of the latest examples) is this original announcement from Microsoft about extending the reach of the ‘protection’ racket.

“Microsoft relies on such ‘articles’ to sell fear and to attract businesses to Azure (out of sheer fear).”“Excited to announce that we are extending the Microsoft Azure IP Advantage #patent protection program to our Azure Stack customers,” wrote the person in charge of it. Yes, Microsoft is very “excited” about patent extortion against GNU/Linux. They just say it with a smile and euphemistically call it “Azure IP Advantage”. This is already being covered by longtime Microsoft boosters. Kurt Mackie, for instance, said that the “”springing license” reference means that the patents that Microsoft may transfer to other companies under this program can’t be used to make IP claims against other Azure customers.”

As Microsoft also controls some of the trolls, it can help determine who gets sued. The potential for abuse is vast.

“Microsoft paid a lot of money for the Linux Foundation to not intervene and simply pretend that “Microsoft loves Linux” (while it’s taxing it and attacking it using patents).”Don’t expect Red Hat or Canonical or even the Linux Foundation to say anything about it. The Linux Foundation is far too busy sucking up to Microsoft this week, having received Microsoft cash for silence and complicity. Even when Microsoft attacks Linux with patents the Linux Foundation will say nothing at all because these attacks often come from proxies, just as the OIN’s CEO warned us a long time ago. One such proxy is Finjan. Microsoft patent trolls like Finjan are held up as good examples at Watchtroll this week not because they create anything but because they’re targeting Microsoft’s rivals (every company except Microsoft, which supported Finjan since its early days).

The latest case, Finjan v Blue Coat Systems, is a case that we wrote about on Monday. Banner & Witcoff’s Aseet Patel and Peter Nigrelli have just said the following about the case, citing a Microsoft case in favour of software patents (Enfish):

There are several takeaways from Finjan. xi Notably, building on its precedent in Enfish, the Federal Circuit has reaffirmed that purely software-based inventions that do no interact with the tangible world remain patent-eligible subject matter. Moreover, the Finjan court’s reasoning reiterates the importance of drafting a patent specification that showcases and contrasts inadequacies of prior art solutions. Finally, Finjan underscores the continuing importance of claim construction in obtaining a favorable patent-eligibility holding—even more so when the claimed method only recites three steps.

Finjan’s trolling being used to support and promote the software patents agenda? Surely convenient for Microsoft. We expect to hear a lot more about this troll’s lawsuits and hear nothing at all from the Linux Foundation. Microsoft paid a lot of money for the Linux Foundation to not intervene and simply pretend that “Microsoft loves Linux” (while it’s taxing it and attacking it using patents).

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