Summary: An overview of recent news about Android cases and a reminder of the anti-Korea bias in north American press
Android is developed by an American (US) company, but the lion’s share of Android devices come from east Asia. By creating factories in the US, Apple and Samsung compete over the perception of being “more American” (made or assembled in USA). The corporate press, channels like CNN for example, does an Apple for dummies type of routine when it covers anti-Android lawsuits. It does not focus on trial misconduct [1, 2] for example. Forbes describes Apple as a victim:
Apple is perhaps the most talked about company in the world, online. Now, thanks to Apple’s litigation strategy, Samsung is the second most talked about. Here is a small thread of evidence.
The US is, as one might expect, hostile towards Korean companies if their rivals are largely US-based brands. Pamela Jones is the exception and she writes:
Judge Lucy Koh, the presiding judge in the Apple v. Samsung litigations, warned [PDF] the parties that she would ignore any arguments in their attachments to their post-trial motions that were new and therefore a backdoor way of bypassing the page limits she set for them, writing that “Any argument that is not explicitly articulated within the briefing page limits will be disregarded. Any supporting documentation shall be for corroboration purposes solely and shall not be used as a vehicle for circumventing the Court’s page limits.”
It would not be racist to say that Koh’s ethnicity may make her less likely to be Korea-hostile (as many US judges are). Recall what Europe too does to the Korean giant along with the ITC. Here is the ITC in action. The private US press — that which billionaires literally own — covered it a lot to make Apple, a common advertiser and ally, look good. Smaller news sites mention Apple setbacks; contrariwise, bad news for Samsung is what they fancy covering at CBS. To quote: “Samsung has dropped its bid to have Apple products that relate to its ongoing court cases against the company withdrawn from sale in Europe.”
And what about Apple? Remember who started it all and repeatedly sought bans. Watch this pro-Apple site whining about Apple not getting a trademark on “launchpad” (like Canonical):
On December 13, 2012, the US Patent & Trademark Office published a notice sent to Apple that basically denies them the rights to “Launchpad.” This is Apple’s second attempt at convincing the government agency of approving this trademark.
Canonical has had Launchpad for years. This just shows an ugly side of Apple, that’s all. The company also sought patents on shapes — a territory which in an article by Dennis Crouch he describes as follows: “laws of design patents; design patent application preparation and prosecution; design patent enforcement; tests of design patent validity; and design patent remedies.”
These patents are vague enough to augment copyright and they are very controversial, too. Remember the rounded rectangle monopoly of Apple? Apple’s cases are just very weak.
Recently we wrote about Apple and MPEG-LA. Watch this new article and remember that Apple and Microsoft are patent allies.
Motorola and Microsoft Debate the Scope of Google’s MPEG-LA License (Seattle) ~pj
The last time we looked in on the Microsoft v. Motorola litigation in Seattle, the judge, the Honorable James L. Robart, had just ruled that Motorola would have no right to injunctive relief in the US and Germany for its H.264 and 802.11 standard essential patent portfolios, at least not in the current set of facts, although he allowed that facts could change in the future.
The judge has asked [PDF] the parties to give him more information about Google’s license agreement with the MPEG-LA patent pool, and he set a hearing for oral argument for January 28 at 1:30 PM in Seattle on that issue and on a Microsoft motion for summary judgment on invalidity. If any of you can attend, that’d be wonderful.
We now can have a much clearer picture of the parties’ positions, now that we have both parties’ post-trial briefs on the subject of Google’s license agreement with MPEG-LA regarding H.264/AVC patent pool.
The crux of the debate is how to interpret one clause in the agreement, Section 8.3. Does it require Google to grant Microsoft a license to Motorola’s H.264-essential patents? Microsoft says it does, and Google says it does not. Google says it chose a license whereby it would have to list all affiliates it wished to be covered by the agreement, and to date it has not listed Motorola. It didn’t close on the Motorola deal until after it entered the license agreement with MPEG-LA anyway. And Motorola never on its own put any of its relevant patents into the MPEG-LA patent pool. So either way, Microsoft has no rights to a license via the MPEG-LA patent pool, Google argues, only by negotiated agreement under normal RAND terms, obviously at a higher rate.
The MPEG cartel has been used by the duopoly against free platforms, but Apple got hit recently, as covered here:
A federal jury in Delaware has found Apple’s iPhone infringes on three patents held by MobileMedia Ideas, a patent-holding company formed by Sony, Nokia and MPEG LA.
Here is more:
Apple Inc. (AAPL) lost an infringement case brought by patent-licensing firm MobileMedia Ideas LLC when a federal jury decided the maker of the iPhone misappropriated protected technology for the handheld devices.
Jurors in Wilmington, Delaware, deliberated about four hours after a weeklong trial before also concluding today that the three patents aren’t invalid.
Those trolls are connected to the MPEG cartel, unlike this entity:
Apple Inc. (AAPL) and LG Electronics Inc. (066570) didn’t infringe an Alcatel-Lucent SA (ALU) unit’s patents for electronic devices including phones and computers, a jury said.
The verdict today came after a trial that began Nov. 27 in federal court in San Diego over a 2010 lawsuit by the Paris- based company’s Multimedia Patent Trust accusing Apple and LG Electronics of copying video-compression technology that allows data to be sent more efficiently over communications media, including the Internet and satellites, or stored on DVDs and Blu-Ray disks.
This comes from Bloomberg. Plutocrats’ press likes to cover pro-Apple stories. █
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Summary: Now that Android- and Linux-powered devices easily outsell Apple’s we find clear nervousness at Apple
Android and iOS have both just been hit by a European patent troll, which is an unusual thing; we have never heard of Arendi before (hard to find a Web site for it also), but here it is in the news:
Arendi S.A.R.L, a Luxembourg-based technology company, unleashed a torrent of patent infringement suits against a who’s-who of technology companies including Apple Inc. and Samsung Electronics Co. Ltd. and in Delaware federal court Thursday over three patents covering computer programs.
Apple fan sites are not happy, but Apple is in no position of deserving sympathy. Groklaw says that Apple is preparing to strike Android again, in a matter of days:
I think Apple may be feeling a little nervous about Samsung winning a new trial in Apple v Samsung. As the December 6th hearing on both parties’ motions for summary judgment draws near, there has been a flurry of Apple activity.
First, they have finally voluntarily told [PDF] the court — voluntarily as in after Samsung filed a motion to compel Apple to respond, but before the judge ruled — that they didn’t know about the jury foreman’s litigation with Seagate until after the trial. They did know about the bankruptcy but they didn’t delve into it. This, of course, is helpful to Samsung, in that Apple’s argument that Samsung shoulda-coulda known earlier about the litigation and failed to pursue it now bites the dust. Or it should. But the truth is, no matter what they said, it helps Samsung, but this is the least harmful to Apple. Presumably it’s also true.
The Microsoft booster says that Cook got himself a press platform already:
A rare interview with Apple’s chief executive will air the same day the company heads back to court with rival Samsung.
Trial by media? “The hearing is Dec. 6th,” writes Pamela Jones, “but I doubt there will be a ruling that day. More likely would be that the judge takes it under advisement and issues a written decision thereafter. But it’s an interesting decision to do the interview. I wonder if it means Apple is finally waking up to the news that a lot of folks genuinely hate the patent war it is waging.”
One thing is for sure; Apple created a lot of hostility towards patents. It also helped many realise that the problem is not just Microsoft and that swapping Microsoft with Apple is misguided; for innovation and for the betterment of society we must journey towards software freedom. █
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Apple’s tribalism backfires
Summary: Apple’s Hubris and reluctance to comply with court orders is costing it not just in bad publicity but also a more severe and stern order
Apple is a nasty company based on its behaviour in recent years. It’s not mere emotion that makes one call Apple “nasty”; this has become a widely-held perception, sometimes about Apple’s most passionate customers too. Watch Apple getting criticised for its aggressive nature again:
Apple is a litigious company, most famously for its multi-billion dollar patent crusade against Samsung. The Cupertino company has a more quixotic legal battle going on against its competitors, however, that has also become a bit of a war against the English language. Since last year, Apple lawyers have been arguing that “App Store” is a trademarked phrase, and it has the right to stop others from using similar phrases. That includes Amazon, which was sued by Apple in March 2011, shortly after it opened the Amazon Appstore for Android.
Now, some of those issues are finally coming to a head in public. At a hearing today in an Oakland federal court, it became clear that while Apple may have a lot of fury and passion behind this lawsuit, it has run into trouble in the form of a very skeptical judge. US District Judge Phyllis Hamilton showed great doubt that Apple will be able to prove that consumers were confused or deceived by Amazon’s use of the word “Appstore.” At this point, it’s somewhat remarkable that the company hasn’t dropped this suit, since Hamilton indicated a year ago that she was unimpressed by Apple’s arguments and denied a preliminary injunction.
Apple‘s arrogant marketing (including the “R and D” nonsense) is not impressing those who see innovators fleeing or getting fired. To quote this one report, “[w]hen Apple forced its mobile software leader Scott Forstall out of the company, it pushed out the most prolific inventor at the company, as measured by recent patent filings.
“Forstall’s name is on 166 pending patent applications. That’s more than anyone at the company, according to data from investment bank MDB Capital.”
Those patents have been used against companies like Samsung, usually in vain. Apple is getting told off by judges who accuse the company of breach of order. To quote: “Apple tried to argue that it would take 14 days to post an updated notice on its website, but the request was shot down. In fact, Judge Jacob made it clear that Apple’s actions are beginning to make him testy.”
Mr. Pogson says that “Apple Needs to Learn Humility” and in a post by Mike Masnick we learn about the background:
Last week we noted that Apple had put up a rather petulant non-apology apology in response to the UK court order requiring it to advertise to the world that Samsung didn’t copy Apple in making its devices. Many people wondered how the court would react to Apple’s attempt… and the answer is that the court is not pleased (and is further displeased by Apple’s claim that it needs two weeks to come up with something better)…
Pamela Jones says that Apple must go further than before:
There are consequences now that are worse than before. Apple tried to argue that they followed the letter of the law in the original notice, as does Patently Apple. But there is something called the spirit of the law too, and if you follow one and thumb your nose at the other, things can go wrong, because people notice. Judges are not stupid. Not that I believe what Apple did obeyed the letter of the law either. Nor did the judge in the UK.
It’s never all right to show disrespect to a court of law, and lawyers above all others should take the lead in demonstrating that respect. The rule of law actually depends on it, which is another way of saying that civilization itself depends on it. Otherwise, it’s back to pistols at dawn, or worse.
We wrote about the fake apology several times before [1, 2, 3]. Here is the best report we found in the sense that it’s not shy to slam Apple:
Apple Has To Readmit That Samsung Did Not Copy iPad Design: Reprimanded By Court
Judge Jacob said, “I’m at a loss that a company such as Apple would do this. That is a plain breach of the order.”
Apple’s arrogance doesn’t end here. The company requested 14 days to make the changes. Wow. Why would a company need 14 days to make changes to it’s own site? Typical Apple.
Judge Jacob did not buy this and rejected the request stating, “I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?”
Here is the Apple-friendly BBC:
Apple has 48 hours to re-write a statement on its website relating to its design rights dispute with Samsung, UK judges have ruled.
Lord Justice Longmore told Mr Beloff: “We are just amazed that you cannot put the right notice up at the same time as you take the other one down.”
Sir Robin Jacob added: “I would like to see the head of Apple [Tim Cook] make an affidavit about why that is such a technical difficulty for the Apple company.”
Now, that would be entertaining. Apple got itself deeper in the PR blunder. Its arrogance sure works against its intentions and brings no benefit. █
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Monopoly (uniformity) versus openness and diversity
Summary: A mixed roundup of news and analysis affecting the growth of Linux
THE REALITY of “patent wars”, as a Microsoft-friendly site put it (especially in smartphones), is being realised by more and more people. “An infographic showing who is suing whom and who is selling patents to whom shows that patents are indeed a source of much friction and the only likely winners are the lawyers.” This is the description of this recent article which helps illustrate just how harmful patents have been, unless we take into account a patent lawyers’ perspective. In this post we’ll present some news with evidence-based material that can help support an appeal to authorities.
Over at Groklaw, the biggest lawsuit against Android is being covered only to say that: “The judge in the Oracle v. Google litigation has denied Oracle’s risible renewed motion for judgment as a matter of law under Rule 50(b), one day after Oracle filed its reply to Google’s opposition to it. No ruling in Oracle’s favor, therefore, will be forthcoming, and no new trial. Also, no hearing on the 26th. The judge didn’t need to hear them jabber on about all this in person, at further expense to both sides, before making his decision.”
“The judge in the Oracle v. Google litigation has denied Oracle’s risible renewed motion for judgment …”
–GroklawRecently, one writer questioned Larry Ellison’s motives for filing this whole bogus lawsuit. We have always suspected that his best friend Steve Jobs played some role in this decision. To quote the writer however: “IT SEEMS that Oracle’s lawsuit against Google over its use of Java in Android has fallen apart. Although the trial is still ongoing, and the judge has yet to hand down an important copyright ruling while the jury has yet to return its verdicts on patents and damages, if any – it’s already apparent that Oracle is unlikely to win billions or even millions of dollars from Google, and it’s possible that Oracle might lose entirely.
“This lawsuit is rather important, however, if only because it has raised the spectre that software APIs might be found subject to copyright. As many people have already noted, that would have dire consequences for interoperability and software freedom throughout the IT industry. It would put into play programming languages, the interfaces of software stacks and potentially even the internet itself.
“All kinds of APIs could suddenly become targets for the extraction of licensing fees and endless litigation. That could effectively destroy the entire software industry and stifle innovation for years, creating a terrible dystopia.
“While that depressing vision might not in fact develop if APIs are deemed copyrightable – and it seems unlikely that Judge Alsup will rule that they are, given that US copyright law has always considered them functional elements and not creative expression that’s deserving of copyright protection – that’s what Oracle has argued for in its lawsuit against Google.”
Oracle’s case is weak and meanwhile the main party benefiting from it is Apple. After the lawsuit against Google some said that software patents as a whole were discredited.
More recently, the judge in another case against Android explicitly questioned software patents (well done, Mr. Posner), noting in an actual column (rare for a judge) that “there are too many patents in America (that is his headline, see a printer-friendly version for future reference). “Recently,” says the judge, “while sitting as a trial judge, I dismissed a case in which Apple and Motorola had sued each other for alleged infringement of patents for components of smartphones. My decision undoubtedly will be appealed, and since the case is not yet over with it would be inappropriate for me to comment publicly on it.
“But what I am free to discuss are the general problems posed by the structure and administration of our current patent laws, a system that warrants reconsideration by our public officials.*
“U.S. patent law confers a monopoly (in the sense of a right to exclude competitors), generally for 20 years, on an invention that is patented, provided the patent is valid — that is, that it is genuinely novel, useful, and not obvious. Patents are granted by the Patent and Trademark Office and are presumed valid. But their validity can be challenged in court, normally by way of defense by a company sued by a patentee for patent infringement.
“With some exceptions, U.S. patent law does not discriminate among types of inventions or particular industries. This is, or should be, the most controversial feature of that law. The reason is that the need for patent protection in order to provide incentives for innovation varies greatly across industries.”
Over at Groklaw, another valuable reference was provided for the new work from Boston. To quote: “Jim Bessen and Mike Meurer have published their latest paper examining the impact of “patent trolls” (they politely refer to them as Non-Producing Entities or NPEs) on our national economy. Entitled The Direct Costs From NPE Disputes [PDF], the paper examines the direct costs of patent assertions by NPEs against operating companies, i.e., companies that actually make things to earn their revenues. More on the Bessen/Meurer paper in a bit.
“In the meantime, Prof. Colleen Chien of the Santa Clara University School of Law is conducting a survey on the economic impacts of patent litigation on the economy, and she could use your help. Prof. Chien is particularly interested in survey responses from start-ups and small companies. Respondents need not be patent holders or in the technology business. If you know of anyone who could provide a useful response, please encourage them to participate.
“Now, back to the Bessen/Meurer paper. Here are some of the highlights:
* The number of defendants in NPE patent suits doubled from 2009 (approximately 2,700) to 2011 (more than 5,800).
* Direct costs of patent assertions by NPEs are cost our national economy more than $29 billion dollars a year, and that tab also doubled from 2009 to 2011.
* Much of the burden of this NPE litigation falls on small and medium-sized companies. 82% of the defendants, accounting for 50% of the defenses, had median revenues of less than $12 million a year.
* They find little evidence to support the contention that NPEs promote invention. [Why am I not surprised?!]”
“They find little evidence to support the contention that NPEs promote invention.”
–GroklawSo now we have both judges (lawyers) and scholarly people (academics) telling us that the system is broken. In order to ensure this does not spread to Europe, please, our dear European readers, consider writing to politicians whom we named.
A month and a half ago we saw Kelora losing a patent for it being “obvious”, leading to the question, are “Software Patents In Danger?”. To quote: “As software patent litigation ramped up over the past few years, software patents have come under the microscope within the technical community. Many investors and technologists believe that software patents should be abolished all together, while others take the less extreme position that many software patents are obvious over known prior art (“prior art” being earlier publications that show a patent is obvious or not new). Courts are increasingly cognizant of these criticisms.
“Though it is unlikely that software patents are going away any time soon, as the recent summary judgment in eBay v PartsRiver (PartsRiver is now known as Kelora) demonstrates, courts are beginning to do a more thorough job of applying the obviousness standard to software patents.”
Right now we must work to squash software patents while at the same time ensuring we can compartmentalise and contain this virus, simply by preventing our politicians from being bamboozled. The evidence is overwhelmingly on our side. We need the voices though. As we’ll show in a later post, Microsoft lobbyists are paid to speak about patents on ‘our behalf’, at our expense, resulting in great disparity (or distortion) between public policy and public opinion. █
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Original: Georg C.F. Greve, FSFE Founder
Summary: Microsoft is ruled guilty and is forced to pay around a billion dollars in fines for anti-competitive behaviour
THOSE who say that Microsoft is a reformed company and mostly a scapegoat may wish to read the latest reports on Microsoft antitrust. From the MSBBC for example (with known pro-Microsoft bias and ex-Microsoft executives):
Europe’s second highest court has upheld a competition ruling against Microsoft saying it “essentially upholds the Commission’s decision”.
Reuters spins it as “EU court cuts Microsoft antitrust fine slightly” (that’s not the major angle of the news) and after Novell sold out we are happy to see the FSFE making the following remarks:
Second, FSFE was a public interest organisation who couldn’t be bought off. The case began with many companies giving testimony of Microsoft’s breaches of antitrust regulation, but one-by-one these companies made deals with Microsoft and withdrew from the case. FSFE and SIIA were the only two organisations that pursued this case from start to finish. We were later joined by ECIS, who did extraordinary work, but there were moments when it got lonely for the Commission.
Microsoft cannot starve the FSFE like it apparently tried to starve the FSF. A news report is finally published about this:
The Free Software Foundation’s executive director John Sullivan has publicly complained that Microsoft’s reputation database is listing the Foundation’s donate.fsf.org as a gambling site. The Foundation was alerted by a Reddit posting where a user was unable to access the site from his place of work.
The FSF is probably the body we can rely on the most. It is targeted by Microsoft indirectly most of the time, e.g. attacks on the General Public License (GPL).
The aforementioned articles help show that companies like Canonical ought to complain rather than collaborate with crooks. “So pursuing anti-trust may be necessary,” writes iophk, “but in the short term it is no help in solving any of the problems. The solutions will have to come from other means. Only 8 years…” █
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3-way attack on Android domination
Summary: Updates on litigation and deterrence tactics against the fastest-spreading Linux distribution
THE NEW YORK press published a widely-cited article titled “German Courts at Epicenter of Global Patent Battles Among Tech Rivals” (paywall-crippled, workaround here). We wrote about this recently. Microsoft was trying to get away from Germany while using German lobbying to deceive on the patent debate.
As an increasingly obsolete company, Microsoft relies more than ever before on patents. Apple also relies on being able to block competitors (running Linux) from the market. As one article puts it, however, “Apple May Lose Legal Battle Against Samsung In US” and this is merely part of the general trend. Apple gets sued in response and this whole embargo scheme is proving to be distracting, a waste of time even to Apple.
Let’s go back to Microsoft’s own war on Android. Recently, Microsoft acquired yet more Google-hostile patents (from AOL) and as my co-host Tim puts it:
What do you do when you have products which people are not buying? What do you do when you produce a product that fails to grasp the interest of the consumer in the same way as your competitor?
Do you make your products desirable? – No need. In todays modern world you don’t have to develop anything, you can merely stock up on patents, stuff your portfolio full and then go out on an expedition of legal challenges, NDA’s and take a little of the cream from your competition! What a wonderful fair world we live in.
This is what Microsoft is exploiting at the moment and Glyn Moody’s analysis says that with Netscape patents at stake “[t]his latest turn of events emphasises once more why it is absolutely critical for open standards to require RF licensing of any patents, as the W3C patent policy now rightly requires. If not, then major parts of the computing world can be held to ransom by owners of crucial patents that can’t be coded around.”
Steven J. Vaughan-Nichols reckons it is indeed a move against Google. He writes: “Microsoft didn’t just buy AOL’s patents, they bought what was left of its one time fierce Web browser rival Netscape’s intellectual property to use in attacking Google’s Android and Chrome.”
Vaughan-Nichols had more to say about it later.
Muktware says “Microsoft Buys Netscape Patents, May Start Abusing Soon” (i.e. destroy the market with otherwise-harmless patents).
Another CPTN member, Oracle, has its case against Android tracked over at Groklaw [1, 2, 3] and the latest update says:
A judge has finally told Oracle’s lawyers that the relief they were asking for in a motion signed by a Boies Schiller lawyer would be unfair, excessive, and prejudicial to Google.
Separately, Moody talked about “[w]hat one line of code can teach us”, noting quite accurately that the nuisance to eliminate is software patents, rather than go one-by-one after companies that abuse them. He writes:
Glyn Moody looks at an example of how a patent on one line of code can inhibit innovation for a generation and how that lesson should not be forgotten when the government is asking what an open standard is.
With proper regulations and laws, Linux will thrive, Right now the law is being manipulated so as to put the best operating system at a position of disadvantage. The quickest fix to all this is to end software patents. █
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Summary: As Novell’s assets are sold and nervous system rots, Microsoft is filing aplenty and giving Novell lots of work in the long-standing antitrust case
THE CASE of Novell against Microsoft may be very old, but it carries on regardless:
Novell has filed its opposition [PDF] to Microsoft’s renewed motion for judgment as a matter of law in the WordPerfect antitrust case. It’s 160 pages long, just the memorandum, plus 4 exhibits and appendix after appendix — 54 in all. This document [PDF] is a list of what is in all of the appendices. Microsoft’s motion was 137-pages long, if you recall. And this is bigger. It’s, frankly, amazing.
Microsoft could probably just use money to buy more time until Novell is entirely defunct.
For SUSE, the future is already Microsoft-dependent, but for some who escape Unity it seems like OpenSUSE is an oddball safety net:
While it is totally insignificant why I switched from my previous distribution to openSUSE, I would share the reason. I had been using Ubuntu since 2006 and when Ubuntu made a switch to Unity I found Global menus and extremely limited customization getting in my way. I was keeping a close eye on Unity development and when 11.10 was released it was clear that most of the customization that I wanted was not going to land in Ubuntu.
Using Unity became even more problematic when I bought my second monitor. I wanted to be able to use the second monitor more efficiently. Which was not possible with Unity.
I did try to disable Global Menu but Thunderbird, Firefox and Kate continued to give me problems. Honestly speaking I don’t want to do that unless that functionality (disabling Global Menu) is part of the distribution itself.
If the reason to use OpenSUSE is the failure of another distribution, then it does not speak much for success. The OpenSUSE newsletter was recently un-handled. As the community steps aside Microsoft will step in and use the corpse (and former reputation) of SUSE to tax GNU/Linux. Novell's headquarters are being sold. █
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Summary: Recent steps from Oracle and the OIN indicate a weakening of the case against Dalvik
ORACLE has been trying to tax Android using software patents, but Groklaw thinks that “Oracle Must be Nervous” because the case sinks yet lower with the latest events taking place in the courtroom:
Oracle’s Case Against Google Sinks Lower
Ouch! Judge Alsup seems to be on his game. Neither the lawyers nor the judge could get the maths right on the potential damages in the case. Rather than $billions, they seem to be headed towards a few tens of millions, provided no more patents are thrown out and Google is found to violate copyright. Google is arguing that Java APIs are not copyright protectable and Oracle is holding that they are. Damages, if any could be very small in any case compared to the worth of the two companies.
Oracle is now asking for a fast trial (it began in 2010) and the OIN, which Oracle is a member of, is stepping up to defend some Java-like software (this was understated in the news, even our own coverage). If Oracle retreats from the patent case, will we see a lot of it ending like the SCO case, except for the bankruptcy? █
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