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06.10.18

Deception on § 101/Alice Continues, Courtesy of Firms That Are Making Money From Worthless (Bunk) Software Patents

Posted in America, Free/Libre Software, Law, Patents at 5:49 am by Dr. Roy Schestowitz

Just projecting their personal agenda

35 U.S.C. 101 mirror

Summary: 35 U.S.C. § 101 does not seem to matter to people whose living is made from litigation and patent pursuits on (or pertaining to) algorithms; we rebut a few examples from the past week, reminding readers that lawyers aren’t credible advisors on issues they stand to gain from (at clients’ and innocent companies’ expense)

THE collapse of software patents is very much a reality in the US. Don’t ask law firms; they just want to sell more ‘services’ (e.g. lawsuits and patent applications) around that.

The other day in Law.com there was an article with the term “Open Source” in the headline, which got our attention. Don’t be misled though; Law.com is traditionally a Free/Open Source software-hostile site, typically helping lawyers sell services around licence compliance and other things which are marketed by FUD. “Patents and open source are not mutually exclusive,” someone (a self-appointed expert) is quoted as saying in this new piece.

“They’re alluding to the corporate ‘flavour’ of “Open Source”, not Free/Open Source software.”Actually, they are. They’re not compatible. Software patents and Free/Open Source software cannot co-exist. “You can do both and do both correctly,” continues the self-appointed expert, “but it takes education, especially for people who are newer in the industry.”

They’re alluding to the corporate ‘flavour’ of “Open Source”, not Free/Open Source software. “Moore said engineers often join Pure Storage from companies that were not engaged in open source projects,” the author writes, “and expect a similar policy. Others are pro-open source, but may not know the benefits of patents.”

So they’re trying to market software patents to companies which claim to be “Open Source”, such as Red Hat (it’s applying for software patents and really ought to stop doing that). “That’s one reason why Gideon Myles,” continues the author, “lead IP counsel at San Francisco-based Dropbox Inc., said his company educates new employees on both processes.”

“When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.”In other words, they’re wasting employees’ capacity and reducing their productivity because of silly patents.

Are these actually worth pursuing anymore? No.

But that’s not what lawyers (with fanciers job titles like “IP counsel”) want companies to believe, or else they’ll lose their job if not the entire legal department.

When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.

Sadly, as media in this domain remains dominated by law firms (or authors who extensively quote them), one may easily get the impression that software patents are still potent, even in the face of § 101/Alice.

In a new guest post by “Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan” (i.e. mostly the patent ‘industry’) they suggest workarounds to bypass § 101. They’re also trying to water down § 101 or obliterate it by any means possible/available.

From the outline:

We offer an alternative approach for amending § 101 to allow some range of patentability for inventions directed to judicially-recognized eligibility exceptions. Rather than attempting to redefine the line between eligible and ineligible subject matter (a revision that preserves the current all-or-nothing approach), we propose amending §101 to implement disclosure-based limits on the scope of claims directed to judicially-recognized exceptions (abstract ideas, laws of nature, and natural phenomena).

It’s the same old tricks; IBM and IPO lobby along those lines, as we shall show later today. They say they want to “amend” § 101, but what they mean to say is “weaken”. § 101 is based on several judgments from the Supreme Court, yet these people think that some blog post of theirs, based on their financial agenda, has relevance to § 101?

“There’s no quantitative/numerical data to support an assertion like “comeback” for software patents.”§ 101 is already very clear, but Iancu (who is acting like a ‘mole’ of the patent microcosm, at least thus far in his term, serving or speaking for the litigation ‘industry’ he came from) does’t like it and wants it thwarted in defiance of the Supreme Court. Here’s a new tweet about it: “#BIO2018 IP track kicked off with opening remarks from Andrei Iancu of the @uspto. Clarifying #section101 and changing the dialogue to focus on brilliance of #inventors high on agenda.”

Well, the Biotechnology Innovation Organization (BIO) is an anti-PTAB lobbying body and for Andrei Iancu to even attend this event says a lot about his interests. Also on the subject of § 101, Mondaq republished a piece from Charlene Lipchen (Field LLP). She is misleading people if she seriously thinks that there’s a software patents rebound in the US (there’s none), calling it a “Glimmer Of Hope” and stating the following upfront: “It remains a general rule, in patent law, that one cannot obtain a patent for an abstract idea. Over the years, patent claims for methods implemented by computers and software have been struck down by the courts, on the basis that merely using a general-purpose computer to implement an abstract idea does not make the abstract idea patentable. More recently, since the Supreme Court of the United States’ 2014 decision in Alice Corp. v. CLS Bank, a software patent case providing a revised test for determining what is patentable subject matter, most patents containing claims to software challenged in US courts have been struck down. The patent claims at issue in Alice were directed to a method for implementing an intermediated settlement between parties.”

“A fortnight ago we began seeing pure spin by patent extremists, claiming that § 101 would see the US Congress/Senate involved, but that was something that people nowadays call “fake news”.”That’s that same optimism we’ve just responded to. There’s no quantitative/numerical data to support an assertion like “comeback” for software patents. And Iancu cannot change that either; he’s not a judge. Law is outside his scope of authority.

A fortnight ago we began seeing pure spin by patent extremists, claiming that § 101 would see the US Congress/Senate involved, but that was something that people nowadays call “fake news”.

A new article by Matthew Bultman (with his usual patent maximalist slant, which we took note of before [1, 2, 3, 4]) speaks of a “High Court” being “begged”, but no such thing happened. A high court wasn’t mentioned at all. This is more of that pure spin, a 180 degrees spin in Law 360. To quote:

The Cleveland Clinic Foundation on Friday seized on a Federal Circuit judge’s recent call for a “higher authority” to clarify what is eligible for a patent, telling the U.S. Supreme Court a current state of confusion begs for intervention.

The clinic, which is fighting a decision that invalidated three patents on cardiovascular disease tests, highlighted comments Circuit Judge Alan Lourie made last week when the appeals court denied separate rehearing requests from HP Inc. and Green Shades Software Inc.

The term “higher authority” does not imply “High Court” like Bultman’s headline insinuates. In fact, there’s no evidence at all that anyone at all is going to revisit these cases. § 101 remains in tact.

As is widely known, § 101/Alice isn’t taken as seriously by the lower courts. Yes, at the lower courts (District Courts) as opposed to the Federal Circuit (CAFC), § 101 is more likely to be swept aside, as was the case in Hybrid Audio, LLC v Visual Land, Inc.

Joseph Herndon, writing about a trial in a California District Court, managed to find one of those 35 U.S.C. § 101 cases in which judges dismissed the defendant’s argument:

In the U.S. District Court for the Central District of California, Hybrid Audio, LLC sued Visual Land, Inc. for patent infringement with respect to audio signal processing technology used in conjunction with MP3 technologies. Defendant filed a motion to dismiss, alleging that the patent was invalid under 35 U.S.C. § 101. Despite seemingly very broad claims, the Court found that it was clear from the asserted patent that the claims were directed to an improvement in the functioning of a computer, and thus, were patent eligible.

The patent at issue is entitled “Signal Processing Utilizing a Tree-Structured Array,” which originally issued as U.S. Patent No. 6,252,909 on June 26, 2001. After a reissue application was filed for the ’909 Patent, the ’909 Patent reissued with certificate number RE40,281, and subsequently, a request for reexamination of the ’281 Patent was filed, and the PTO issued a reexamination certificate for the ’281 Patent confirming patentability of the reexamined claims.

[...]

Thus, despite broad claims that recite only functional aspects, and no physical components or elements that perform the functions, the claims were found to be patent eligible because the patent disclosure clearly set forth how the claimed processes improved computer functionality as compared to prior art. This enable the plaintiff to show that the claims were necessarily rooted in computer technology, solved a technical problem with a technical solution, and improved upon prior computer technology—all factors weighing in favor of patent eligibility.

If this gets appealed (to CAFC), this patent will likely be invalidated as per/in lieu with § 101 (as usual).

Have we come to the point where it’s so hard for patent lawyers to find CAFC rulings in favour of software patents? Are they now looking for supportive cases at lower courts?

Gervase Markham Outlines the Case Against Software Patents

Posted in Free/Libre Software, Patents at 1:59 am by Dr. Roy Schestowitz

Gervase Markham
By Didyktile, licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

Summary: “Innovation in software proceeds at a rapid pace, and does not need the “encouragement” of patents,” explains Markham

The former Governator at the Mozilla Corporation, Gervase Markham (the programmer, not the poet), has something to say about software patents. “In 2006,” according to Wikipedia, “he won a Google-O’Reilly Open Source Award as “Best Community Activist” [...] and has been undergoing treatment for metastatic adenoid cystic carcinoma.”

“As we have stressed so many times before, almost every software developer is against software patents.”We were very saddened to learn some months ago that his time alive might be very limited. His words about software patents are therefore more critical/important to preserve.

Spotted via the blog (in Planet Mozilla) of the developer, Gervase Markham, was this piece titled “A Case for the Total Abolition of Software Patents” (later mentioned in Soylent News as well). “A little while back,” it says, “I wrote a piece outlining the case for the total abolition (or non-introduction) of software patents, as seen through the lens of “promoting innovation”. Few of the arguments are new, but the “Narrow Road to Patent Goodness” presentation of the information is quite novel as far as I know, and may form a good basis for anyone trying to explain all the possible problems with software (or other) patents.”

From the introduction:

Very few software patents make it down the road to patent goodness. The vast majority cost the company money to file and then lie gathering dust, acting only to provide a vague chilling effect on innovation in that area for those brave enough to do a patent search. A few become famous and tie up an enormous amount of industry and lawyer time and money. And almost none achieve that fabled goal of protecting the small inventor from the large rapacious company which wants to “steal his idea” and leave him penniless. If you add to that poor hit-rate the negative systemic effects from having a software patent system, it seems to me that the conclusion becomes obvious. Innovation in software proceeds at a rapid pace, and does not need the “encouragement” of patents. Software patents are a problem for the industry now, and will only be a bigger one in the future. We should work to end them.

We are going to keep this archived in case the domain expires in the future. As we have stressed so many times before, almost every software developer is against software patents. Patent law firms don’t like to talk about it.

06.05.18

Microsoft’s Patent Trolls Continue to Attack Microsoft’s Rivals, Including These Companies’ Use of Free/Open Source Software

Posted in Deception, Free/Libre Software, GNU/Linux, Microsoft, Patents at 4:28 am by Dr. Roy Schestowitz

While Microsoft sells ‘protection’ (euphemistically named “Azure IP Advantage”) from itself and its patent trolls [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]

Microsoft and trolls

Summary: While the media keeps obsessing over delusions like a ‘new’ Microsoft or “Microsoft loves Linux” the company carries on propping up patent trolls (which it then provides ‘protection’ from, but only if one chooses Azure) and threatening GNU/Linux OEMs, opting for the use the patents for bundling their ‘apps’ (an exchange along the lines of, “put our apps in Android or we’ll sue you”)

DO NOT for a single moment be misled by Microsoft’s latest charm offensive, which seems to have been timed so as to distract from Apple’s big announcements in an annual event. It would be spurious to tell our readers that Microsoft is not a friend of Free/Open Source software (FOSS). We spent about a decade writing about that; it’s a subject which we covered in literally thousands of posts. It’s worth noting that the new chief of GitHub will be the same person who infiltrated GNU/Linux through Novell with Mono, so these are entryism experts (he had moved between Microsoft and FOSS — jobs-wise — several times, along the lines of’a revolving doors’ model). Microsoft used Xamarin (which he was the chief of) to literally obliterate ‘dangerous’ (to Microsoft) FOSS projects like RoboVM before Microsoft ‘compensated’ them for the trouble (in the form of a takeover, i.e. money and cushy jobs/salaries). But this post isn’t about GitHub. Instead, let’s focus on patent news that’s connected to Microsoft. The TomTom lawsuit backfired in the media (even Jim Zemlin berated them for it) and ever since then Microsoft chose indirection. It’s hiding behind proxies such as SCO (but for patents, not copyrights).

“A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll.”A few days ago professor James Bessen (a patent trolls expert), via Brian J. Love (another scholar who is sceptical of the current patent law), highlighted this new article from the exceptionally Bill Gates-friendly Forbes. It’s about Intellectual Ventures (IV), Microsoft’s biggest patent troll which we’ve been tracking and reporting on for over a decade. “Self-proclaimed a new way of invention, patent troll IV has been a loser for its investors (& targets too),” Bessen remarked. A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll. It’s no ordinary troll but a massive network thereof. “After 10 Years,” notes Forbes, “Nathan Myhrvold’s $3 Billion Of Private Equity Funds Show Big Losses” (that’s the headline). Here are some excerpts:

Some 10 years ago, Nathan Myhrvold, the former chief technology officer of Microsoft, raised nearly $3 billion for two private equity funds from financial investors and tech companies. These were not your typical funds. They were designed to invest in patents and innovations, not companies or their securities, over a lifespan of 20 years, as opposed to the usual 10 to 13 years. Halfway through their run, the funds are deep in the red.

Invention Investment Fund II was the bigger fund that Myhrvold’s firm, Intellectual Ventures, raised in 2008. It has generated a -15.44% internal rate of return, according to data provided by the University of Texas Investment Management Co., one of Intellectual Ventures’ investors.

[...]

Nevertheless, Myhrvold has washed his hands of Invention Development Fund. It is now being managed by a new firm, Allied Inventors Management, which was set up solely to run Invention Development Fund outside of Intellectual Ventures. The fund has been renamed Allied Investors Fund. “The terms of the arrangement are subject to confidentiality agreement,” said DG Kim, Allied’s chief financial officer. “As far as internal fund matters, I am bound and can’t say anything really.”

We recently wrote about it because Microsoft had unintentionally revealed something. Filings showed that it was by far the biggest investor in this troll. It even lost a lot of money just trying to prop it up again (with another round of major investment). Richard Lloyd, who mentioned it at the time (Irish media actually broke the story), now has this new article stating that IV is “among the leading sellers of patents in first quarter” (IV sells patents to ‘satellite’ trolls that take many legal actions; the Wall Street Journal estimated about 9 years ago that IV had already created thousands of such ‘satellites’).

So what we have here is Microsoft’s patent troll (still led by Microsoft’s former CTO and heavily funded by Microsoft) distributing patents to patent trolls that are suing Microsoft’s rivals (including Linux companies, as we noted over the years). To quote:

IAM has teamed up with Allied Security Trust (AST) to provide quarterly updates on the secondary market for patents to determine who’s buying, who’s selling and what sort of assets are changing hands. As well as the data, AST has provided some additional information on the principal deals and the defensive aggregator’s CEO Russell Binns has added some commentary on the main trends. This analysis covers the first three months of 2018 and shows how Intellectual Ventures continues to dominate the market on the sell-side, while the NPEs Dominion Harbor and Uniloc are the leading buyers.

It’s also worth noting that IAM now works with the Allied Security Trust (AST), which is — as we last noted some weeks ago — like a patent ‘cartel’. IAM took note of another such ‘cartel’, IP Bridge, on the same day, writing:

Mobile network operator NTT Docomo has become the latest Japanese firm to partner with IP Bridge, the patent fund run by CEO Shigeharu Yoshii. A wireless-focused subsidiary of NTT, the world’s fourth largest telco by revenue, Docomo has previously made only limited patent transactions with third parties.

We wrote about IP Bridge. It’s almost like the ‘IV of Japan’, albeit much gentler. All these entities are basically participating in a large-scale ‘cartel’ whose de facto function is keeping small companies out of the market. They’re monopoly enablers.

“Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).”That brings us back to Microsoft. And this time it’s about Yahoo’s trove of software patents. Well, just as many people worried at the time (10 years ago, the time of Microsoft’s hijack of Yahoo), USPTO-granted patents of Yahoo show up in lawsuits/dockets. Critics like ourselves predicted that these patents would get scattered to trolls that target Microsoft’s main competitors on the Internet while Microsoft gets to shield itself by wielding leverage over Yahoo. Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).

According to the EFF’s Daniel Nazer: “Old @Yahoo patents now in the hands of trolls. Prolific patent troll IP Edge has sued @Twitter claiming it infringes this software patent: https://patents.google.com/patent/US8352854 …”

We wrote about IP Edge several times earlier this year, e.g. [1, 2, 3, 4; like IV, it typically operates through ‘satellites’ which file the lawsuits. This makes it incredibly hard to keep track of these things; it’s hard to know who’s behind which lawsuit/s.

Daniel Nazer has just published this new article titled “EFF Fights for Public Access To Patent Disputes” because even the EFF struggles to gain access to such crucial information. To quote:

The public can’t judge if courts are fair if the public is locked out. The parties generally don’t care if the proceedings are hidden (indeed, they may want them hidden). This means that, at times, groups like EFF and press organizations have had to stand up for public access. Unfortunately, while the First Amendment protects the right of access, courts sometimes fail to protect this right.

In patent litigation, we’ve seen routine over-sealing by busy district courts. EFF has twice moved to unseal records in patent cases in the Eastern District of Texas, and both times the court unsealed material that should have been public.

Now EFF is taking action to push for transparency in two critical venues for hearing patent disputes. We’re protesting against the Federal Circuit’s practice of delaying the public from reading filed briefs, and the Patent Trial and Appeal Board’s use of secret docket entries.

[...]

The Patent Trial and Appeal Board (PTAB) overseas a variety of important procedures within the Patent Office, including inter partes review (IPR) and administrative appeals. The IPR proceedings, in particular, are now one of the most important methods for challenging bad patents.

Recently, we filed an amicus brief at the PTAB in a case considering whether a patent owner can avoid review by claiming sovereign immunity. As part of our work in that case, we discovered that when documents are filed under seal at the PTAB there is no public docket entry. So, not only does the public not get to see the sealed document, it doesn’t even know that one has been filed.

We sent a FOIA request to the Patent Office that, in effect, asked for all non-public docket entries in post-grant proceedings at the PTAB. We did not request the filings themselves but only the docket entries. After some back-and-forth, the Patent Office produced a list [PDF] of 16,773 docket entries (we thank the FOIA Officer who helped with this process). In other words, there have thousands of filings before the PTAB that the public had no record of.

Meanwhile, as Nazer noted in Twitter yesterday:

U.S. Patent No. 10,000,000 will likely issue some time this month. To make sure the publicity is good, the USPTO will hand-pick this patent (it won’t be the patent that randomly would have gotten that number).

Far too many ‘inventions’ so you just know that the vast majority simply aren’t inventions and are basically bogus patents waiting to be exploited en masse by patent trolls. Many such trolls are connected to Microsoft, either directly or through IV (which has literally thousands of them). How large a scale does this network of trolling have? It’s hard to tell unless the EFF can compel/press for better public access to information. Many patent disputes happen secretly, with conditional settlements that include “no disclosure” agreements (NDAs). Secrecy shelters serial bullies from regulators/scrutiny/challenge (such as IPRs at the Patent Trial and Appeal Board).

01.09.18

Devices: When Allegations of Software Patent Infringement/s Can Result in Theft (Confiscation) of Physical Devices or Embargo

Posted in America, Europe, Free/Libre Software, Microsoft, Patents at 5:38 am by Dr. Roy Schestowitz

Theft

Summary: The embargo dilemma and how bad things have gotten in Europe and North America; products get stolen and booths raided before proper justice is concluded (complete with appeals, expert witnesses and so on)

SANCTIONS against distribution of code are hard, especially in the age of the Internet. Even binaries, not just code (proprietary and Free/libre software, respectively). Software in general is difficult to police. Attempts to ban ‘export’ of encryption to particular countries, for instance, were never successful. These were farcical at best and they vividly demonstrated politicians’ inability to grasp what software is (the notion of ‘export’ is itself inapplicable in such a context).

Over a decade ago we wrote about how codec patents (basically software patents from the likes of MPEG-LA) were used to raid booths and steal products of companies (in bulk). It was despicable and media did pay attention at the time. It happened in Europe. Later it happened in the US as well, thanks to the likes of CES and ITC.

“Over a decade ago we wrote about how codec patents (basically software patents from the likes of MPEG-LA) were used to raid booths and steal products of companies (in bulk)”We are particularly interested in how ITC sanctions export/import on the basis of software. A decade ago Microsoft used the ITC to embargo a rival whose mice it alleged to have infringed patents (hardware), but what happens in the post-Alice age in the US? Can mere allegations result in embargo or — even worse — confiscation? It’s like controversial civil forfeiture on the basis of patents alone (and likely baseless accusations/assumptions).

We aren’t saying that infringement should never result in action. We are not insinuating that all patents are bunk. Consider this new story, which involves hardware and patents. “Skybell Technologies, “it says, “has filed a lawsuit claiming its Santa Monica competitor, Ring, copied its technology and is profiting from advertising and marketing techniques rather than innovative software and hardware.”

No recalls or confiscations but an actual legal process. Like that followed in Cisco v Arista.

“This whole charade will one day backfire on the West; China might start banning lots of US brands such as Apple. “Patents” will be merely a pretext, just as “free speech” already gets used to ban particular foreign products in China (or compel the producers to censor and appease the Communist Party).”There’s this upcoming lecture (a fortnight ahead) titled “Leveraging Patent Rights” — whatever they actually mean by “Leveraging”. “With a growing portion of innovation embodied in software,” says the abstract, perhaps neglecting to take Alice into account. You cannot patent software and also enforce it in a high court anymore. Forget about it. But what if patent bullies actually manage to steal or embargo products before the matter is dealt with by a judge? That’s a legitimate question.

According to yesterday’s two articles [1, 2] from a patent bullies’ Web site (IAM), embargoes are still a ‘thing’.

The first article concerns hasty embargoes using patents (embargoes are not justice; they’re coercion by the powerful oligopoly, typically with connections in government, i.e. customs). It’s about Mobile World Congress, which is a month away:

The Mobile World Congress, the world’s largest gathering of companies in the mobile communications industry, is taking place in Barcelona this year from 26th February to 1st March. Businesses from around the world will be there, exhibiting current products and launching new ones. Over recent years, the Barcelona commercial court has developed a fast track procedure to deal with alleged IP infringements in the lead up to and at the event, which includes the possibility of successful plaintiffs obtaining a range of potential remedies – including preliminary injunctions, as well as the seizure of infringing products. Importantly, as Spanish company Fractus proved last year, these measures work in practice.

This has already caused major embarrassment in the past. Are they planning to do it again this year?

The second article is about the US. This one too (from the same day, yesterday) is about patents as tools of embargo; bad for customers, no doubt, but when an agency like the ITC is a US entity (the “I” stands for “international”, which is laughable) it’s no surprise that it almost always bans products from Asia, not products of US brands (like Apple) which do the manufacturing in Asia and then import everything from there. To quote IAM:

As service providers prepare their annual deep-dives into US patent litigation statistics, it looks like the overall number of new district court cases filed will have fallen by about 10% between 2016 and 2017. But over at the International Trade Commission, the number of new investigations increased by around 13% last year, according to figures from Lex Machina. For major Asian tech companies, the ITC is a continuing concern; but it’s not the number of cases, but rather some recent legal developments that are garnering the most attention.

Governments in South Korea, Taiwan and mainland China have all warned about the effect of ITC probes on domestic industry in recent times. This level of attention speaks to how large tech companies in those jurisdictions gauge business threats from patent enforcement in the United States. Because it sits at the intersection of IP and trade law, an increase in ITC complaints against Asian firms was one of the most common predictions I heard last year when I asked experts around the world what impact the Trump administration might have on the patent world.

Curiously, as we noted here before, China has begun responding (to a lesser degree) by imposing embargoes also from within China. This whole charade will one day backfire on the West; China might start banning lots of US brands such as Apple. “Patents” will be merely a pretext, just as “free speech” already gets used to ban particular foreign products in China (or compel the producers to censor and appease the Communist Party).

12.03.17

Famed Journalist Dan Gillmor Calls IBM the Inventor of Patent Trolling

Posted in Free/Libre Software, IBM, Patents at 5:08 am by Dr. Roy Schestowitz

Often attributed to Ray Niro though

Dan GillmorSummary: IBM’s growing focus on patent litigation — often with software patents — has not escaped the attention of people who are sympathetic towards Free/Libre Open Source software and IBM’s roots/inclinations when it comes to patent aggression (famously a subject of concern to Microsoft several decades ago) aren’t forgotten in light of recent activity, made visible owing to the Patent Trial and Appeal Board (PTAB) IPRs and few recent lawsuits

IBM has this highly bloated “Diversity & Inclusion” page to which it linked some days ago, stating: “Kimberly has filed 60 patents in the last four years. What’s her secret? Watch her story.”

That’s just a lot of patent propaganda. IBM likes to work behind closed doors in order to extract money out of companies (without it spilling over to courts, albeit PTAB often gets petitioned to invalidate IBM’s patents, whereupon these extortion/’patent assertion’ activities of IBM are made more visible).

“We hope that IBM is at least aware of its declining reputation among people who support Free software. They can see that IBM is a predator whose interests in several areas directly conflict with and harm Free software.”About a decade ago we were quite supportive of IBM, but nowadays the company attacks GNU/Linux-using firms and aggressively lobbies for software patents (we wrote about 20 articles about it). IBM is not what it used to be.

In response to the above, Dan Gillmor wrote: “She works for a company that basically invented patent trolling and employs platoons of patent lawyers?”

“IBM is the biggest patent troll,” the FFII’s Benjamin Henrion responded, “trying to rewrite the law in order to reinstall software patents in the US.”

We hope that IBM is at least aware of its declining reputation among people who support Free software. They can see that IBM is a predator whose interests in several areas directly conflict with and harm Free software.

09.28.17

Microsoft is Doing to ‘Open Source’ (OSI) What it Did to W3C

Posted in Free/Libre Software, GNU/Linux, Microsoft, Patents at 11:09 am by Dr. Roy Schestowitz

“Mind Control: To control mental output you have to control mental input. Take control of the channels by which developers receive information, then they can only think about the things you tell them. Thus, you control mindshare!”

Microsoft, internal document [PDF]

Summary: The corporate/mainstream media keeps telling us that Microsoft has changed and can now be trusted within its competition, but this media merely plays along with an expensive PR campaign which is intended to shift attention and systematically launder Microsoft’s reputation

THE OSI is responsible for the term “Open Source” and thus the FSD. Jargon and history aside, even though OSI has become pretty irrelevant (it does not do much enforcement of the brand anymore), it still represents something pretty important. It was only a matter of time before Microsoft managed to sneak in (the requirement is basically little more than a payment).

“It was only a matter of time before Microsoft managed to sneak in (the requirement is basically little more than a payment).”We are not interested in writing about Microsoft. We would rather focus on the EPO and patents in general. But seeing what happened to the mainstream media, we cannot keep silent. It not only promoted proprietary Microsoft software in “Linux” (or “open”) clothing but also engaged in rather gross revisionism and misrepresentation of the Free/Open Source software community. It’s almost as though the mainstream media now actively and consciously participates in a PR campaign.

Earlier today the head of the FSFE wrote a couple of tweets. The first one said: “Microsoft is doing a mini-”survey” @OpenSourceLx on their “relationship” with Linux.”

Notice the tongue in cheek-like tone. “Send me your answers,” he wrote, “I’ll use the best ones.”

“Watch what Microsoft does with patents and see what it is doing in Munich, too. There’s no doubt about it; Microsoft attacks GNU/Linux.”“Finally got round to filling in the Microsoft survey,” he wrote later (there are photos with these tweets).

As one can tell, FSFE does not like Microsoft and people out there don’t like Microsoft either. But based on what the mainstream media tells us, we’re supposed to think or believe otherwise. Hence the necessity of this post. Watch what Microsoft does with patents and see what it is doing in Munich, too. There’s no doubt about it; Microsoft attacks GNU/Linux.

The mainstream media, conveniently enough, rarely writes about these attacks. It certainly looks the other way every time Microsoft sends some patent trolls to attack rivals. What happened to investigative, independent journalism? No money in it?

The mainstream media was certainly right on the scene to mention Microsoft joining (i.e. paying) the OSI. We posted links to many articles about it; it’s in our daily links (with some accompanying commentary). It went further with all these ridiculous characterisations of Microsoft as an “Open Source company” which now “loves Linux”. Obviously a lot of people out there raised their eyebrows and shrugged. “This isn’t true,” they said to themselves. The media, moreover, tried to get across the message that FOSS geeks are now “OK” with Microsoft. Even Tim Bray wrote a post to that effect the other day (we argued about it and he eventually accepted my point).

“As these lies keep spreading around the Web people might be misled and therefore a rebuttal may be needed, not just in commenting sections/replies (almost all the comments we have seen are against Microsoft as readers are rejecting the assertions made by the articles’ authors).”Geeks are not “OK” with Microsoft, but a lot of marketing is supposed to give us the impressions that things have changed and only “radicals” still “hate” (they use that word to describe reactionary distrust) Microsoft. Today we even saw LWN writing about it, linking to the party which Microsoft has just paid (obviously it can only say positive things; it’s being paid to do that).

As these lies keep spreading around the Web people might be misled and therefore a rebuttal may be needed, not just in commenting sections/replies (almost all the comments we have seen are against Microsoft as readers are rejecting the assertions made by the articles’ authors). The media keeps writing about it, even today [1, 2], so it’s hard to keep track of all the nonsense and rebut it all in one place. It’s now scattered everywhere. In one example from today Microsoft and/or gullible reporters are trying to reframe “Linux” as just a “feature” of Windows. How about this for a headline today?

On Windows, PowerShell vs. Bash comparison gets interesting

We are saddened to see this. So is Richard Stallman, who is reading Techrights and recently had the opportunity to comment (in the mainstream media) on things like the above.

Microsoft PR money (or covert ‘bribes’) to supposedly FOSS-centric organisations can show that we’re not any more immune/robust to subversion than W3C was (the DRM crisis). “Microsoft loves Linux” is nothing but an expensive PR campaign designed to disguise/distract from a patent attacks (like the Novell deal of 2006). I spent many years of my life refuting their lies about that.

“Microsoft PR money (or covert ‘bribes’) to supposedly FOSS-centric organisations can show that we’re not any more immune/robust to subversion than W3C was (the DRM crisis).”As I put it yesterday, I had stopped writing articles about Microsoft a few years back. But I find it hard when they (1) attack GNU/Linux secretly and (2) bribe media for PR. Meanwhile, Microsoft is blackmailing GNU/Linux for billions of dollars; what does the media say? Hey, let’s focus on millions of dollars it invests in W3C-type entryism and frame it as “altruistic”.

This morning we saw Mike Milinkovich‏ (Eclipse Foundation chief) linking to this article. Responses to apologists of this move are more revealing than the apologists. Just see the comments; “since Microsoft is now paying your foundation,” I told him, “you would rather think it won’t stab you in the back like it did W3C” (the DRM thing).

“Now they have effectively kill[ed] the web, they move on to OSS,” one comment said.

“No amount of sponsorship will make the Halloween documents from Microsoft disappear down the memory hole,” said another comment. “This is just another EEE play” (Embrace, Extend, Extinguish).

“Meanwhile, Microsoft is blackmailing GNU/Linux for billions of dollars; what does the media say? Hey, let’s focus on millions of dollars it invests in W3C-type entryism and frame it as “altruistic”.”I added: “How can we ignore Microsoft blackmailing Free software and GNU/Linux using software patents in 2017?”

Citing a famous video that we used before, another person wrote [1, 2]: “Sir Humphrey Appleby explains why Microsoft is joining the Open Source Initiative: You have to get behind someone in order to stab them in the back. Windows and Office are proprietary. Microsoft doesn’t respect user freedom” (or even openness).

In 2017 Microsoft’s strategy is:

  1. Pass patents to trolls.
  2. Blackmail/’monetise’ GNU/Linux
  3. Bring money to LF/OSI/Linux OEMs
  4. “That’ll keep em quiet!” (3)

Microsoft is now behaving like Monsanto or Saudi Arabia. It now gives money to those who criticised it and pays the media to commission ‘articles’ (PR) while gagging itself when it comes to criticism (biting the hand that feeds). Quite a few writers who cover GNU/Linux now need to wear a badge (or add a disclosure) to the effect of (partly) “Microsoft-funded” because those who pay them to write articles are receiving a lot of money from Microsoft. That includes the Linux Foundation, which sometimes ‘forgets’ to add disclosures.

Based on comments that I have seen online (not so-called ‘journalists’ paid/commissioned by Microsoft-funded organisations), people aren’t falling for the PR campaign. Not many people bother reading comments, however, so the PR might still be effective.

“Paying the media to relay messages (and sometimes graphics/banners) like “Microsoft loves Linux” may be a waste of money.”Microsoft will learn the hard way that GNU/Linux users aren’t stupid enough (or stupid as Microsoft needs them to be). Maybe MBAs who make technology choices are sometimes gullible enough, but not technical people. Paying the media to relay messages (and sometimes graphics/banners) like “Microsoft loves Linux” may be a waste of money. It sometimes only angers if not enrages those who truly care about — not merely exploit — GNU/Linux.

Here is one comment from Phoronix:

Microsoft is charging Android manufacturers $1B/yr for Linux patents, and giving a couple million back in PR (and to keep that revenue stream going). And if you don’t think that Microsoft’s lawyers are working on figuring out how its contributions in software and dollars can be used to claim ownership, then you’re probably too young to remember the thousands of companies that Microsoft consumed to get where it is. Remember, patent law allowed a company to take away the lawn string trimmer (“Weed Eater”) from the man that invented it. It’s not about logic or what’s right, it’s what lawyers do.

Whatever you read about Microsoft these days, be careful. They’re pouring a lot of money into PR and a charm offensive. They are literally paying to relay lies about themselves. There’s a whole industry which does just that and in the US alone it’s valued at over a trillion dollars.

09.20.17

The Patents Policy of Facebook is Causing an Exodus

Posted in Free/Libre Software, Patents at 11:40 pm by Dr. Roy Schestowitz

“They “trust me”. Dumb fucks”

Mark Zuckerberg, President and Founder of Facebook (source)

Summary: Yet another major player walks away from Facebook’s code because of software patents

THE history of Facebook when it comes to patents is anything but relieving.

Facebook’s dirty patent games have in fact just driven away another company. We didn’t write much about this controversy until recently (relegated to our daily links), but now that the cautionary tale grows wings we decided it’s worth a mention. Last night there was another new example of this, with Gitlab being the latest to walk away. As The Register put it:

Using GraphQL, an increasingly popular query language for grabbing data, may someday infringe upon pending Facebook patents, making the technology inherently problematic for corporate usage.

In an analysis posted to Medium and in a related discussion in the GraphQL repo on GitHub, attorney and developer Dennis Walsh observed that Facebook’s GraphQL specification doesn’t include a patent license. In other words: using GraphQL in your software may lead to your code infringing a Facebook-held patent on the technology in future.

“The patents (as of a few weeks ago) were granted but not issued,” said Walsh in an email to The Register today. ”Damages can start before issuance but litigation cannot. But post-issuance, the threat is very real. My reading of two GraphQL granted applications and the GraphQL spec is that any properly implemented GraphQL server infringes.”

What’s pleasing to see here is that fairly large companies, not just individual developers, are willing to throw away code because of patent clauses. Spectators should take that for a sign that software patents have no room in software development. There’s a price to be paid for clinging onto them.

WordPress Demonstrates That Facebook’s Patent Strategy is Deterring/Alienating Developers

Posted in Free/Libre Software, Patents at 11:27 am by Dr. Roy Schestowitz

“Yeah, I’m going to fuck them in the ear”

Mark Zuckerberg, President and Founder of Facebook (source)

Summary: React is being dumped following Facebook’s attempt to restrict distribution/derivatives using software patents

HAVING spent years covering Facebook’s patent strategy, we recently came to see its troubling licensing issue resurfacing again in the media (it’s actually fairly old news, but Apache’s intervention brought that back from the dead). There’s a lot more about it in our daily links; we considered that mostly a software issue rather than a patents issue.

This week, however, things got a little ‘hotter’ for Facebook because one of the main project that disseminated React said that it would cease doing that. In a sense, Facebook is killing its own projects/products with software patents. The subject was covered not only by WordPress and its founder but also by technical media yesterday and the day before that.

As US media put it:

Facebook is in the middle of a fraught battle. No, it’s not over the pernicious tide of fake news surging onto our newsfeeds, nor is it about privacy issues on the platform. Rather, it pertains to how the social media giant deals with the open source community, the code it releases to the world, and one cool piece of software called React.

Put simply, React is a JavaScript library that makes it easier for developers to write sophisticated front-ends. It was built by an engineer at Facebook, and in 2013, Facebook released it to the developer community under an open-source license. This isn’t unusual; tech companies release open source software all the time.

Facebook used a license derived from the popular BSD license, which is used by other popular open source projects. But here’s the problem: Facebook also threw in a few other clauses, which many developers and companies are finding to be problematic.

British media put it like this:

Automattic, the developer of the popular content management system WordPress, has decided to stop using Facebook’s React.js library, citing legal concerns.

WordPress’ founding developer Matt Mullenweg explains the decision by noting that Automattic has used React since 2015, when it put the code to work in the “Calypso” update that emerged in 2016. At the time, WordPress’ legal people felt there was no problem with React and developers liked it so much they planned to use it again in another big update called Gutenberg.

[...]

“Automattic still has no issue with the patents clause,” he writes, “but the long-term consistency with core is worth more than a short-term hit to Automattic’s business from a rewrite. Core WordPress updates go out to over a quarter of all websites, having them all inherit the patents clause isn’t something I’m comfortable with.”

A Microsoft propaganda site, as one might expect, blames “Open Source”, but actually it’s the fault of software patents (not “Open Source Licensing”). David Ramel’s spin does not merit much attention.

Facebook will find out the hard way that the community has little or no tolerance for these patent traps. Software developers loathe software patents.

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