Not only Microsoft is attacking Free/Open Source software using its software patents
“I find a considerable anxiety throughout the community of practicing computer scientists that decisions by the patent courts and the Patent and Trademark Office are making life much more difficult for programmers. ”
Summary: Free/Open Source software (FOSS), which encourages sharing, is increasingly becoming infested or subjected to software patents barbwire, courtesy of those who want to monopolise rather than share
THE OTHER day we wrote about Blockchain and related technologies coming under attack because of giants that hoard software patents and threaten small players/contenders. A news site dedicated to Bitcoin explains this as follows:
Increasing Blockchain Patents May Soon Hamper Innovation
Companies count their patents among prized possessions. Having a patent for something important can be worth a fortune, guaranteeing the company a constant stream of revenue until it expires. At the same time, it may also hamper innovation by preventing other from using the technology for free.
Bitcoin and its underlying blockchain are open source technologies and it has gained prominence in the banking and fintech industry lately. The potential of blockchain to change the future of banking has forced many institutions to invest heavily in the development and implementation of cryptocurrency technology based applications.
However, the increased involvement of mainstream institutions has created another problem in the cryptocurrency industry. The banks and financial institutions are increasingly filing patents for various blockchain based solutions that are commonly used by many open source crypto-communities. If these institutions were to gain the patents, then they will soon be dictating terms to Bitcoin and other crypto-platforms, hampering innovation and ease of access to millions of people.
We are beginning to hear more and more stories like this and it matters even more to us because of the direct connection to FOSS and to the Linux Foundation. The other day WIPR showed that Hadoop too, in spite of being FOSS, became subjected to patent wars:
Founded in 2012, Pepperdata provides customers with products that improve the performance of Hadoop-based computing clusters. A computer cluster consists of a set of connected computers that work together.
According to the suit, Yahoo uses Hadoop clusters within the US. It made a software patch identified as YARN-5202, titled “dynamic overcommit of node resources”, which it has used on the clusters.
So anyone who uses this Free/Open Source software can now become the defendant in a patent lawsuit? How does that work? And why don’t more FOSS developers becoming actively involved in ending software patents? This should be our top priority. █
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Summary: Innovations associated with Bitcoin/Blockchain — advancements which are largely Free/Open Source software-centric — are under threat from financial giants that effectively besiege/threaten startups using a barrage of software patents
THE USPTO insists that it makes the US more competitive, but in many cases it actually helps large companies undermine small ones, not foreign ones.
Case of point: see the new article “When a patent-happy industry meets open-source technology” [1, 2]. To quote from the article:
When the financial services industry started paying attention to blockchain technology, many companies, seemingly as a reflex, sought patent protection for their ideas.
It was ironic, since the original bitcoin blockchain was a breakthrough of open-source development, in which software code is made freely available for anyone to use or modify. As the industry has gained a clearer understanding of how distributed-ledger technology could change its business, it’s begun to see the merits of such openness in supporting collaborative innovation, and the limitations of the traditional, you-can’t-touch-this approach.
Some are even using a hybrid strategy, pursuing patents to secure a competitive advantage – or at least protect themselves from legal challenges – while publishing code and inviting others to improve it by submitting fixes or patching bugs. The situation underscores the cultural differences between the banking and technology fields as the former looks to the latter for help meeting the demands of an increasingly digital world.
IBM’s Manny Schecter was interested in this and Benjamin Henrion told him that these conglomerates pursuing patents on Blockchain technologies is “like oil companies patenting everything solar.”
This isn’t entirely new a revelation. It’s an old trick in many industries (absorbing or denying competition that suggests alternative paradigms). Big Banks are essentially attacking Bitcoin, Blockchain etc. using software patents and today we found two more articles about it, “Blockchain patent filings by Goldman, others tip future cost risk” and “Corporate Patents on Blockchain Could Create Legal Problems for Startups”. Well, that’s the intention.
“Thankfully, a lot of software patents pertaining to payments and finance are being invalidated these days (thrown our by court), more so than in any other field.”“Over the past few months,” one of these articles says, “some of the world’s largest financial companies including Goldman Sachs, Bank of America and Mastercard – have been patenting promising Blockchain methodologies. Despite a common perception that Blockchain is Open Source and developers can freely use Sotoshi Nakamoto’s ideas from bitcoin to build new systems, it still could mean costly legal problems for fledgling startups, lawyers and others are saying.”
We wrote about this not too long ago in relation to MasterCard. A lot of the above culminated in the publication of “Big Banks Are Stocking Up on Blockchain Patents” (early yesterday in Wall Street media). To quote:
In the headlong rush to revolutionize modern finance, blockchain enthusiasts are overlooking one potentially costly problem: their applications, built on open-source code, may actually belong to someone else.
Recently, some of the biggest names in business, from Goldman Sachs to Bank of America and Mastercard, have quietly patented some of the most promising blockchain technologies for themselves. Through mid-November, the number of patents that companies have obtained or said they’ve applied for has roughly doubled since the start of the year, according to law firm Reed Smith.
Our readers are smart enough to know what’s wrong with this picture. Gullible people may try to frame this as a sign of “adoption” and “success”, but the large financial firms just want to guard their monopoly/oligopoly, they don’t want disruption.
Thankfully, a lot of software patents pertaining to payments and finance are being invalidated these days (thrown out by courts), more so than in any other field (about 90% of the time). That’s similar to business methods, too.
Are patent examiners in the US paying any attention at all to what courts have been arguing over and over again? █
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Summary: An update on Intellectual Ventures and Unwired Planet, whose operations pose a growing problem for Free software and Linux-based products (e.g. Android)
Patent trolls, as we noted in the previous post, are a growing problem in China and UPC in Europe can also make them a growing problem in Europe, basically emulating the mistakes of the USPTO.
“”Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist.”IP Watch, speaking to LOT Network’s Ken Seddon, mentioned the problems associated with trolls on the first of the month, taking stock of the type of trolls that FTC spoke about (against) a couple of months ago. To quote: “Patent assertion entity (PAE) activity has skyrocketed in the past decade and much discussion has occurred around what to do in response to patent holders whose strategy is more focused on legal battles than innovating. One notable group has risen up to bring together global companies to address the PAE issue with a novel sharing approach. In an interview with Intellectual Property Watch, Ken Seddon, CEO and President of LOT Network, talks about the group’s rapid growth, what’s coming next, and how not to bring a squirt gun to a nuclear fight. ”
In our previous post we showed that Intellectual Ventures had expanded in China. Well, IAM continues to groom this troll, the world’s largest patent troll, which is Microsoft’s patent troll. See this promotional article and another new article which euphemistically calls patent extortion “NPEs” “monetisation”. “Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist. IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…
“IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…”In other news, a network of sites published an article titled “How Big Law and Big Banks Took the Fight to Intellectual Ventures” [1,2], reminding us that Intellectual Ventures is very malicious and parasitic.
Speaking of Microsoft’s biggest patent troll, watch what Microsoft does with Nokia‘s patents other than extorting Android OEMs and passing patents to patent trolls like those that fund IAM. To quote the new article: “Under the terms of the agreement, HMD got exclusive rights to use the Nokia brand on mobile phones and tablets globally (except Japan) for the next 10 years, standard essential cellular patent licenses, software for feature phones…”
Those “standard essential cellular patent licenses” are among the reasons Microsoft ‘stole’ Nokia and now taxes a lot of the mobile industry using patents, even without selling any phones of its own. Not only Nokia’s patents serve to accomplish this goal. Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).
“Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).”Recently, Ericsson’s most prominent patent troll (Unwired Planet) did some damage even to PTAB, which has been responsible for intercepting a great number of software patents in the US. We wrote quite a lot about it last weekend and for those who don’t remember, the Court of Appeals for the Federal Circuit (CAFC) ruled to weaken PTAB. More coverage on CAFC coming out in favour of this patent troll of Ericsson — and indirectly against PTAB scope of operation — came from legal-centric sites [1, 2] at the beginning of last week.
Here in Europe, there may be some good news as Florian Müller, who used to promote/defend FRAND back in the days (it’s similar or related to standard essential patents), says that Germany pushes back against FRAND, citing antitrust reasons. To quote:
There was a time when I spent most Fridays–and occasionally also a Tuesday–in Mannheim (and on trains from Munich to Mannheim and back) to watch numerous smartphone patent trials. After coming to terms with a prohibition on making Internet connections from the courtroom (which prevented me from live-tweeting about the proceedings), I generally enjoyed my visits. I admired the depth of the judges’ technical understanding and their effective trial management (authoritative, but not authoritarian; highly facts-focused, but with a great sense of humor that I know other trial watchers also appreciated). There are, however, two notable exceptions from my fond memories: the incredibly dry air in the courtrooms and, more than anything else, the Mannheim judges’ take on what the obligation to license standard-essential patents on FRAND terms should mean for patent infringement remedies.
We certainly hope that these congregations of trolls, including those that try to tax every phone running Android, will be pushed back by courts. What we have here is a network of few large companies operating through patent trolls (i.e. resistant to lawsuits themselves), hoping to tax everything and everyone. Nobody benefits, except few rich people at the top. █
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Part of the duopoly (with Visa)
Summary: Worrying signs that an area of Free/Open Source software innovation is getting impacted by the plague of software patents
EARLIER this year we alluded to Blockchain patents in relation to a sham promise from a company with no patents. It ought to be be widely known — as it certainly is widely recognised among people in the profession — that software patents on financial stuff are the least likely to survive in courts (irrespective of what USPTO examiners do).
And yes, according to this new article, “MasterCard (MA) Files for Blockchain Patents” (!).
A new article from Fortune (published yesterday) is titled “Are Blockchain Patents a Bad Idea?”
Consider whose interests Fortune is serving.
“Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.”Truly troubling.
Remember the connection of Blockchain to Bitcoin, Free/Open Source software, GNU/Linux, and the Linux Foundation. A lot of those are inherently not compatible with patents.
Earlier today Sam Dean published the article “Will Patent Wars Bog Down the Blockchain Movement?”
Well, they can certainly cause a lot of damage. Other news about Blockchain today is optimistic about business prospects of Blockchain, but what happens if over the next year or two the most news we hear about Blockchain and hyper-ledgers relates to patents? As we noted here before, even Goldman Sachs dives into this gold rush of patents in this particular area.
Software patents need to end, but while the US cracks down of them they appear to have already spread to China, as we shall show later in the weekend. █
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Related to this:
Microsoft CEO Satya Nadella: women, don’t ask for a raise
Summary: Another example of the large (industrial) scale of sexual discrimination at Microsoft — a company that tries to advertise itself as diverse or tolerant and stigmatise Free/Open Source software (FOSS) as intolerant and/or not diverse
SEXUAL orientation-related and sexual discrimination at at workplace are a common theme. Microsoft’s propaganda mills, however, tried to stigmatise FOSS as hostile to minorities, women, and whatever else isn’t white, straight, middle-aged men.
Microsoft has got quite some audacity though. Microsoft’s hostility towards women [1, 2, 3, 4, 5, 6, 7, 8] and hostility towards gay people (or homophobia) [1, 2] were covered here before. Even Microsoft’s new CEO came under fire for it. The latest example of Microsoft sexism is reaching the press now. To quote The Register (one among very few that covered it):
Microsoft will have to defend itself against a lawsuit alleging that its employee rating system was biased against women.
A US district court in Washington has tossed out [PDF] the Redmond giant’s motion to dismiss a complaint lobbed at it by three women engineers, who allege the system for evaluating engineering and technical positions unfairly penalized them.
At issue is the Windows giant’s “Connect” system, the evaluation method Microsoft used to replace the much maligned “stack ranking” process for evaluating employee performance.
The engineers allege that the review system relies on manager and peer input from a group that is overwhelmingly male and, as a result, the female employees they evaluated may have missed out on raises and promotions.
“Plaintiffs allege these performance evaluation methods are ‘invalid’ because they ‘set arbitrary cutoffs among performers with similar performance’ and are ‘not based on valid and reliable performance measures’,” the court’s ruling, dated October 14, reads.
As we noted several months ago, sexism at Microsoft is systemic and a year ago we noted that it's not really a FOSS issue, in spite of a stereotype created and spread by the likes of Microsoft. Hence the relevance to FOSS… █
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Summary: A quick look at various new articles of interest (about software patents) and what can be deduced from them, especially now that software patents are the primary barrier to Free/Libre Open Source software adoption
THE previous post spoke about misleading coverage which would have us believe there’s a software patents rebound in the US. There is none of that, it’s just wishful thinking.
According to this new Slashdot post, linking to a report already mentioned in our daily links, in spite of the huge number of payment technology software patents being crushed (about 90% of them!), Accenture (somewhat of an evil and manipulative Microsoft ‘proxy’ in the UK) rushes for software patents in that area. As we noted here a few months ago, patents in this area are a growing cause for concern because they can undermine innovation. Things like Bitcoin and even Free/Libre Open Source software are affected profoundly. It’s not necessarily companies like Accenture and Microsoft that sue, but Microsoft has many patent trolls out there. Those trolls are no longer just a problem in the US; even in east Asia’s markets they are a growing problem or an epidemic (patent trolls spread there and there are new reports to that effect from publications that deny the existence of patent trolls).
Speaking of patent trolls, Joe Mullin has this new article about the latest moves from Mr. Horn. He summarised that as “Company backed by Nokia, Sony, and MPEG-LA gets a $3M verdict.” MPEG-LA is a massive obstruction to Free/Libre Open Source software, for reasons we covered here many times over the years.
“MPEG-LA is a massive obstruction to Free/Libre Open Source software, for reasons we covered here many times over the years.”Times are rough for those who develop software whenever software patents maintain some potency and patent trolls have an incentive to sue, not just to threaten. According to last week’s post from Patently-O the “patent act authorizes district court to award enhanced damages.” But only if you actually read patents, so don’t. Willful infringement can induce further penalties. To quote Patently-O regarding Halo [1, 2]:
The patent act authorizes district court to award enhanced damages. 35 U.S.C. 284 (“the court may increase the damages up to three times the amount found or assessed”). In Halo v. Pulse, the Supreme Court held that the statute grants district courts discretion in awarding enhanced damages – although noting that the punitive damages should ordinarily be limited to egregious infringement – “typified by willful infringement.” In rejecting the Federal Circuit’s Seagate test, the Court held proof of “subjective willfulness” is sufficient to prove egregious infringement. “The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Halo at 1933. As with other punitive damage regimes – proof sufficient for an award does not necessitate such an award. In patent cases, punitive damages remain within the discretion of the district court even after sufficient evidence establish the egregious behavior.
Another interesting article from Patently-O speaks about obviousness and prior art, along the lines stating that:
In response to being sued for patent infringement, Apple filed for inter partes reexamination of ClassCo’s Patent No. 6,970,695. That litigation (originally filed in 2011) has been stayed pending the resolution here. Although the patent had survived a prior reexamination, this time the Examiner rejected the majority of the patent claims as obvious; the PTAB affirmed those rejections; and the Federal Circuit has now re-affirmed.
The patent relates to a “caller announcement” system that uses a phone’s speaker (rather than screen or separate speaker) to announce caller identity information. The system includes a “memory storage” that stores identify information being announced.
The examiner identified the prior art as U.S. Patent No. 4,894,861 (Fujioka) that teaches all of the claimed elements (of representative claim 2) except for use of the phone’s regular audio speaker (rather than a separate speaker) to announce a caller’s identity (claimed as the “audio transducer”). A second prior art reference was then identified as U.S. Patent No. 5,199,064 (Gulick) that taught the use of the audio transducer for providing a variety of call related alerts.
What’s interesting here is that Apple, which uses software patents against rivals (including against Linux/Android), suddenly fancies invalidating one. Had there been no software patents, none of this mess would be necessary. Moreover, no money would flow into the pockets of patent law firms at the expense of developers and people who purchase products. █
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A better initiative would strive and work towards ending software patents, not faith-based ‘protection’
“Where knowledge ends, religion begins.”
Summary: The Open Invention Network (OIN) reports growth, but in practical terms it does little or nothing to help developers of Free/Open Source software
THE function of OIN seems benign if not benevolent on the surface; the problem is, it helps distract from better efforts that would more effectively defend Free/Open Source software (FOSS). Another not-so-useful initiative was Peer-to-Patent, but it seems to be gone by now.
OIN is growing (see the OIN ‘Community’) and MRV has just joined OIN (see the press release [1, 2], mostly or completely overlooked by reporters). This is a sign of growth, but it is growth which won't help FOSS all that much because it was never truly designed with FOSS in mind. The “Open Source Innovation” mentioned in the title of the press release wrongly assumes this will be beneficial to FOSS, but unless every company in the world joined and vowed not to sue any of the other members (like Oracle suing Google), what would it achieve? And what about lawsuits by proxy? Even if Microsoft was ever to join, its patent trolls (two of which we wrote about last night) would still be capable of suing Linux developers/companies.
Speaking of which, even Android players are a patent menace at times (e.g. Sony). A new and relatively long article by Professor Jason Rantanen speaks about Ericsson’s patent troll, Unwired Planet, and its case against Apple. “This post will focus on the issue of fault in the context of Unwired Planet,” he wrote upfront, “although its observations about fault are relevant to issues of culpability in the context of enhanced damages determinations.”
Even if Ericsson was ever to join OIN, this would not prevent it from suing Android OEMs, directly or via proxies like Unwired Planet (which even operates in Europe now). █
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Read between the lines then…
Summary: Blockstream says that it comes in peace when it comes to software patents, which triggers speculations about coming Blockchain patent wars
THE PAST few years were baffling as companies equated promises not to sue with “Open Source” or “open-source” (with a dash, to help dodge the trademark perhaps). Examples we covered here included, notably, Tesla and Panasonic.
A couple of days ago we saw that Blockstream had claimed the following: “Today we are excited to announce some important steps we are taking on the patent front, why these defensive steps are necessary, and our hope that others will see merit in our approach and follow our lead.
“The system as it stands is inherently hostile towards GNU/Linux and Free/Open Source software, which is what Blockchain is all about.”“Core to the Bitcoin ethos is permissionless innovation. Without it and the level of contribution to which it gave rise Blockstream would not be on the exciting path we find ourselves today. It should not come as a surprise then that permissionless innovation is also core to Blockstream’s ethos. We firmly believe that in order for Bitcoin and related technologies’ potential to be fully realized they must be underpinned by a global platform that is free for any innovator to use without hesitation.”
As Benjamin Henrion rightly asked, “where do you have patents? which numbers?” Another person, a patent attorney who specialises in patent data/statistics, noted that “Blockstream Does Not Have Any Patents Assigned to It.” This is not entirely shocking. Having written about Blockstream in the past (we have very broad scope in our daily links), not once did we mention it in relation to patents. Patently German hypothesised: “Preparation for future #blockchain #patent wars? Blockstream announces defensive patent pledge and patent agreement…” (IBM, a patent bully with software patents, is also heavily involved in the same Linux-centric space)
IP Watch, a decent watchdog of patent matters, wrote the headline “Trust Us, We Won’t Sue You” (it sounds rather humourous or sarcastic). It said that “Blockstream, which developed the blockchain technology and bitcoin, has announced a defensive patent strategy. The crux of it: assurance that users of its technology won’t be sued.”
“It seems like shameless self-promotion or a publicity stunt with a “patents” angle.”The EFF wrote about this as follows: “We’ve written many times about the need for comprehensive patent reform to stop innovation-killing trolls. While we continue to push for reform in Congress, there are a number of steps that companies and inventors can take to keep from contributing to the patent troll problem. These steps include pledges and defensive patent licenses. In recent years, companies like Twitter and Tesla have promised not to use their patents offensively. This week, blockchain startup Blockstream joins them with a robust set of commitments over how it uses software patents.”
Bob Summerwill told me [1, 2]: “I see this as hugely positive. Looks directly analogous to what the GPL does for copyrights. Use system against itself.”
Right, but unless Blockstream actually has some patents (there is no evidence of it so far), what can they really use against the system? The system as it stands is inherently hostile towards GNU/Linux and Free/Open Source software, which is what Blockchain is all about.
Blockstream’s message is suggestive of unknown context (like something they know but are not telling us). It seems like shameless self-promotion or a publicity stunt with a “patents” angle. We have become accustomed to it. One company that should definitely do the same thing (but has not) is Red Hat. OIN membership does not guarantee this and if Red Hat got sold to some relatively hostile entity (like Sun to Oracle), there is no guarantee that Red Hat’s patents would not be used to wreak havoc (like a $10 billion lawsuit over a programming language alone, i.e. an order of magnitude worse than SCO versus IBM). █
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