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10.30.18

IBM- and Microsoft-Backed Patent Troll Strikes Again and IBM’s Lobbyist for Software Patents Has Just Defended Patent Trolls (Again)

Posted in GNU/Linux, IBM, Microsoft, OIN, Patents, Red Hat at 9:56 am by Dr. Roy Schestowitz

Related: IBM, IPO, AIPLA, ABA and Other Lobbying/Front Groups of the Patent Microcosm Are Trying to Change US Law for Software Patents

David Kappos as lobbyist

Summary: With IBM and Microsoft having lots of commonalities when it comes to patent policy and exploitation of the law (both employed similar people too, notably Marshall Phelps and David Kappos, former Director of the USPTO), concerns should be raised in light of the latest lawsuit from the patent troll they support

FORGET the nonsense about OIN and LOT Network; OIN does nothing to shield anyone from trolls or proxies, which Microsoft is leveraging to sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]. It’s also difficult to forget Microsoft’s role in the SCO lawsuit, which is still ongoing (more than a decade and a half now) and primarily targets IBM.

“It is quite worrying to see IBM- and Microsoft-employed lobbyists publicly defending patent trolls on the very same day an IBM-armed and Microsoft-funded patent troll uses software patents for blackmail.”According to patent boosters, who took note of it pretty fast and linked to reports, patent troll Finjan, fueled by the new owner of Red Hat, backed and financed by Microsoft, filed another lawsuit. We had spotted the original press release within hours upon publication and it said this:

Finjan Holdings, Inc., (NASDAQ:FNJN), a cybersecurity company, today announced that — after nearly two years of good faith efforts to resolve a patent dispute with Fortinet, Inc. ( “Fortinet”) — its subsidiary Finjan, Inc. (“Finjan”) has filed a patent infringement lawsuit against Fortinet, Inc., a Delaware corporation with headquarters in Sunnyvale, California, in the U.S. District Court for the Northern District of California.

Finjan filed the Complaint (Case No. 3:18-cv-06555), on October 26, 2018, and alleges that Fortinet’s products and services infringed or are infringing at least nine of Finjan’s U.S. patents. Specifically, Finjan asserts that Fortinet’s FortiGate, FortiManager, FortiAnalyzer, FortiSiem, FortiSandbox, FortiMail, FortiWeb, FortiCache and FortiClient technologies, including Fortinet Security Fabric Platform products infringe U.S. Patent Nos. 6,154,844; 6,965,968; 7,058,822; 7,418,731; 7,647,633; 7,975,305; 8,079,086; 8,225,408; and 8,677,494 (collectively “the Asserted Patents”). Finjan is seeking, among other things, a jury trial, past damages not less than a reasonable royalty, enhanced damages for willful, wanton and deliberate infringement, and reasonable attorneys’ fees and costs for infringement of each of the Asserted Patents. Additionally, Finjan is seeking preliminary and permanent injunctive relief against Fortinet and those in privity with them, from infringing and inducing the infringement of the ‘968, ‘822, ‘731, ‘633, ‘305, and ‘408 Patents.

These are software patents. So the same month that Microsoft said it had reached patent “truce” with GNU/Linux its patent troll Finjan is filing yet another lawsuit against Microsoft’s rivals. It’s as if nothing at all has changed except Microsoft’s lies embedded all over the media (something about “protecting Linux” and “open-sourcing patents).

Meanwhile, the lobbyist David Kappos (sponsored by Microsoft and IBM after he had run the USPTO) is promoting software patents and patent trolls (like Microsoft’s and arguably IBM). He uses the euphemism non-practicing entities (NPEs) and published this article yesterday in what’s likely the largest site on the topic, saying:

The recipe for swinging the pendulum of patent law towards weaker patent rights is simple: Start with a generous warning about the scourge of low quality patents, stir in a skosh of fear mongering regarding non-practicing entities (NPEs) asserting those patents, then apply heat with predictions of lost jobs and threats to innovation, publicize in a blog, speech or article, and there you have it!

Just like the Trump-appointed Director Iancu he seems to be denying there’s a problem. Earlier this month Iancu came under a lot of fire, especially from front groups of technology firms large and small, after he had insinuated that patent trolls aren’t a problem or don’t even exist (they’re a ‘fiction’ or ‘fake news’). It is quite worrying to see IBM- and Microsoft-employed lobbyists publicly defending patent trolls on the very same day an IBM-armed and Microsoft-funded patent troll uses software patents for blackmail. Need we add that on the same day IBM also announced that it bought or agreed to buy all of Red Hat’s ‘defensive’ patents, which include software patents? The Federal Circuit typically finds that those patents are invalid (if the case reaches that far, at great expense to the defendant).

10.23.18

Microsoft’s Patent Troll Intellectual Ventures Still Suing Microsoft’s Rivals, Microsoft Gags Its Staff Regarding Patent Matters

Posted in Deception, GNU/Linux, Microsoft, OIN, Patents at 11:45 am by Dr. Roy Schestowitz

While Microsoft is trying to sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21], its ‘protection’ racket (defense from Microsoft’s trolls) and strategy for getting everyone — even GNU/Linux workloads — on Azure

Bill and Nathan

Summary: Microsoft says it’s pursuing “truce”; the patent trolls it has created and backed (Bill Gates still backs them at a personal capacity) feel differently

Microsoft loves Microsoft. Microsoft loves Windows. Microsoft loves its patents. It also loves the patent trolls it created and invested in. Microsoft’s biggest patent troll Intellectual Ventures passes patents to another shell (distancing itself from it) and then attacks rivals of Microsoft (again, as usual).

“Large companies, and especially Microsoft, are arming and financing patent trolls to attack their competition.”“An IP Valuation Partners affiliate is asserting patents recently acquired from Intellectual Ventures against Facebook, Instagram, Snap and Foursquare Labs,” Scott Graham (The Recorder) wrote.

This happened while Microsoft wiped the media with its lies, e.g. “protecting Linux”, “open-sourcing patents”, knowing that anyone from Microsoft talking about it would only refute these lies. As it turns out, based on a new video from a former Microsoft employee, “Microsoft had told internally not to talk to the press about the OIN deal, and Microsoft is refraining to talk to journalists about this,” as Benjamin Henrion put it.

As a reminder, the situation is far more complicated than Microsoft put it (e.g. when telling lies to the press). Large companies, and especially Microsoft, are arming and financing patent trolls to attack their competition. It is a SCO-like tactic. Microsoft’s patent trolls do this constantly while Microsoft sells ‘protection’ from these trolls. It’s a classic protection racket and Microsoft euphemistically calls it “Advantage” (the same word it used to compel companies to only use Novell’s SUSE).

“Microsoft has not changed; only its outward strategy (PR) has changed.”“14 of the 25 patent suits filed Thursday were filed by patent trolls,” we learned yesterday, “according to RPX Corp. That’s 56%.”

Companies don’t sue directlya fact that OIN would rather not be asked about (as it’s useless whenever that happens). The chief of OIN was himself working in the patent ‘monetisation’ business before he came to OIN. Need we remind readers that Microsoft has put Team Mono in charge of GitHub? Before Microsoft absorbed Team Mono in company form (Xamarin) Team Mono had strategically killed Free software projects that posed a threat to Microsoft/Windows. Microsoft has not changed; only its outward strategy (PR) has changed. It wants to get in.

“I saw that internally inside Microsoft many times when I was told to stay away from supporting Mono in public. They reserve the right to sue”

Robert Scoble, former Microsoft evangelist

10.21.18

Data Engine Technologies (DET) Just One Among Many Microsoft-Connected Patent Trolls That Pick on Microsoft’s Biggest Competitors

Posted in GNU/Linux, Google, Microsoft, OIN, OpenOffice, Patents at 5:57 pm by Dr. Roy Schestowitz

Data Engine Technologies (DET) and Acacia Research Corp.

Summary: Lawyers’ articles/blog posts continue to obscure the fact that Data Engine Technologies is merely a satellite or unit (one among many) of patent trolling giant Acacia Research Corp., connected to Microsoft and sporting a long history of lawsuits against GNU/Linux

As covered in an earlier post last weekend, potential ‘satellites’ of Microsoft are still attacking Microsoft’s biggest rivals using software patents.

Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) wrote about a patent troll connected to Microsoft through Acacia, but like many others he overlooked or missed out the Acacia connection, having published his detailed analysis in a couple of places to say:

Data Engine Technologies (DET) filed an infringement suit against Google in the District of Delaware contending infringement of U.S. Patent Nos. 5,590,259, 5,784,545, 6,282,551, and 5,303,146. Google responded with a Rule 12(c) motion arguing that the patents are directed to patent-ineligible subject matter under 35 U.S.C. § 101. The District Court agreed and invalidated the patents. DET appealed.

In Alice Corp. v. CLS Bank Int’l, the Supreme Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under § 101. One must first decide whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If so, then one must further decide whether any element or combination of elements in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exclusion. But generic computer implementation of an otherwise abstract process does not qualify as “significantly more,” nor will elements that are well-understood, routine, and conventional lift the claim over the § 101 hurdle.

[...]

I have to agree with PatentlyO, which viewed as “fairly questionable” the reasoning under which the notebook tab was the linchpin for patent-eligibility. And if you contrast the surviving Tab Patent claims with the claims that were held ineligible, this case certainly seems to equate claim breadth with patent-ineligibility – perhaps confirming that, as many of us suspect, an “abstract idea” is simply a really broad idea. In any event, decisions like this highlight the not-infrequent anomaly that claims can survive novelty and obviousness challenges, but fail on patent-eligibility. And as we saw here, the present court’s analysis, stripped down to what it really was, had a lot to do with obviousness.

Dozens of long paragraphs about this decision from Judges Reyna, Bryson, and Stoll (with opinion by Judge Stoll) and Acacia not mentioned even once? It already sued major GNU/Linux companies several times after it had hired from Microsoft. Now it goes after Google, specifically the biggest rival to Microsoft’s cash cow, Microsoft Office.

This same case was mentioned by Charles Bienema, who also overlooked the connection when he focused on patent scope:

Some claims directed to a computer spreadsheet are patent-eligible, while others are not, said the Federal Circuit in Data Engine Techs. LLC v. Google LLC (Fed. Cir. 2018) (precedential). The District of Delaware had granted a Rule 12 judgment on the pleadings of 35 U.S.C. § 101 invalidity of claims of U.S. Patent Nos. 5,590,259; 5,784,545; 6,282,551; and 5,303,146; the Federal Circuit thus reversed-in-part, affirmed-in-part, and remanded.

The three surviving patents (with the exception of one independent claim which had a patentable dependent claim), the ’259, ’545, and ’551) were dubbed the “Tab Patents.” The Tab Patents purportedly solved the problem that “complex commands” were required by “prior art three-dimensional or multipage electronic spreadsheets.” The patent-eligible solution was “a notebook-tabbed interface” to provide users with easy navigation through three-dimensional spreadsheet. Why? Because the notebook tab “allowed computers, for the first time, to provide rapid access to and processing of information in different spreadsheets, as well as easy navigation in three-dimensional spreadsheets.”

A widely-spread article [1, 2] by Joseph Saphia and Bonnie L. Gaudette (Haug Partners) said this:

On October 9, 2018, the Federal Circuit added to its growing collection of favorable Alice step one rulings1 by reversing portions of a decision from the U.S. District Court for the District of Delaware concerning an invention aimed to streamline the technology of electronic spreadsheets—a technology that has been around for twenty-five years. See Data Engine Technologies LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412 (Fed. Cir. Oct. 10, 2018). The Federal Circuit’s decision may be viewed as a not-so-gentle reminder to patent applicants and drafters alike to continue to draft software patent claims narrowly and with specificity if they wish to survive patent eligibility challenges under 35 U.S.C. § 101 and Alice step one.

The court commenced its opinion with a robust overview of Data Engine’s patents-at-issue: U.S. Patent Nos. 5,590,259; 5,784,545; and 6,282,551 (the “Tab Patents”) and U.S. Patent No. 5,303,146 (the “’146 Patent”). See Data Engine, at *2-12. The Tab Patents are entitled “System and Methods for Improved Spreadsheet Interface With User-Familiar Objects.” Id. at *1-2. In its detailed review of the Tab Patents, the court noted that they claim “systems and methods for making complex electronic spreadsheets more accessible by providing familiar, user-friendly interface objects—specifically, notebook tabs—to navigate through spreadsheets while circumventing the arduous process of searching for, memorizing, and entering complex commands.” Id. at *2. In essence, the Tab Patents aim to overcome some of the challenges users encountered when navigating electronic spreadsheets due to complex menu systems that “diminished the utility and ease of use of this technology.” Id. at *3. In an attempt to offer a solution to the challenges of prior art multipage electronic spreadsheets, the Tab Patents are directed to “implementing a notebook-tabbed interface, which allows users to easily navigate through three-dimensional electronic spreadsheets” and “conveniently flip through several pages of notebook to rapidly locate information of interest.” Id. at *4-5. The ’146 Patent is entitled, “System and Methods for Improved Scenario Management in an Electronic Spreadsheet” and is directed to tools that permit “electronic spreadsheet users to track their changes” automatically, as opposed to manually, when testing a multitude of modeling scenarios. Id. at *10-11.

Yes, patents on user interfaces are still being tolerated in the US, at least in the Federal Circuit. Charles Bieneman classifies these as “Software Patents” and recalls a related albeit older case on which he says: “Claims directed to an “information management and real time synchronous communications system for configuring and transmitting hospitality menus” were held patent-ineligible under 35 U.S.C. § 101 and the Alice abstract idea test in Ameranth, Inc. v. Pizza Hut, Inc., No. 3-11-cv-01810 (S.D. Cal. Sept 25, 2018). The court thus granted the defendants’ motion for summary judgment that U.S. Patent No. 8,146,077 is unpatentable.”

“This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing.”“The patent owner,” he later added, “tried to rely on two Federal Circuit decisions, Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (2018), and Visual Memory LLC v. NVIDIA Corp. (2017), as well as a recent district court case. But these cases were distinguishable…”

We covered this before. The above comes from a blog that advocates software patents. Generally speaking, software patents are the joke of all jokes. Not innovation at all. But lobbying from patent law firms has made the unthinkable reality. Bieneman accepted defeat when he wrote about another more neglected case (because it’s a district court): “Agreeing that patent claims “are directed to the abstract idea of facilitating cross-marketing relationships and fail to add any inventive concept” under 35 U.S.C. § 101 and the Alice/Mayo abstract test, Delaware’s Judge Stark granted a Rule 12(b)(6) motion to dismiss a complaint alleging infringement of claims of U.S. Patent No. 8,768,760. DiStefano Patent Trust III, LLC v. LinkedIn Corp., C.A. No. 17-1798-LPS-CJB (D. Del. Sept. 28, 2018).”

“OIN cannot do anything about such a racket.”Why was such a ridiculous patent granted in the first place? The headline should be a “duh” moment: “Linking Web Pages to Each Other Not Patent-Eligible” (based on prior art too, not just obviousness and abstractness).

As the above (main) story shows, however, merely adding tabs to spreadsheets is still considered innovative. The high court considers or determines this to be patent-eligible. This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing. Will the troll go after them too while Microsoft claims to have reached a “truce” and looks the other way? The only known ‘cure’ is buying Microsoft ‘protection’ in the form of “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] — a racket that extends to trolls Microsoft can control. OIN cannot do anything about such a racket.

MIT and the Prior Art Archive Perpetuate Existing Problems

Posted in America, Apple, GNU/Linux, Google, IBM, Microsoft, OIN, Patents at 11:37 am by Dr. Roy Schestowitz

There’s a reason why similar initiatives perished in the past

Strata Center MIT
Strata Center MIT

Summary: Large companies with many tens of thousands of patents (each) would have us believe that broadening access/reach of prior art (e.g. to patent examiners) would solve the issues; This may very well work for these large companies, but it overlooks the broader picture

COMPANIES like Apple, Microsoft and IBM — large companies that cross-license among themselves — don’t fear the USPTO or even patents in general (not even the EPO where they have a lot patents of their own). The patent system has, with few exceptions, served them well. It protects them. It’s a form of protectionism.

20 years after its foundation Google has already joined this ‘club’; instead of reforming things Google is adapting and so does Red Hat. To companies like these, which use GNU/Linux extensively, OIN and the likes of it represent a solution. Google backs LOT Network, which is similar.

Recently, together with a bunch of other large companies (Cisco, Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce are named below), Google pushed the “Prior Art Archive”; MIT’s self-promotional new piece about it gives a rather foggy idea; it even quotes MIT staff and no critics/sceptics. It doesn't help much when they focus on prior art rather than patent scope and obviousness (among other things). To quote MIT’s own site:

Two years later, a company applies for a patent on your invention. Once the application is granted, the company not only begins profiting from your device, but launches a lawsuit against you, the inventor, for infringing their patent.

This is the danger faced by researchers and developers alike, because the limits of existing content repositories means it is often a struggle for patent examiners to find what they call prior art — evidence that an invention is already known — relating to an application. That means that some applications that should be rejected are wrongly approved.

[...]

Cisco has already uploaded 165,000 documents into the archive, and a number of companies have committed to take part in the initiative, including Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce. Google has also assisted the project with classification technology that will be used in the system.

As we explained earlier this month, this serves to distract from other efforts and put examination efforts in the hands of the public, essentially outsourcing or crowdsourcing the work (for corporate gain). When examiners use the archive they may get a false sense of search exhausion.

10.17.18

Ask OIN How It Intends to Deal With Microsoft Proxies Such as Patent Trolls

Posted in GNU/Linux, Microsoft, OIN, Patents at 1:59 am by Dr. Roy Schestowitz

Microsoft does not need to sue GNU/Linux (and hasn’t done so in quite a while); there are ‘tentacles’ for enforcement…

Bill and Nathan
The "Microsoft spinoff" Intellectual Ventures is still managed by the same man. Credit: Reuters

Summary: OIN continues to miss the key point (or intentionally avoid speaking about it); Microsoft is still selling ‘protection’ from the very same patent trolls that it is funding, arming, and sometimes even instructing (who to pass patents to and sue)

WE HAD been writing about Microsoft’s attacks — especially by means of patents — and ‘defensive’ aggregators (DPAs) long before the Open Invention Network (OIN) added Microsoft as a member (or even LOT Network). We wrote many articles about why OIN wasn’t the solution, except perhaps to large companies such as Red Hat and IBM (which already cross-licenses with Microsoft anyway). We foresaw Microsoft joining as a member and clarified that it would not mean very much. OIN cannot really tackle some of the key problems. Even if Microsoft threw away all of its patents (voiding everything) — however unlikely that is — that would still leave many patents out there that it gave to patent trolls such as MOSAID (now known as Conversant). For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] (or previously Novell/SUSE Linux with the ‘Microsoft tax’ for what they back them marketed as “intellectual property peace of mind”).

“For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage”…”OIN’s response to my views (just mentioned in Hall’s new article with the words “Peace Treaty” in the headline) dodges the issue of patent trolls, including Microsoft-connected ones. There’s nothing they can do about these and occasionally they admit so, too. With lots of USPTO-granted software patents out there (OIN expresses no interest in actually challenging those) there’s going to be trouble.

I must say that not a single person has yet pointed out inaccuracies or errors in my articles/views on this matter. Nobody. I saw a lot of people agreeing; curiously enough, some key Microsoft employees blocked me in Twitter pro-actively (even though I never even spoke to them or about them). How curious. It’s like they’re afraid of actually dealing with the facts and debate matters. Ears wide shut.

Mitchel Lewis, who blogs about technology [1, 2], recently approached me for “a chat about Microsoft [...] Specifically with regard to patent trolling. I’m writing an article about the influence of Bill Gates Sr. and his law firm KL Gates with regard to the predatory design and nature of Microsoft…”

“I’m an open book man,” he said. “Another project that I have on the back-burner is focused on how Microsoft influences and suppresses the media.”

Here is what we wrote to me about OIN and patent trolls:

Truth be told, I just stumbled upon that site today so I will be spending a bit of time there over the next few weeks. Based on what I’ve read so far though, thanks for pointing out how Microsoft funds patent trolls; this was news to me. But it also seems like an eerily similar tactic leveraged by Peter Thiel, and presumably others, when he enacted his revenge on Gawker by funding Hulk Hogan’s lawsuit. In turn, this makes me wonder if media outlets dance around topics that make Microsoft and other large entities look bad for fear of indirect retaliation such as this.

I’ve been so focused on other crude aspects of Microsoft that I seem to have neglected to realize just how potent of a troll they are in the realm of patent law, among other things. Only after realizing that they’ve been trolling the Linux world for years, to the point of being one of necessitating factors of OIN’s formation, did I begin to consider just how much of their business is dependent on subverting their competition, Linux or otherwise, through their patents.

Needless to say, please feel free to use and re-appropriate anything that I’ve written to use as well as cite at your discretion. I maintain the stance that there are not enough people writing about how destructive Microsoft is in this day and am just glad to see others writing about it.

OIN may never be able to explain how it intends to tackle Microsoft’s satellites, such as Intellectual Ventures, Finjan, and Acacia, which as noted only earlier this week still attacks other OIN members for their products that compete with Microsoft’s.

10.10.18

Open Invention Network is a Proponent of Software Patents — Just Like Microsoft — and Microsoft Keeps Patents It Uses to Blackmail Linux Vendors

Posted in Deception, GNU/Linux, Microsoft, OIN, Patents at 6:48 pm by Dr. Roy Schestowitz

Rerun of last week: Microsoft Uses LOT Network to Spread Lies and Promote Its Protection Racket

OIN loves Microsoft

Summary: OIN loves Microsoft; OIN loves software patents as well. So Microsoft’s membership in OIN is hardly a surprise and it’s not solving the main issue either, as Microsoft can indirectly sue and “Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact,” according to Bradley M. Kuhn

A LOT of patents granted by the USPTO are bogus, bunk, fake. They should not have been granted (e.g. based on 35 U.S.C. § 101), but prolific applicants that are large corporations enjoy favourable treatment and can gather as many as a hundred thousand low-quality patents; a very tiny proportion of these will have been tested in court before expiry. This is a problem. IBM and Microsoft have many such patents, which they cross-license so as to avoid actually testing these in courts or by means of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs).

“IBM and Microsoft have many such patents, which they cross-license so as to avoid actually testing these in courts or by means of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs).”Last week when Microsoft announced some news about LOT Network (complete with familiar lies and incredible revisionism) we predicted that it was likely some ‘test run’ ahead of OIN membership. Observers must bear in mind that such a membership imposes no actual new constraints on them. People don’t need to panic or get excited about the OIN thing (we’ll come to it in a moment), partly because it was predictable. As if joining an IBM-led front group for software patents changes much…

It doesn’t. Nothing really changed. What happened?

  1. Microsoft is now an OIN member, but it’s an IBM-centric group that favours software patents (I spoke to their CEO for hours on the phone over the years). We disagree on quite a few things and he told me Microsoft uses FAT patents. As we shall explain later, those were excluded from OIN, which says quite a lot.
  2. IBM and Microsoft both still promote and lobby for software patents. We write about it a lot. So what kind of goodwill gesture does Microsoft offer? It’s part of the problem.
  3. Microsoft nowadays leverages patent attacks via patent trolls. OIN has no way of thwarting/dealing with such tactics. We constantly give examples of such attacks. Intellectual Ventures is one of many.

Regarding the OIN membership, it is more or less the same thing as last week’s LOT Network news, which we wrote about in great length. Like we said at the time, LOT Network is the same as OIN (more or less).

I first learned about the news because ZDNet had sought comment from me personally (for an upcoming article). “The whole article on ZDNet is full of words of love and cuddles from the tops of Microsoft to Open Source and Linux,” said one of our IRC regulars, “and claims that in the past they “had no bicycle” (a reference to Prostokvashino about a mailman who was grumpy before he got a bicycle)…”

“Microsoft nowadays leverages patent attacks via patent trolls. OIN has no way of thwarting/dealing with such tactics.”This was soon mentioned in Slashdot, Linux Today, and various other sites.

Recent Techrights articles on OIN have all been critical of OIN. We don’t like the direction they’ve been choosing. It’s that (big) corporations-friendly policy we also see in the Linux Foundation these days. Microsoft “loves/ing Linux” is a sort of lie they openly embrace. But Microsoft actually hates GNU/Linux. That’s why it fuels patent trolls (financing, passage of patents etc.) that attack Linux vendors in courts.

When I first heard of the news I decided to wait patiently and gather more information (as I have for the past 7 hours). I did not want to write about the very same things I said before, such as last week’s post (just swap “LOT Network” with “OIN” and it’s still all true).

“Microsoft “loves/ing Linux” is a sort of lie they openly embrace.”The ZDNet headline says “​Microsoft open-sources its patent portfolio,” which is pure nonsense. That does not even make sense. That’s like saying “Fred makes his thoughts purple” or “Jane is dreaming about afternoons”. There’s no such thing as “open source patents”; Tesla is an example of openwashing of patents, with 2018 examples, 2014 examples, and a 2015 example from Panasonic.

But I guess the term “open source” doesn’t mean anything anymore. So okay, whatever…

I’ve been patiently observing truly ridiculous coverage about Microsoft/OIN for 7 hours today. There’s more to come later this week, no doubt. Purely comedic. Classic. Have journalism outlets been reduced to mere PR? Do we need to be reminded that Microsoft “loves Linux” (like BP loves wind power and children love ice cream before it vanishes)? So we get it; everything Microsoft is “open” now, even its patents. Its software patents (that it passes to trolls) are “open source”, or so they say to us. Never mind if patents, by their very definition, are monopolies and thus an antithesis of Open Source.

“Have journalism outlets been reduced to mere PR?”As a reminder, all of Microsoft’s core products (software) are still proprietary and in reality, in this age of mobile devices, its market share (Windows) is down to 35% and it’s trying to avoid complete irrelevancy. It’s just trying to dominate the competition too. It used to be called EEE or entryism. It’s something to be wary of.

So now, on to some coverage and our response to it. ZDNet (CBS) published somewhat of a marketing video with LOT Network involved, growing their cartel of “non-aggression” (cross-licensing) and bragging about it. This is what the introductory paragraphs said:

Several years ago, I said the one thing Microsoft has to do — to convince everyone in open source that it’s truly an open-source supporter — is stop using its patents against Android vendors. Now, it’s joined the Open Invention Network (OIN), an open-source patent consortium. Microsoft has essentially agreed to grant a royalty-free and unrestricted license to its entire patent portfolio to all other OIN members.

Before Microsoft joined, OIN had more than 2,650 community members and owns more than 1,300 global patents and applications. OIN is the largest patent non-aggression community in history and represents a core set of open-source intellectual-property values. Its members include Google, IBM, Red Hat, and SUSE. The OIN patent license and member cross-licenses are available royalty-free to anyone who joins the OIN community.

It doesn’t do anything to tackle the patents themselves. As Bruce Perens said not too long ago, OIN exists to protect software patents from the community rather than protect the community from software patents. What an apt and succinct description.

“As Bruce Perens said not too long ago, OIN exists to protect software patents from the community rather than protect the community from software patents.”Erich Andersen, Microsoft’s Corporate Vice President and Deputy General Counsel, lies for the second time in a week. It is a similar kind of lie, too. He says Microsoft will “protect Linux” from patents while the company passes patents to patent trolls for such attacks. That’s as ridiculous as claiming that China “protects Tibet”.

We were disappointed but not surprised that Phoronix is among those relaying Microsoft’s lies about those patents in relation to OIN. Microsoft is not their friend, yet they use Erich Andersen as a main source, repeating the propaganda from the headline to the body, which says:

Microsoft has joined the Open Invention Network (OIN) to as they put it “protect Linux and open-source.”

Open Invention Network is the community of members ranging from Google to IBM and Red Hat now to Microsoft whereby when joining OIN you agree not to assert patents against Linux and related open-source software while in turn members can utilize OIN patents/licenses royalty-free.

OIN membership is an extremely low price to pay to gag (using money) rivals and at the same time buy the laughable illusion Microsoft hopes will help ‘rope in’ developers into EEE ambitions, e.g. reducing GNU/Linux to just an ‘app’ for Vista 10 (WSL).

“OIN membership is an extremely low price to pay to gag (using money) rivals and at the same time buy the laughable illusion Microsoft hopes will help ‘rope in’ developers into EEE ambitions, e.g. reducing GNU/Linux to just an ‘app’ for Vista 10 (WSL).”If enough people are bamboozled by it, EEE will become easier. We live in a “public relations” world…

Do they not realise that the managers from Microsoft have a long history of lying about their actions (patent extortion in this case)?

LWN uses Microsoft as a source, as did Phoronix, regarding Microsoft’s patent attacks on Linux. It quotes Microsoft itself, preceded only by:

Microsoft has announced that it has joined the Open Invention Network (OIN).

Well, as we saw in Google and Oracle affairs, OIN does not defuse attacks or properly protects OIN members, e.g. from threats including patent lawsuits (direct attacks).

“No, Microsoft isn’t “protecting Linux” as it is claiming in its headline (Microsoft’s own headline as well as lazy bloggers’/journalists’ who copied it); it does the exact opposite.”Gaming on Linux, which typically focuses only on computer games, wrote about the above whilst openly admitting that it’s off topic. The headline started with “Embrace, extend, and protect?”

No, Microsoft isn’t “protecting Linux” as it is claiming in its headline (Microsoft’s own headline as well as lazy bloggers’/journalists’ who copied it); it does the exact opposite.

Here’s what Liam wrote in Gaming on Linux:

Surprising is one word for it! Honestly, I’m in shock at this news. Does this mean we can firmly put the “Embrace, extend, and extinguish” phrase to rest and replace it with Embrace, extend, and protect? With Microsoft joining, they’re bringing with them around 60,000 patents.

Moves like that, makes me seriously think about how Microsoft have changed, especially since their previous CEO Steve Ballmer called Linux “a cancer”.

I think it also shows how far Linux has come as a platform for all things too, especially with Microsoft having a “Windows Subsystem for Linux” along with their support for running Linux on their Azure cloud computing platform.

“He even included a “Microsoft loves Linux” picture. Yes, that’s OIN. The staff of OIN actively spreads this lie.”GNU/Linux is still a “cancer” to Microsoft. Nadella is still bossed by Microsoft’s Board, which incidentally includes many of the same people, including Bill Gates. Nadella is being used as a sort of new voice and a new face. They have changed strategies and they aren’t being sincere about it. Outwards they need to seem “nice”; deep inside they just want to swallow and control (or devour, or extinguish) GNU/Linux. This is nothing new.

OIN’s Mirko Boehm wrote about it a few hours later (probably on behalf of himself, not for his employer). To him, apparently, getting together with the company that attacks GNU/Linux via patent trolls is great news. He even included a “Microsoft loves Linux” picture. Yes, that’s OIN. The staff of OIN actively spreads this lie. And a few hours ago even Microsoft Peter wrote about it, under the headline “Microsoft promises to defend—not attack—Linux”. Protect from whom? Itself? This is a lie, but Microsoft boosters perpetuate this Orwellian lie. With obligatory “Microsoft loves Linux” image again (the Big Lie). Notice how career Microsoft boosters disseminate this very same lie that OIN staff spreads in blog posts. Not a good sign. What has OIN been reduced to with Microsoft’s new membership money?

“What has OIN been reduced to with Microsoft’s new membership money?”Over at Linux Journal, Jill Franklin cites ZDNet and says: “Microsoft has joined the Open Invention Network (OIN), an open-source patent consortium. According to ZDNet, this means “Microsoft has essentially agreed to grant a royalty-free and unrestricted license to its entire patent portfolio to all other OIN members.” OIN’s CEO Keith Bergelt says “This is everything Microsoft has, and it covers everything related to older open-source technologies such as Android, the Linux kernel, and OpenStack; newer technologies such as LF Energy and HyperLedger, and their predecessor and successor versions.””

So OIN’s CEO says it “covers everything related to older open-source technologies such as Android, the Linux kernel, and OpenStack,” but what does that not cover? Ask Bradley M. Kuhn, who wrote about it in his blog and the Conservancy’s blog. He explains that Microsoft intentionally excluded from OIN patents it uses for blackmail against Linux (and sometimes via patent trolls of choice). To quote:

We know that Microsoft has done patent troll shakedowns in the past on Linux products related to the exfat filesystem. While we at Conservancy were successful in getting the code that implements exfat for Linux released under GPL (by Samsung), that code has not been upstreamed into Linux. So, Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact.

We now ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggression against Linux and its users, to now submit to upstream the exfat code themselves under GPLv2-or-later. This would provide two important protections to Linux users regarding exfat: (a) it would include any patents that read on exfat as part of OIN’s non-aggression pact while Microsoft participates in OIN, and (b) it would provide the various benefits that GPLv2-or-later provides regarding patents, including an implied patent license and those protections provided by GPLv2§7 (and possibly other GPL protections and assurances as well)

OIN’s CEO personally told me that FAT patents, like those Microsoft sued TomTom over, were the main culprit. What good is Microsoft’s new membership if those patents are excluded (they should be invalidated either way)?

“OIN’s CEO personally told me that FAT patents, like those Microsoft sued TomTom over, were the main culprit.”Understandably enough, Microsoft does not like to talk about all those patents that it passed by the thousands over the years to patent trolls. Some of our IRC channels’ regulars names some of these trolls. Funny that Microsoft didn’t mention that in its announcement, right? That interferes with the Big Lie. I have been following this and covering it for over a decade, so I have a good record of most things.

The media will no doubt continue to write Microsoft puff pieces like “Microsoft makes its 60000 patents open source to help Linux” and “Microsoft Just Did Something Big With 60000 Patents” because facts are less interesting than fancy, incredible-sounding headlines.

“OIN is in many ways part of the problem which is software patenting; the solution it offers requires us to think whose problem it is trying to solve. Large corporations is the answer.”For those who actually trust OIN, just remember who it works for. See this EPO tweet from earlier today — a short message which says (calling the Open Invention Network “Open Innovation Network”): “Herbert Zech of @UniBasel_en, Keith Bergelt of the #OpenInnovationNetwork and Heinz Goddar, European patent attorney, discussed general strategies for protecting AI inventions at our conference on patenting #artificialintelligence.”

For those who have been following our EPO coverage recently it will be clear and obvious that “AI” is just the EPO’s new cover for software patents in Europe. So OIN’s CEO is basically helping them with this stunt, wherein applicants are advised to frame software patent applications as “AI” and examiners are pressured to then award such “AI” patents.

OIN is in many ways part of the problem which is software patenting; the solution it offers requires us to think whose problem it is trying to solve. Large corporations is the answer.

10.06.18

Techrights’ Position on the Linus Torvalds and CoC Kerfuffle

Posted in GNU/Linux at 11:27 pm by Dr. Roy Schestowitz

“Software patents are a huge potential threat to the ability of people to work together on open source.”

Linus Torvalds

Summary: A short statement on why it is better to quiet things down and focus on code rather than factions and cliques

A lot has been said about a variety of topics (sometimes in conjunction) like systemd, the Codes of Conduct (CoCs), Torvalds’ mode of engagement etc. We nowadays prefer to focus on patents, especially software patents, but the following statement would probably incorporate/reflect the thoughts of many of us regulars (e.g. in the IRC channels, where we actively discuss these things, always in the open, 24/7/365).

“We kindly advise our readers not to further inflame matters because it is very clear who benefits from such infighting.”The media has (by now or for now at least) stopped this whole commotion or fuss, especially one caused by conflicting views over technical and ethical matters. It would be preferable to settle things rather than throw insults at one another (including at Richard Stallman, ESR, Theodore Ts’o and Greg K-H or the GPL, Open Source, the kernel community and longtime maintainers respectively). We kindly advise our readers not to further inflame matters because it is very clear who benefits from such infighting. Let’s move on as best we can and try to find commonalities rather than differences. We have a lot in common. The real opponent is proprietary software. Focus on that instead.

09.04.18

Marking One’s ‘Territory’ Using Software Patents

Posted in GNU/Linux, Google, Microsoft, Patents at 11:15 am by Dr. Roy Schestowitz

Puzzle missing

Summary: A maze or a complex puzzle of patents helps large companies guard their monopolies from competitors; it doesn’t seem to matter if all or at least the vast majority of these patents are bogus (it’s expensive to prove this and have these patents invalidated)

“Banks Hate Cryptocurrency, But Are Filing Patents Anyway,” Knobbe Martens (patent lawyers) wrote in a new headline. We recently wrote about how the USPTO had actively promoted such nonsensical, abstract patents. Such patents oughtn’t even exist!

A common hypothesis is that they try to destroy cryptocurrency firms (or the concept/movement as a whole) by threatening them with software patent lawsuits. We wrote about that several times in the past. It’s still more of a theory, but we’re already seeing notorious patent trolls (notably Erich Spangenberg) amassing these patents from filers. They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.

“They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.”Thugs and Mafiosos from Microsoft — i.e. those who constantly use patents for blackmail purposes — carry on pursuing a monopoly by targeting an Android-dominated sector with patent lawsuits (or threats thereof). Patently Apple again seems happy to celebrate these patents (it has been doing that a lot lately), perhaps knowing that Apple too sues OEMs in this Android- or Linux-led sector (using highly dubious patents on things like shapes).

Does Android and by extension Google deserve sympathy? Not really. Google has already gone rogue when it comes to software patents; Yesterday MyBroadband (South Africa) ended up reposting the EFF’s post from last week and IPPro Patents then wrote an article about it as well:

EFF to Google: stop trying to patent ANS

The Electronic Frontier Foundation (EFF) has called on Google to abandon its attempts to patent a data compression algorithm for video compression.

A recent patent filed by for a data compression algorithm called asymmetric numeral systems (ANS) for video compression was rejected by the US Patent and Trademark Office.

The examiner rejected all of the claims for lack of clarity and for claiming functions that are not described with sufficient detail.

The examiner also rejected the patent due to a third-party submission by Jarek Duda, who had been developing ANS for seven years and believed that Google’s patent application merely applied ANS to a standard video compression pipeline.

Why does Google even feel like it needs such a ridiculous patent? Prior art aside, it’s void as per Section 101/Alice. Does Google deliberately try to make itself look evil as well as dishonest? Does it want to challenge Microsoft to this title?

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