Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again
OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).
Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.
As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:
The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.
“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.
She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.
For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.
On November 30th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:
After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.
It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.
“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”
To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.
The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.
“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars? █
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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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“I’ve heard from Novell sales representatives that Microsoft sales executives have started calling the Suse Linux Enterprise Server coupons “royalty payments”…”
–Matt Asay, April 21st, 2008
Summary: In order to maintain the order of “Linux patent tax” Microsoft and its proxies (patent trolls like Intellectual Ventures) keep pursuing patent policy that is friendly towards software patenting
A FEW days ago we became aware of the Microsoft-friendly IAM with its latest/upcoming event (as usual, with patent maximalists as sponsors). It is an IAM event, so basically IAM agenda, including software patents promotion. They are hoping to shape patent policy (see “Programme”) and as Benjamin Henrion put it, it is “Microsoft and others writing swpat [software patents] law: “Key topics for legislators to consider: a solution for 101 uncertainty”…”
“As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US.”Longtime readers of ours probably don’t need to be convinced that Microsoft is still an enemy of GNU/Linux, at the very least by virtue of promoting software patents (there’s a lot more than that). Sites like Phoronix may have fallen in line with the “LOVES LINUX” nonsense (a PR campaign), but judging by the company’s actions — not mere words — it is still a vicious opponent that cannot be trusted.
The largest patent troll of Microsoft (which attacks Linux with software patents) still fights for software patents. Yes, Intellectual Ventures is just one among many Microsoft-connected trolls that prey on Linux. Here is one new report about it: “Earlier this week, Intellectual Ventures (IV) petitioned the full Federal Circuit to review the panel opinion inIntellectual Ventures v. Symantec, which invalidated two of its patents under section 101. Both patents—the ’050 and the ’610—are directed to filtering email or file content. (IV does not challenge the invalidation of a third patent, which was directed to receiving, screening, and distributing email.) The petition echoes concerns raised by clients, courts, and the patent bar about the growing uncertainty about what is—and what is not—patent eligible, especially in the area of software patents. Identifying two emerging fault lines in the court’s evolving section 101 jurisprudence, IV urges the full court to bring much needed doctrinal clarity and methodological consistency to the patent eligibility analysis.”
This was also covered in another report (partly behind paywall) which says “Intellectual Ventures asked the full Federal Circuit on Tuesday to review a panel decision that invalidated two of its patents on detecting spam and viruses for claiming only abstract ideas, saying the ruling “directly conflicts” with other decisions on patent-eligibility.”
“It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company.”As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US. It’s clear that Intellectual Ventures intends to keep fighting that decision. It wants to keep extorting all sorts of companies, extracting patent payments (settlements from them). Intellectual Ventures is closely connected not just to Microsoft but to Bill Gates personally.
IAM’s apologists of trolls had the cheekiness to say the other day that “as you know, a lot of infringement goes uncontested because of the cost of litigating in the US.”
That’s nonsense. “A lot of patent bullying goes unchallenged (‘protection money’ paid) because of the cost of litigation everywhere,” I told them and “seen it personally,” added the former lawyer of Samba, Carlo Piana. As Benjamin Henrion (FFII) put it, “politicians don’t care about small companies.”
“I thought big companies were the targets of litigation,” said Jamie Love (Knowledge Ecology International, or KEI for short), probably joking about this myth.
The matter of fact is, Microsoft and its patent trolls continue to lobby pretty hard for software patents, yet the Linux Foundation somehow found it appropriate to join Microsoft and help Microsoft spread its lies (e.g. that .NET is open even though it’s not and SQL Server comes to GNU/Linux even though technically it will run on top of a Windows kernel, which in turn sits on GNU/Linux).
I had a lot more to say about the Linux Foundation joining Microsoft (yes, it certainly feels like the suitable way to put it), but I wrote it succinctly in Diaspora* and other such sites as I wish to focus all energy and time on the patent systems, not on Microsoft specifically. It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company. █
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Making GNU/Linux work the ‘Microsoft way’ so as to give Microsoft greater control
‘We had some painful experiences with C and C++, and when Microsoft came out with .NET, we said, “Yes! That is what we want.”‘
–Miguel de Icaza, now Microsoft employee
Summary: A warning about lots of prepared (in advance) Microsoft brainwash, or intentionally misleading material that strives to portray Microsoft as a friend of GNU/Linux even though the company actively attacks GNU/Linux and tries to bring the competitor under its own control
WHILE we prefer to focus on the EPO and the US patent system’s software patents (the USPTO still grants them, but courts barely tolerate these), something happened today which we cannot simply brush off and ignore.
“It’s all about proprietary software. There’s nothing to celebrate here.”If one believes the lie, Microsoft now “loves Linux” and has officially joined the Linux Foundation. I have already responded to that over at Tux Machines where I also included many dozens of links to today’s nonsense (reproduced below), which was virtually everywhere. Remember these were quietly prepared in coordination with Microsoft/Linux Foundation before the announcements were actually made. It’s a well-orchestrated PR blitz that came out within an hour or two, reaching a lot of news channels simultaneously and drowning out opposition/scepticism. Almost all the links are there, except newer ones that we’ve found since, e.g. [1, 2] (it is a multi-faceted E.E.E. move that serves to also impose .NET and proprietary SQL Server on more users). There are reactions on the Web from pro-GNU/Linux people who are not so easily fooled or mesmorised by the torrent of Microsoft propaganda, delivered primarily by Microsoft-friendly writers who got groomed and prepared for it at least a day in advance (one writer accidentally published his article half a day too early and quickly took it down, he told us). There is relevance to patents, as one Red Hat employee put it: “I do wonder what #Microsoft joining #Linux foundation means wrt to those 250+ patents #Microsoft licenses to #Android OEMs.”
Compare that to optimism from those who got paid to write Microsoft-friendly puff pieces in a Windows site lately. No doubt there will be a lot more puff pieces about it in the coming days, maybe also some editorials critical of the move (I got approached for comments).
It is not a “love affair” but an attack on GNU/Linux, a classic E.E.E. move. It is imposing .NET on us, too. It’s all about proprietary software. There’s nothing to celebrate here. It’s not a victory for the Linux Foundation but a defeat; they finally sold out as Microsoft bought them off for just half a million dollars (slush funds to Microsoft).█
Related/contextual items from the news:
Today The Linux Foundation is announcing that we’ve welcomed Microsoft as a Platinum member. I’m honored to join Scott Guthrie, executive VP of Microsoft’s Cloud and Enterprise Group, at the Connect(); developer event in New York and expect to be able to talk more in the coming months about how we’ll intensify our work together for the benefit of the open source community at large.
No, this isn’t The Onion and it’s not April Fool’s Day. Microsoft has joined The Linux Foundation.
Microsoft announced that it was joining forces with The Linux Foundation at the Microsoft Connect developer event in New York.
Microsoft is hosting its annual Connect(); developer event in New York today. With .NET being at the core of many of its efforts, including on the open-source side, it’s no surprise that the event also featured a few .NET-centric announcements…
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Witness those truly innovative things — the work of pure genius! — which are rounded corners!
Summary: A quick roundup of recent articles/reports/analyses about Apple v Samsung, including the impending Supreme Court (SCOTUS) case
APPLE’S longstanding patent war with Samsung (or Android, having started to attack it more than 6 years ago) has become a high profile story and probably the leading example of patent litigation in recent times, with a lot of money at stake.
As expected, patent lawyers go ahead and push forth their fairly tales about patents being surrogates for “innovation” (the 1%’s protectionism), this time in relation to Apple and Samsung. To quote Patent Lawyer Magazine:
The recent and numerous cases opposing companies like Apple and Samsung or Google and Oracle highlight that, today, patents are defensive weapons as well as offensive weapons according to the strategy developed by the holder. Many companies notice lately this functional ambivalence of the patent, just as a patent-related dispute happen, like its violation by a counterfeiter party who reproduces without any authorization the protected invention.
If adopting a strategy of patent application may appear expensive in front of the strategy of the secret which consists in keeping the invention undisclosed, it must be clear that the patents ensure an effective legal protection of the inventions against potential counterfeiters and also permit to the innovative companies recouping their Research & Development costs as a patent owner will be able to negotiate royalties for license agreements signed with firms interested in the use of the patented technology.
That’s a rather misleading framing. If one actually considers which patents Apple is suing with/over, then one hasn’t any doubts; it’s not about innovation at all. Maybe it’s about “first to file” or something along those lines. We have covered these patents many times over the years.
As should become apparent pretty soon — because certainly corporate media will be all over it — Apple’s patent war against Samsung will be discussed at SCOTUS, with design patenting as a whole coming under scrutiny. Here is an overview of some more cases to be discussed by SCOTUS:
Constitutional Challenge to Inter Partes Review: Although the Constitutional issues in Cooper v. Lee and MCM v. HP were law-professor-interesting, they were not substantial enough for certiorari. The Supreme Court has now denied the Cooper and MCM petitions — leaving the IPR regime unchanged. Although Cooper v. Square is still pending, its chances are slight. The Supreme Court has also denied certiorari in Encyclopaedia Britannica (malpractice), Gnosis (appellate review), and GeoTag (case-or-controversy).
A new 101 Challenge: In its first conference of the term, the Supreme Court denied all of the pending petitions regarding patent eligibility. However, Trading Technologies has filed a new petition asking whether a new card game is categorically unpatentable so long as it uses a standard deck (rather than a novel deck) of cards. My post on the case asks: Does the Patent Statute Cabin-in the Abstract Idea Exception? That question references Section 100 of the Patent Act that expressly allows for the patenting of new use of a known manufacture.
Extra Territoriality of Trade Secrecy Law: On the trade secrecy front, Sino Legend has petitioned to review the Federal Circuit’s affirmance of the International Trade Commision’s ban on Legend’s importation of rubber resins used for tire production. The underlying bad-act was a trade secret misappropriation that occurred in China and the question on appeal asks: Whether Section 337(a)(1)(A) permits the ITC to adjudicate claims regarding trade secret misappropriation alleged to have occurred outside the United States. A Chinese court looked at the same case and found no misappropriation.
Design Patent Damages: Oral arguments were held earlier this week in Samsung v. Apple. During the arguments, all parties agreed that (1) the statute does not allow for apportionment of damages but rather requires profit disgorgement; (2) the article-of-manufacture from which profits can be calculated may be a component of the product sold to consumers; and (3) the determination of what counts as the article-of-manufacture is a question of fact to be determined by the jury. The only dispute then was on the factors that a jury should be considered and when the “inside gears” of a product should ever be included in the calculation.
The fourth paragraph is about Apple (design patents, not software patents) and the second paragraph speaks of a Section 101 challenge, which isn’t yet likely to happen. Alice is likely to stay here for a long time to come. The focus of the above cases, or the framing that Patently-O has chosen, is ITC. The I in ITC stands for “international” — surely a misleading label. It’s like calling the KGB “international” because it goes (or went) abroad in order to get its way for its home country. The ITC is to US corporations what the FSB is to Russia’s government (or the Kremlin) and we should recognise that there’s nothing “international” about it. It’s not the UN. Now that the patent battles target Asian companies like Samsung IAM likes to obsess about the subject. This patent trolls-funded site wishes us to believe that patent tax that makes phones worse (removed features to avert risk of lawsuits) and more expensive is a desirable aspect. Phones from Samsung almost literally explode and all that IAM can think about is patents, patents, and more patents.
Over at MIP there has been more coverage of the above patent case of Apple v Samsung. Florian Müller foresees more action in this domain (not involving only design patents but much more).
Little attention is being paid to Apple’s practices or tradition of tax evasion with patents as a financial instrument. It continues to happen in Ireland where Apple has a notorious tax-dodging operation and pro-Apple sites touch on the subject yet don’t quite get to the bottom of it (“Apple Moves $9B Worth of iTunes Intellectual Property To Ireland”). Remember what we wrote about Patent Boxes earlier this year.
Joseph Robinson & Robert Schaffer (over at Watchtroll) write about a related case (a different Apple v Samsung). It is apparent that this site is growingly concerned about yet another case reaffirming the death of software patents in the US. Apple has more than one case against Samsung; there are software patents at stake as well, hence the relevance to us. Watchtroll is still opposing patent reform and uses the terminology of anonymous Twitter accounts that taunt us, e.g. “Efficient Infringement”. What a cesspool Watchtroll has become…
Going back to Müller, here is what he recently wrote about both Apple v Samsung cases that are high profile:
Was it just a coincidence that the Federal Circuit made a decision on an Apple petition for a rehearing about eight months after the original decision and just days before the design patents hearing in the top U.S. court? It may very well have been. But when there are already other oddities (such as the decision not to invite further briefing from the parties and hold a rehearing), it’s not impossible that there is a hidden message or agenda.
The Federal Circuit decision certainly gives Apple leverage. Limited leverage, though: the relatively most valuable one of the three patents on which Apple had prevailed at the spring 2014 trial has expired and the most iconic one, slide-to-unlock, is about as valuable in the age of Touch ID and comparable technologies as an ISDN or floppy disk patent.
“Experts Urge Supreme Court To Take A Bite Out Of Apple’s Patent Win Over Samsung,” said this recent report, stating: “As two of the world’s largest consumer electronics companies face off at the Supreme Court Tuesday, experts in legal, patent, technology and consumer advocacy fields are urging the Supreme Court to overturn a ruling in the smartphone war between Apple and Samsung that awarded the iPhone maker the total profit of patent-infringing Galaxy devices.”
Matt Levy wrote about this also [1, 2]. That was 2.5 weeks ago when he pulished some thoughts about “A Funny Thing [That] Happened on the Way to the Court” and to quote:
A funny thing happened on the way to the Supreme Court in yesterday’s Samsung v. Apple design patent dispute. The high court was expected to review the lower court’s award of the entire profits made for 11 different smartphone models — just under $400 million.
Unexpectedly, some time before the argument Apple had agreed to concede that the “article of manufacture” didn’t have to be the entire product sold. That is, Apple agreed with Samsung and the government that the answer to the question that the Court had agreed to decide is “Yes.”
Will design patents not be challenged even by Samsung after all? IAM (wshfully) thinks there may be alignment on the horizon. To quote: “For the last couple of years it has been apparent that the smartphone wars that have raged in US courts since 2009 have been reaching their final skirmishes. Peace deals between the likes of Microsoft and Google and Apple and Google, have brought many of the battles to an end. Except, that is, for what has probably been the most significant confrontation – Apple v Samsung.”
There’s no “Microsoft and Google” “peace deal”; Microsoft continues to attack Android OEMs with patents and it was Microsoft that initiated antitrust action against Android in Europe. Microsoft is a malicious firm that would lie to anyone, anytime.
Joe Mullin asked: “How much punishment is appropriate when it comes to design patents?”
MIP’s coverage at the time spoke of the arguments and Patently-O offered a “view from inside the courtroom”. It said:
At oral argument, Samsung informed the Court that it was dropping its “causation argument” (i.e., that § 289 must be read in light of background causation principles from general tort law) and wanted to focus on its “article of manufacture” argument (i.e., its argument that a successful design patentee should be entitled to the “total profit” from the “article of manufacture” but that the relevant article should be determined mainly by looking at whether the patent claims a whole design or only part).
We eagerly await rulings against Apple in both cases, one involving software patents and another design patents, which in this case closely resemble software patents in multiple ways/aspects. What’s at stake here isn’t just the price of Samsung phones but the financial viability of Android (Linux-based) phones in general. █
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The big story which silently began here in
#techrights and took over the Internet in September
The latest twist: Lenovo attacks free speech and silences complaints
Summary: The Lenovo/Yoga brouhaha (which came from Techrights last month) will from now on be covered in our main site, not just the IRC forums
SEVERAL weeks ago, we at the
#techrights IRC channel began discussing issues that had been encountered with Lenovo devices. Once publicised, these made it into the news in many countries, with hundreds if not thousands of articles, blog posts, forums threads etc. about the topic (we cataloged a lot of the coverage over at Tux Machines). It was a huge success story for us, as the news reached many millions of people all around the world. It did so much damage to Lenovo (not just the desktop business but servers and mobile also, to the point of major layoffs being announced last week) and Lenovo repeatedly lied, trying to blame everyone by itself and repeatedly changing the story (face-saving excuses and ‘damage control’), at some point even blaming Linux (although Alan Cox refuted them publicly about it).
We have not written about this until today because the media seems to be unwilling to cover the subject anymore, even when Lenovo’s lies are being debunked, necessitating new stories and corrections refuting Lenovo’s ‘official’ response. In the latest twist, Lenovo seems to be suppressing discussion. As Ryan from
#techrights put it last night:
So yeah, Lenovo Forums seems to have banned all Comcast users in the state of Illinois in order to try to silence me.
Apparently, they don’t want anyone to talk about Linux issues on their Yoga anymore. I have another account on their forums that I can use behind a proxy, but even deleting all of my cookies and stuff, no matter what IP address I get from Comcast, it gives me a screen saying “We’re sorry, but you have been banned from using this site.”.
Anyway, I can still see what’s going on in there and comment using my other account behind a proxy server, but the mods seem to have done the following in the Linux forum:
Banned me (and all Comcast IP addresses in Illinois, apparently).
Banned at least half a dozen or more other people who were complaining that they couldn’t run Linux, or stating that they would take their Yoga back to the store, or talking about ways to potentially mod their Yoga to get AHCI support back and install Linux in spite of Lenovo’s BIOS restrictions.
Changed the thread about no Linux support on the Yoga 900 ISK2 to “moderated”, which makes it look like you can post there, but you can’t, because the mods aren’t approving new posts since 9/27, apparently. The views on this topic have shot up over 130,000 people. Lenovo is trying to stop people from talking about it and is going back and deleting and modifying earlier posts to make them look less damning.
Deleting more posts about Linux not working or people taking their Yogas back to the store on other threads. Probably banned them too since many haven’t posted anything since Lenovo deleted their thread. One person in Germany said that he was talking to his lawyer and gathering evidence to force them to take back his 710S and give him a refund. They deleted that. He hasn’t been seen since.
The Private Message feature seems to be gone, so there’s no way for me to contact other users without the mods noticing and deleting another forums account.
At least one of the mods doing this is a Microsoft MVP. One of the other mods “Sarbin” said that it was just a coincidence after someone brought that fact up, and then moved the post about the MS MVP to a “Forum Housekeeping” forum. Instead of deleting some posts, they seem to be moving them to “the cornfield”, where it’s harder for people to read them or for Google to index it, or for archives of the main thread from being saved.
So if I say cover up, then certain people will roll their eyes and downvote me and proceed to take Lenovo’s side again, but it’s definitely a cover up.
I just wanted to let everyone know what happened in case they thought that people didn’t want to talk about the Linux problems on Lenovo’s Forums. In reality, people are steaming mad about this and their accounts are being banned and their threads deleted or modified.
Prior to this, Ryan submitted a letter to the Federal Trade Commission regarding Lenovo blocking GNU/Linux and other operating system installations on Yoga PCs. This can take a while to make progress on and here is the gist of it:
This is the letter I sent to the Federal Trade Commission and to the Illinois Attorney General’s office regarding Lenovo locking out Linux from their Yoga laptops.
“Lenovo sells computers known as “Yoga” under at least several models that block the installation of Linux operating systems as well as fresh installations of Windows from Microsoft’s official installer. They have the system rigged, intentionally, in a storage mode that is incompatible with most operating systems other than the pre-installed copy of Windows 10. If the user attempts to install an operating system, it will not be able to see or use the built-in SSD (Solid State Drive) storage. I believe that this is illegal and anti-competitive. These product are falsely advertised as a PC, even though it prohibits the user installing PC operating systems. Known affected models are the 900 ISK2, the 710, the 900 ISK for Business, the 900S, and possibly others. Lenovo’s position is that this is not a defect and they refuse to issue refunds to their customers, who have been deceived by the notion that their new PC is compatible with PC operating systems and that they should be able to install a PC operating system on a PC. Lenovo is therefore engaging in a conspiracy to defraud their customers through deceptive advertising. Lenovo’s official position is that Linux lacks drivers, however, Linux could easily be installed on these systems had Lenovo not removed the AHCI storage mode option from the BIOS and then wrote additional code to make sure that people couldn’t set it to AHCI in other ways, such as using an “EFI variable”. AHCI mode is an industry standard and should be expected on a computer describing itself as “PC” or “PC compatible” as it is broadly compatible with all PC operating system software. I feel that Lenovo should remedy the problem in one of three ways. (1) Offer full refunds for customers who want to install their own operating system but can’t. -or- (2) Release a small BIOS firmware patch to restore AHCI mode, which is simply hidden. This would be extremely easy for them since it would only be two lines of code and the user could do it themselves were they not locked out of updating their BIOS themselves. -or- (3) Provide open source drivers to the Linux kernel project that would allow Linux and other PC operating systems address the SSD storage in the “RAID” mode.”
Feel free to use this as your letter or a template for a letter of complaint to the FTC. Their consumer complaint form is available here.
Please also contact your state’s Attorney General’s office. They usually have a bureau of consumer complaints or something to that effect. If not, just shoot them an email.
Since the FTC form requires the company address and phone number, I used this:
Lenovo “Customer Center” Address: 1009 Think Pl, Morrisville, NC 27560 Phone:(855) 253-6686
Update: Lenovo just updated the BIOS for the Yoga 710, another system that doesn’t allow Linux installs. Wanna know what they changed? Update to TPM (secret encryption module used for Digital Restrictions Management) and an update to the Intel Management Engine, which is essentially a backdoor rootkit built into all recent Intel processors (but AMD has their version too, so what do you do?). No Linux support. Priorities…
Update: The mods at Lenovo Forums are losing control of the narrative and banning people and editing/deleting more comments. http://imgur.com/a/Q9xIE | But it appears that some people just aren’t buying it anymore. http://imgur.com/a/1K1t5
Watch this space. Techrights did not publicly speak about it as long as the mass media (including the BBC) covered the subject, but now that Lenovo enjoys silence from the media we shall take over the coverage, which all along came from us.
Eventually, as was the case in the Superfish saga (also lasting a long time), we hope to compel Lenovo to admit that it lied all along and get to the bottom of it, potentially demonstrating that Microsoft is the culprit and that Microsoft uses a secret contract (under NDA) to have BSD and GNU/Linux blocked by OEMs.
This story is far from over. █
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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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Summary: Microsoft-connected patent trolls like Larry Horn’s MobileMedia are still attacking Microsoft rivals and Microsoft wants more money from Korea, after it attacked Linux with software patents over there (notably Samsung and LG)
“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).
How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).
Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”
A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.
“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”
Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:
(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.
MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”
MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.
In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:
The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.
Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.
When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).
Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █
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