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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.

10.14.18

Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

Posted in Google, Microsoft, OIN, Patents at 8:29 am by Dr. Roy Schestowitz

Dan Bricklin
Dan Bricklin, photographed by Betsy Devine at a blogger brunch in Boston’s Chinatown 2/25/2007. Licence: CC BY 2.5

Summary: Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it

THE Federal Circuit (CAFC) with its current Chief Judge (Prost) is rather different from what it used to be. Perhaps it learned to accept that reversals by SCOTUS must end, not by means of changing SCOTUS itself but by getting rid of corrupt judges like Rader (he actually got caught).

Today’s CAFC is supportive of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and typically affirms PTAB’s decisions — a topic we shall write about separately in view of newer/latest determinations. 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) has enabled both PTAB and CAFC to rule out patents quite promptly, without having to engage in a lengthy process like search and assessment of prior art.

“Back in 1992,” Patently-O recalled for those who forgot, “Borland Software invented a tabbed spreadsheet for its Quattro Pro that was then copied by Excel, Google Sheets, and others. Today, the Federal Circuit finally found the patent claims enforceable (or at least patent eligible).”

Microsoft copied everyone, but nowadays it is suing everyone, including Corel.

Found initially via [1, 2, 3] was this article/blog post titled “Tabbed Spreadsheet — Patent Eligible”. It’s what Patently-O covered along/after the above tweet:

D.Delaware Judge Stark dismissed DET’s case on the pleadings — holding that the Borland/DET spreadsheet-tab patent claims were directed to abstract ideas. On appeal, the Federal Circuit has partially reversed — finding that some of the claims are directed toward “specific improved method for navigating through complex three-dimensional electronic spreadsheets” and thus are patent eligible. The decision here is authored by Judge STOLL and joined by Judges REYNA and BRYSON.

The patents at issue here basically cover the use of tabs in a spreadsheet document. You might be thinking – “WHAT I’VE BEEN USING TABS FOR 25 YEARS” — at least that is what I was thinking. The thing is that DET’s patents were invented by folks at Borland Software — baker of Quattro Pro — and claim priority back to 1992. BOOM! Microsoft came out with its tabbed version of Excel in 1993 following Borland’s release. Back then I used Quattro Pro – and tabs were awesome. The case here is against Google for its tabbed sheets.

As you’ll see below, the claims include a “notebook tab” — and that feature seems to be the key for patent eligibility. This aspect of the decision makes it fairly questionable.

I’ll note that this case may well fit into the IP case-books as a companion to the 1996 Supreme Court case on spreadsheet menu copyright. Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996).

“CAFC only exists to be reversed by SCOTUS,” Carlo Piana wrote about it (he became famous for his Samba lawyering).

Benjamin Henrion said: “Despite Alice, CAFC just founds “tabs in a spreadsheet” to be patent eligible. Software patents are back, specialized patent courts are dangerous, biased, populated by the patent establishment, and don’t want to listen http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1135.Opinion.10-9-2018.pdf …”

“It’s actually not so unusual for CAFC,” I told Henrion, “as not too long ago they said OK to other GUI patents; not exactly the same as algorithms/callback functions…”

We wrote about this as recently as January. To Piana I said: “That was true when Rader, the corrupt man, was in charge. His successor is OK and CAFC improved…” (under Prost)

Paul Redmond Michel was also pretty bad (he still is), but unlike Rader he was not corrupt.

Since the above alludes to spreadsheets, noteworthy is also coverage about Microsoft’s ‘proxy’ Acacia. These patent trolls of Microsoft continue to sue Microsoft’s rivals using dubious software patents. To quote Law 360:

The Federal Circuit on Tuesday reversed a lower court’s invalidation of three patents asserted against Google LLC by a unit of patent licensing company Acacia Research Corp.

So a unit of a patent troll of Microsoft (Acacia Research Corp.) sued Google, Microsoft’s main rival in this sector. Patently-O revisited the subject, citing/mentioning Dan Bricklin (the so-called father of spreadsheets):

This week’s decision in DET v. GOOGLE focuses on patent eligibility of a muti-sheet spreadsheet displayed with notebook tabs. The case is reminiscent of a 2014 Patently-O post by Howard Skaist written in the still roiling wake of Alice and Mayo. In his post, Skaist considered ways that the inventor of VisiCalc (Dan Bricklin) might have claimed the computerized spreadsheet he first created in 1979.

[...]

In some pre-Bilski writing, Dan Bricklin explained why he didn’t actually try to patent the spreadsheet.

After Alice these patents would be null and void anyway. Microsoft insists that it wants "truce" (as recently as days ago), but here we have a Microsoft-connected troll attacking another OIN member, Google. OIN has no way/mechanism for dealing with intermediaries.

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.

10.05.18

Microsoft Uses LOT Network to Spread Lies and Promote Its Protection Racket

Posted in Deception, Marketing, Microsoft, Patents, Red Hat at 2:21 am by Dr. Roy Schestowitz

An aggregator (DPA) or a vision so shallow that even Microsoft can enlist

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: A Red Hat- and Google-centric aggregator of software patents adds Microsoft as a member even though Microsoft continues to arm and fund patent trolls; the main/net effect of this move appears to be promotion of “Azure IP Advantage” (protection from Microsoft’s trolls as long as one pays Microsoft monthly fees)

THE COMPANY of endless lies is at it again, having leveraged many US patents (software patents wrongly granted by the USPTO) against GNU/Linux.

“Microsoft loves Linux” is a lie. And now Microsoft wants us to think that Microsoft battles patent trolls. This too is a Microsoft lie, albeit one that corporate media is happy to play along with, e.g. with headlines such as “Microsoft joins the LOT Network to help fight patent trolls” (a lie, the latter part in particular).

Deducted from fact-checking is the abundant evidence which is widely available, such as Microsoft’s patent troll Intellectual Ventures, which is the world’s largest. We wrote about it as recently as yesterday. The dedicated Microsoft propaganda sites (these sites’ names give that away) promote the same fiction that Microsoft is against patent trolls. Just don’t let facts get in the way…

There’s also this batch of hours-old headlines about patents Microsoft can and possibly will use against Android OEMs [1, 2, 3]. Microsoft loves its patents and it actively uses them for litigation and shakedown purposes.

So what explains this lunacy we saw yesterday evening in the media? This press release [1, 2] from Microsoft started it. It is a lie because Microsoft actively contributes to patent trolls and their attacks, but the title of the press release says Microsoft wants to “Protect its Community Against Patent Troll Attacks” (whose patent trolls and which community?).

It didn’t take long for Red Hat to play along with this publicity stunt that misleads. Remember that Red Hat hires managers from Microsoft (it’s well documented), so Red Hat will defend its shareholders rather than the Free software community. Red Hat is also still applying for software patents while propping up LOT Network, which is not the solution at all. This is what Red Hat said about its beloved LOT Network:

We are excited to see Microsoft – a top 10 recipient of U.S. patents – announce today it is joining the LOT Network (LOT), a company we helped form. Since 2014, Red Hat and other top companies around the world have come to recognize LOT as an innovative response to patent assertion entities (PAEs). Microsoft is a welcome addition to LOT’s almost 300 members, which together hold more than one million patent assets.

[...]

Red Hat is committed to LOT’s mission and to broadening its reach. We believe that LOT is a significant tool in weakening the threat that PAEs pose to operating companies, including those that distribute free and open source software. We are pleased Microsoft has joined our ranks, and look forward to working with them to expand the reach of LOT.

As we explained a few months back, LOT Network had become somewhat of a joke because it is a proponent of software patents. It’s like its purpose is to protect software patents from the community’s scrutiny rather than protect the community from software patents. It is, in that regard, somewhat similar to OIN. Earlier this week [1, 2] we showed that Microsoft’s patent trolls are still attacking Microsoft’s rivals in new lawsuits, so how can the company pretend to have changed its strategy? Erich Andersen (Microsoft) says they’re “helping to lead the way toward addressing the patent troll problem” (but Microsoft actively contributes to this problem!) and yet LWN framed it as follows: “Microsoft has announced that it has joined the LOT Network, which is an organization set up to help thwart patent trolls by licensing any member’s patents to all members if they end up in the hands of a troll.”

But Microsoft itself does exactly that, e.g. passing Nokia‘s patents to this troll in bulk. Microsoft’s site, which LWN cites for its “facts”, says this:

We are pleased to announce that Microsoft is joining the LOT Network, a growing, non-profit community of companies that is helping to lead the way toward addressing the patent troll problem, an issue that impacts businesses of all sizes.

Microsoft has seen this problem firsthand. We’ve faced hundreds of meritless patent assertions and lawsuits over the years, and we want to do more to help others dealing with this issue. In most cases, the opportunists behind these assertions were not involved in the research and development of the ideas that came to be embodied in patents. Many do not even understand the technical concepts described in them. In the most extreme cases, we’ve seen mass mailings and campaigns to extract value from small businesses who are not equipped to understand patents. Although these problems are less acute in the US today than in the past, in part because of changes in the law, the challenge persists for many businesses. Entrepreneur magazine cited a recent study showing that 40 percent of small companies involved in patent litigation reported “significant operational impact” from those suits, which some described as a “death knell.”

It then mentions Microsoft’s protection racket [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21], known as “Azure IP Advantage” (same as the scheme Microsoft set up with Novell). There’s ‘special’ protection from trolls only for those who host with Azure. It’s like GNU/Linux users need to reach a patent settlement with Microsoft, paid in several installments (Azure subscription). With a host like Amazon/AWS one risks patent lawsuits, albeit not from Microsoft directly.

Mary Jo Foley, a career Microsoft booster (for well over a decade), perpetuates Microsoft’s misleading claims and promotes their extortion racket, which Andersen introduces as follows:

This also means we are continuing on the path we started with the introduction of the Azure IP Advantage program in 2017. As part of that program, Microsoft said that it would defend and indemnify developers against claims of intellectual property infringement even if the service powering Azure was built on open source. We also said that if we transferred a patent to a company in the business of asserting patents, then Azure customers would get a license for free. Our LOT membership expands this pledge to other companies in the LOT network.

So they’re basically saying, “host everything in Azure (even GNU/Linux) and you’ll be safer from trolls” (“even the trolls that we’re funding and arming”). This is, for the most part, just a marketing opportunity for Microsoft. It also helps distort the record, e.g. on Microsoft’s major role in sponsoring and giving patents to patent trolls. How long before Jim Zemlin congratulates Microsoft?

10.04.18

Microsoft’s Patent Trolls Are Alive and Well, Seeding Destruction Among Microsoft’s Competition

Posted in IBM, Microsoft, Novell, Patents at 5:48 am by Dr. Roy Schestowitz

Mono with teeth

Summary: Richard Lloyd shows that Intellectual Ventures continues to distribute its patents, sometimes to patent trolls from Texas (e.g. Dominion Harbor) and sometimes to others; Finjan, another Microsoft-funded troll, is fighting to salvage its software patents while suing Microsoft’s rivals in the security space

THE ABUSES of the EPO are only outweighed in severity by the protection racket of Microsoft; the latest incarnation of this protection racket of Microsoft is known as "IP Advantage". To receive ‘protection’ from Microsoft and its trolls one needs to pay monthly rental fees to Microsoft (Azure), even if one is a GNU/Linux user. Microsoft did something similar a decade ago with Novell. Back then too the marketing term “Advantage” was (mis)used spuriously.

“Microsoft did something similar a decade ago with Novell. Back then too the marketing term “Advantage” was (mis)used spuriously.”The phenomenon known as patent trolls has waned in the US, but it is not gone. Trolls’ booster Richard Lloyd (IAM) won’t say it in these words, but the trolls he covers (and loves, as some pay his salary) are losing hope, money, and morale. The US is finally nailing them.

Based on the latest update from Dallas (Texas), the USPTO continues to grant fake patents or software patents by the bucketloads (and Iancu makes these things worse). Some of these patents get granted to trolls and Microsoft’s patent troll Intellectual Ventures is imploding, having already passed thousands of its patents to other trolls in Texas. As Lloyd has just put it:

Intellectual Ventures is in the process of selling its third Invention Investment Fund, in a further indication of how the giant NPE is scaling back its business. IAM understands that the buyer is Micron. The sale has been confirmed to IAM by three separate sources, with a fourth identifying the US-based semiconductor giant as the buyer. IV declined to comment for this story.

For the iconic [sic] NPE, the sale is another step in its disposal programme which has ramped up significantly in recent years as it looks to whittle down a portfolio that at one point totalled over 35,000 individual patents. It is also a reflection of how much the climate has changed for IV’s investors – which for the third fund included Microsoft and Sony – with suggestions that several have become increasingly uncomfortable with a monetisation strategy based around assertion.

[...]

For its part, as well as upping its rate of disposals, Intellectual Ventures has also seen a significant amount of flux among its senior leadership with Van Arsdale, a key player in many recent deals, announcing last month that he is leaving the business.

While many in the patent community will seize on this latest news as another sign of IV’s decline, with a portfolio that still makes it one of the largest patent owners in the US and many of the assets being sold to assertion entities, it remains a potent force for now.

They also still target, sometimes with lawsuits, Microsoft’s competition.

Meanwhile, the Microsoft-backed and Microsoft-financed patent troll Finjan (last covered here yesterday) is trying to salvage its fake patents and here’s a new press release that they’ve paid to distribute through expensive wires to investors (there are actually shareholders willing to invest in trolls still). It’s about a Patent Trial and Appeal Board (PTAB) inter partes review (IPR):

Finjan Holdings, Inc. (NASDAQ:FNJN), and its subsidiary, Finjan, Inc. (“Finjan”), today announced that the USPTO, Patent Trial and Appeal Board (“PTAB”) entered a decision on appeal (Appeal 2018-007444) in favor of Finjan, and reversed Examiner’s rejection of certain challenged claims of U.S. Patent No. 8,015,182 (the “’182 Patent”) on reexamination.

Based on 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) many of Finjan’s patents are fake patents; Finjan is really afraid of them being tested. The Federal Circuit already squashed many of them (except one) and if Finjan is left with no patents it would be rendered worthless and maybe declare bankruptcy (at long last). Of course Finjan can always just ask other Microsoft trolls to sell it some new patents; Finjan got some dubious patents from IBM last year and Finjan has since then ramped its legal assault on Microsoft’s rivals.

Patent troll Uniloc was paid by Microsoft after long legal battles and nowadays it constantly goes after Apple, wishing for another pot of gold. Unified Patents fired back (files IPRs) and Apple continues to antagonise, resulting in another lawsuit as AppleInsider has just reported: (it happened yesterday)

Patent troll Uniloc returned to form on Wednesday after a months-long hiatus from lobbing allegations against Apple, this time challenging the company’s AirDrop file sharing technology with a 2006 Philips patent.

We pity the people who still believe or suddenly believe that Microsoft has changed. If anything, it has only changed for the worse; it’s more subtle in its attacks and is nowadays attacking less directly and infiltrating organisations it wishes to destroy. That’s what they must mean by the “new Microsoft”.

10.03.18

Today’s IBM is Acting Like a Patent Troll and Arming Active Patent Trolls, Just Like Microsoft Does

Posted in IBM, Microsoft, Patents at 5:51 am by Dr. Roy Schestowitz

Finjan is suing again

A coffee pot

Summary: IBM and entities that are connected to it (and to Microsoft) are suing the whole industry using dubious software patents; they rely on out-of-court settlements to prevent the patents from actually being tested (as tests typically invalidate these)

ARMED to the teeth with dubious software patents in large quantities (the USPTO granted these with minimal scrutiny), IBM mimics the model of Microsoft, having employed Marshall Phelps, the man who turned both companies into patent bullies and took pride in it. Forbes gave Phelps a whole blog; it also gave whole blogs to literal patent trolls.

“…IBM mimics the model of Microsoft, having employed Marshall Phelps, the man who turned both companies into patent bullies and took pride in it.”IBM’s patent bullying is counter-productive; there have been calls for boycott over it (even from Free/Open Source software people), whereas lawyers rejoiced because all they want is litigation. The more, the merrier.

As it turned out earlier this week, based on press releases and press coverage [1, 2, 3], Groupon basically surrendered and agreed to pay IBM loads of money without an actual trial that tests the patents at hand:

Groupon has managed to secure a money-off deal in its court battle with IBM over e-commerce patents.

The pair have agreed to settle the dispute, with the e-voucher biz set to pay $57m to IBM, knocking almost a third off the price tag granted by a court this summer.

In July, a jury ruled that Groupon had wilfully infringed four of IBM’s e-commerce patents and awarded the firm some $83m – about half the $167m Big Blue had initially sought.

However, Groupon indicated at the time that it would consider seeking a reduction, or appealing the decision, and today’s agreement suggests it did so with some success.

The lawsuit, filed in 2016, alleged that Groupon had infringed four of IBM’s e-commerce patents, some of which date back to the 1980s for the firm’s pre-internet Prodigy online communication service.

Yes, IBM uses old software patents for blackmail. Acting like Microsoft (more or less), IBM quit pretending to be a legitimate technology company. Groupon is only one among many companies that IBM is shaking down; we found out about Groupon only because there was a refusal and subsequently a lawsuit. Yesterday we saw nothing but shallow coverage about it [1, 2]; no doubt patent maximalists are going to celebrate this in days/weeks to come.

“It might be interesting to see to what degree — if any — Finjan relies on the patents it got from IBM.”IBM wishes to be thought of as “science” and “wisdom” (Watson is pure PR/marketing), but in reality today’s IBM applies for truly ridiculous patents while lobbying for software patents and engaging in blackmail rather than sales.

To make matters even worse, IBM extends its patents to notorious patent trolls like Finjan; sponsored/backed by Microsoft and armed by IBM last year, Finjan has just announced another lawsuit, this time in Delaware for a change because it's displacing Texas according to fairly recent data.

Finjan Holdings, Inc. (NASDAQ:FNJN), a cybersecurity company, today announced that — after more than two years of good faith efforts to resolve a patent dispute with Rapid7, Inc. and Rapid7 LLC (collectively, “Rapid7″) — its subsidiary Finjan, Inc. (“Finjan”) has filed a patent infringement lawsuit against Rapid7, a Delaware corporation with headquarters in Boston, Massachusetts, in the U.S. District Court for the District of Delaware (“Delaware”).

So this Microsoft patent troll does the only thing it ever does; it’s suing (trolling) Microsoft rivals again. It might be interesting to see to what degree — if any — Finjan relies on the patents it got from IBM. They’re a leveraging/bargaining card at the very least.

09.25.18

Patent Trolls Roundup: Microsoft’s Patent Troll Collapses, Samsung Fuels Patent Troll Sisvel, and Patent Troll VirnetX Wants Apple’s Cash

Posted in America, Apple, Microsoft, Patents, Samsung at 5:22 am by Dr. Roy Schestowitz

Submerged under the bridge

Submerged

Summary: Microsoft’s largest patent troll continues to experience a mass exodus (in addition to all the layoffs), Sisvel receives armament from Samsung, and VirnetX carries on pretending — to shareholders at least — that it will get a lot of money out of Apple (albeit an appeal will likely prevent that altogether)

SEEING the trend in US patent courts (which unlike the USPTO reject abstract patents en masse), patent trolls are utterly demoralised. Microsoft’s patent troll Intellectual Ventures keeps imploding based on the patent trolls’ lobby (IAM). Here’s the latest:

Cory Van Arsdale, chief revenue office at Intellectual Ventures and one of the driving forces behind its recent monetisation efforts is leaving the giant NPE. He is set to keep some ties to IV advising the business on a consultancy basis for at least the next year, but his departure effectively hands control of the company’s patent sales and licensing to Mathen Ganesan, executive vice president of the Invention Investment Funds.

Van Arsdale joined IV in 2010 from a consulting business which he co-founded and before that did stints at the likes of Microsoft, Apple and Sun Microsystems. He has taken an active role as the company has ramped up its rate of sales in recent years including the disposals of around 4,000 former Kodak patents and almost 1,000 former American Express grants to Dominion Harbor.

The patent trolls’ lobby has also taken note of Sisvel’s latest activity in “More details emerge of Samsung patent transfer to Sisvel,” but it’s behind a payall and the outline says:

Deal between the two came as Korean tech giant agreed to royalty bearing licence to NPE’s Wi-Fi portfolio

This will certainly be used for extortion and blackmail purposes (which is what Sisvel does). Unlike Apple, Samsung does not engage in patent aggression, at least not directly.

The patent troll VirnetX wants money out of nothing in Eastern Texas, where Apple became its latest high-profile target. It issued the following press release yesterday:

VirnetX™ Holding Corporation (NYSE:VHC), an Internet security software and technology company, announced today that on September 20, 2018, pursuant to a Court’s order, attorneys from VirnetX and Apple have conferred and agree without dispute amounts for Bill of Costs and Prejudgment Interest totaling $93,351,141 to be added to the $502,567,709 jury verdict for VirnetX in the ongoing patent infringement action between VirnetX Inc. (“VirnetX”) and Apple Inc (“Apple”).

“Apple’s versus VirnetX patent infringement case payment balloons to $595.9M,” AppleInsider‘s headline said and there’s also
“VirnetX Holding Corporation: VirnetX Files Notice Regarding Agreed Bill of Costs and Prejudgment Interest of $93.3 Million in Apple Suit” in last night’s headlines.

But this decision will almost certainly be appealed and reach the Federal Circuit, which has a rather different track record than courts in Eastern Texas.

09.23.18

Open Invention Network is Rendered Obsolete in the Wake of Alice and It’s Not Even Useful in Combating Microsoft’s Patent Trolls

Posted in America, IBM, Microsoft, OSI, Patents at 2:13 am by Dr. Roy Schestowitz

Microsoft and trolls

Summary: Changes at the US Patent and Trademark Office (USPTO) and in US courts’ outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent ‘protection’ from these trolls)

THE situation at the USPTO has changed in recent years. AIA introduced the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) — together with 35 U.S.C. § 101 as relevant law — helped eliminate a lot of software patents which had been granted for a couple of decades.

These changes posed a problem not just for patent trolls and bullies but also law firms and bodies whose sole purpose was to ‘protect’ from these patent trolls and bullies. Some were rendered moot or redundant. See the demise of RPX for example. Well, what about Open Invention Network (OIN)? The terrain is changing and OIN is totally failing to adapt. It’s still stuck in the past.

OIN’s Jaime Siegel and Mirko Boehm reappeared several days ago. Usually its their CEO who appears in the media.

OIN has such a misguided and pointless strategy these days that even the patent trolls’ proponents can support these people. Watchtroll entertains Jaime Siegel, OIN’s Global Director of Licensing (yes, licensing!). It’s a large “cross-license agreement” — one that Oracle did not even seem to obey when it sued Google over Android/Java. Abolish software patents instead, OIN, don’t do this:

As Jaime Siegel, OIN’s Global Director of Licensing, notes, OIN is able to grant free membership to companies joining the consortium thanks to the efforts of eight full-funding member companies which have each funded $20 million to support OIN’s operations through an endowment. These companies include the first six companies to form OIN: Sony, Phillips, IBM, Red Hat, NEC and SUSE; joining those companies are Google and Toyota. OIN’s board consists of representatives from each of these full funding members. Every new member of OIN signs the same licensing agreement as the full-funding members, giving all members in the organization equal standing in terms of the cross-license agreement.

[...]

Siegel said that the only kind of company that wouldn’t benefit from membership in OIN would be a company which was building a patent assertion program to get companies to license Linux core patents. Despite the massive expansion of Linux-based systems across industries, however, Siegel said that there has been virtually no patent litigation around the Linux core. “While OIN won’t take all the credit for it, I think OIN has been a big factor as to why there’s been so little litigation around the Linux core,” Siegel said. “While we are a pro-patent organization, we’re very aggressive about going after assets that are threats to Linux and opposing activities that are targeted against the Linux core.”

“OIN’s Members include Google, IBM, NEC, Philips, Red Hat, Sony” (and others), according to Wikipedia. Sony is one of “the first six companies to form OIN,” according to the above interview. Days ago Sony’s patents made some headlines [1, 2] because Sony is still a patent maximalist, hardly a reformer in any sense of the word. IBM is a major patents-wielding bully, as well, and OIN’s first CEO came from IBM.

OIN’s Mirko Boehm wrote about FRAND in the European Union on the very same day the above got published. Here is what he said:

As part of the research project on “The Interaction between Open Source Software and FRAND licensing in Standardisation”, a workshop was organised by the European Commission, Joint Research Centre (JRC) in collaboration with Directorate General Communications Networks, Content and Technology (CONNECT) to present and discuss the intermediate results to date. The workshop took place in Brussels on September 18, 2018. I presented a set of observations from the research on the case studies performed as part of the project that are outlined below. Other speakers where Catharina Maracke on the issue of legal compliance between Open Source and FRAND licenses, Bruce Perens on “Community Dynamics in Open Source”, and Andy Updegrove on “Dynamics in Standardisation”.

You may ask what the relevance of this debate is for the wider Free and Open Source Software community. The obvious answer is that to distribute software “without restriction”, the user needs all the usage rights associated with the program. While most FOSS contributors assume that this is naturally the central motivation for anybody to contribute in the first place, there is a long history of attempts to maintain some sort of exclusive control over a piece of FOSS code, possibly using other rights than copyright.

Mirko Boehm’s (auto)biography says that he is “Director, Linux System Definition, Open Invention Network.” With people like Andy Updegrove and Bruce Perens involved (in the above) it looks a lot more legitimate than IAM's disgraced event.

Anyway, if the goal is to protect GNU/Linux from patents (rather than protecting software patents from GNU/Linux advocates, as Perens once put it), then OIN must evolve. Microsoft is operating through trolls while offering (selling) ‘protection’ from these [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]. One example is Microsoft’s patent troll Finjan, which days ago issued a widely-spread and paid-for press release [1, 2, 3] about its laughable software patents that it uses to blackmail Microsoft’s rivals. This spoke of the Federal Circuit‘s stance on the ‘408 patent:

“Finjan is gratified to have the Federal Circuit’s decision affirming the USPTO’s Patent Trial and Appeal Board’s decision rejecting Palo Alto Networks’ challenges to Finjan’s ‘408 Patent,” stated Julie Mar-Spinola, CIPO and VP, Legal Operations for Finjan. “While this allowed Palo Alto Networks to delay Finjan’s day in court for nearly four years, we believe we are due and will seek past and accrued damages for that period until resolution, which is not insignificant.”

There have been similar Federal Circuit challenges to patents from Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls. It’s another Microsoft proxy which goes after Microsoft’s rivals with frivolous lawsuits and threats thereof. Where is OIN in all this? Not interested? Apathetic? Therein lie some of the biggest problems.

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