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03.27.20

LOT Network is a One-Man (Millionaire’s) Operation and Why This Should Alarm You

Posted in Deception, Microsoft, OIN, Patents at 7:55 am by Dr. Roy Schestowitz

Promoting and protecting software patents while pretending to protect people (from patent trolls)

Ken Seddon
From LOT Network’s latest IRS filing [PDF]. The self-appointed chief pays himself a salary of over half a million dollars, tax exempted, for 45 hours of work. All this by collecting membership fees for his glorified ‘patent club’.

LOT Network outline
Swinging from big profits to big losses and then no visibility anymore. They surface again in the media to tell us what an awesome company Microsoft is, even as purveyor of patent blackmail and backer of the world’s biggest patent trolls.

Summary: The ugly story of Open Invention Network (OIN) and LOT; today we take a closer look at LOT and highlight a pattern of ‘cross-pollination’ (people in both OIN and LOT, even at the same time)

LAST night we learned something a tad disturbing. We had heard all sorts of things about OIN and LOT Network, whose business model is similar; they are in some sense inseparable and their “charity” (or “non-profit”) status is as dubious as the Linux Foundation‘s because they’re corporate front groups.

Remember that the enemy of OIN (and LOT) isn’t the likes of Microsoft (heck, they spread the lie that “Microsoft loves Linux” now that Microsoft is a member!). The enemy of OIN is the community of developers. Real communities. Or people like us, who oppose software patents. OIN is big patent pool if not cartel protecting software patents, including Red Hat’s. They tell us those patents are “OK” and “Safe”. Need we mention that since Red Hat’s CEO became President at IBM (appointment effective next month) the company has filed yet more extortionate lawsuits against companies, using dubious software patents? Nothing is really changing, but they want to extinguish their critics. They were very giddy to see Richard Stallman go because of an online lynch mob and dishonest press (IBM-connected media — even the very same publisher — participated in this defamation a year after it had caused Linus Torvalds to be removed from his own project though he returned later).

“Remember that the enemy of OIN (and LOT) isn’t the likes of Microsoft (heck, they spread the lie that “Microsoft loves Linux” now that Microsoft is a member!). The enemy of OIN is the community of developers. Real communities. Or people like us, who oppose software patents.”When people from the community of developers “join” OIN are they signing away their autonomy to Microsoft, IBM etc. just like with CLAs? Building a large community-hostile aggregation, in effect thinking they defend themselves from patent trolls (OIN and LOT do no such thing; this is false marketing; They’re even run by trolls and oftentimes help trolls).

Look who’s running them. Look closely. Those people are opposing authentic and legitimate causes of actual activists, looking to abolish software patents.

“Now, as it turns out, based on new information, OIN and LOT Network are run by the same people or have ‘cross-pollination’ (people with E-mail addresses in both domains).”Remember that the same people run IBM and OIN’s first CEO came from IBM. Also bear in mind that IBM still lobbies against the community’s interest when it comes to patent law.

Now, as it turns out, based on new information, OIN and LOT Network are run by the same people or have ‘cross-pollination’ (people with E-mail addresses in both domains). People like Valer Mischenko. Alarm bell and warnings all over this, so we’ve ended up researching the matter.

The trigger point was the affiliation of Valer Mischenko. We don’t know if he works for OIN, LOT, and if the two are connected. All we know is that he’s still listed as working for OIN and he’s mass-mailing developers to get them to join LOT. So he’s wearing two hats. Or swapping hats.

8 years ago he still worked for NLnet and published this article with a bio that said “Before he started working with NLnet in 2007 he worked as Operations Manager and Director within several bigger and smaller ICT companies in The Netherlands and abroad.”

“LOT is connected to IAM, the patent trolls’ front group.”Then he moved to OIN. As per a page from four years ago: “Long involvement in open source and open innovation. Currently helping to build out a no-fly-zone around Linux with Open Invention Network.”

He is listed here as “Regional Director, Licensing” at OIN, noting that: “Previously he was general director of NLnet Foundation, a charity which stimulates network research and development in the domain of Internet technology. Prior to NLnet he worked as COO within several ICT companies.”

But now he has a LOT address. LOT is connected to IAM, the patent trolls’ front group. They’re proud of this. LOT has long been advocated by Microsoft circles as well… and weeks apart Microsoft joined both LOT and OIN (LOT first), whereupon it received lots of marketing/PR in return. It’s almost as though there had been a defection, with OIN’s Mirko Boehm perpetuating Microsoft lies such as “Microsoft loves Linux” (well, maybe he loves the money they offered).

LOT identifies itself as “Promotion of Business (Community Improvement, Capacity Building)” and Mischenko called it a “non-profit.”

“Hope to see you among our members soon,” he wrote to one developer. We imagine he sent it to countless others, trying to get them to sign this second and latest version of their agreement form. We can see what LOT Network gets from it. As for developers? They get virtually nothing out of it. That acts more like a waiver, like a CLA.

“That acts more like a waiver, like a CLA.”Notice how, at present (or most recently), LOT was losing millions of dollars to enrich a millionaire and oligarchs (billionaires) he fronts for. Remember where he came from (before LOT). We covered this in the past.

At first he managed to cover his humongous salary, which would make him a million bucks in less than 2 years. But in recent years he reported massive losses… (though he still netted a huge salary)

“At first he managed to cover his humongous salary, which would make him a million bucks in less than 2 years.”He then sold out to Microsoft (months later). The filing corresponds to about 10 months earlier and no more filings are available… since 2017 (that we can access anyway).

Let’s examine what they try to get developers to sign electronically (we reproduce this in full below in case they change it, which is likely if not inevitable):

THIS LOT AGREEMENT (“Agreement”) is entered into upon the undersigned LOT User’s submission of a signed copy of the completed Agreement to the LOT Administrator, and is effective as to that LOT User upon the date of such submission (the “Effective Date”), whereby such LOT User becomes a party to this Agreement on behalf of itself and its Affiliates and becomes bound by the terms and conditions. This Agreement is by and between the undersigned LOT User and all other current and future LOT Users.

NOW THEREFORE, each LOT User agrees as follows.

1. License Grant and Release
1.1. Grant of License and Release. With respect to each of its Subject Patents, and subject to the conditions and limitations of this Agreement, each Licensor hereby grants to every Licensee a present, fully vested and irrevocable (except as provided in Section 2 below):

(a) worldwide, royalty-free, non-exclusive, non-sublicensable, non-transferable (subject to the provisions of Section 2 below) license to make, have made, operate, have operated, use, sell, offer for sale, import, and otherwise distribute Products and Services at any time on or after any Transfer of the respective Subject Patent to an Assertion Entity; and

(b) release, effective immediately prior to first Transfer of the respective Subject Patent to an Assertion Entity, of any and all claims, liabilities and damages for all Infringement of the respective Subject Patent occurring prior to the date of such Transfer of the respective Subject Patent.

1.2. Waiver and Immunity. With respect to each Subject Patent of the Licensor, the License constitutes a present, fully vested and irrevocable (except as provided in Section 2 below) waiver of the right under the respective Subject Patent for any Assertion Entity to make any Patent Assertion of the respective Subject Patent against any Licensee or with respect to any Licensee’s Products and Services. The License further includes immunity following first Transfer of the respective Subject Patent to an Assertion Entity for use, reproduction, and further sale, offer for sale, and distribution of the Licensee’s Products and Services by a distributor, reseller, re-licensor or customer of the Licensee, including reproduction and distribution of authorized copies of software sold or otherwise distributed (including by license of copies) by such Licensee.

1.3. No Other Rights. Except as expressly set forth in Sections 1 and 2 no license or right under any Patents is granted by this Agreement, whether by implication, estoppel, or otherwise. For the avoidance of doubt, the Licenses do not release any claims, liabilities or damages for Infringement or otherwise restrict or limit any Patent Assertion of a Subject Patent that has not been Transferred to an Assertion Entity, including against any Licensee or with respect to any Licensee’s Products and Services.

1.4. Return of Financial Benefit. Each LOT User agrees that any payment due to or received by such LOT User or its Affiliates (a “Receiving LOT User”), after becoming a LOT User or its Affiliate, resulting from any Patent Assertion by an Assertion Entity against an entity that at the time of the Patent Assertion is a LOT User or its Affiliate (a “Paying LOT User”), to the extent that such Patent Assertion is based on any of the Receiving LOT User’s Patents that were Transferred by the Receiving LOT User to an Assertion Entity less than two (2) years prior to the Receiving LOT User becoming a LOT User or its Affiliate (and where the payment due or received is not the result of an agreement between the Receiving LOT User and the Paying LOT User), will be immediately cancelled or returned to the Paying LOT User against whom such Patent Assertion is made.

1.5. Full Force and Effect. All Licenses granted in this Agreement are intended to and shall run with the Subject Patents to which they pertain for the full duration of such Subject Patents and be binding on subsequent owners and licensees. Any transfer or grant of rights in or to a Licensor’s Subject Patent(s), whether by such Licensor or any subsequent transferee, shall be subject to the Licenses and continuing obligations of this Agreement with respect to such Subject Patent(s).

2. Assignment, Change of Control, Withdrawal and Amendment
2.1. Assignment. Subject to the provisions of Section 2.2 below and except as set forth in the next sentence, no LOT User, Licensor or Licensee or their respective Affiliates may assign this Agreement or its rights hereunder, including but not limited to by operation of law, and any attempt to do so shall be void. A LOT User may assign this Agreement to its Affiliate solely as necessary to effect a corporate reorganization of such LOT User that does not constitute a Change of Control.

2.2. Change of Control.

(a) LOT User. In the event that a LOT User undergoes a Change of Control, whether during or after its Participation Period, by an acquirer that is not and does not become a LOT User or an Affiliate of a LOT User within its Participation Period during the six (6) month period after the effective date of such Change of Control, then the LOT User and all of its Affiliates will be deemed to have withdrawn from this Agreement, effective six (6) months after the effective date of such Change of Control. Notwithstanding Section 6.1, an acquirer and its Affiliates prior to the Change of Control will not be considered to become an Affiliate of the LOT User under this Agreement merely by virtue of having acquired Control of the LOT User.

(b) Affiliate of a LOT User. If an Entity ceases to be an Affiliate of a LOT User and does not become a LOT User prior to the time it ceases to be an Affiliate, then such Entity will be deemed to have withdrawn from this Agreement, effective as of the date it ceases to be an Affiliate of the respective LOT User.

(c) Notice. In order to allow the LOT Administrator to determine a withdrawal date under this Section 2.2, the LOT User agrees to inform the LOT Administrator within thirty (30) days of a Change of Control of the LOT User of the fact of such Change of Control and its respective effective date.

2.3. Withdrawal. A LOT User may withdraw from this Agreement by sending the LOT Administrator a written announcement that declares the LOT User’s intent to withdraw and is signed and submitted by an authorized representative of the LOT User. The existence and date of each such announcement will be published on the LOT website. The LOT User’s withdrawal will be effective as to such LOT User and all of its Affiliates six (6) months after it sends the withdrawal announcement.

2.4. Scope of Rights Following Effective Date of Withdrawal.

(a) Inbound Licenses. The Licenses granted to a LOT User or its Affiliate that has or is deemed to have withdrawn will remain in effect only with respect to Subject Patents of Licensors that were Transferred to an Assertion Entity prior to the date on which such withdrawal is effective.

(b) Outbound Licenses. All Patents of a LOT User or its Affiliate that are Subject Patents as of the date on which withdrawal or deemed withdrawal is effective as to such Entity shall remain Subject Patents and will remain and continue to be licensed following withdrawal to all Licensees existing as of the date of withdrawal and to all Licensees that become an Affiliate of an existing Licensee after the date of withdrawal, subject to the terms and conditions of this Agreement, including Subject Patents Transferred to an Assertion Entity after the date on which withdrawal is effective.

2.5. Amendment. Provisions regarding amendment of this Agreement are set forth in Exhibit B, incorporated into this Agreement as if fully set forth herein.

3. Warranties
3.1. Disclaimer. EACH LICENSOR OFFERS THE PATENT LICENSES GRANTED HEREIN “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ITS PATENTS.

3.2. Representations and Warranties. Notwithstanding Section 3.1, each LOT User represents and warrants that:

(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and that it has the full right and power to grant the licenses, waivers, immunities, covenants and releases set forth herein;

(b) this Agreement has been duly authorized, executed and delivered by such LOT User and is enforceable against such LOT User;

(c) it has and covenants that it will continue to have and exercise the rights necessary to cause its Affiliates to be bound by the obligations of this LOT Agreement (including the obligation to grant the Licenses with respect to the Subject Patents in accordance herewith); and

(d) it will not use or cooperate with any Financial Investors, Holding Companies, or non-Participating Business Groups for the primary purpose of circumventing its obligations under this Agreement.

4. Disclaimer of Liability
IN NO EVENT SHALL ANY LOT USER OR ANY OF ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT, OR BY VIRTUE OF GRANTING ANY LICENSES HEREUNDER, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR FOR ANY OTHER PUNITIVE OR SPECIAL DAMAGES, WHETHER UNDER A THEORY OF WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF SUCH LOT USER OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO SUCH AN OCCURRENCE.

5. Miscellaneous

5.1. Relationship of the Parties. This Agreement does not create any relationship of agency, partnership or joint venture among the LOT Users or their Affiliates.

5.2. No Impact on Reasonable Royalty or Equitable Relief. Each LOT User and its Affiliates agree that this Agreement does not reflect a royalty that any LOT User or its Affiliate might otherwise have negotiated with respect to any Subject Patents. Each LOT User and its Affiliates further agrees that this Agreement is not intended to, and they will not argue that this Agreement is, relevant to whether an injunction is available or what would constitute a reasonable royalty or a measure of damages for Infringement of any Subject Patents in any dispute outside the scope of this Agreement.

5.3. Third Party Beneficiaries. Each LOT User and each of its Affiliates is an intended third party beneficiary of this Agreement. Except as expressly provided herein, nothing in this Agreement is intended or shall be construed to give any Entity, other than LOT Users and their Affiliates, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

Entire Agreement. This Agreement constitutes the entire agreement and understanding of the LOT Users and their Affiliates with respect to the subject matter hereof.

5.5. Bankruptcy. Each LOT User acknowledges and agrees that from and after the Effective Date, and notwithstanding any limitations or conditions in Section 1 or 2 that may apply, (i) this Agreement is an executory contract as that term is used in Section 365 of the United States Bankruptcy Code; (ii) the License granted by each Licensor to each Licensee under this Agreement is subject to Section 365(n) of the Bankruptcy Code; (iii) for the purposes of Section 365(n) of the Bankruptcy Code, the Subject Patents constitute “intellectual property” within the scope of Section 101 of the Bankruptcy Code; and (iv) in the event that any bankruptcy is filed by or against a Licensor, or the Licensor is adjudged bankrupt or insolvent, and the trustee in such bankruptcy rejects this Agreement, each Licensee will have the right to exercise all rights provided by Section 365(n), including but not limited to the right to retain its license rights under this Agreement and any agreement supplementary to this Agreement.

5.6. Costs. LOT Users will pay fees for ongoing costs and operation of LOT Network Inc. and the LOT Administrator in accordance with Exhibit A.

5.7. General Release Waiver. With respect to the releases granted by it in this LOT Agreement, each Licensor voluntarily and with full knowledge of its significance, expressly waives and relinquishes any and all rights they may have under any state or federal statute, rule or common law principle, in law or equity, relating to limitations on releases. SPECIFICALLY, EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

5.8. Release for LOT Administrator and LOT Network Inc. Each LOT User releases the LOT Administrator, LOT Network Inc. and their directors, representatives and successors from, and covenants not to action with respect to, any liability associated with their administration of this Agreement.

5.9. Notice. All notices and communications pursuant to this Agreement shall be in writing and signed by the Entity giving such notice and shall be deemed to have been given upon receipt or upon tender by electronic mail with a follow-on hardcopy using a priority or express courier, postage prepaid to the noticed party as follows: (a) in the case of the undersigned LOT User, to the email and mailing addresses provided on the signature page hereto, which addresses may be updated by notice from such LOT User to the LOT Administrator; and (b) in the case of the LOT Administrator, to the email and mailing addresses for the LOT Administrator as of the date of notice as specified on the LOT website.

5.10. Section Headings. The Section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.

5.11. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, without reference to its choice of law principles.

6. Definitions
6.1. “Affiliate” means, with respect to a first Entity, any Entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first Entity, but only for so long as such Control exists; provided, however, that:

(a) in the event that a LOT User is or becomes Controlled by a Financial Investor, then such Financial Investor (and any Entities that (i) are Controlled by such Financial Investor, (ii) are not Affiliates of such LOT User other than because of their common Control by such Financial Investor, and (iii) do not exist for the primary purpose of attempting to avoid having Patents be subject to this Agreement) will not be considered Affiliates of such LOT User for so long as such Financial Investor remains a non-Assertion Entity; and

(b) in the event that a LOT User is or becomes Controlled by an Entity (“Holding Company”) that Controls a group of Entities that conduct substantially separate and identifiable businesses (each such Entity and its Controlled Affiliates, a “Business Group”), then such Holding Company (and any Entities that (i) are Controlled by such Holding Company, (ii) are not Affiliates of such LOT User other than because of their common Control by such Holding Company, and (iii) do not exist for the primary purpose of attempting to avoid having Patents be subject to this Agreement) will not be considered Affiliates of such LOT User for so long as such Holding Company remains a non-Assertion Entity, provided that one or more of the Business Groups that becomes a LOT User together with its Controlled Affiliates (“Participating Business Groups”) (x) owns or controls at least 10,000 active U.S. Subject Patents at the time of becoming a LOT User, and (y) has aggregate consolidated revenues, exclusive of revenue derived from Patent Assertions, measured over the full twelve (12) months preceding the date it becomes a LOT User of greater than $1 billion. Any such LOT User will confirm whether it is subject to this Section 6.1(b) upon written request from another LOT User.

6.2. “Assertion Entity” means an Entity and each one of its Affiliates if such Entity and all its Affiliates collectively derived from Patent Assertion more than half of their total consolidated gross revenue measured over the full twelve (12) months preceding a particular date (other than as a result, during such twelve (12) month period, of a damages award or settlement obtained in such period from patent infringement proceedings brought by such Entity or its Affiliates against one or more other Entities based on such other Entities’ sale or distribution of one or more infringing products or services that compete against one or more bona fide commercial products or services of such Entity or its Affiliates, provided that such Entity and all its Affiliates collectively did not derive (or were not awarded or did not otherwise obtain the right to derive pursuant to a settlement) from Patent Assertion an amount equaling more than half of their total consolidated gross revenue measured over the full twenty-four (24) months preceding the particular date). Without limiting the foregoing, the following will be counted as revenue derived by an Entity from Patent Assertion for purposes of this definition (i) royalties and other monetary compensation arising from grant of releases, licenses, covenants not to sue or other rights to Patent(s) for the primary purpose of deriving royalties or other monetary compensation under such Patent(s), where such rights are not granted in connection with Products and Services provided by such Entity or its Affiliates relating to such Patent(s) (which shall be counted as revenue at the time of receipt), (ii) monetary compensation arising from settlement of Patent Assertion (which shall be counted as revenue at the time of receipt), (iii) damages awarded arising from a Patent Assertion (which shall be counted as revenue at the time of award, even if not collected), and (iv) imputed revenue of $100,000 for each Infringement complaint filed for a Patent Assertion (which shall be counted as revenue at the time of filing). In addition, an Entity and each of its Affiliates will be deemed to be an Assertion Entity if the Entity or any of its Affiliate has, as of a particular date, a goal or plan approved by senior management or a senior executive (or under which the Entity has begun to receive revenue) to derive from Patent Assertion, either directly, or indirectly through one or more of its Affiliates, more than half of the total consolidated gross revenue of such Entity and its Affiliates collectively in any twelve (12) month period including or after that particular date.

6.3. “Change of Control” means, with respect to a first Entity:

(a) direct or indirect acquisition (except for transactions described in clause (b) below), whether in one or a series of transactions, by a second Entity or related Entities of Control of the first Entity; or

(b) a merger, consolidation or other reorganization or recapitalization of the first Entity with a second Entity or a direct or indirect subsidiary of such second Entity, provided that a result of the consummation of such merger, consolidation or other reorganization or recapitalization, whether in one or a series of related transactions, is that the holders of Control of the first Entity immediately prior to such consummation do not Control, immediately after the consummation, the Entity surviving such merger, consolidation or other reorganization or recapitalization, or its direct or indirect parent Entity. The “effective date” of a Change of Control is the date on which the relevant acquisition, merger, consolidation, reorganization or recapitalization (as applicable) occurs under applicable law.

6.4. “Control” means (i) the ownership, or the direct or indirect control, of more than fifty percent (50%) of the voting stock or other voting ownership interest of an Entity, or (ii) the sole power to elect, appoint, or cause the election or appointment of, directly or indirectly, at least a majority of the members of the board of directors (or such other governing body that exercises a similar level of control) of an Entity. The terms “Controlled” and “Controls” shall have a correlative meaning.

6.5. “Entity” means an individual, corporation, trust, partnership, joint venture, limited liability company, association, unincorporated organization, or other legal or governmental entity.

6.6. “Financial Investor” means an Entity that is not an Assertion Entity and its primary business is investing in equity securities or debt of non-Assertion Entities (examples of a Financial Investor are a venture capital firm or a private equity firm).

6.7. “Infringement” means direct or indirect infringement of a Patent.

6.8. “License” means the license rights, releases, waivers and immunities granted in Sections 1 and 2 of this Agreement, subject to the terms, conditions and limitations herein.

6.9. “Licensee” means, with respect to each Subject Patent of a Licensor: (i) each LOT User who is within its Participation Period at any time that the respective Licensor or any assignee, transferee or successor has, or after which the Licensor or any assignee, transferee or successor later obtains, the right to grant licenses, releases, waivers or immunities with respect to such Subject Patent of or within the scope granted in the License; and (ii) each Affiliate of such LOT User that is or becomes an Affiliate of the LOT User at any time during such LOT User’s Participation Period, subject to Sections 2 as applicable.

6.10. “Licensor” means a LOT User and each Entity that is, was, or becomes, an Affiliate of such LOT User during the LOT User’s Participation Period. For avoidance of doubt, each LOT User and each of its Affiliates referenced in the prior sentence shall remain a Licensor with respect to its Subject Patents, even after submission of a withdrawal announcement as set forth in Section 2.3 or Limitation Announcement as set forth in Exhibit B.

6.11. “LOT Administrator” means LOT Network Inc. or other Entity appointed by LOT Network Inc. or its successor that administers the LOT website, including receiving and publishing on the LOT website the name of Entities that submit this Agreement, withdrawal announcements (as set forth in Section 2.3), Limitation Announcements (as set forth in Exhibit B), and the associated dates of such announcements. The Entity acting as the LOT Administrator may change from time to time as determined by the Board of LOT Network Inc. or its successor and such change will be announced on the LOT website.

6.12. “LOT User” means an Entity that agrees to this Agreement by means of submission to the LOT Administrator. Once an Entity becomes a LOT User, it remains a LOT User for purposes of this Agreement.

6.13. “Participation Period” means, with respect to a particular LOT User and each of its Affiliates, the period commencing on the date such LOT User signs this Agreement and transmits it to the LOT Administrator and ending on the effective date of withdrawal or deemed withdrawal of such LOT User or its respective Affiliate (as set forth in Section 2) or applicable Limitation Date (as set forth in Exhibit B). A LOT User or its Affiliate may have more than one Participation Period, if it withdraws or is deemed to have withdrawn from the Agreement or issues a Limitation Announcement and subsequently re-enters into this Agreement, provided that a withdrawing LOT User under Section 2.3 may not re-enter this Agreement for a period of at least six (6) months after its withdrawal or issuance of a Limitation Announcement.

6.14. “Patent” means any patent, utility model, inventor certificate, or equivalent right, including but not limited to a design patent or design registration, and any application for any of the foregoing anywhere in the world, including originals, continuations, continuations-in-part, divisionals, results of reexamination, renewals, extensions, and reissues, and claims contained in such patent, inventor certificate, utility model, or equivalent.

6.15. “Patent Assertion” means either of the following assertions of rights under a Patent against another Entity: (i) asserting (including but not limited to via a written or oral demand) a claim of Infringement of such Patent for the primary purpose of deriving royalties or other monetary compensation under such Patent, or (ii) the commencement or subsequent pursuit of a claim, action or proceeding in a judicial, administrative or other governmental body, including but not limited to a court (in any country) or the U.S. International Trade Commission, based in whole or in part on a claim of Infringement of such Patent.

6.16. “Products and Services” means, with respect to an Entity, any and all products (hardware and software), technologies, components, and services, including but not limited to any software that is used, licensed or otherwise distributed (including as open source software) by or for the respective Entity, and all authorized copies of same. For purposes of the License granted to each Licensee, Products and Services also include any activities of the Licensee that, in the absence of this Agreement, would constitute inducement to infringe or contributory infringement (or infringement under any other analogous legal doctrine in the applicable jurisdiction) of the Licensors’ respective Subject Patent.

6.17. “Subject Patents” means (i) all issued Patents and pending Patent applications owned or licensable (directly or indirectly) by a Licensor at any time during its Participation Period, and (ii) all Patents that at any time issue on or claim priority (directly or indirectly) to any such Patent under (i) above for which Licensor or any assignee, transferee or successor has or later obtains the right to license, whether during or after its Participation Period, provided that the grant of a License to an applicable Licensee does not require payment of royalties or other consideration by Licensor to third parties (except for payments among Entities that form part of Licensor or to third parties for inventions made by the third parties while employed by Licensor) unless someone other than Licensor (or its assignees, transferees or successors) agrees to pay such royalties or other consideration on behalf of the applicable Licensee. If a Licensor has any interest in a Patent or an Entity that owns or controls a Patent (including the right to withhold consent for Patent Assertion of such Patent) at any time during its Participation Period, but does not have the right to grant licenses, releases, waivers and immunities of the full scope set forth in this Agreement, then such Patent will be considered a Subject Patent only to the extent Licensor has the right to grant licenses, releases, waivers or immunities within the scope set forth in this Agreement. Licensor grants such licenses, releases, waivers and immunities to the maximum extent it has the right to do so without requiring payment of royalties or other consideration to third parties as set forth above, and agrees to withhold consent for Patent Assertion by any Assertion Entity against any Licensee or with respect to any Licensee’s Products and Services to the extent it has the right to do so. Notwithstanding the foregoing, a Patent will not be considered a Subject Patent of a financial institution as defined by 18 U.S.C. § 20 solely by reason of being held by such financial institution (i) as trustee for a beneficiary that is not an Affiliate of such financial institution, or (ii) as a result of foreclosure or enforcement of a security interest in order to transfer the Patent to a third party that is not an Affiliate of such financial institution to satisfy an underlying financial obligation based on monies lent and secured by such Patent.

6.18. “Transfer” or “Transferred” to an Assertion Entity means any of the following with respect to a Subject Patent, whether during or after a Participation Period of the applicable Licensor: (i) the assignment, sale, exclusive license, or transfer, in whole or in part, of such Patent to an Assertion Entity, whether by Licensor or any subsequent transferee or exclusive licensee of the Subject Patent, or (ii) acquisition of ownership or control of the Subject Patent by an Assertion Entity (including any circumstance in which Licensor or any subsequent transferee owning or controlling the Subject Patent is or becomes an Assertion Entity or Controlled by an Assertion Entity or in which any Assertion Entity obtains any right to enforce or otherwise make Patent Assertions of the Subject Patent), with the earliest date any Entity owning or controlling such Patent is or becomes an Assertion Entity or Controlled by an Assertion Entity being deemed to be the effective date of such Transfer. For avoidance of doubt, any condition of a License based on Transfer of a Subject Patent to an Assertion Entity will be deemed satisfied at all times following the date of first Transfer of the Subject Patent to an Assertion Entity, even if the Subject Patent is subsequently transferred to a non-Assertion Entity.


A-1 Fee Schedule. The annual fee per LOT User is set forth in the following fee schedule, to be paid to LOT Network Inc. or its successor (“LOT Network”) as specified on the LOT website. An Entity that joins part way through LOT Network’s fiscal year will pay a pro-rata portion of the annual fee for that year. The pro-rata portion will be due at the time of signing.
Fee Schedule:
LOT User’s Annual Revenue LOT User’s Annual Fee
less than $5 million Free
between $5 million and $10 million Free
between $10 million and $25 million Free
between $25 million and $50 million $5,000
between $50 million and $100 million $10,000
between $100 million and $1 billion $15,000
greater than $1 billion $20,000

A-2 Updates. The Fee Schedule in Section A-1 of this Exhibit A may be updated from time to time by the Board of Directors of LOT Network in accordance with its Bylaws, and such updates shall not constitute an amendment of this Agreement. The current Fee Schedule will be posted on the LOT website by the LOT Administrator. LOT Network may waive or discount fees from time to time for particular LOT Users or for particular periods of time to attract new LOT Users or for other purposes approved by the Board of Directors of LOT Network in accordance with its Bylaws.

A-3 Failure to Pay Fees. If a LOT User fails to pay the annual membership fee due under this Exhibit A within ninety (90) days of receipt of an invoice, such delinquent LOT User and its Affiliates shall not receive the benefit of any Licenses to any Subject Patents assigned or otherwise transferred by any Licensor to any Entity that is not a LOT User or an Affiliate of a LOT User during a period of delinquency that extends from the date ninetyone (91) days after receipt of such invoice until such delinquency is cured.


B-1 Procedure. An amendment may be put to a vote under this Exhibit B only upon approval in writing of the Board of Directors of LOT Network Inc. or its successor (“Board”) in accordance with its Bylaws. The Board will determine the amendment submission procedure and the voting procedure and may publish further details on the LOT website. Unless otherwise determined by the Board, the following voting procedure will apply. Following approval of putting an amendment up for vote by the Board as set forth above, the then-current LOT Users qualified to vote will be notified of a proposed amendment via email with no follow-on hardcopy (notwithstanding Section 5.9). Such LOT Users will have 30 calendar days to vote by responding by email to the LOT Administrator at the following email address: admin@lotnet.com. If a LOT User fails to vote within the time period designated, the LOT User’s vote will not be counted. If a LOT User joins while an amendment is pending, that LOT User will be permitted to vote on the amendment that is currently pending but the time period to vote will not be extended for such LOT User.

B-2 Approval. Amendment of this Agreement requires vote in favor of the amendment by at least eighty percent (80%) of all LOT Users who timely vote and who, at the time of the vote, are within their Participation Period, have not submitted a Limitation Announcement or announcement of the LOT User’s intent to withdraw, have paid any fees due under Exhibit A, and own at least one active, issued US patent in the USPTO assignment database that is a Subject Patent. The terms of an amendment shall take effect upon the date of such approval (the “Amendment Effective Date”) which will be published on the LOT website. Notice of such approval will also be given to all LOT Users via email with no follow-on hardcopy (notwithstanding Section 5.9). Upon taking effect, such amended terms shall apply with respect to and amend this Agreement regarding any LOT User and its Affiliates who, by the end of the Publication Period, have not issued a Limitation Announcement as specified below in Sections B-3 of this Exhibit B.

B-3 Dissenting LOT User May Submit a Limitation Announcement. The terms of the amendment shall be published on the LOT website for a period of sixty (60) days after it is approved (the “Publication Period”). Any LOT User that voted against the adoption of such amendment (a “Dissenting LOT User”) may submit a written announcement signed and submitted by an authorized representative of the Dissenting LOT User to the LOT website before the end of the applicable Publication Period declaring the Dissenting LOT User’s intent to limit the scope of its participation under this Agreement to the terms in effect immediately prior to the Amendment Effective Date and to the Patents of itself and its Affiliates that are Subject Patents hereunder immediately prior to the Amendment Effective Date (“Limitation Announcement”). Any such amended terms shall not apply with respect to any LOT User and its Affiliates who, on or before the end of the applicable Publication Period, have issued a Limitation Announcement. The existence of each Limitation Announcement and the date of its submission will be published on the LOT website.

B-5 Scope of Rights Upon Limitation. The Licenses granted to and by a Dissenting LOT User and its Affiliates will be subject to the terms and conditions of this Agreement in effect immediately prior to the applicable Amendment Effective Date (“Limitation Date”). The Licenses granted to a Dissenting LOT User and its Affiliates will remain in effect after the applicable Limitation Date only with respect to Patents that are Subject Patents of Licensors as of the Limitation Date, including those Transferred to an Assertion Entity after the Limitation Date. All Licenses granted to Licensees with respect to Subject Patents of the Dissenting LOT User and its Affiliates as of the applicable Limitation Date will remain in full force and effect and continue to apply to each Licensee (including those Entities that become an Affiliate of a LOT User after the applicable Limitation Date), including with respect to Subject Patents Transferred to an Assertion Entity after the Limitation Date. For avoidance of doubt, all Patents of a Dissenting LOT User or its Affiliates that are Subject Patents as of its Limitation Date shall remain Subject Patents subject to the terms and conditions of this Agreement after such Limitation Date.

LOT is not a “techie” thing but a lawyer thing. “LOT Users will pay fees for ongoing costs and operation of LOT Network Inc. and the LOT Administrator in accordance with Exhibit A,” it says. So they’re in effect paying one person’s massive salary. What do they get in return? Pretty much nothing. Maybe their logo on a page. Only if they’re a big company that pays high membership fees anyway…

“Microsoft certainly gets its money’s worth from LOT; who would be foolish to participate in this?”They later uses these pages for marketing and PR purposes.

Funnily enough LOT promotes itself by citing articles about itself in Microsoft tabloids like ZDNet, which were happy to promote LOT and Microsoft, making false claims about patent peace just months before another Microsoft lawsuit. Microsoft certainly gets its money’s worth from LOT; who would be foolish to participate in this?

03.17.20

Biggest Threats to Software Freedom (Which Almost Nobody Talks About)

Posted in Free/Libre Software, GNU/Linux, Microsoft, OIN at 9:48 am by Dr. Roy Schestowitz

Destroying the movement by buying it piece-wise, then using patent traps inside it to assert that it’s indebted to ‘generous’ Microsoft

...and then we pay LF, then OSI, then OIN... Don't forget to grab the repos (Github) and then NPM... You think it wasn't planned already?... Wait, how do we bribe or destroy the FSF?

Summary: The assault on Free software carries on, as various building blocks are hijacked by Microsoft (to spy, censor and generally control) whilst illegal software patents are being advanced using meaningless buzzwords that any programmer would laugh at

THE world of software development — not necessarily just Free/libre software — hardly speaks of the dangers associated with GitHub.

In quick succession Microsoft attacks many pillars of software and its supply/development chain. This is overlooked by those who are bribed by Microsoft to “stay in line”. The Linux Foundation now actively promotes GitHub, which is proprietary software designed to entrap users of Git. Look at the Board of the Linux Foundation; Microsoft is all over it (and top management of the Linux Foundation too).

Today, as of this morning, many people spoke about Microsoft’s move against NPM, which is an act of all-out aggression. Make no mistake about it. Also see who’s behind it. Those are people who have attacked the Free software world for decades. Conde Nast (which ‘ousted’ Torvalds for a month) welcomed this with a number of very recent puff pieces, pretending that a land grab by a proprietary software behemoth is a gesture of “love”. Microsoft loves Open Source? No. Microsoft is attacking it. While smiling at us.

We’re going to leave that aside at the moment and instead return to it in a separate, dedicated article.

We also remain concerned about total apathy towards the patent aspect. When did OSI and Linux Foundation (both in Microsoft’s pocket) last speak about it?

The European Patent Office (EPO) under today’s leadership illegally grants patents that (GNU/)Linux would certainly be in infringement of. And those patents aren’t even legal patents!!!

Where’s the outrage?

Upcoming ‘events’ promoting illegal software patents in Europe are again being advertised today. This new press release says: “An intensive update on patent protection for software-related inventions covering all the major developments in European patent law in particular GUI inventions and mixed’ inventions with both patentable and non-patentable subject matter…”

“We also remain concerned about total apathy towards the patent aspect. When did OSI and Linux Foundation (both in Microsoft’s pocket) last speak about it?”Also, behind IAM‘s paywall this week there’s this scoop about Microsoft’s patent blackmail and extortion chief moving to Marconi. To quote IAM on Twitter: “Another big hire for Marconi as it adds former Microsoft patent chief…”

Microsoft’s patent chief is a thug, but Microsoft is also IAM’s financial backer, so they will not ‘insult’ this Mafia, will they? Money talks, says the famous idiom. Microsoft buys a lot of “talk” and the “talking points” are passed on.

One can imagine what will happen next. HTIA (best known for advocacy of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs)) has meanwhile published this letter and tweet, stating: “The single most important thing the USPTO should do in the context of AI is improve the technical training given to examiners who plan to examine AI-related technologies.” Read more in our joint comments on patenting AI inventions…”

We’ve looked into the underlying ‘letter’ [PDF] and found it rather void of substance if not dreary. They suggest some amendments, but they play along with the buzzwords and the accompanying hype.

“Microsoft buys a lot of “talk” and the “talking points” are passed on.”The U.S. Patent and Trademark Office (USPTO) likes finding tricks to work around restrictions on software patents (limitations such as 35 U.S.C. § 101/Section 101/Alice) and just calling everything “HEY HI!!” (AI) is one of the more popular tricks these days. Out of nowhere they suddenly use these buzzwords all the time.

Suffice to say, the USPTO merely does here what the EPO did before it. They try to make it acceptable for patent offices to grant patents that courts later reject.

“The EPO Board of Appeal lacks independence; there are ongoing and outstanding complains about it. Already, as of months ago, Campinos threatens those same judges to permit software patents.”How about patents granted in defiance of Mayo (the other high-profile SCOTUS decision alluding to naturally-recurring things in nature).

Perhaps not minding the underlying law, Emma Longland (HGF) has just published this piece about the EPO granting likely illegal European Patents on life, as the EPO is totally out of control and even its own judges are besieged by António Campinos and his boss. To quote:

The much-watched validity dispute over the Broad Institute’s patent for fundamental CRISPR-Cas9 technology – recently revoked by the EPO Board of Appeal – is not the only CRISPR-related IP issue to watch out for in Europe this year, explains HGF’s Dr Emma Longland.

The EPO Board of Appeal’s recent revocation of the CRISPR-Cas9 patent, EP2771468 – belonging to the Broad Institute, Harvard College and the Massachusetts Institute of Technology – has garnered a great deal of attention since January. However, IP professionals interested in keeping up to speed with the technology’s patent landscape should also pay attention to several other important CRISPR applications going through the EPO opposition and appeals process this year.

The Broad Institute and its collaborators were among the innovators working on CRISPR gene editing during its early development in 2012 and 2013. Thanks to a strategy of accelerating the prosecution of their related patent applications at the EPO, they were the first to get granted foundational CRISPR patents in Europe. And several patents other than EP2771468 are now at various stages of the opposition and appeal process.

The EPO Board of Appeal lacks independence; there are ongoing and outstanding complaints about it. Already, as of months ago, Campinos threatens those same judges to permit software patents. This is a gross abuse of the EPC.

Free software is in a bad position as long as this carries on. There are already several troll lawsuits against it (GNOME, Mycroft etc.) based upon ridiculous software patents. What did OIN do about it? It's shocking. OIN works for Microsoft now. As for IBM with a Red Hat CEO as President? It is still suing companies using software patents, so we know nothing has changed.

01.02.20

Microsoft Loves You!

Posted in Deception, GNU/Linux, Humour, Microsoft, OIN, OSI at 5:41 am by Dr. Roy Schestowitz

Microsoft, OSI, OIN, LF and a GNU/Linux User
Follow the money (some profit if Microsoft wins this duel)

Summary: How many/most GNU/Linux users feel nowadays, emotionally and institutionally orphaned or homeless when various groups are paid by Microsoft to spread the lie/fiction that “Microsoft loves Linux”

11.20.19

Microsoft and IBM Are the Patent Trolls, They Won’t Protect Us From Trolls

Posted in GNU/Linux, IBM, Microsoft, OIN, Patents, Red Hat at 1:21 am by Dr. Roy Schestowitz

Times have changed; Red Hat and Microsoft are now close partners.

Microsoft has no taste

Summary: “Microsoft has no taste” and IBM has no taste, either; they’re lying to our collective face together with OIN and the ‘Linux’ Foundation

IBM has long cross-licensed with Microsoft. This means they won’t sue one another over patents. Good for them, eh? Shared monopoly. No wonder Red Hat nowadays promotes Microsoft things almost every day. Now that IBM owns Red Hat (and all of its patents) IBM won’t care about Microsoft’s ongoing — even in 2019 — blackmail of OEMs that ship GNU/Linux.

Now Microsoft and IBM, the biggest purveyors of software patent trolls, tell us they’ll protect from what they are, themselves [1-3]. Wow, the audacity! Joined by their front groups, OIN, a false representative to/of Free software, and Linux Foundation, a GitHub outsourcer which compares Microsoft to "a puppy". They use a lawsuit against GNOME (Foundation) to take us astray from abolishing software patents. Both IBM and Microsoft are feeding patent trolls, are blackmailing companies that implement things they themselves never did, and lobby aggressively for software patents in the US.

Related/contextual items from the news:

  1. Open Invention Network teams up with IBM, Linux Foundation, and Microsoft to protect open-source software from patent trolls

    Open-source software — heck, all software — has been plagued by patent trolls for decades. The Open Invention Network (OIN), the largest patent non-aggression community in history, is now expanding protection of open-source and Linux by partnering with IBM, the Linux Foundation, and Microsoft to further protect it from Patent Assertion Entities (PAEs), aka patent trolls. This new consortium is doing this by supporting Unified Patents’ Open Source Zone with a substantial annual subscription.

    Unified Patents is an international organization of over 200 businesses. Unified Patents takes an aggressive stance against trolls. The name of its game is deterring trolls from attacking its members by making it too expensive for the troll to win. The group does this by examining troll patents and their activities in various technology sectors (Zones). The Open Source Zone is the newest of these Zones.

    United Patents does this in a variety of ways. For example, it runs a public bounty program, where it seeks prior art for troll patents. According to Kevin Jakel, Unified Patents CEO, in a recent interview, “The prize money offered can be as much as $10,000 for anyone that is able to find prior patents on the one being questioned. For example, we recently announced a $10,000 bounty for any prior art relating to network monitoring and sequence integrity.”

    In practice, their method works. For instance, with Unified Patent’s aid, the ride-sharing company Lyft recently beat a patent troll. In the case, a troll claimed essentially he has created all ride-sharing software. US District Judge Jon S Tigar ruled against the troll, saying, “Given the lack of an algorithm for allocation, RideApp ‘has in effect claimed everything that [performs the task] under the sun.”

  2. SUSE welcomes cooperation of Open Invention Network, Linux Foundation, IBM and Microsoft in co-funding Unified Patent’s new Open Source Zone

    An eternal truth is that everything has its opposite for good and evil. Patents are no exception. In fact, even the simple word ‘Patent’ evokes much positive and negative emotion in today’s software world – particularly as news continues to circulate around baseless patent lawsuits by non-practicing entities (NPEs).
    But in news this week there is a bit of positive for a change. The positive news is the announcement of the efforts by Unified Patents to reduce NPE assertion of invalid patents in the open source software zone.

  3. Open Invention Network Joins Forces With IBM, Linux Foundation And Microsoft

    Open Invention Network (OIN) is teaming up with IBM, the Linux Foundation and Microsoft to further protect open source software (OSS) from Patent Assertion Entities (PAEs) leveraging low quality patents, also called patent trolls.

    The group will support Unified Patents’ Open Source Zone with a substantial annual subscription. This expands OIN’s and its partners’ patent non-aggression activities by deterring PAEs from targeting Linux and adjacent OSS technologies relied on by developers, distributors and users.

11.17.19

The Open Invention Network Has Become a Guard Dog of (Some) Patent Trolls and It Misrepresents Us Under the Guise of ‘Open Source’

Posted in Deception, Europe, Free/Libre Software, GNU/Linux, IBM, Law, News Roundup, OIN, Patents, Standard at 2:19 am by Dr. Roy Schestowitz

Defending software patents and trolls. Calling them “charities” was likely the last straw.

2 dogs

Summary: The Open Invention Network (OIN), in collaboration with Fraunhöfer, is promoting software patents and all sorts of other nonsense as part of ‘open’ standards in a new paper sponsored by the EU and edited by the former EPO Chief Economist Nikolaus Thumm (not Battistelli's choice); this is another reminder of the fact that OIN misrepresents Free/Open Source software (FOSS) developers and their interests

The Open Invention Network (OIN) is somewhat of a scam. It wasn’t always like this. Ignore their use (or misuse) of the Tux logo and the brand “Linux”; then, check the pertinent members instead. Check the leadership. OIN will truly serve Linux only when it finally combats software patents, i.e. when pigs fly (“OIN OIN!”). As we showed earlier this year, “Today’s Open Invention Network is Run by Former Patent Trolls, Connected to and Backed by Microsoft”

Today’s OIN already calls some patent trolls “charities”, works with them, even hires from them. OIN does not speak for FOSS. It speaks for patent bullies like IBM that also happen to rely on FOSS for some things. OIN is convenient for the likes of IBM. Right now OIN even promotes patents and software patents as part of standards. What are they thinking? Who on Earth thought it would work out well? With the likes of Microsoft as celebrated OIN members, the brain might ‘have gone somewhere else…’ (to put it in more subtle terms)

OIN does not oppose software patents (it never did, since its very inception); its members, especially the big ones, oppose 35 U.S.C. § 101 and are big “customers” of the U.S. Patent and Trademark Office (USPTO). Yes, the word “customers” is used by them. They are, in a lot of ways, part of the problem, not the solution to it.

“OIN does not oppose software patents (it never did, since its very inception)…”You know something has gone wrong when you see OIN acting as more of a front group for proponents of software patents, manned by patent trolls instead of FOSS proponents. These are people who actually sued Linux (in the previous employer). Unfortunately, many people lost sight of how OIN changed over the years. Therefore, they can’t quite see the changes.

As Henrion noted the other day: “OIN and Fraunhöfer, the foxes in the henhouse, behind the an awful study on how patents in standards are ‘compatible’ with FLOSS…”

With ‘representatives’ like these…

Knut Blind

EU paper

He added that “[t]hey should have read the GPL” and citing the GPL he quoted: “Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, IN EFFECT MAKING THE PROGRAM PROPRIETARY. [...] To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all.”

“…many people lost sight of how OIN changed over the years.”“OIN is in the same ‘club’ that opposes and badmouths copyleft,” I told him (check what IBM et al use for licensing of choice). They only adopt GPL when “there’s no choice” (e.g. Linux kernel). “Software patents ought not even exist and after Alice (which Microsoft and IBM attack via their front groups and corrupt lobbyists like Kappos selling ‘connections’) such patents are likely bunk, invalid anyway.”

I was reminded of this again some hours ago because of this new blog post. It’s by Mirko Boehm from OIN, who blocked me in Twitter so we know he has much to hide… (some of his tweets are appalling)

“Their paper uses propaganda terms such as “Intellectual Property Right (IPR)” and I’ve circulated this for discussion in IRC.”“I already tweeted about it,” Henrion told me, “as the fox in the henhouse. We cannot tolerate lobbyists of OIN and Franhofer to write such papers with public money, as they have an interest. This has basic conflict of interests problems.”

Their paper uses propaganda terms such as “Intellectual Property Right (IPR)” and I’ve circulated this for discussion in IRC. For obvious reasons we’d rather not quote the paper or link to it directly (there’s an indirect link above). Instead, we shall leave readers with this OIN tweet:

Mirko Boehm on Fraunhofer as charity

11.07.19

The GNOME Foundation’s Potentially Useless Defense Strategy is an OIN-Styled ‘Fix’ and Not a Software Patents Fix (Abolition)

Posted in GNOME, GNU/Linux, IBM, Microsoft, OIN, Red Hat at 4:56 am by Dr. Roy Schestowitz

“Fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.”

Richard Stallman

They get attacked by software patents. And they don't use Alice.

Summary: The anti-Stallman club known as ‘GNOME Foundation’ is not interested in tackling software patents as a whole. What does that tell us about the situation we’re in?

THE short series about the defamation of Richard Stallman (RMS) isn’t over yet. The media defamed him repeatedly for about a month (yet again earlier this week) and Stallman was in contact with us. Whether he wants to make further comment/s on the subject will depend on him.

“We’re not bashing McGovern, but we worry about his predecessors at this prestigious position; they’re are from SFC (also anti-RMS), Peters (now Microsoft), and de Icaza (also Microsoft).”One thing we continue to research is the controversial announcement or media statement from GNOME Foundation, signed by Neil McGovern, who has called himself “Politico and geek, GNOME Executive Director, Cambridge CAMRA press officer, Ex-Debian Project Leader. Views are own etc.” (His personal Web site is nowhere as active.)

We’re not bashing McGovern, but we worry about his predecessors at this prestigious position; they’re are from SFC (also anti-RMS), Peters (now Microsoft), and de Icaza (also Microsoft). Neil McGovern, known better for his anti-RMS rant, is a credible person, but the context he’s in requires him to adopt particular positions.

His media statement, which is two months old (and put a lot of pressure on RMS), has caused a bit of controversy within GNOME itself. Some GNOME people have distanced themselves from it, even in the open. There are blog posts to that effect. Even in GNOME’s own Web site!

As we recently noted (in relation to OIN and IBM), there's an element in this 'community' that does not want software patents to go away. Instead it wants pertinent patents to be challenged based on something like prior art. A reader has just pointed out to us Free software [sic] is under attack. How you can help. (w/ Neil McGovern) from @TheLinuxGamer on LBRY.tv” (a new video interview).

Our reader adds that it’s about “software patents versus Shotwell, though they are mistakenly referred to only as “patents” there; strategy might be a bit misguided since it is not going after software patents in general but instead choosing to play whac-a-mole against one single troll at a time; they also naively plan to recover costs from the troll, which is probably just a shell company anyway; perhaps you could correspond with them…”

I personally will not bother, but I invite readers to do so. I’ve criticised the ‘GNOME Foundation’ in the distant past, so its chief is not likely to talk to me. Well, seeing what he wrote and with predecessors like these, McGovern merely continues a decade-long pattern of trying to overthrow or at least discredit RMS. His employment history in the UK and his work for Debian isn’t something to be mocked or belittled. He’s not a bad person. But his employer and the people who now surround him may be bad influence. The Foundation isn’t so credible; we wrote many articles about this back in 2009. They’re even close to Microsoft (and they will never point out the troll’s connections to Microsoft [1, 2, 3]). The Foundation raises other concerns. It is also deeply connected to IBM through Red Hat (many GNOME developers are salaried by Red Hat), probably the foremost influence source — one which as we noted before wishes 35 U.S.C. § 101/Alice to go away, and for the U.S. Patent and Trademark Office (USPTO) to issue IBM with tens of thousands of software patents, not to be overturned and invalidated in Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) with Federal Circuit affirmation of these invalidations. This is the biggest downside of IBM’s acquisition/takeover and it has been our main concern regarding Red Hat (the reasonable patent policy being cast aside).

This approach from the GNOME Foundation must be pleasing not just for IBM but also Microsoft, now an OIN member. Days ago Microsoft Tim belatedly expressed satisfaction about OIN getting involved. OIN is in the ‘business’ of teaching FOSS people to tolerate rather than eliminate software patents and days ago it added another high-profile Japanese member (in our Daily Links).

10.25.19

We Need to Talk About IBM’s and OIN’s Stance on Software Patents at Times When Microsoft-Armed Patent Trolls Attack GNU/Linux

Posted in GNOME, GNU/Linux, IBM, Microsoft, OIN, Patents, Red Hat at 6:40 am by Dr. Roy Schestowitz

OIN (IBM roots) has already admitted that it has no solution to trolls (it's run by them) and it refuses to oppose software patents

OIN loves Microsoft

Summary: The people who claim to be tackling the patent woes of GNU/Linux are actually in bed with Microsoft and don’t oppose software patents; they try to wed the Free software community and such patents — even if that means a shotgun wedding

THERE IS a serious problem in the Free software world which few of us talk about (or want to talk about). It’s not convenient. Our so-called ‘flag bearers’ and sometimes sponsors work against our interests. They do this in a number of dimensions, but this post will focus on patents. We’ll try to keep this non-legal (as in no legalese) and non-technical — to the point or the degree possible. We won’t, for instance, explain 35 U.S.C. § 101 caselaw in the USPTO or the illegal granting of European software patents by the European Patent Office (EPO). It really doesn’t matter so much in this context. All that matters is that software patents are inherently bad, developers don’t want these (no matter if Free software developers or non-free software developers), and courts increasingly reject these patents.

“All that matters is that software patents are inherently bad, developers don’t want these (no matter if Free software developers or non-free software developers), and courts increasingly reject these patents.”So here we are in 2019, with IBM as the likely biggest “contributor” (in the coding sense) to GNU/Linux because of the Red Hat acquisition. One could choose other criteria such as number of instances/installations serviced/hosted. But that’s not the point. The point is, whether we like it or not, we’re sort of ‘stuck’ with IBM as a major ‘flag bearer’; yes, it dominates development of many components in a GNU/Linux system, including the kernel and systemd. Many are happy about IBM’s (or Red Hat’s) kernel contributions, more so than the latter. IBM does a lot of important — and sometimes good — things. It also does bad things. Pretty common when dealing with very large companies…

We now come to the ‘beef’ of this post if not this borderline rant. Earlier this week Benjamin Henrion (FFII President) complained about the “EPO sponsoring yet another software patent conference on Internet Of Things (IOT) http://www.iam-events.com/events/iot-ip-2019/agenda-6e588d27158140d98ee1f35b75c3e976.aspx …”

“IBM does a lot of important — and sometimes good — things. It also does bad things.”For those who don’t know, at the EPO “IOT” (or “IoT”) is nowadays one of several buzzwords that they use to disguise software patents. Henrion might be wrong here because the EPO is not listed among sponsors but OIN is. Yes, OIN. This wouldn’t be the first time OIN shows up in pro-software patents events of the EPO and IAM, which is a patent front of the EPO et al. IAM is funded in part by patent trolls. Sometimes it’s supported and funded by the EPO and its PR agencies. When they’re pushing for software patents it isn’t motivated by logic, just money, greed and self-interest. “Closing keynote address” in this event is Grant Philpott, a Microsoft-friendly proponent of software patents (we wrote about him many times in the past). This whole event is a farce and OIN’s role in these IAM events is to give the illusion that “Open Source” too is participating. That’s just a reminder that OIN is an enemy of Software Freedom and friend of software patents (like IBM is).

These EPO events or OIN-attended events aren’t a new problem; they’re part of a pattern we’ve been covering here for at least a year. They tend to push software patents without mentioning that term or that phrase. Here’s another new example from an EPO tweet that said: “EPOPIC 2019 starts in less than a week. We look forward to welcoming you for three days of thought-provoking exchanges with patent information specialists from all over the world.”

Notice who’s speaking there. Andrei Iancu with “Intellectual property and the next Industrial Revolution” (another weasel term for software patents, akin to “4IR”) and Alexander Klenner-Bajaja from the EPO with “Artificial intelligence and patent classification” (the usual “AI” hype).

“These EPO events or OIN-attended events aren’t a new problem; they’re part of a pattern we’ve been covering here for at least a year. They tend to push software patents without mentioning that term or that phrase.”The EPO’s social media team then retweeted this tweet that said: “The @Derwent experts are on hand next week at #EPOPIC Attend our workshop on the new enhanced Derwent Innovation and hear how the latest patent research tool is going to transform the way you search for data.”

This thing is being advertised by EPO staff. Why? Shouldn’t the EPO be impartial? But let’s leave the EPO aside for a moment; it’s no secret that it’s lobbying for illegal software patents.

Going back to OIN and Henrion (FFII), there’s a discussion about the high-profile lawsuit against GNU/Linux; we wrote 3 articles about it [1, 2, 3] and over at Tux Machines we carefully filed every article and blog post on this subject (we always try to exhaustively archive topics for reference, both present and future reference).

“Will you use Alice as defence?”

So asked Henrion, who continued: “Using prior art is not helpful to get rid of software patents, Alice is. You should clarify in your fundraising message if you gonna use it or not. If that’s the case, http://FFII.org and its thousands of supporters database can be called.”

“The GNOME Foundation still refuses to even acknowledge rather obvious Microsoft connections (their biggest troll armed this smaller troll)…”He continued separately: “Will the Gnome Foundation use Alice to kick software patents out in the US? as RMS said “fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitos will eliminate malaria” https://www.gnome.org/news/2019/10/gnome-files-defense-against-patent-troll/ … read https://lwn.net/Articles/802819/ …”

He made a similar point about a week ago.

The GNOME Foundation still refuses to even acknowledge rather obvious Microsoft connections (their biggest troll armed this smaller troll) and if they rely on IBM front groups such as OIN (proponents of software patents to whom patent trolls aren’t really a problem but a cost of IBM doing ‘business’… i.e. blackmailing companies with a trove of lousy old patents) you end up having a rather lousy defense strategy, potentially a costly one too.

“I have asked the Gnome foundation to clarify if they gonna use Alice as defense,” Henrion noted, citing this message of his:

Hi,

I wanted to ask the Gnome foundation a crucial question before calling
on FFII supporters to donate.

Will you use Alice as defence (patentable subject matter)?

Using prior art is not helpful to get rid of software
patents,patentable subject matter is way more important.

You should clarify in your fundraising message if you gonna use it or not.

If that's the case, FFII.org and its thousands of supporters database
will be called to donate.

You should also call on donators to contact their senators to oppose
the STRONGER patent act which aims to restore software patents in the US:

https://www.fsf.org/blogs/community/strengthen-free-software-by-telling-congress-to-reject-the-stronger-patents-act

We keep seeing blog posts from GNOME people and Debian people (sometimes also tweets). Oddly enough, Red Hat employees and Fedora developers have hardly said a thing! Maybe with the exception of Richard Hughes (LVFS/fwupd developer).

These must be rather awkward times to be at Red Hat; on the one hand they’re developing and supporting GNOME and on the other hand, while at the same time working for IBM (remember that IBM lobbies for those software patents — the type of patents that IBM lobbies hardest for) they’re confronting these ruinous lawsuits. Can they speak out against patent trolls while IBM, their employer, keeps shaking down companies like a troll? Maybe they prefer not to say anything.

“These must be rather awkward times to be at Red Hat; on the one hand they’re developing and supporting GNOME and on the other hand, while at the same time working for IBM (remember that IBM lobbies for those software patents — the type of patents that IBM lobbies hardest for) they’re confronting these ruinous lawsuits.”Stefano Zacchiroli (“Free Software activist” by his own description, with past connections to OSI where he was a technical member) wrote: “Please donate to the #GNOME Patent Troll Defense Fund here: https://secure.givelively.org/donate/gnome-foundation-inc/gnome-patent-troll-defense-fund … Software patents are a disgrace and we should defend FOSS from them. Learn more in the blog post below. https://twitter.com/gnome/status/1186412835083042817 …”

Zacchiroli is a very good person whose geek credentials and track record speak for themselves. But where are the Red Hat (IBM) employees? Why are they so quiet on matters pertaining to patents? The sad reality is that GNOME’s key sponsors/stewards, Red Hat included (now IBM), are big proponents of software patents (and IBM is naturally and perhaps factually the biggest). We need to talk about this…

“Red Hat was quick to comment on (celebrate with diplomatic restraint) the ousting of Richard Stallman, but as far as we can tell no comment has been made — at least not yet — about a troll armed by a Microsoft proxy suing GNU/Linux.”Henrion, commenting on the FOSDEM conference near him, has noticed that the sponsors’ page has just been updated.

“Remember that the 3 sponsors of FOSDEM routinely file software patents,” he wrote. “And sue using these patents,” I continued his thoughts, “especially IBM (so Red Hat basically).”

Red Hat was quick to comment on (celebrate with diplomatic restraint) the ousting of Richard Stallman, but as far as we can tell no comment has been made — at least not yet — about a troll armed by a Microsoft proxy suing GNU/Linux. Odd that…

09.21.19

IBM Cannot Become a True Friend of Free Software Because of Its Current Patent Policy

Posted in Free/Libre Software, IBM, OIN, Patents, Red Hat at 1:09 am by Dr. Roy Schestowitz

To make peace with the Free software movement IBM may need to re-balance or re-calibrate its priorities

A balance

Summary: IBM needs to quit bullying people/companies with software patents; that would help towards appeasement of IBM critics and sceptics

AT risk of sounding like a broken record, let’s make a point absolutely clear and be upfront about it. Our Openwashing Reports have often mentioned IBM as an habitual faker and culprit; IBM is, at its core, still a proprietary software company, unlike Red Hat. But IBM is bad for two more reasons: 1) it lobbies for software patents and 2) it shakes down companies with such patents. When it comes to patent policy and practice, IBM is hardly better than Microsoft; it just targets GNU/Linux a lot less (if at all); it gave us OIN.

Techrights would rather not spend much time or dedicate much space to IBM criticism because it’s hardly the foremost threat to Software Freedom; it’s mostly a threat to a sane patent policy/law.”It seems safe to believe or to think many Red Hat employees already know what IBM is and does (IBM’s patent shakedown is decades-old). The rest are in denial about it or choose to say nothing, even among themselves. Henrion brought up a recent court document [PDF] and stated that “IBM is a software patent bully,” quoting from the corresponding document: “Method for presenting advertising in an interactive service, Method for simultaneous display of multiple object categories, Method for a runtime user account creation operation within a SSO process in a federated computing…”

We discussed this over IRC on Thursday. The IRC logs will unfortunately not be ready for publication until the end of this year (we used to publish these daily, then weekly, now it’s 3 times a year in large lumps).

Another person wrote: “IBM published today a patent application on “software controlled ad-avatars (or bots)” for advertising in virtual worlds. Relatable bot profiles include “Jenny Teen,” “Joe Geek,” and “Travis Cowboy.” US 20190287119.”

There’s also a picture there.

Techrights would rather not spend much time or dedicate much space to IBM criticism because it’s hardly the foremost threat to Software Freedom; it’s mostly a threat to a sane patent policy/law. We hope that Red Hat can influence IBM positively (rather than the other way around).

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