A weak and/or incompetent EPO would harm everyone in the world
Summary: A short story about how and why we ended up writing so much about the European Patent Office (EPO) and the impact beyond Europe
THE EPO has become a subject of considerable debate and focus here. It started around 2014 after we had primarily focused on the US patent system, the USPTO.
For those who have not been reading the site since its inception, here is a short introduction.
I had been a GNU/Linux advocate well before this site existed and an opponent of software patents (not patents as a whole) for a little longer than that. People who have themselves developed software don’t find it difficult to understand why copyrights, not patents, are suitable protection for one’s work (protection from plagiarism, misuse, misattribution, and so on).
The earliest goal of the site, back almost 10 years ago, was to end the software patents assault by Microsoft against GNU/Linux and Free software in general — an assault which began if not publicly culminated with the Microsoft/Novell patent deal. Novell took several years to decline after this deal and ultimately, unsurprisingly, Microsoft grabbed Novell’s own software patents, in a joint takeover along with Apple, Oracle, etc. These companies do not want Linux and Android to succeed, not without them being heavily taxed by the proprietary software oligopoly (Microsoft, Apple and Oracle still have ongoing patent/copyright fights against Android).
Apple’s attack on Linux (through Android) officially began in 2010, whereupon we wrote a great deal about Apple and shortly afterwards Oracle joined this war. It had already shown some hostility towards Red Hat, just shortly before the Microsoft/Novell deal in 2006.
For those who are not yet seeing a pattern, let it be spelled out clearly; the rise of Free software and GNU/Linux gave power to new actors such as Google, which made proper use of Free software in order to build back- and front-end stacks (databases, operating systems, AI, Web servers and so on). This meant that gadgets-selling giants, database giants, operating systems giants/monopolies etc. that were and still are proprietary (e.g. iOS, Mac OS X, Oracle, Windows) needed to either crash/crush emergent forces or tax them, using either patents or copyrights (this goes back to 2003 with the Microsoft-backed SCO assault on Linux).
Right now, in 2016, the aforementioned issues are unresolved. Microsoft is still attacking Linux (but more cleverly, with shrewdly-worded announcements that brand/frame patent settlements as bundling deals), Apple still has several patent cases against Android OEMs, and Oracle refuses to give up even after 6 years in the courtroom (against Android through Google). The cause of utmost importance here deals not only with software patents anymore but also with some design patents (Apple v Samsung) and copyright on APIs (Oracle v Google).
About 8 years ago we expressed concerns about software patents in Europe due to FRAND lobbying (from companies like Microsoft) and Brimelow’s loophole “as such”. We thereafter didn’t keep a close eye on the EPO for quite some time. Not much seemed to happen, but new kinds of abuses started to emerge and these seemed to be related to the resurrection of the “EU patent” or “community patent”, this time under a new kind of name and marketing (equating maximalism with union, unity, universality etc.) accompanied by/with repression of staff and suppression of critics. Even the staff union of the EPO, which had existed for several decades, came under unprecedented (even outside the EPO) attacks.
The reason we now focus a great deal on the EPO is that we have reasonably good understanding of the matters involved. We also have many articles on the subject, which helps us create a cohesive story with a lot of cross-referencing. Our goal now is to help other people (EPO insiders as well as politicians who are outsiders) gain an equally good understanding of why the EPO’s management must be chopped laterally and replaced en masse. It is the only way to save the EPO right now. Delegates that make up the Administrative Council probably have a good grip on the current situation, but they are afraid (or tied up by Battistelli’s hand on the budget), so they are not likely to do anything. The EPO needs somewhat of a revolution and strikes/demonstrations are steps towards that.
In the coming days we shall have a lot to write about the EPO and we will devote plenty of time and resources to ensure this historic period in the EPO is properly documented. We welcome feedback from readers and we hope that new material will continue to flow in. Now that everyone in the UK (and increasingly beyond) talks about “Brexit” it looks like Battistelli will definitely fail to deliver on his promises. He will be remembered not as a pioneer manager who compromised the rule of law for some ‘necessary’ reform but as a ruthless tyrant that shattered the EPO’s reputation for many years if not decades to come.
The EPO will outlive Battistelli and it is everyone’s job, especially at the EPO, to fight for patent quality (i.e. defy Battistelli’s ‘productivity’ obsession or lunacy). Remember that patent offices live or die (or make or break if not perish) based on the value or perceived value of their granted patents, i.e. examination that increases certainty in a court of law. Being an ENA graduate, Battistelli perhaps hopes that his predecessor will be left to deal with the aftermath of his atrocious policies (brain drain, low patent quality, reputation problems). Then the blame might be misplaced. A retired Battistelli would have little or nothing to worry about, but what about patent examiners who are far from retirement? How about retired examiners whose pension will be at risk? Given some upcoming Battistelli ‘reforms’, many people’s pensions are already at risk. This is just bad for Europe’s competitiveness across many sectors (medicine, chemistry, physics, telecommunication and many more). As patents get granted and assigned not just to European applicants (only the employees of the EPO are European), this may also means innovation will happen in the courts (lawyers’ strategies with patent trolls) rather than in the laboratories. Patent monopolies that are granted for the sake of being granted (artificially elevating some measure of EPO ‘output’) rather than to promote innovation can retard human progress as a whole. █
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Harm offensive or charm offensive? “A campaign of flattery, friendliness, and cajolement designed to achieve the support or agreement of others” –Oxford Dictionary
“I once preached peaceful coexistence with Windows. You may laugh at my expense — I deserve it.”
–Be’s CEO Jean-Louis Gassée
Credit: unknown (Twitter)
Summary: An analysis of last week’s Microsoft media frenzy, which despite Microsoft’s persistence with and insistence on proprietary software (not to mention its perpetual war on GNU/Linux using software patents) truly succeeded and it looks a great deal like the media strategy championed by Donald Trump
HAVING studied Microsoft and its extensive network of external PR agencies for well over a decade, and having studied the latest PR charm offensive for a whole week (while patiently taking notes along the way), I now feel prepared (on a Sunday when it’s all said and done) to provide my explanation of what happened. In short, it’s a PR campaign. It’s not a new PR campaign; it’s continuation of an existing PR campaign, whose banner is typically “Microsoft loves Linux” (that’s the misleading motto). Those who have followed non-disclosure agreements probably know that Microsoft is still attacking Linux. It’s a demonstration of hatred, not love. The genius of this PR campaign is that it logically reverses what’s true. It’s like BP stating that it loves wind power, the Koch Brothers stating that they love Senator Sanders, and Clinton stating that she loves self-determination.
“The genius of this PR campaign is that it logically reverses what’s true.”At the moment, judging by the reaction of people to this PR campaign, I can see roughly three groups. There are those who are still distrusting Microsoft. There are those who are increasingly confused by what Microsoft is doing, not sure what they’re really up to. The third group is either people who are in the Microsoft camp (profiting from it) or those gullible enough to believe what Microsoft is saying, sometimes even repeating the “Microsoft loves Linux” lie.
In this article we shall break down last week’s ‘news’ into roughly three categories or strands. We are going to show the reality behind all this PR, which was emitted in big quantities (with help from lousy media) and in quick succession. Little time and space were left to respond to the PR.
Microsoft Hates Linux
Dozens of articles, some of which were very long, were published here in 2015 and in 2016 and therein we responded to the “Microsoft loves Linux” lie. We gave actual examples from the news (not old stories) which demonstrate Microsoft’s ongoing campaign of hatred towards GNU/Linux. Microsoft is, as usual (as per its notorious history), using its money in an effort to undermine the competition (GNU/Linux in this case), not just with/through SCO, which it supported financially before dunking money into Novell (Microsoft used Novell to start a campaign of patent litigation and extortion, finally sweeping up Novell’s own patents as a grand finale). We wrote about this a few days ago and also one month ago when media wrongly claimed that it was all over. Here is what FOSS Force has just had to say about it. Don’t be easily fooled. There are no coincidences there. Microsoft-funded Linux kernel lawsuit: 13 years and counting (better headline for this article from Condé Nast) because Microsoft just loves Linux…
“We are going to show the reality behind all this PR, which was emitted in big quantities (with help from lousy media) and in quick succession.”Microsoft hates Linux. It just needs people to believe otherwise whilst attacks go on. Microsoft tries to conceal its real intentions (in the minds of top management, not low-level developers).
Microsoft’s Media Strategy
Last week we explained how the "Tay" story (or non-story) got used as Microsoft opportunism, PR, a distraction, and propaganda. It was the Donald Trump kind of PR strategy. Just mention “Hitler” or something like that and the press will be all over you; and if there’s no such thing as “bad publicity” (as all such publicity can be spun positively given the skilled personnel), then you inevitably win hearts and minds.
“Tay” was not news at all… it was more of a PR stunt. Like the “Microsoft loves Linux” stunt, among other things, as we shall show in a moment. The more shocking the statement, the more press you are guaranteed to receive. Provocation or “rhetoric” is what some call this strategy (in relation to Trump in politics).
“It was the Donald Trump kind of PR strategy.”In a nutshell, all that happened last week was, the media got invited to play a role in a provocative media strategy that baits the reader (including misleading images with hearts in them), someone called Wim ended up being hired by Microsoft because he got offered a higher salary (so he moved from one evil proprietary software giant to another), and finally, as expected, Miguel de Icaza and his colleagues at Microsoft once again openwash .NET. That’s pretty much all that it boils down to. Not much to see here, so why not just move along?
No, Linux (or Ubuntu) Isn’t on Windows
There’s no news here ((2-19] below are headlines we didn’t include in our daily links because they added nothing new), except maybe Vista 10 promotion. It now rides the wave or enjoys the positive publicity of the Linux brand. Some people ‘reviewed’ this supposedly ‘new’ thing [20-24] and some rightly criticised it [25-26].
I personally used Cygwin when I started university more than 15 years ago (one partition of mine ran Windows 98, the last version I ever had). At work and at university I was using GNU/Linux exclusively, so sometimes I needed somewhat of a ‘bridge’.
“The more shocking the statement, the more press you are guaranteed to receive.”Microsoft now claims credit for Cygwin, or sort of claims to have innovated/invented it. What a shame. Did the media not research this properly? Early coverage regarding this came from 3 Microsoft boosters (the night before the actual announcement) and it was highly misleading, probably by design. As we wrote at the time, they’re probably being gamed or fed by Microsoft’s PR agents (if not directly). They published highly misleading ‘teasers’ that set the tone to many misleading articles the following day.
“WSL doesn’t really let you do very much that you couldn’t already do for many years via Cygwin,” one person explained  (a reasonably good journalist), so it was all hype and lies. Some comments said the same: “Does anyone understand how this works? I thought Cygwin worked the same way.”
Microsoft is not really offering anything new, just putting Microsoft’s name on old stuff. This quickly raised questions about GPL compatibility.
“Microsoft is not really offering anything new, just putting Microsoft’s name on old stuff.”As FOSS Force put it: “Then there was the twelve hour scare, when news was leaked that Canonical and its newfound buddy Microsoft were bringing Ubuntu to Windows. At first look, that turned out to be something of a non-story, as the Windows version of the Linux-distro-that-would-be-Windows comes without just about everything you might expect to find in a GNU/Linux distribution. What you get, basically, is access to Ubuntu’s implementation of the Bash shell, which we now might call MS-Linux-DOS.”
Many journalists ended up mischaracterising it as “Ubuntu on Windows 10″ (that’s from today!). It’s not Ubuntu on Windows 10. That’s just a gross oversimplification.
“Mister Linux” Nonsense
“Mister Linux” is Mr. Torvalds. Everyone knows Torvalds, more so than people know or recognise Mr. Stallman. How many people even heard the name Wim Coekaerts? Surely not many. Yet Microsoft propaganda sites now make Wim sound like some kind of a huge celebrity; “Mister Linux” is what some of them dub/call him. Yes, someone who worked for a proprietary software firm that attacks Linux/Android using patents is apparently “Mister Linux”. Poppycock! Judge the total of 7 articles about it [1, 2, 3, 4, 5, 6, 7] and notice how many of them came from Microsoft boosters and/or apologists. Why is it “news” when a company the size of Microsoft hires someone? He’s not even that famous. They make it seem like he is. How convenient. They try to bolster that “Microsoft loves Linux” narrative rather desperately now. They give feet to a myth. What really happened here? Most likely Microsoft offered this man a lot of money. As we noted here over the years, Microsoft offered huge lumps of money to FOSS luminaries, in order for them to join Microsoft. Simon Phipps openly complained about it. Jono Bacon, who managed the Ubuntu community, was among those whom Microsoft offered a lot of money in an effort to poach him. He declined.
Shame on Canonical? No, on Greed and Self Interest.
Canonical is now doing Microsoft’s E.E.E. (embrace, extend, extinguish) for Microsoft. It actively helped the E.E.E. The Canonical employee who did this said in his blog that Microsoft had even sponsored him. What does that tell us in light of the situation Bacon was in? OMG Ubuntu was dumb enough to call E.E.E. (not FOSS) “lovefest” (this reminds us of its Mono enthusiasm). A loaded headline, “Nothing To Worry About Microsoft Newly Found Love For Linux”, misleads the reader by reinforcing Microsoft lies amid E.E.E. There’s no love there. Microsoft has accelerated not only E.E.E. tactics. It also accelerated patent strikes against Linux and Android, but one (the former charm offensive) helps distract from the latter.
Microsoft’s Most Notorious Propagandists Come Out as ‘Experts’
“Speed and competition mean that a lot of so-called ‘journalists’ rush to write things based on hearsay and press releases, which typically means Microsoft and its confidants inside the media.”Mary Branscombe, whom we mentioned here recently , has spent many years acting like a Microsoft PR agent in ‘reporter’ clothing, habitually attacking FOSS and openwashing Microsoft. “New Microsoft, new attitude” says her latest puff piece and she is not alone. Well, it’s clear what the strategy (as in media strategy) is because we quickly saw several of Microsoft’s other anti-Linux actors coming out from the shadow, along with Mary. They’re really attacking by pressing on with E.E.E. agenda. Suddenly, for the first time in months if not years, Rob Enderle rears his head regarding FOSS (he is also femmewashing Microsoft, not just openwashing it this/last week) and so does Al Hilwa. For those who don’t know who he is, it’s a Microsoft mouthpiece, previously salaried by Microsoft [1, 2, 3]. Adrian Bridgwater cites and extensively quotes Hilwa without noting that he’s a person from Microsoft pretending to be an “analyst” now (Linux-hostile). Very disappointing level of journalism, that’s for sure. There’s even worse journalism out there, for example this article which is openwashing proprietary software from Microsoft. There’s no new FOSS, just E.E.E. of other people’s work. Some people may occasionally say, give Microsoft the benefit of the doubt. How can one do this while Microsoft is attacking (covertly) Linux behind the scenes every week? Selective vision works only because of media omission (e.g. of patent deals). Microsoft has managed to blur the gap between journalism and PR by paying large network to have writers who are de facto Microsoft PR people (we named some of them before) and they game the media by quoting people who are close to Microsoft, shifting the focus of news before it’s even announced, and so on and so forth. This post/article about Microsoft E.E.E. thus focuses not on technical issues but on how Microsoft manipulated the media. Speed and competition mean that a lot of so-called ‘journalists’ rush to write things based on hearsay and press releases, which typically means Microsoft and its confidants inside the media. Those who don’t research are bound to repeat their propaganda. We see a lot of the same stuff as it involves EPO PR people, who bombard journalists with their spin (or ‘prepared’ statements).
Developers, Developers, Developers, Use Our Proprietary Software!
Microsoft wants C++ developers (even those developing for GNU/Linux) to use proprietary software that does not run on GNU/Linux (Microsoft Visual Studio). Here is what Microsoft Gavin wrote about Microsoft’s latest proprietary software ‘gift’ (lock-in, E.E.E., and media manipulation). Watch this article and responses to it, e.g. in Reddit. Watch how Microsoft-friendly sites repeated Microsoft’s own words. It’s all proprietary as pointed out here, but now comes Miguel de Icaza with his misleading/distracting blog post. “Microsoft Mono seems to have chosen a license that allows the ongoing threat of software patents,” iophk told us, linking to this older page about licence choices.
“Going back to Xamarin, it’s mostly openwashing (that’s what Mono did) because Visual Studio remains proprietary and .NET is all promises but still no complete code one can compile from the ground up.”XFaCE, linking to an article about this topic from Wired mocks the use of words like “Delights” and “Freeing” (right there in the headline). “WIRED removed comments I’ve seen,” says XFaCE, so we know that comments that are hostile towards this spin got censored out of existence (standard routine at Condé Nast, which now owns Wired). MinceR was “guessing the koolaid must flow uninhibited,” based on what he wrote in IRC. Condé Nast already has an epidemic of comment censorship in Reddit, Ars Technica and apparently that extends to Wired. What you see there is thus HEAVILY sanitised. And in whose favour? So now we know that Condé Nast not only spreads Microsoft propaganda to aid E.E.E. against Linux but also deletes messages of resistors. Back in the days, before Condé Nast bought Wired magazine, this magazine had actually stood up to Microsoft. Now it has a DEDICATED Microsoft section (PR) and it helps Microsoft silence voices of opposition. Now, that is a media strategy, is it not? Some of Condé Nast’s Web sites, based on what we got told by their managers, were actually launched with Microsoft’s funding (Ars Technica UK for sure).
To give another example of poor reporting/journalism, AOL chose the headline “Xamarin CEO Nat Friedman on getting acquired by Microsoft” (don’t laugh, see our page about Xamarin).
Friedman actually CAME from Microsoft, so that’s like Microsoft buying Elop or an Elop-led Nokia). Speaking of Nokia, today we finally found news about Nokia launching an Android phone (5 years too late). How does Nokia feel (especially the rational people who left after 2011) now that Microsoft basically declares Windows ‘mobile’ dead (ish)? To quote this new article from IDG:
Microsoft puts Windows Phone on hold
Well, now we know why Microsoft’s Windows Phone didn’t appear at Microsoft’s Build keynote on Wednesday: it simply isn’t on Microsoft’s radar screen at the moment.
The question, of course, is whether it will ever be again.
“We’re going to do some cool things with phones, but this year phones are an important part of our family but not the tip of the spear,” Windows chief Terry Myerson told The Verge on Wednesday.
Phones, Myerson added, “is the wrong place for us to lead.”
Going back to Xamarin, it’s mostly openwashing (that’s what Mono did) because Visual Studio remains proprietary and .NET is all promises but still no complete code one can compile from the ground up. Microsoft loves proprietary SQL Server, proprietary Windows, proprietary Visual Studio etc. It wants GNU/Linux users to buy those. That’s how far the “love” goes. For its next act, Microsoft shall probably do something to paint Microsoft Office “open” even when it’s proprietary. Like bribing people in order for ISO to ‘bless’ OOXML.
“The reason “Linux” news get flooded/dominated by Microsoft (again) isn’t that Microsoft is loved or hip. It is just a lot more greased up on the marketing side.”Looking at the media for coverage about this ‘news’, we see that a lot of Microsoft’s boosters wrote about it, with some (few) exceptions [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. It’s Microsoft news, it’s not FOSS news. What’s even more laughable is that when a longtime Mono booster and inadvertent GNU/Linux basher (see the latest in [1, 2]) “joined” the latest .NET (i.e. Microsoft lock-in) advocacy the media made it sound like .NET was widely loved. Microsoft-dominated ‘media’, 1105 Media [1, 2], went even further and labelled the whole event “Spotlight on Open Source” (as if something actually got liberated rather than “embraced”, as in E.E.E.). The same media company (highly and tightly connected to Microsoft) said that “Microsoft Adds Support for Linux Bash Shell on Windows” (nothing to do with Ubuntu or Linux and not even news, as we noted above).
The reason “Linux” news get flooded/dominated by Microsoft (again) isn’t that Microsoft is loved or hip. It is just a lot more greased up on the marketing side. Like Donald Trump, it knows how to pull the strings of the media/press — strings which are sometimes already in place (because of financial strings). █
Related/contextual items from the news:
It’s also worth noting that WSL doesn’t really let you do very much that you couldn’t already do for many years via Cygwin, which allows a lot of GNU/Linux apps to run on Windows. Cygwin is not as seamless a solution as WSL, but the end result it provides is basically the same. For that reason, some GNU/Linux fans will probably be left wondering what WSL really changes.
Will Windows eventually work its way into computer science courses anytime soon? Probably not, considering a copy of Ubuntu is free.
I just heard from several sources that Canonical and Microsoft are forming a partnership a marriage if you will between themselves. This unholy matrimony, this putrid partnership is not to bring windows to the Linux operating system, it is to bring ubuntu to the windows operating system.
Kevin Gallo just announced Bash support on Windows.
If you have never had to interact with the Windows Batch language, this might not seem like such a big deal. Surely Batch could not be substantially worse than Bash, right?
Bash: a language that was neither designed, nor evolved. An adequate solution to a problem that has since become orders of magnitude harder. As arcane as it is useful, as dangerous as it is ubiquitous, Bash: the language that asks how much we are willing to give up for convenience’s sake?
Sure, Bash could be worse. But substantially worse? Bash had one value proposition: it was just good enough. It is difficult to imagine that it would have flourished as it has, if that had that not been true.
But the truth is what it is. Batch is substantially worse. And how much worse sort of beggars belief.
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Publicado en Apple, GNU/Linux, Google, IBM, OIN, Oracle, Patentes at 4:01 pm por el Dr. Roy Schestowitz
Una solución que sólo los agresores de patentes y sus proponentes como IBM pueden coexistir
Photo fuente (modificada ligéramente): Las 10 Mujeres Más Poderosas en Tecnología Hoy
Sumario: Oracle (de la OIN) esta enjuciando a Google (también de la OIN) por Android (Linux-based) y buscándo casi $10,000,000,000 en ‘daños’ sirve para mostrar que la OIN no es una atajo/solución al problema clave, que son las patentes de software
La guerra de patentes de Apple contra Android todavía esta en los titulares esta semana [1, 2, 3] y también hay un montón de artículos del caso de Oracle contra Android en nuestras diarias links. No hay duda, dado que Oracle reciéntemente se unió a la OIN, su ataque contra Android comprueba que la OIN está muy lejos de una solución. Oracle quiere recuperárse de la compra de Sun al usar patentes de software por la que los trabajadores de Sun trabajaron, junto a derechos de autor. “El caso tendrá ramificaciones mayores para las patentes de software y licensiamento en todo el mundo,” dijo este reportaje.
Aqui esta un nuevo artícule acerca de la Linux Foundation y la OIN. Para citar las partes más relevantes:
Cumplir con los requisitos legales es uno de los elementos clave que las grandes compañías de software sopesan en sus ciclos de lanzamiento. Tienen equipos que comprueban las patentes de software que puedan impactar en su código, asegúrarse de que todos los derechos de autor sean reconocidos y mirar las cláusulas detalladas de uso en cualquier software de terceros que utilicen.
Una de las razones para hacer esto es para evitar litigios costosos de compañías que se conocen como trolles de patentes. Estas son empresas que han comprado grandes grupos de patentes de software. Su modelo de negocio es como sigue, utilizar estas patentes para demandar a los desarrolladores y en la última década hemos visto una serie de demandas de alto nivel contra compañías como IBM, Microsoft, Google y otros. Algunas de ellas han sido rechazadas por los tribunales, pero otros han sido reafirmadas lo que cuesta cientos de millones de dólares en multas y costos.
Mientras que desarrolladores de código de fuente abierta puedan pensar que ellos están inmunes a este tipo de ataque, lo cierto es que no. Pueda ser que una pieza de software publicada como open source es más tarde presuntamente haber infringido una patente de software. Esto podría significar que alguien usando ese software sea encontrado culpable de infracción.
Para reducir el impacto de reclamo de patentes Google, IBM, Red Hat, SUSE, NEC, Philips y Sony crearon el Open Innovation Network. Su objetivo fue crear una pool (grupo) de patentes defensivas que pudiera ser usada para proteger Linux y a sus desarrolladores. Este ha hecho que más de 1946 compañías se unan a la OIN para usar sus patentes para defenderse así misma de ataques.
Cuando tu trabajas en patentes de software para una compañíá – no importa cuán benigna esa compañía sea – tu nunca sabes quién las conseguirá/usará. Vean la respuesta que recibí de de un trabajador de Red Hat (Alexandre Oliva) después de haber escrito esto, habiendo hecho un llamado a Red Hat detenerse en perseguir patentes de software y descolmillar las existentes. Como Oliva lo puso, “cuando me di cuenta de esto hace 6 años, comenze una campaña para que Red Hat convierta su Promesa de Patentes en una licensia actual, pero hasta hora no suerte. hasta que este problema mayor sea arreglado, no más aplicaciones de patentes de mi…”
Un crítico por largo tiempo de la OIN, Florian Müller, fue uno de los primeros en señalar que la OIN no sería efectiva ya que un miembro de la OIN (Oracle) enjuició a otro (Google). El tiene este nuevo post que dice: “Hay un interesante paralelo entre Apple versus Samsung (quiero decir su primer caso, con respecto al cual la Corte Suprema ha otorgado certiorari) y el Oracle versus Google Android-Java litigación sobre derechos de autor: en ambos casos, la mayoría de los cargos en disputa están basados en la teoría de restitución de los beneficios del infractor, y a primera vista, el monto reclamado por los propietarios de derechos parecen muy altísimos. Hay incluso más similaridades. Por ejemplo, en ambos casos, los acusados son protagonistas claves de Android. Pero también hay importantes diferencias reales, no limitados al hecho que patentes de diseño y derechos de autor son diferentes tipos de propiendad intelectual.
Estos casos de alto nivel sirver para demostrar los peligros de las patentes de software (Novell terminó en manos de Microsoft, Oracle en las manos de Apple y Red Hat podría terminar en cualquier lugar, dependiendo de quién lo compre y cuándo) y la inútil que es la OIN. La verdaderos personaje buscando por una reforma deben hacer campaña para la completa abolición de las patentes de software ellos mismos. El próximo post tratará con otras ideas de reforma/estrategias deficientes. █
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A workaround that only patent aggressors and software patents proponents like IBM can coexist with
Photo source (modified slightly): The 10 Most Powerful Women in Technology Today
Summary: Oracle (from OIN) suing Google (from OIN) over Android (Linux-based) and seeking nearly $10,000,000,000 in ‘damages’ serves to show that OIN is not a workaround/solution to the key problem, which is software patents
Apple’s patent war on Android is still in headlines this week [1, 2, 3] and there are a lot of articles about Oracle‘s case against Android in our daily links. No doubt, given that Oracle had joined OIN, its attack on Android proved that OIN is far from a solution. Oracle wants to recover the cost of buying Sun by just using patents that Sun workers worked towards, along with copyrights. “The case will have major ramifications for software patents and licensing the world over,” this one report said.
Here is a new article about the Linux Foundation and OIN. To quote the relevant part/s:
Meeting legal requirements is one of the key elements that large software companies factor in to their release cycles. They have teams that check for software patents that may impact their code, make sure that every copyright is acknowledged and look at the detailed usage clauses in any third-party software that they use.
One of the reasons for doing this is to avoid expensive litigation from companies often referred to as patent trolls. These are companies that have purchased large software patent libraries. Their business model is to then use those libraries to bring lawsuits against developers and over the last decade we’ve seen a number of high profile lawsuits against companies such as IBM, Microsoft, Google and others. Some of these have been dismissed by the courts but others have been upheld costing hundreds of millions of dollars in both fines and costs.
While open source developers might think that they are immune from this type of issue they are not. It may be that a piece of software that has been released as open source is later alleged to have infringed a software patent. This would mean that anyone using that software could be found guilty of an infringement.
To help reduce the impact of patent claims Google, IBM, Red Hat, SUSE, NEC, Philips and Sony created the Open Innovation Network. The goal was to create a pool of defensive patents that could be used to protect Linux and developers using Linux. This has been successful with over 1946 companies signing up to the OIN to use their patents to defend themselves from attack.
When you work on software patents for a company — no matter how benign a company — you never know who will get/use them. See the response I got from Red Hat staff (Alexandre Oliva) after writing this, having called for Red Hat to stop pursuing software patents and defang all existing ones. As Oliva put it, “when I realized this, some 6 years ago, I started campaigning for Red Hat to turn its Patent Promise into an actual license, but no luck so far. until this major problem is fixed, no more patent applications from me…”
A longtime critic of OIN, Florian Müller, was among the first to point out that OIN was not effective because one OIN member (Oracle) sued another (Google). He now has this new post which says: “There’s an interesting parallel between Apple v. Samsung (meaning their first case, with respect to which the Supreme Court has granted certiorari) and the Oracle v. Google Android-Java copyright litigation: in both cases, most of the damages at issue are based on the theory of a disgorgement of infringer’s profits, and at first sight, the amounts claimed by the right holders appear very high. There are even more similarities. For example, in both cases, the defendants are key Android players. But there are also some important factual differences, not limited to the fact that design patents and copyright are different types of intellectual property.”
These high-profile cases come to show the dangers of software patents (Novell’s ended up in Microsoft’s, Oracle’s and Apple’s hands and Red Hat’s could end up anywhere, depending on who buys it and when) and the uselessness of OIN. The real reform people should campaign for is abolishment of software patents themselves. The next post will deal with other deficient reform ideas/strategies. █
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Patents on trivial concepts can’t carry water for Apple
Summary: Apple’s attacks on Android (and by extension Linux) run short of results
DESPITE Apple’s ‘generous’ payments to IDG (e.g. for advertisements), IDC‘s parent company, IDC now reports (as widely covered in the media) that Apple is unlikely to ever catch up with Android and Apple’s stock rapidly collapsed recently, costing the company around $100 billion in overall value.
Apple saw the writings on the wall some years ago. It started suing Android half a decade ago, taking advantage of a notorious patent system (the USPTO) that is such an utter joke that it actually let McDonalds have patents on making burgers (patents protectionism) just when in the US, based on this new report, some people are copyrighting a chicken sandwich (or at least trying to). Remember that Oracle attacks Android not only using patents but also copyrights (on APIs). CPTN, a consortium built around Novell’s patents with Apple, Microsoft and Oracle at its core, shows that there is a proprietary software collusion against Android/Linux. Microsoft has been destroying Nokia to turn it into a patent troll, using its patents to feed Android-hostile trolls like MOSAID.
Outside the US (although increasingly in the US too) Apple has not been so lucky when it comes to fighting Android. Watch Europe for instance. Aside from the fact that the system isn’t biased in favour of US companies (like the ITC tends to be), Apple’s slide-to-unlock patent, to give just one example, is nothing more than an old gate lock (thousands of years old) borrowed for digital metaphors. It’s just not patentable in many places, including in Europe. Apple has ultimately embarrassed itself by even trying to follow Steve Jobs' "thermonuclear" (apocalyptic) plan.
“Apple’s anti-Android/anti-Samsung patents are an endangered species in every jurisdiction in which they get challenged (and may soon be an extinct species in Europe)…”
–Florian MüllerAccording to Florian Müller, who has been working for Microsoft (and based on some reports also for Apple) as a sort of lobbyist, Apple continues to be defeated in Europe. To put it in his own words: “The spring 2014 armistice with Google has a major downside for Apple: it related only to infringement cases, not to challenges to the validity of its patents, a fact that was not clear at the time of the original announcement. Five months ago, the European Patent Office revoked Apple’s iconic rubberbanding patent on a Europe-wide basis. The sole remaining party opposing the grant of that patent was Motorola. I have no doubt that Google (not Lenovo) is the driving force behind this continuing effort to shoot down Apple patents, and I guess Google is paying Quinn Emanuel for representing Motorola in cases such as that one.
“Today, Google and QE’s continuing efforts have succeeded once again (and most probably not for the last time): the Federal Court of Justice, Germany’s highest court (besides, theoretically, the Federal Constitutional Court, which has never heard a patent case in its history), today announced (German-language press release) affirmance of the Federal Patent Court’s April 2013 decision to invalidate the German part of Apple’s European slide-to-unlock patent.”
In another article from Müller the failures of Apple are shown to be broader than just in Europe. To quote: “Apple’s anti-Android/anti-Samsung patents are an endangered species in every jurisdiction in which they get challenged (and may soon be an extinct species in Europe), except for the Northern District of California, where Judge Lucy Koh has so far acted as if she was the World Wildlife Fund for Apple patents. But a tipping point may have been reached at which conservation will come to an end even in her district court.”
When even Müller has no favourable opinion on Apple’s case it’s easy to conclude that Apple totally lost the plot.
Let’s hope that Apple will rot on its own, without (any longer) trying to take Android down along with it. █
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Patents not on engineering (or physical products) anymore
Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android
THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].
Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.
Open Invention Network
We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).
Earlier this morning FOSS Force published this very long interview with Deb Nicholson, who had worked for the FSF before she moved to OIN. This interview is very good and Nicholson’s views on patents are fine. We shared them here before.
“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”
Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.
“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”
She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).
The Finjan-led patent extortion crusade was mentioned here just weeks ago (they are Microsoft-connected) and now, just weeks later, this firm’s troll entity (Finjan Holdings) gets extortion money from a really nasty company, Blue Coat, which some say the EPO hired to spy on people like yours truly and EPO staff. “Finjan Holdings,” as a trolls expert explains, is “a patent-licensing company operating in the cybersecurity space” and it has just “won a hefty $39.5 million jury verdict (PDF) on Tuesday, when a San Jose jury found that Blue Coat Systems infringed five of its patents.”
Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.
Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.
“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”
“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”
The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”
Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.
A new article from Timothy B. Lee helps chastise the bully called JDate, which we wrote about very recently. “JDate,” he explains, “recently sued JSwipe, a mobile dating app for Jews that works like Tinder. Most media coverage has focused on mocking JDate for essentially claiming that it has a monopoly on certain uses of the letter J.
“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”
There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.
The Economist Versus Patents
The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).
“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”
Yes, patent scope is a huge part of the problem.
“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.
Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”
It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?
Patent Propaganda From Lawyers’ Sites
Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”
Yes, they even suggest software patents right there.
“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).
“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”
That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.
“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.
“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.
Design Patents and Linux Gadgets
Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”
The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”
This forever-legal-limbo scenario helps hurt Android, so we cannot just pretend that software patents are not a problem. More FOSS and GNU/Linux site must learn to address these issues as a matter of priority. Not enough are doing this at the moment and it definitely helps our foes. Many people seem to forget that Microsoft still attacks GNU/Linux using patents (albeit more discreetly than before). █
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“Software patents are a huge potential threat to the ability of people to work together on open source.”
Summary: The real patent battle is fought not in Congress (with corporate lobbyists) but in the courtroom, with a growing number of outcomes which are favourable to Free/libre software
SOFTWARE PATENTS are severely damaged in the US, especially following the Alice case (ruled by SCOTUS one year ago). The latest cases, which we covered this month, serve to show that software patents are dropping like flies in the courtrooms, even when landing on courts that are historically very friendly towards software patents.
“District courts used Great Atlantic to invalidate patents en masse, much like is done today after Alice,” Patent Buddy wrote the other day. Nevertheless, the corporate media focuses on other matters.
“It looks as though software patents are rapidly dying.”Joe Mullin has revealed that yet more software patents have just died and not a patent troll was behind them. “Rovi,” he explains, “provides digital entertainment guides to cable companies and others and has long used its patents to enforce its dominant position in the market. That strategy has come in for criticism, with Rovi’s patents being viewed as covering the basic idea of an electronic TV Guide. That was especially true when Rovi used its patents to go after Internet companies that wanted to make their own guides and not take Rovi content, like Hulu and Amazon.”
Well, these patents are now dead and Wall Street-centric media says that the company is downgraded. “Multichannel video programming distributors may face the same struggles in court,” says the author, “but those patents are less abstract than software patents, according to analysts.”
Mullin wrote also about Newegg (yet again), showing that it won a patent case that had been brought against it by TQP. “Two weeks after online retailer Newegg filed a petition complaining about “excessive and unreasonable” delays in getting a final judgment in its patent case,” explains Mullin, “the judge in that case has handed Newegg a big win.”
It looks as though software patents are rapidly dying. Every death of a software patents can become precedent for future cases involving software patents and the higher the court, the higher the impact. One lawyers’ site tries to frame this as a “troll” issue, talking about “the projected cost [7 billion dollars] of litigation filed by non-practicing entities, or patent trolls, in 2015.”
What about non-trolls (or very big trolls that the media won’t call “trolls”)? Some media circles are trying to tell us that Microsoft alone makes billions of dollars from extortion against Android alone. The main problem is the patents, not the entity asserting these patents.
Speaking of Google, which is an important example because Microsoft is still attacking it using patents (trying to force Android makers to bundle Microsoft software), there is a new effort to combat patents using prior art. As corporate media put it, “Google is bringing its search powers to bear in hopes of doing what Washington seemingly can’t — roll back a wave of abusive litigation from companies that, according to their critics, simply want to line their pockets with ill-gotten settlement money.” There are many articles about it [1, 2, 3, 4, 5, 6, 7, 8, 9]. In the form of sourse code, not just publications, it ought to be possible to demonstrate prior art and invalidate a lot of software patents. There is plenty of prior art and duplication in the field of software because a lot of people are able to practice it (requires just a keyboard, no manufacturing).
“It sure looks like this whole cult of “IP” proves problematic not just for Free software but for software in general (monopoly on APIs for instance).”When patent maximalists (IAM) covered it they said Google’s “mission” it to “help raise quality standards”, but that’s nonsense. Google just doesn’t want this patent mess that is looming over Free software like Android. It’s not about “quality” of patents, it’s about patents. Google is still wrestling with Oracle (patents and copyrights) and as this new post put it a couple of days ago: “Out in the real world, the lawsuit between Google and Oracle is preparing to head back to a lower court after the Supreme Court said it would not take the case. At UC Berkeley yesterday, the repercussions of that decision were discussed, along with many other topics around patents and copyright law as they pertain to software, art and more.”
It sure looks like this whole cult of “IP” proves problematic not just for Free software but for software in general (monopoly on APIs for instance). Large proprietary software corporations such as Microsoft and Oracle are abusing so-called ‘IP’ to impede if not altogether destroy their emerging rivals. █
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Summary: The efforts to empower Microsoft’s APIs, even if by lies and strongarming
THE MEDIA, including Microsoft-connected sites, is openwashing Visual Studio right now [1, 2]. A mixture of misleading headlines and half-truths are the means. We recently showed a lot of Visual Studio openwashing [1, 2, 3]. This in itself is disturbing and it is part of a trend to watch out for.
Will Hill points out that “Something odd is happening between Oracle and Xamarin. Oracle is strong arming customers into “the cloud” with license audit threats. What’s really weird is psycho babble about Xamarin being some sort of force in mobile and that silly cloud stuff with millions of developers. As far as I remembered Xamarin was a nasty little Microsoft shell designed to keep Mono around after Novell collapsed (2).
“I’ve asked Christine Hall on G+ what she knows about Xamarin and Oracle. Oracle pushing their customers onto Mono sounds like a suicide pact to me.
“Maybe they were dumb enough to push C# tools onto their database used [sic].”
–Will HillRemember that Xamarin has been one of Microsoft’s tools for openwashing both .NET and Visual Studio.
“No response from Christine Hall yet,” Hill added today. “The name Xamarin left an unpleasant buzz in my head, so I did a Techrights search and remembered who they were. I thought, “that can’t be those Mono monkeys, they don’t do that.” Then I dug to the stock fraud site and, yep, that’s who they are talking about. There’s still room for it to be a typo, but I’d laugh and laugh if Oracle were to saddle their “cloud” with C# or Mono via Xamarin.
“Maybe they were dumb enough to push C# tools onto their database used [sic]. I’ve seen it in medical software because one of the vendors is a terminal Microsoft used.” [sic]
We shall update this post with any additional information or clarification. █
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