Summary: Another look at the OpenStack situation, why Microsoft should not be allowed to enter, and more about patent and copyright complications

SOME days ago we wrote about OpenStack's situation when it comes to Microsoft. Later we showed what Microsoft boosters were doing to spin it as good news. Well, according to this new article:

OpenStack is supposed to be a vendor agnostic open community for building an open source cloud stack. And it is, unless you don’t pull your own weight- or if you’re Microsoft.

I know there is plenty of vitriol in the open source world towards Microsoft and certainly some of that has now surfaced in the OpenStack community.

OpenStack is now removing the Hyper-V capabilities from its stack, after Microsoft didn’t maintain the code. That happens in projects all the time, just think about the Linux kernel where Microsoft has had similar challenges and hey for that matter so has Google.

The hostility towards Microsoft has a lot to do with this monopolist’s continued attacks on Open Source projects. We need not whitewash Microsoft here or claim the above to be an irrational move of irrational hatred. Never mind the fact that Hyper-V is proprietary and not open. Microsoft continues to attack Linux with all sorts of proxies like SCO as well as patent trolls. There are those who wish to just abolish it all, especially patents. Realising the idiocy of many patents, there are some who speak about the harms of patents as a whole, not just software patents. To quote:

“Is this Patent full of crap?”

[...]

The ideas are those of patent lawyer Andrew Schulman, but the story is full of insight on a patent lawyer’s thinking and offers real clues into why the patent system is such a mess–complexity compounded, full of precedents that ordinary humans will find puzzling at best.

Earlier we wrote about many patents becoming just junk. Even Oracle seems to be moving further away from patents and is now trying to use copyrights against Android. Quoting Groklaw:

Today is the due date for Dr. Cockburn’s third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.

Let’s remember that Microsoft has put code with its copyrights inside Linux and the same goes for Mono. They try to make those things more adaptable to Microsoft’s proprietary software. In the case of Mono, there is lawsuit risk too. Anything with Microsoft in it tends to be tainted. Just see what happened with FAT. █

Summary: Response to reputation laundering from Wired Magazine, the latest nonsense from Microsoft’s lobbyist Florian Müller, an update on Microsoft’s trolling against Android, and a little more of Apple’s

WE are quite cynical about the corporate press. It has become abundantly clear that journalism is dying and instead it gets accommodated/replaced by the PR industry, working at the behest of rich people with an agenda and a nickel for any press still willing to bend over (independent press is likely to perish in the process). Like a husband who tells the policeman or the judge that he deeply loves the woman whom he beats up daily, Bill Gates/Gates Foundation would love for us to believe that he is a master of Open Source. Yes, and Cade Metz trying to portray these racketeers as friends of Open Source (whitewashing Gates at the same time). Why would anyone with integrity do reputation laundering for a criminal and his company that commits acts of extortion? Even Gutierrez gets characterised positively:

But that afternoon was different. At the invitation of the company’s chief legal minds — Smith and Gutierrez — Ramji sat down with Gates, chief software architect Ray Ozzie, and a few others to discuss whether Microsoft could actually start using open source software. Ramji and Ozzie were on one side of the argument, insisting that Microsoft embrace open source, and Gutierrez offered a legal framework that could make that possible. But other top executives strongly challenged the idea.

Then Bill Gates stood up.

No, Bill Gates has been attacking Open Source for a very long time. Remember that Letter to Hobbyists? And all those court exhibits we showed? We oughn’t allow history to be rewritten like this. Over at Free Software Daily, the modified headline of this article states “Meet Mobster Bill Gates, the Man Who Charges Open Source Software even if is free Android Linux” (the original is troll article that attracted many comments, for being more inflammatory than sane).

Microsoft is currently feeding patent trolls in order to attack Linux. Microsoft does not have enough ammunition to attack Linux, so it uses help from the outside.

Pamela Jones, over at Groklaw, writes more about the case that seeks to expose MOSAID, a patent troll that Microsoft is feeding. To quote part of the analysis:

B&N and Microsoft have come to an agreement about Steve Ballmer’s participation in the Microsoft v. Barnes & Noble action at the ITC. They were arguing about it, and they’ve now agreed that Ballmer will not have to testify live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft’s lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties’ next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue.

[...]

Microsoft is also opposing Barnes & Noble’s request that the record be held open to include Nokia and MOSAID’s evidence, if Barnes & Noble is finally able to get it. And they parties continue to try to whittle into shape what each may use as evidence.

Lots of sealed filings, once again. But don’t worry. By hook or by crook, we usually find out in due time what the filings were about.

I had a chance to talk to Andy Updegrove, of Standards Blog, who as you probably know is a lawyer who does patent work in the standards area. I wanted to pick his brain, because the 2000 patents Nokia sold to MOSAID relate to standards, according to their statements. Just how many patents could possibly be required for a phone to be built? Surely not 1,200 out of the 2,000, I was thinking. Yet, that is the claim.

[...]

He suggested that we read some Department of Justice ‘business review letters’ on patent pools, because a patent pool is an example of multiple patent owners getting together to agree on a price for technology required to implement a standard. That’s not exactly what Microsoft, Nokia and MOSAID say they are doing, but we’re getting warm. You get to read in the letters the way the pool participants set the pool up, what safeguards they took (in the request letter), and the way the DoJ analyzed the request and either approved, qualified, or rejected the request. The controls traditionally include hiring a third party expert to review each supposedly essential claim and determine whether it’s valid, whether it’s essential, and what it’s worth relative to the other essential claims. So he thought we might find it interesting to look at what a legal pool looks like, and then we can contrast that to the actual conduct that is being alleged here.

This case has not been decided yet, but it does help shed a lot of light on Microsoft’s racketeering.

The known Microsoft boosters and even lobbyists (whom they cite) try to make us believe that it’s all over and Microsoft is innocent. Some people fall for it. They also push this tripe into Slashdot with all the bias and misdirection. As Homer put it in USENET, we should just ignore the Microsoft lobbyist. To quote: “Note this is only the conclusion drawn by Microsoft’s pet shill, Florian Müller (who’s now openly on Microsoft’s payroll), and he drew this stunning conclusion from just the /title/ of a docket he doesn’t even have access to, because it’s still under seal.

“It’s also, as the title suggests, just an “Initial Determination”, and may yet be disputed by the DOJ – a fact Müller chose to ignore. He also chose to ignore several of B&N’s valid complaints that might yet cause
the DOJ to overturn this conclusion, even if it turns out to be true and “final”, such as Microsoft deliberately withholding prior art in its various patent applications, and using NDAs to cover up extortion, under
the pretext of “secrets” that are in fact a matter of public record (as all patents are required to be by law). But instead he portrayed B&N’s complaint as futile, because:

“For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn’t require a patent holder to grant a license on any terms.”

“Then he completely ignores all the other key points (above). This seems to be the entire basis for his pessimism (or I should say “optimism”, since it’s clear whose side he’s on).”

Microsoft is feeding lobbyists and trolls and it’s easy to see this. Apple is said to have been sued by trolls again, but since Apple itself acts like a patent troll we have no sympathy for it. To quote:

A patent troll is going after Apple for patent infringement of an “electronic alignment system”.

Apple’s spiritual leader’s friend, Larry Ellison, is still attacking Android with patents that he got from Sun. Google gets another opportunity.

Mr. Pogson summarises: “Google argues that Oracle’s experts are not expert as they had no intimate knowledge during deposition.”

Basically, it seems like Oracle’s patent case against Android will be coming to an end. Maybe a copyright allegation alone will be left, so think along the lines of SCO.

OIN is meanwhile growing strong:

OIN today announced a remarkable increase in the size of its community of licensees during 2011 as licensees seized the opportunity to benefit from the value of the growing OIN community and the freedom of action enabled by OIN’s royalty free licensing program. During 2011, OIN’s community grew to over 400 corporate licensees, a more than 60% year over year increase. OIN licensees, which include founding members and associate members, benefit from the leverage provided by a patent portfolio dedicated to the protection of Linux and access to enabling technologies through OIN and shared intellectual property resources.

What’s baffling is that Oracle is in the OIN. It never ought to have attacked in the first place, but maybe it was a favour to the thermonuclear CEO, Larry Ellison’s “best friend” (by his own words). It is not a far fetched hypothesis. █

Summary: Another quick look at the patent play against Android/Linux and who is behind it

Regarding a story that was mentioned here before (because Microsoft lobbyists were trying to spin it ) Muktware states that it should really be blamed on Apple’s own aggression, not on Google or Android:

Apple has created a hostile environment in the mobile world by dragging almost every Android player to the court. We are noticing that Apple has started to lose legal battles in the courts, which is a good sign for the growth of the industry. Apple has used every kind of patents they can, even the rectangular design of a tablet, to exhaust their competitors and monopolize the market. Now, the tables have turned, Motorola, the inventor of cell phones has sued Apple, seeking an injunction against the iPhone4S and the iCloud.

This is a deterrent against Apple’s attacks. Nokia, having signed a deal with Apple and Microsoft, proceeds to feeding patent trolls as we covered last week:

Nokia sells more than 450 patents to patent troll

Following a long history at the forefront of the wireless industry, Nokia holds more than 30,000 patent licenses and applications. On Thursday, the Finnish vendor’s portfolio was confirmed to be slightly lighter as patent troll Sisvel International announced that it had acquired more than 450 Nokia patents.

It would not be shocking if Sisvel went after Android vendors, along with MOSAID (also fed by Microsoft/Nokia). Nokia is controlled by Microsoft and Apple signed an agreement with Nokia last year. Nokia itself, led by a mole from Microsoft, keeps imploding based on this news:

Nokia’s Windows Phones not selling

Nokia Oyj reported a 73 per cent fall in fourth-quarter earnings as sales of its new Windows Phones failed to dent the dominance of Apple Inc.’s iPhone or compensate for diving sales of its own old smartphones.

Apple itself cannot quite get its way causing an embargo against Android; there are new software patents coming from Apple, but patent proxies (perhaps Oracle too) are likely to come. Here is a new article that speaks of a new Apple patent: “This SDK would act as a sort-of “interpreter” of language between a mobile device and another gadget. It would make it possible for accessory makers to build apps for the iPhone or iPad that could communicate directly with their devices. For example, it would be like using your phone to control a desktop radio.”

A Microsoft lobbyist, Florian Müller, is working to weaken (at least in the press) the case for Android by feeding Android-hostile claims (fuelled by Apple), but fortunately enough not many journalist pay attention to him anymore (all the stories, including this latest one are consistently anti-Android). Perhaps they finally realised who was paying his wage. He is still a lobbyist for hire. █

Summary: Android-hostile patent wars are fought well by Google and its partners, which have Microsoft-funded lobbyists try to portray them as aggressors (for reactive moves)

Google’s fight to keep Android free faces barriers from CPTN members (Novell’s patents) and their proxy trolls, amongst others. According to this latest update from Groklaw‘s Professor Webbink, Google is getting its way against Oracle:

The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.

With respect to the ’476 patent, the court found the term “computer-readable medium” to include transmission media as suggested by Google. Oracle had wanted to limit the definition to storage media. By seeking a broadened definition one presumes that Google is aiming to increase the likelihood that the claims will be found invalid. In finding in favor of Google the court pointed to the explicit definition of the term “computer-readable medium” as set forth in the patent’s specification, a definition Oracle wanted to ignore.

Oracle is said to be retreating from the patent angle because it is failing. It had been baffling that Oracle chose to sue Android/Google until we saw in a credible source what Larry Ellison's best friend planned to do. Steve Jobs vowed to even spend tens of billions of dollars just suing Android (if necessary) and so far Apple is said to have spent $0.1 billion or more:

The never-ending war on Android has cost Apple more than $100 million, according to latest estimates. While a huge chunk of that money was spent (read wasted) in claims against HTC.

Motorola, which Apple attacked, is fighting back against Apple (probably as means of deterrence) and Charles Arthur is still flirting with a Microsoft lobbyist over at Tweeter and beyond. The lobbyist (Microsoft-funded lobbyist Florian Müller) is using him to incite against Google and Android. No disclosures in those posts about Florian’s paymasters. The Guardian, now funded by Bill Gates, helps the lobbying efforts of Microsoft. How sad. Here is one better report on the subject:

Motorola Mobility, which is seeking regulatory approval to be bought by Google Inc, has filed a new lawsuit against Apple Inc accusing the iPhone maker of infringing its technology patents.

While Bloomberg keeps the usual corporate bias (still promoting intellectual monopolies in new ways) there are more reasonable sites like a Red Hat site, OpenSource.com, which has just published this new article about patent trolls. To quote part of the article:

When well-known, richly compensated patent lawyers switch from representing world-class tech companies to servicing “non-practicing entities,” something’s up. Could the sordidness of a business based on bringing patent lawsuits be outweighed by large amounts of cash? At least for some, apparently yes.

This week Ashby Jones wrote for the Wall Street Journal about two specific patent lawyers, John Desmarais and Matt Powers, as representative of a larger shift in the practice. Each of them was once an attorney for large companies, protecting those companies’ patent interests in court. Desmarais’ software-related clients included IBM and Verizon; Powers has represented Cisco, Oracle, Microsoft, and Apple. But today they have joined the ranks of “patent trolls,” the colloquial term for “non-practicing entities” (NPE), which exist only to pursue the monetary benefits of aggressive patent-infringement lawsuits.

Ideally, patents protect and motivate innovation as well as benefit future innovators. They can be an important business justification in fields where R&D is expensive, like pharmaceuticals. They put the details of an innovation into public view, inspiring improvements and making a record of its existence, both for historic record and the benefit of future inventors. Thus, companies once used patents to protect what they had put significant resources into creating. Likewise, patent lawyers would work for those companies to defend their patents. Now there are those who are interested only in the financial gain and not in protecting innovation–like Desmarais and Powers.

But this approach is contrary to the intent of the patent system. Worse is when, as the WSJ highlights, some companies sell their patents to an NPE to prevent them from being in the awkward position of suing customers or partners. This practice puts the patent’s advantages in the hands of a non-creator, who almost certainly does not hope to inspire, much less be responsible for, future innovation. Instead of benefiting innovators and the public, going on the patent offense benefits only the bank accounts of the trolls.

Recently, Red Hat was attacked by a patent troll that was passed 2,000 or so patents with help from Microsoft. Here at Techrights we’ll keep a close eye on that. We have also queried Red Hat’s legal team and expect a response soon. █

Summary: A collection of news about the litigious challenges from monopolists against Linux in the mainstream

THERE IS something about the patent system that nobody can miss. Its main proponents and benefactors are those greedy patent lawyers who want to put their tentacles on real work and tax it. People who file those are typically those patent lawyers who somehow convince technical people that they need a monopoly. In the case of multinational mega-corporations, those monopolies might make business sense, but what about the rest of the businesses?

Patent trolls further complicate the situation because all they do is raise the price of everything and promote no agenda of a producing company (quite the contrary in fact). One new article asks, are “Legal: Ecommerce Owners Liable to Patent Trolls?”

To quote:

There has recently been an increase in the number of patent claims against website developers and operators. The claims are based on “business method” and software patents for various functions of a website, such as drop-down menus, site search, and other common functions. Many of these functions are in common use by many developers, who do not know that the software or method they are using is covered by a patent. Many of these patents are old, and developers have furthered website development using their functions to create new technologies, which are still covered by the patent. In addition, searching patent registrations to determine if your website is infringing on an issued patent is difficult, time consuming, and expensive. “Patent trolls” are patent owners that take advantage of the difficulties of finding a patent, and lie in wait for someone to use their technology without realizing it is covered by the patent owners rights under their patent.

The USPTO has widened the scope of patentability to the realms of the absurd. Sun Microsystems engineers used to joke about it and see how absurd a patent application can pass muster. Later on their patents ended up in Oracle’s hand to attack Linux/Android. Regarding this case, Groklaw writes:

With that short statement [PDF] Oracle advised the court today that it will undertake a third attempt to produce a satisfactory damages report and that it will do so in compliance with the orders of the court. I have no doubt they will produce the report. Whether they will be able to restrain themselves in the manner directed by the court remains to be seen. If past history is any indication, don’t hold your breath.

Oracle is trying to make Android more expensive. Along with Oracle we have Microsoft and its proxies doing the same thing. One patent troll, MOSAID, is quite clearly such a proxy and Groklaw has this to say about its case against Red Hat:

Facing numerous filings that either seek to dismiss MOSAID’s claims altogether or to block MOSAID from filing a second amended complaint, MOSAID has now responded with a raft of responses. Of course, MOSAID believes the law is on its side and that all parties should remain in the conjoined suit and all of MOSAID’s new claims added in the second amended complaint should be permitted. How the court decides these issues will largely determine whether this ends up as one suit or multiple suits. In any case, don’t expect MOSAID to back down.

Let’s remember Microsoft’s involvement in passing thousands of patents to MOSAID. Then there’s Apple, which launched attacks on Android/Linux (starting with the Apple vs. HTC case), but as another court loss is reached it seems possible that Apple cannot do much:

The lawsuit that Apple slammed HTC with is over and $100 million in legal fees later, Apple have nothing to show for it. Apple have been known to protect their design patents fiercely and in some instances, irrationally and for many who have been following the HTC lawsuit, the same thoughts ring, what exactly was Apple hoping to achieve through the lawsuit?

To quote another report:

The decision was an appeal of a ruling from a lower regional court in August 2011, requesting a temporary injunction. At the time, Apple did win a temporary injunction in the Netherlands. However, it was based on a photo gallery scrolling patent and not design-related patents, which were ruled not to infringe in the ruling on Tuesday.

The British press covered this as well [1, 2], not to mention Android sites that wrongly characterise a Microsoft lobbyist as a FOSS advocate:

After a solid year of courts beckoning to Apple’s call, it would seem that sanity is returning to European benches. Taking a queue from Germany, which is set to reject Apple’s patent case over the revised Galaxy Tab 10.1N, a Dutch court rejected Apple’s final appeal to get Samsung’s tablet banned from sale in the Netherlands. Free and Open Source Software advocate Florian Mueller reported the legal news on the FOSS Patents blog. The appeal denial is the latest in a string of many Apple defeats and few victories in the last few months.

Florian is definitely not a FOSS advocate; he is the exact opposite, but he names himself to confuse. He is paid by Microsoft to attack FOSS causes. █

Summary: Reports insinuate that Oracle might drop its patent claims against Dalvik in Android/Linux

WE previously hypothesised that Oracle’s tactless attack on Android/Linux/Dalvik was in part motivated by the sociopath who runs Oracle. Larry Ellison’s best friend was Steve Jobs and we all know how Jobs felt about Android. Now that Ellison need not impress Jobs and his case against Android is collapsing one patent at a time, it is being reported that Oracle might settle although Google will not let this happen. As Groklaw says angrily:

What part of the word NO does Oracle not understand? Why is it that legal counsel for Oracle is incapable of complying with a simple, straightforward request from the court? Why does legal counsel for Oracle believe it must rehash, time and again, arguments that have already failed to satisfy the court? If you have answers for any of these questions, you might want to give Oracle a heads up.

IDG says that Oracle now offers to drop the patent charges: [via]

Apparently fed up with delays, Oracle said it is willing to drop its claims of patent infringement against Google if the court will hear its copyright complaints soon.

Sadly, this report from IDG quotes a Microsoft lobbyist with a campaign against Android. This too he is trying to spin as bad news for Android, but he does so poorly. Maybe Microsoft should give him a pay cut. █

Summary: Microsoft’s extortion of Android leads to passage of patents to Google, Apple loses its cases against Android, and Oracle too is gradually losing the argument against Dalvik

WE recently addressed the transfer of patents from OIN member IBM to OIN member Google (it is reported on as though it’s a sale) and we continue to see this sort of arms trade being done under a cloak of secrecy. One conspiracy against another, eh? To quote this new example:

Cryptography Research, Inc. (CRI), a division of Rambus, Inc., and CPU Technology, Inc. have signed a patent license agreement regarding the use of CRI’s patented innovations in CPU Tech products. This agreement covers the use of CRI’s patented countermeasures to differential power analysis (DPA) attacks for CPU Tech’s tamper-resistant products, including the Acalis® family of secure processors. This license also covers software developed by CPU Tech customers when executing on licensed CPU Tech chips.

These are software-related deals that involve submarine patents. Rambus, the company behind all this, is an atrocious aggressor [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. In many ways, years ago we compared the practices of Rambus to those of Microsoft, which no longer makes stuff that can sell; instead, Microsoft wants to compel people to pay up for something they do not want and never chose. Right now Microsoft is trying to force buyers of Android phones to pay Microsoft for a “licence” and LG signed the latest deal of this kind. Here are some interesting observations or theories from Muktware:

Is Android Part Of Microsoft’ Windows Phone License?

[...]

Let’s see what Microsoft deputy general counsel Horacio Gutierrez has to say, “We are pleased to have built upon our longstanding relationship with LG to reach a mutually beneficial agreement.”

This statement is very important: “built upon our longstanding relationship”. If we look at Microsoft’s Android deals you will notice a pattern. Microsoft has succeeded in cracking deals with those players who are already Microsoft customers. Samsung, LG, HTC are all Microsoft partners as they use Microsoft OS in their devices. Why is Microsoft not excited about telling the world that their ‘longtime partners’ Samsung, LG or HTC will be putting Windows on their phones? Because, the Android deals could very well be the Windows deals painted as Android deals.

Here is a hypothetical scenario:
Microsoft Executives to LG: “We want you to commit to putting Windows Phone OS on x number of your devices. If you do commit that we won’t raise any Linux patent issues. In fact with Windows Phone License you will also get Android protection.”

What will LG do? Its a win win situation for them. They are getting Android protection for free with Windows phone license. Why will they even consider raising issues about patents.

Now how to hide the fact that it was a Windows phone deal, ‘sign an NDA’ so that the rest of the world won’t know the reality.

Ghabuntu explains why Microsoft’s WP7 is failing and notes that:

5. The OEMs just love Android: Why? Because it gives them the power to differentiate themselves completely from their competitors. Given its open nature, it is always easy and safe to model Android into anything one can think of, an example being what Amazon did with it on its Kindle Fire tablets. Which company would not love such an offering? It’s little wonder that even the home pages of almost all the device makers readily feature Android phones, with WP7 a few clicks down the menu. I don’t know the extent of customization Microsoft allows the OEMs, but it sure will not be on the scale Google gives them with Android.

Dr. Moody explains why on tablets too it is Android which is likely to win:

You don’t have to be a marketing genius or industry pundit to foresee that tablets will be an extremely hot sector in 2012. The launch of Apple’s iPad in 2010 largely defined the category, just as the launch of the iPhone defined a new kind of smartphone in 2007; in 2012 we will probably begin to see Android tablets start to gain major market share just as Android smartphones have done this year.

Currently, the tablet is something of a cross between the hipster tech toy of choice and a trivially easy-to-use computing device for couch potatoes. But those early sectors are incidental to the tablet’s real potential to revolutionize education, particularly in emerging economies.

The devices are perfect: they are compact, connect to the Net wirelessly, run off battery power for hours and can be used by children and adults alike with little or no training. There’s just one problem, of course: the typical tablet’s high-end pricing – hundreds of dollars – places it so far out of reach for most of the world’s population that it might as well not exist for them. That is what makes India’s Aakash tablet – basic cost around $50, but only $37 for Indian students thanks to a government subsidy – so remarkable, and so important.

For those who think that Apple can just sue Android out of existence, here is some news [1, 2, 3] that should worry Apple because “[t]he US International Trade Commission (ITC) has ruled against Apple in its patent suit against rival mobile vendor Motorola.”

The CPTN members (Novell patents) just cannot seem to keep Android away, no matter the number of lawsuits they launch along with predictions (FUD) of doom and gloom. As Mr. Pogson shows:

It’s always fun to see the school-yard bully take his lumps:

* ITC: Motorola does not violate Apple patents
* Oracle v. Google – Rock, Meet Hard Place
* Barnes & Noble Opposes Microsoft’s Motion for SJ on Patent Misuse Defense ~pj

Here is the latest from Groklaw: [via]

Judge Alsup is also not buying Oracle’s minimalist argument on how long the trial will take. He says it will be a two-month trial. And a possible date for the trial is a moving target because the rest of Judge Alsup’s docket continues to fill up, i.e., other trials continue to be calendared, further delaying the scheduling of this trial.

Of course, a further delay has the added impact of allowing the reexaminations before the USPTO to run their course, and the last we looked those reexaminations were not favoring Oracle.

Rock, meet hard place. In the other filing of the day we see Google’s (final) supplemental brief [PDF; Text] in support of its Motion in Limine No. 3 – the motion to exclude portions of the Cockburn report. Although this brief is not particularly timely (for us as readers) given that Judge Alsup has already ruled on the matter, it is noteworthy with respect to the main thrust of Google’s argument, i.e., challenging Oracle for continuing to ignore the actual Google arguments and trekking off on unrelated and irrelevant matters. No doubt we have seen this behavior before by Oracle counsel, but what reinforces it in this instance is the fact that Judge Alsup recognizes the Oracle behavior himself. Thus, the ruling against Oracle on the Cockburn report.

However, Google goes even further in this brief. Google argues that Cockburn never investigated or understood the real deal on the table between Sun and Google back in 2006. In a supplemental filing Google provides a Sun slide presentation [PDF] on the discussions, and it is fascinating. It would appear from the presentation that Sun wanted the deal with Google badly. It is also clear that the deal on the table would have been Java compatible, thus undercutting the fragmentation argument that Oracle keeps making to support a higher damages claim.

Oracle has other ongoing patent cases based on this new report:

JDA Software powered its way through 2011 to post decent financial numbers despite the legal battles it fought with Oracle over patent infringements and a lawsuit it inherited with the acquisition of i2 in August 2010.

We keep insisting that Oracle may have attacked Android because Steve Jobs is Larry Ellison’s best friend. Oracle, Apple, and Microsoft are all CPTN members, which ties it all together with Novell and its sellout again. We were right all along about those patents. █

–Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft

Summary: MOSAID and Oracle as seen in the context of Android; more new rants about the USPTO, which loses support from the US public

OUR resource page about MOSAID is being expanded as it becomes increasingly evident that Microsoft uses it as a proxy.

Groklaw has been following this patent troll since it took on Red Hat and according to this update, MOSAID’s case becomes ever more bizarre:

If you were a patent holder contemplating suing a bunch of companies for patent infringement, what’s the first thing you would want to know? Do you think maybe it would be that you actually own the patent(s) you are asserting. That thought obviously never crossed MOSAID’s mind when it brought suit back in August against Red Hat, IBM and others. (See Mosaid v. Red Hat – A new patent infringement complaint aimed at Linux).

And if that weren’t bad enough, your attorneys then demonstrate they have no clue that the America Invents Act (patent reform act) was signed into law on September 16, 2011, or that pleading patent infringement requires something more than saying I own a patent and you infringe it. These guys can’t get anything right.

Of course, what makes it all the worse is that MOSAID Technologies is that patent troll that has now climbed into bed with Microsoft and Nokia to try and cause more havoc with Android. There are a number of things I love about Canada – MOSAID is not one of them.

Let’s recap the history of this litigation. MOSAID brought its original complaint (PDF; Text] for patent infringement on August 9, 2011, against Red Hat, IBM, Alcatel-Lucent, Adobe, Juniper, VMWare, and NetApp. That original complaint asserted two U.S. patents: 6,505,241 (’241), allegedly infringed by Adobe, Alcatel, IBM, Juniper, and NetApp; and 5,892,914 (’914), allegedly infringed by Red Hat. Interestingly, although VMware is identified as a defendant in the heading and as a party to the suit, the complaint contains no specific allegation that VMware infringed either of the patents, despite the fact that VMware’s vFabric GemFire Platform is identified as an infringing product. Screw-up number one.

On September 16, 2011, President Obama signs the America Invents Act into law. More on that in a bit.

On September 27, 2011, purported defendants IBM, Juniper, Adobe, Alcatel-Lucent, NetApp, and VMware wrote to MOSAID informing MOSAID of its second big mistake – MOSAID didn’t own the ’241 patent. Oops!

After receiving the Complaint, defendants discovered that MOSAID could not assert the ‘241 patent because more than three years earlier—on June 30, 2008—MOSAID’s predecessor-in-interest, Network Caching Technology, LLC, had dedicated the entire patent to the public pursuant to 35 U.S.C. § 253.

Screw up number two!

For those who are new to it, MOSAID tried to get Nokia patents (with Microsoft’s help) through some dodgy route in a tiny European country. B&N complained about it. It saw what was happening there and the obvious target is Android/Linux.

The patent system is a big sham and the hype we see about patents in the news ought to stop because it kills the real, i.e. producing, industry. Ed Lazowska, writing for Xconomy, is one of the latest to complain about the patent system. He writes:

Just about everything about the system is broken. In my view it is working strongly against real innovation. Major companies amass enormous portfolios of questionable patents that they can use to bludgeon one another (until they sign cross-licensing agreements, at which point only the little guys are left to be bludgeoned). Organizations that are not in the innovation business acquire portfolios that they assert for profit alone. I have absolutely nothing against the licensing of substantive innovations by those in the innovation business, whether by major companies or little guys . But much of what goes on today does not fall into this category, and something needs to change. I am not sufficiently expert to make appropriate detailed proposals, but I am sufficiently expert to smell a rat.

Yes, this man is getting it. Then there are rats like Tuxera, which acts more like a Microsoft proxy (we are still working on it by speaking to XFS copyright holders). There is this new press release about this rat which helps Microsoft put a patent tax on Android and Linux. To quote:

Marvell and Tuxera’s joint solution is designed to reduce overall development cost and enable faster time to market for customers’ NAS platforms..

Only if your aim is to make Microsoft the standard (Microsoft’s file systems). This is one of the ways Microsoft currently extorts backers of Android, according to what we learned from the OIN (ActiveSync is another vector, but it’s under NDAs). Then there is Oracle’s attack on Android, the latest on which is summarised as follows:

A judge’s ruling on the Android Java patent battle between Google and Oracle has given both battling companies some wins and some losses. A potentially embarrassing email by a Google engineer has been allowed in as evidence. On the other hand, Oracle has been limited in its ability to introduce other evidence for its claim that Google has infringed on its Java language patents.

We still believe that the lawsuit may have been motivated by Steve Jobs, who is Larry Ellison’s best friend. Apple will hopefully get spanked in the courtroom for patent violations, to the point where Apple will need to rethink its stance on patents. One of the major lawsuits against Apple is from the dying Kodak, which turned into a patent aggressor in light of its failures:

The 132-year-old photography icon has been pummeled by consumers’ switch to digital. Its fortunes deteriorated further last year, and it said in November that it could run out of cash in a year if it couldn’t sell a trove of 1,100 digital-imaging patents.

Given that Kodak keeps suing Apple, we hope that Kodak keeps those out of the hands of trolls and keeps giving Apple reasons to reconsider its patent strategy. █

Summary: Updates on the Oracle, BT, and Apple actions against Android

FOLLOWING some delays at the US-based embargo agency known as ITC, the word came out about yet another example of anti-competitive tactics, this time from Apple. This affects Linux/Android in a very concrete way as we shall explain in this post.

“All that proprietary giants like Apple and Microsoft can do is throw patents at the ‘problem’ and occasionally use some patent trolls from the outside, adding wood to the fire.”As a bit of background, consider the fact that Linux/Android is gaining in the mobile market and figures from yet more analyst groups say that the same is about to happen on tablets. All that proprietary giants like Apple and Microsoft can do is throw patents at the ‘problem’ and occasionally use some patent trolls from the outside, adding wood to the fire. Steve Jobs’ close friend, Larry Ellison, sure throws a lot of lumber into this fire, but it gradually backfires. One patent at a time, Oracle’s case against Google is disintegrating. One ally of Microsoft, BT, is also throwing some wood into the fire with this new patent lawsuit that runs to the core. The British press wrote a lot about it, whereas, putting Bill Gates-funded publications aside, here at Techrights we wrote about BT for years, also in relation to patents and its relationship with Microsoft (I also wrote about BT in my personal blog [1, 2, 3, 4]). We basically saw that coming. Here are the latest details:

British Telecom is claiming billions of dollars of damages from Google in a lawsuit filed in the US which says that the Android mobile operating system infringes a number of the telecoms company’s key patents.

What motivated BT to sue? The company knows it is bad for PR, but perhaps causing damage to Android/Google was of interest and priority. BT would not have done this to Microsoft/Windows. Remember how hostile Nokia became towards Android after Microsoft had infiltrated it. Patent aggression became part of it and clues of it persist in existence. Apple and Nokia opposed open/free Web video and Apple paid Nokia, only to further harm the Web:

Apple has been garnering quite a reputation for itself as a patent bully, for example using patents around the world in an attempt to stop Samsung competing in the tablet market, and bolstering patent trolls. But that’s not enough for the company, it seems: now it wants to use patents to block open standards.

So much for innovation, eh? As this legal fight between Apple and Samsung continues we learn that:

KOREAN ELECTRONICS GIANT Samsung has entered more claims against Apple in their patent battle in Germany.

The two firms are locked into a war over software and hardware patents and are taking their battles to courts across the globe.

According to Reuters Samsung has filed additional claims in Germany that allege four more patent infringements in the ongoing case there. A spokesperson confirmed this to the news agency.

Remember that Apple started this whole feud.

The ITC, which based in the US, harms companies from Asia at Apple’s behest (yet again) and Rupert Murdoch’s press says that “Apple Ruling Hits Android” (remember that Murdoch and his press hate Google [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13] and embrace DRM/Apple):

…it found that some HTC smartphones using Android violated only two claims of one Apple patent related to extracting information such as phone numbers from emails and doing something with the information, such as making a phone call. That invention, sometimes described as covering “data tapping,” allows users to grab data embedded in an unstructured form, like an address, and use it in another phone application, such as mapping.

This patent is a joke. It’s about software patents again. Groklaw has this to say:

We often hear a comparison between the cold war and the large accumulation of patents and their use in the information technology sector. Terms like “mutually assured destruction,” “throw weight,” and others have been in vogue for some time. But I have often viewed the actions of some large IT players and their assertions of infringement of trivial patents as being more akin to sprinkling nails on the highway. That is, just like a driver in a race throwing nails on the road to puncture the tires of following competitors, some of these large patent holders sprinkle their trivial (and worthless?) patents around to slow down their technology competitors. That’s my view of what Apple has been doing of late, particularly in its action before the International Trade Commission against HTC.

Apple innovation means embargo and unfair competition. Against Monopoly called it “another example of why we need to get rid of patents on software.” Android Guys shrugs it off by saying that the “victory means little” because:

So what exactly does this mean for U.S. users? Well, nothing really…

Actually, we beg to differ because unless this systemic malfunction is addressed, customers and developers will continue to suffer. Tyrants and lawyers are taking over the industry. It’s a class war between power/greed and labour. The corporate press — Murdoch’s included — almost always takes the side of tyranny. The Wall Street Journal, for instance, exists around greed. It helps the paper-pushers beat producers. █

Summary: A collection of news of interest about patents, especially software patents

ON WE go with our coverage of software patenting matters, starting with the observation that this one patent — just like many of its kind which paint software patents as “medical” — simply puts lives at risk, for reasons that we explained before. As one Twitter user put it:

A US patent on using a computer with SMP in a dialysis machine?

Trying to attach computer restrictions with a patent monopoly is not helping; it’s making things worse by limiting the work of many who are eager to help. It is only good for the party claiming the monopoly, for obvious reasons. See what happened to Kodak with its patents; it became parasitical:

A sale represents a sharp tactical shift. Kodak picked up just $27 million in patent-licensing fees in the first half of 2011 after amassing nearly $2 billion in the previous three years.

We wrote about Kodak many timers before. It is a valuable example of companies that become unable to make products and therefore turn to a “patent strategy” as they call it (litigation and taxation).

There is clearly a need for a fix in this system. The public demands it, but Obama disregards the petition and there are renewed attempts to get a reform passed. To quote one article on this subject:

d to pull the direct democracy lever at the White House but struck out earlier this week. Now they are reassembling for another push.

Software patents rankle many in the development community who believe they enrich lawyers at the expense of innovation. In September, the critics decided to test-drive the Obama administration’s new “We the People” initiative which provides an official response to petitions that garner enough signatures.

[...]

The petitioners may have their work cut out for them the second around. Due to the popularity of the petition program, the White House in October raised the number of signatures required for a response from 5,000 to 25,000. So far the software opponents have about 700 signatures with 27 days left to obtain the rest.

The petition is just one arena where the ever-contentious patent debate is taking place. Another one to watch is the Supreme Court which in December will again consider the scope of patentable subject matter in a medical case called Prometheus Laboratories. The Court ruled on the same issue in 2010 in a case called Bilski but its decision has been widely panned for failing to clarify what can and can’t be patented.

Among those in support of this broken status quo are patent lawyers who are looking to gain at the expense of the producing industry, including sites like this one and longtime software patent boosters who get quoted as saying:

Lawyer: Software Can Be Patented Even Without Code

There is an interesting post on software patents by Gene Quinn, a patent attorney and editor of the IPWatchdog blog. Quinn’s advice is that there’s always something that can be patented in software.

Does any software developer exist who can defend this? This merely represent the passage of work from programmers to lawyers who put down vague verbal descriptions in some pages rather than write any technical details. Some companies happily call their patents “software patents” because the United States harbours this type of thing. To quote:

Virtual Tour Software Patent Granted for VR2020.com

Some Virtual Tour companies pride themselves on their ability to provide virtual tours created from third party software but, we’ve taken our originality and technology in empowering our clients and have had a patent granted for our own unique software.

This is not a new ‘invention’. A lot of it is usually mere geometry, so they are stacking up monopolies on mathematics, making it an explanation of nature which is now someone’s monopoly.

Microsoft and Openwave

In other news, Openwave surges following not the release of some products (Openwave does not quite do that) but rather the signing of a patent deal with Microsoft. To quote Forbes:

Openwave Systems shares are trading sharply higher in late trading Thursday after disclosing that Microsoft has agreed to license the company’s patent portfolio. Openwave says that Microsoft “becomes the first company to license Openwave’s portfolio of approximately 200 patents, including several foundational patents covering smart device and cloud technologies, among others.”

This quite often sends the trolls well armed for a lawsuit against Microsoft foes, too (Android for example). As Dana Blankenhorn puts it:

Fact is, Apple and Microsoft (as well as others) don’t believe you can build an open source codec or an open source smart phone. The basics of these technologies can’t be innovated around, they say, and they are all ring-fenced with patent claims. Open source stay out.

This attitude is winning in courts, and it represents the chief challenge to open source going forward. Because in supporting open source in these growth areas, developers will increasingly find themselves accused of taking the side of China against Europe and America. China builds nearly all our hardware, and thus it’s assumed that unless western companies can control software, distribution, and markets that our economies will become supine before our economic enemies.

My view is that this is a naïve attitude, and it’s one I’ve been taking on for almost a decade. I first wrote about it in The Secret of Slater’s Mill in 2003 and it’s a lesson that bears repeating.

Jobs/Ellison vs. Android

Over at Rupert Murdoch’s journal it is being reported that Samsung — not Apple — is being approached by the EU Commission:

The European Commission has requested information on patents from tech giants Apple Inc. and Samsung Electronics Co. which could lead to the opening of legal proceedings in a highly contentious area of patent law.

“The Commission has sent requests for information to Apple and Samsung concerning the enforcement of standards-essential patents in the mobile telephony sector,” the European Union’s antitrust body said Friday.

“Such requests for information are standard procedure in antitrust investigations to allow the Commission to establish the relevant facts in a case.”

The EU Commission will hopefully make use of Steve Jobs’ promises to kill Android, which show Apple’s side to be more idealogical than rational. It is about destroying a viable competitor.

Here is a recent article about Steve Jobs’ “plan to kill Android”. this is partly aided by Larry Ellison’s litigation warpath, which has been unfruitful since 2010 and will carry on next year.

Microsoft Florian, a lobbyist funded by Microsoft, seeks to portray Android/Motorola as an aggressor because Microsoft sued Motorola and Motorola may also be Google/Android. The problem we have here is that Florian carries Microsoft’s talking points and as some articles show, journalists are foolishly quoting this Microsoft lobbyist who tries to daemonise the competition in all sorts of ways. Some journalists already know that these people are paid by Microsoft to do this. If they don’t know, they should be told. It is IDG that quotes him in an article about trolls (which neglects to mention the impact of Microsoft/Apple abuse and instead portrays these as victims), so the spin lives on. It is a good investment for Microsoft.

Groklaw keeps abreast of the Ellison aggression against Android, this time addressing the Lindhold decision:

If Google’s attempt to shield the Lindholm email had any remaining life in it before the trial court, you could almost hear the last breath going out of it this week. Consequently, Google gave notice (590 [PDF; Text]) that it intends to appeal Judge Alsup’s ruling that the email does not constitute a privileged document and asked that, while the appeal is pending, the email remain designated as an ATTORNEYS EYES ONLY document. But Judge Alsup has once again said no on the issue of confidentiality. (596 [PDF; Text]) The point that will undoubtedly remain in contention on appeal derives from this passage in Judge Alsup’s order:

It is just another SCO-like case. Ellison is Jobs’ friend (he calls him “best friend” and “idol”), so we expect this lawsuit to be some sort of favour. If it’s destructive to Java, Ellison might not care. It is claimed by Pamela Jones that the SCO lawsuit is not quite buried, either. SCO unearths something old and rusty under another name: There are some glaring questions worth raising:

Didn’t UnXis also get the SCO Group name? In the SCO bankruptcy filings since the sale, the entity formerly known as The SCO Group calls itself TSG. But UnXis *didn’t* get the litigation against IBM. It’s listed on the Excluded Assets. So who exactly is this asking to reopen the IBM litigation now? The filings say it’s “The SCO GROUP, INC., by and through the Chapter 11 Trustee in Bankruptcy, Edward N. Cahn.” Maybe the lawyers forgot themselves that they need to change the name. They can do that later, I suppose, but it’s odd to anyone like me, who actually keeps track of the details.

Update: As mentioned above, I’ve pulled the PDF of the memorandum, because “SCO Group” failed to properly redact the filing. I wonder how many times SCO can do this before someone notices it’s not the first time? It also quotes from the section of the March 5, 2007 oral argument on the two IBM summary judgment motions, where the public had been asked to leave due to confidential documents being discussed, without redacting that part. Note my curled lip.

Lodsys Pains

Another case Groklaw keeps abreast of is the cluster of Lodsys lawsuits, which use patents from Microsoft’s former CTO and also target Android developers. One firm stands tall:

Lodsys, the controversial “patent troll” that has sued everyone from the New York Times (NYSE: NYT) to Angry Birds, recently set its sights on a small web-software firm in France. Unable to afford a legal battle, the two-man company has come up with another tactic to push back against Lodsys’ legal threats.

GroupCamp is a Paris-based firm that provides web-based software to small business clients. In September, the company received a notorious “Lodsys letter” informing the owners they were infringing four patents. Such letters have been sent to dozens or hundreds of companies. The letters typically boast about “inventor” Dan Abelow‘s Ivy League education (he took business classes) and ask the recipient to purchase a license for the patents. You can see a sample Lodsys letter embedded below (apologies for the blurry text).

There are other actions that are a reaction to Lodsys lawsuits and even this event:

After receiving on the 29th of September 2011 a pre-litigation letter and licensing agreement from Lodsys, a non-praticing entity, we at GroupCamp have launched this dedicated website to foster cooperation between entrepreneurs and developers who have received the same letter from Lodsys. All available experience and knowledge will be made available on the website.

It’s also available in French. In summary, there are several threats to Free software and these mostly emanate as patents. We generally know which players to keep track of, so we will. █

Summary: There is no going back for Linux/Android domination, but Apple and Microsoft try to collude against it now, with patents, patent trolls, and Larry Ellison (who calls Steve Jobs his “best friend” and idol”)

THE ANTICS of Microsoft have pushed it further away from “patent troll” realms and more into the realms of organised crime. Racketeering is, after all, a crime. But provided one is big (as in rich) enough and sufficiently connected in governments and/or media, the laws do not get enforced properly or even regularly. The media can ensure the public opinion gets slanted and politicians need not take action to please the population. We see a lot of this in Occupy Wall Street.

“The media can ensure the public opinion gets slanted and politicians need not take action to please the population.”As we explained on numerous occasions last month, Microsoft has a bunch of lobbyists and corruptible ‘journalists’ whom it uses to spin what it is doing as “acceptable” and a matter of enforcing the law rather than breaking the law. Caution is required in the face of Microsoft lobbyists’ spin that seeks to portray Google as a patent aggressor. It is very far-fetched and it is clear that they try to paint Google, the victim, as a company deserving Microsoft’s extortion. As the SCOracle trial takes a break the Microsoft FUD resumes in a noticeable way. Those who cannot become competitive turn litigious and even extort companies. Why actually make stuff and compete when you can pay some lawyers to attack the competition and rip it off using legal instruments and illegal tactics that are a breach of the RICO Act? A company that copied other people’s work and then used illegal tactics to stomp on them falsely claims (owing to a Chronicle columnist who ended up helping Microsoft with a propaganda piece) that Android “stands on Microsoft’s shoulders”.

Yes, Microsoft is trying to claim that it owns Android and people need to go to Microsoft to “license” Android, Microsoft’s competition. How it that different from what protection rackets always were? It is not different. “It reads to me as though the MS lawyer is saying “It’s an Operating System, and we own Operating Systems”,” writes one person in USENET.

This type of nonsense helps ‘normalise’ extortion using a PR campaign which deceives even self-proclaimed FOSS proponents (who don’t even use Linux). For shame. This is how public opinion gets distorted.

“Yes, Microsoft is trying to claim that it owns Android and people need to go to Microsoft to “license” Android, Microsoft’s competition.”The MSBBC, as usual, bats for that same side and we cannot help wondering if Katherine Noyes actually wrote this headline (probably the editor’s choice). Racketeering is not a joke and Microsoft is not a “fan” of Android. Microsoft is attacking Android and someone in regulatory agencies should take action. “Software patents are legalised extortion” says this new headline from an opposer of software patents, who writes:

By refusing to kowtow to the US software patent racket, Europe could experience a new golden age of technology, says Mike Lee.

From its theoretical description, a patent system for software seems like a great idea.

Rather than keeping their best code to themselves, software engineers can register their creations with the government, creating a marketplace of functionality. Anyone creating new products can save time and money by licensing, rather than reinventing.

If the patent system actually worked anything like that, software patents would be a no-brainer, but it doesn’t, and they’re not.

In fact, quite the opposite. Instead, the patent office contains vaguely worded descriptions written and held by lawyers, not for accelerating innovation, but for taxing it.

Many proponents of software patents are parasites like watchtroll, who already has his own words of little or no value. Patent lawyers cannot speak on behalf of people who make the software that patent lawyers are trying to tax; generally speaking, people who never practised software do not deserve a voice on the matter unless they become producing parties rather than bullies (for hire) who help subvert competition and tax everyone. Timothy B. Lee put it well in the following new article which he posted in Forbes:

People Should Listen to Computer Programmers about Software Patents

[...]

So too with software. The people complaining loudest about software patents are the very people whose efforts software patents are allegedly designed to encourage. If most of them think they’d be better off without that “protection,” that should give policymakers cause for soul-searching.

I doubt it’s a coincidence that this Sullivan reader is a patent law professor. While software patents don’t benefit the average computer programmer or software firm, they’re tremendously beneficial to the lawyers who make a living prosecuting and litigating software patents, and the law professors who make a living training the next generation of patent lawyers.

In Microsoft’s case, much of the lobbying comes from patent lawyers and managers, not developers. And there are no patents mentioned because they know they can achieve more by empty threats than by truthful means that are not dubious and even borderline criminal. Microsoft’s friends at Blackboard also leveraged patent FUD and got a lot of flak for it. Here is a little update about that:

The last time Techdirt wrote about the learning company, Blackboard, was in the context of its attempt to enforce a ridiculously broad patent on the field. Even before the patent was thrown out completely, Blackboard made an unusual move: it offered to exempt open source projects and those who contributed to them from its patent attacks:

As part of the Pledge, Blackboard promises never to pursue patent actions against anyone using such systems including professors contributing to open source projects, open source initiatives, commercially developed open source add-on applications to proprietary products and vendors hosting and supporting open source applications. Blackboard is also extending its pledge to many specifically identified open source initiatives within the course management system space whether or not they may include proprietary elements within their applications, such as Sakai, Moodle, ATutor, Elgg and Bodington.

Commitments to limit potential patent protection are uncommon, particularly for enterprise software companies. The Patent Pledge — in terms of its sweeping scope, strong commitment and public nature — is unprecedented for a product company such as Blackboard.

A proper action to take would be throwing away this patent altogether. Such patents, broad software patents to be more specific, should not exist. Some companies are bragging about these because the USPTO allows this to happen. We need to also strike at this root, the institutional failure, in order to prevent companies like Microsoft from fraudulently claiming ownership of Linux. Speaking of which, Microsoft’s partner Tuxera is still enabling Microsoft to tax Linux through file systems. Companies like Tuxera and Novell too are part of the problem we ought to tackle.

It’s not just Microsoft though. Its allies from Apple are attacking too. All that Apple can do now is sue, sue, sue. It has failed for over a year. So has Jobs’ “best friend” Larry Ellison. Samsung is tired of playing defence, so it “demands Iphone 4S source code” as things get more abrasive:

KOREAN ELECTRONICS GIANT Samsung is demanding the source code for the Iphone 4S firmware in its latest spat with Apple over patents.

Incidentally, Red Hat’s Open Source site had a new blog post about “Patent reform and patent totalitarianism”. To quote:

Touted as the most extensive revision of the patent law since 1952, the America Invents Act of 2011 was signed by the President on September 16. You might think in light of the celebration and rhetoric, that the Act was tackling the big problems such as patent trolls, broad and abstract patents, the billions squandered in the smartphone wars, or opportunistic litigation against users. You might think that. But you would be wrong.

It is not just about smartphones, either. But the smartphones market has become a good symptom of a broken system. █

Summary: The Oracle vs. Google (Android) case gets delayed to the point where it enters 2012 (case started in 2010), still failing to show copyright or patent infringement

WELL over a year ago, Steve Jobs’ good friend Larry Ellison [1, 2, 3, 4] decided to help a "thermonuclear" war on Android.

Oracle has hardly made real progress in the case. In fact, many of its patents have been thrown aside and it seems possible that Oracle’s main contribution is a contribution of fear and doubt. It helps deter and scare some companies that sell Android. Oracle even tried getting those companies involved. This case is also a supply of FUD ammunition for Microsoft lobbyists such as Florian Müller.

Groklaw has been on this ball since the case was first announced, just as it had provided extensive SCO coverage since 2003. Well, it seems as though Jones and Webbink can take a bit of a break and concentrate on other cases because:

• Oracle v. Google – Email Battle Continues; Trial Delayed Until 2012

  Google is not giving up the ghost on the Lindholm emails. As evidenced by an email exchange between Oracle and Google counsel (563-1 [PDF; Text]), Google intends to appeal Judge Alsup’s order upholding the magistrate’s determination that the Lindholm emails are not privileged. (See Google Loses Lindholm Email Battle).

• Oracle-Google trial postponed until 2012

  Alsup has proposed to divide the trial into three phases. In phase one, the copyright claims will be tried and determined by special verdict. In phase two, the court intends to try the alleged patent infringements. All remaining aspects, including potential damages and a decision on whether Google’s actions were wilful, will be handled in phase three.

Microsoft lobbyists intervene in this case from afar. We provided evidential examples before. It’s distortion of the market. █

Summary: A mishmash of stories about software patents in the United States

THE agency known as the US International Trade Commission [1, 2, 3] has got far too much power that it does not deserve. It can be seen as a US-based office for the interests of any US-based company that wants to ban its competition and Apple misuses those powers to block competition just as Steve Jobs once hoped (more on that later, in a separate post).

The news is still abuzz with software patents, but only in the United States (Microsoft is trying to lobby for software patents in other countries, but that too will be a separate post).

Some companies are in fact basing themselves on a patent monopolies. To quote this new example:

…a new patent covering aspects of its mobile video and mobile personalization technologies.

The intent here is to exclude or to sue rivals. Is this really a valid business model? And as for Oracle, it too has turned to patents, having made statements against patents in the past. But it is being reported that Oracle’s case, which has already gone on for over a year, gets postponed:

A judge postponed an Oct. 31 trial over Oracle Corp.’s claims that Google Inc.’s Android software infringed patents on the Java programming language.

U.S. District Judge William Alsup in San Francisco vacated the scheduled trial date, saying it conflicts with a criminal gang case in his courtroom that will continue through January. He asked lawyers for Oracle and Google to consent to a trial before a magistrate judge. If they don’t agree, Alsup said he’s considering ‘swapping the case to another federal judge,” and the companies will have no right to object.

‘I have not been so overworked in 37 years of professional life,” Alsup said. The hearing concluded today with no new trial date scheduled.

The British press has more information about it:

Google over alleged Android patent infringements of Oracle-owned Java software has been postponed again, due to a criminal trial that will start the week before the two tech giants were due to meet.

Groklaw‘s take is as follows:

The two motions for summary judgment Oracle wants to file are, first, regarding “the copyrightability of the selection and arrangement of names in the API design specifications at issue”. Second, it wants to file a motion for summary judgment regarding “Google’s four equitable defenses — laches, equitable estoppel, implied license and waiver” and Google agrees that it can be decided as a matter of law. This has to do with Google’s arguments that nobody on Sun objected and in fact praised Android.

It did indeed and there is denial of evidence that can support Google according to other reports that call patents “intellectual property”. Funnily enough we found this new article titled “RIM’s operating system BBX in patent trouble”. It says that “A New Mexico firm claims the ‘BBX” name is protected by trademarks it holds and is threatening to take legal action against RIM unless it stops using the moniker.” Watch the headline that speaks of patents. The article is about trademarks, not patents. It is just more evidence of how poor journalism can be when it comes to these topics, with the term “IP” thrown around spuriously as well. █

Summary: Android is still under patent artillery and those who are responsible for this are named

MR. Jobs died last week, but the mess he left behind him remains for us to tackle.

Google is under a patent assault from Oracle, Apple, and Microsoft, and well as some of the patent trolls Microsoft uses as proxies. Google’s main product to target is the Linux-powered Android platform. One new article bears a negative but clever headline (“Google’s Troubled Search for Valuable Patents”) and it says that “IPVision, which makes patent-analyzing software, says that the 1,029 patents that Google bought from IBM in July contain little that the company could use to either attack its competitors or defend its own products.” IBM and Google are both in the OIN and they have a shared interest in Linux. The transmission of patents from one to another was quite secretive and little is known about it. It’s actually a two-stage transmission that got noticed twice this year.

According to the following new reports, Jobs’ good friend Larry Ellison carries on suing Android, harassing yet more Android backers. Google will stand up against Apple, so we shall see how it ends.

• Oracle v. Google – No Reconsideration for Oracle

  Just as quickly as Oracle served up its précis letter [PDF; text] requesting permission to file a motion to reconsider, Judge Alsup has swatted it back across the net with a passing shot [486 (PDF; text)]. Too little (did not show good cause) and too late (not timely). So the limits are set on Oracle’s infringement contentions.

• Oracle Expert Drags LG, HTC, Motorola Devices; Google Objects

  Oracle has filed another brief to rely on an expert report in ongoing litigation with Google over alleged infringement of copyrighted Java in the Android operating system, the Courthouse News Service reports.

  A report by Oracle expert John Mitchell referred to three devices that Oracle had not initially named: the LG Optimus, the HTC Droid Incredible 2 and the Motoral Atrix.

• Google joins HTC against Apple

  A significant turn has taken place in the HTC – Apple lawsuit. A slight recap on the same would lead us to the time when Cupertino-based, Apple had filed a lawsuit against popular smartphone manufacturer, HTC. Apple had alleged that HTC, by the way of the Android software used on its smartphones and other devices, had infringed on the patents owned by them. Now, search giant Google, who’s also the name behind the popular Android OS has joined forces with HTC against Apple.

Apple has perhaps innovated “embargo as competition” (although there is plenty of prior art). What a shameful, despicable strategy. If this is what makes Apple “successful”, then we should hope that Apple fails.

In other ‘news’ (fake news), Microsoft booster Matt Rosoff parrots the Microsoft Florian propaganda which characterises Google as an “investor” in the Microsoft patent troll which is attacking itself. Slow ‘news’ day for them, eh? They need to recycle some old FUD because of the Motorola lawsuit. This is just more of the disgusting Microsoft propaganda from Matt Rosoff and Microsoft Florian, whom he quotes for more of those same old lies. We saw that routine before. These people are not even worthy of a tabloid. Well, they could do a lot worse than a tabloid. They could run a pro-Apple Web site (where facts are a fantasy). █

Summary: The mobbyists (mob-like lobbyists) are shedding uncertainty and doubt over Android using new talking points that ought to be ignored

Dana Blankenhorn is once again quoting the mobbyist, Florian Müller, who is looking to exploit lazy journalists who do no double-check the facts or apply critical analysis. Just because someone claims something does not necessarily make it true. “Oracle could not only claim copyright over the mySQL database,” writes Blankenhorn, “but over the interfaces that connect it to other programs, and the names of the routines within the program.”

No, this is not true. This is more spare-able nonsense from the mobbyist, who would rather confuse the danger of patents blocking APIs with copyrights. The switch-and-bait with copyrights and patents is deliberate and it has helped draw in some more people who fail to see that Müller is merely a lobbyist (as covered in last night's TechBytes show, it’s his business model) and they parrot what he tells them. To whit:

If Google’s motion for summary judgment were granted, it would blow a pretty big hole in Oracle’s case. If APIs were found to be non-copyrighted, then Oracle could hardly claim Google caused a problem by using the Java APIs.

But Oracle’s response to the August 1 motion is to challenge the entire premise of API copyrights (or lack thereof). In a motion filed over the weekend, Oracle’s motion of opposition argues that APIs do indeed fall under copyright.

If Oracle’s motion is upheld, then this would have enormous consequences for the software industry in the US, which–like other nations–has traditionally held that APIs are not enforceable by copyright.

To examine the impact, here’s the beginner’s guide to APIs. APIs are the aspect of a computer program that enable programmers to “plug in” to that program. They are what enable applications to communicate with each other. Historically, APIs have been regarded as not falling under copyright–the reasoning being that APIs are not creative implementations but rather statements of fact. “To access library A, use this command.”

Right. So why give the FUD any credibility at all?

For those who are looking for news which has not been distorted by Microsoft’s cartel and its lobbyists, go to Groklaw which currently tells us of “Potentially Important Victories for Google” in this case. From the latest post of Professor Webbink:

In a flurry of filing activity in the Oracle v. Google case this past week, a couple of rulings by the court stand out. First, Google has won the right 325 [PDF] to file a motion for summary judgment on the Oracle affirmative defense of “assignor estoppel.” Second, Google has won the right 328 [PDF] to file a motion for summary judgment on the issue of infringement outside the U.S. under 35 U.S.C. § 271(f). This last one is really important for reasons we will explain.

Most of the rest of the filing and entry activity (there were 40 separate filings or entries from Tuesday through Friday) related to the on-going discovery disputes, including the dispute over the Lindholm emails. In regard to the Lindholm emails, in the latest round Google argues that the declaration filed by Fred Norton in support of Oracle’s position was improper because it was not limited to factual information, as directed by the court, but included legal arguments. Oracle says that is not true. So much of this argument has now digressed into “he said; she said”. We are inclined to wait for the court to rule before spending more time analyzing this particular dispute.

The situation for Android is not as grim as Microsoft and its minions wish manufacturers to believe. It’s just a reality distortion field. Android keeps expanding despite the FUD. █

Summary: How the attacks on Android and on GNU/Linux merely bring large companies that compete against Microsoft even closer; another look at Apple’s abominable behaviour

Cisco joining the OIN is an important piece of news because of the scale of Cisco and Sean Michael Kerner claims, based on reliable sources, that Microsoft’s patent cartel (built in part with Novell and Nortel patents) is the driver of OIN’s growth:

The Open Invention Network (OIN) got its start in 2005 as an organization tasked with creating a patent commons to help Linux.

Over the years it has grown, and in the second quarter of 2011, the organization added 35 new member companies. That number is down from the 70 new members that the OIN added in the first quarter of the year.

As to why growth was faster in the first quarter, the reason has to do with an event that caused many organizations to consider their patent positions.

“The first quarter was somewhat extraordinary as there was the hangover from the Department of Justice’s investigation of the Novell patent sale,” Keith Bergelt, CEO of Open Invention Network told InternetNews.com.

It is nice to see that the OIN recognises threat in Novell’s patents. We have warned about this for almost 5 years. CPTN includes Oracle, Apple, and Microsoft, all of which attack Android.

Groklaw tracks quite closely the Oracle case [1, 2, 3] and Lodsys cases, which also affect Android. Apple is meanwhile trying to embargo more Android tablets (Motorola’s), but Motorola is not too nervous because it has its own large patents arsenal, just like Samsung.

Apple’s aggression and embargo attempts were covered here before and these come under yet more scrutiny, even from OS News. To quote:

Earlier this week, we learned that Apple managed to get a preliminary injunction against Samsung’s Galaxy Tab 10.1, barring it from being sold in the entire European Union – except for The Netherlands. The legal construct on which this injunction hinges was not a patent or trademark – it was something else entirely. It’s called a Community Design, was instated in 2002 and 2003, and, as I have learned, is far, far worse than anything the United States Patent and Trademark Office has ever come up with.
The Community Design was instated as part of Council Regulation No 6/2002. A Community Design is basically a trademark on the design of a product, whether it be software, hardware, or packaging. It is filed at the Office for Harmonization in the Internal Market (OHIM), and once granted, is valid in the entire European Union. Initially it is valid for a period of five years, but it can be extended five times to reach a total of 25 years. Every member state has several Community Design courts, which are regular courts allowed to take on matters relating Community Designs. So far, nothing special.

Apple is meanwhile stacking up more patents it can attack with (e.g. touchscreen patents).

Murdoch’s press shows more prior art which weakens Apple’s story (this one is concrete, not some sci-fi from many decades ago) and more calls are made for resentment against Apple:

A huge win for anti-competitive practices, lawyers, and patent trolls.

A huge loss for consumers, choice in the market place, and free competition.

Muktware too has a string of strongly-worded posts, such as [1, 2]. One of these even breaches Godwin’s Law.

The bottom line is, those inside Microsoft’s cartel (notably Apple and Oracle) get some serious flak. They have become nasty and anti-competitive. █

Summary: Amid growing pressure from Apple, Microsoft, and perhaps its drone Nokia, Google plans to buy companies for their patents, thus becoming part of the problem for the sake of “defending” Android

“Abducted by lawyers” is how we recently described Google, after it had clarified that it would not join the abolitionists^*. Dennis Crouch meanwhile covers Apple’s and Microsoft’s latest cartel additions, i.e. patents accrued (Apple reported paid for about half for this assault on Android) and Professor Mark Webbink has this important update on the Oracle vs. Google case, showing of course the opposite of what pro-Microsoft lobbyists want the public to see. Oracle’s case is quickly falling apart. “Sorry for the movie analogies,” notes Webbink, “but these images keep popping to mind. The latest is Larry Ellison as Golum, grasping his “Java” patents and declaring, “My Precious.” This comes to mind because of the revelation yesterday that Jonathan Schwartz, then CEO of Sun Microsystems, praised Google and others for incorporating Java into Android back in 2007.

“But thanks to the Internet Archive and its Wayback Machine, Schwartz’ statement survives.”
      –Mark Webbink“Then the patents fell out of Sun’s hands and into Oracle’s (My Precious), and Schwartz’ statement became an embarrassment. What to do? Why remove it from the internet, of course. But thanks to the Internet Archive and its Wayback Machine, Schwartz’ statement survives.

“Now the interesting question about this and other similar comments that were apparently made by Sun executives is whether the statements communicated an understanding to Google and others that they would not be threatened with Sun’s patents; statements upon which they relied. This is the legal doctrine of estoppel.”

Watch the screenshot too.

Some people are piecing together FUD pieces about Google, and not just lobbyists like Florian and those whom he mass-mails for placement in the press. Here is just one example and a reminder that Google’s plan is to buy patents as a response to this. This seems like more than a rumour now.

Search engine giant Google is looking to acquire mobile chip technology maker InterDigital, after failing to purchase Novell’s massive patent portfolio.

[...]

InterDigital, which has a market value of about $3.1 billion, saw its shares rise by 29 percent to $68.67 thanks to the takeover rumours.

It has been hinted even by Nokia itself — now that it is a Microsoft drone — that it might be next in its attempts to extort Google and raise the price of Android using patents. Just pay attention to this news report:

Nokia Oyj, the world’s largest phone maker by volume, posted better-than-expected quarterly profit thanks to a major royalty boost from settling a patent dispute with Apple.

Nokia reported a second-quarter underlying operating profit of 391 million euros, above all expectations in a Reuters poll, which ranged from a loss of 35 million to profit of 285 million.

Nokia is part of the same cartel as Microsoft’s, especially after the company got hijacked by Microsoft, with Microsoft’s big private shareholders appointed to become the company’s CEO. Symbian was taken proprietary by him and MeeGo, the Linux effort, virtually abandoned. █
___
^* In software patents opposition — like in many other areas of activism — there are many factions and attitudes. Some classify certain software patents as “bad” and others as “good” (usually “theirs” versus “ours”), some want to get rid of patents altogether, some target only software patents, some target patent trolls, etc.

(ODF | PDF | English/original)

Resumen: Fuentes de dinero recién descubiertas de Google debe ser utilizadas para eliminar las patentes de software en lugar de hacer el sistema más tóxico para todo el mundo.

GOOGLE acaba de anunciar que activa más de 550.000 dispositivos Android por día. Este ritmo continúa aumentando a un ritmo asombroso y las acciones de Google ha saltado a través del techo, así que es fácil ver por qué Microsoft y Apple están nerviosos. Ahora estamos en una encrucijada crucial en el que Google puede decidir la abolición de las patentes de software (en la medida de lo posible, y, posiblemente, por servir de enlace con los demás) o empezar a ser uno de los “malos”, saltando sobre el tapiz rodante patentes, también conocido como el Cartel de Patentes (porque eso es lo que es – un CARTEL). Apple abordó este tren hace mucho tiempo atrás, y Microsoft sólo lo hizo años atrás. Mientras que algunos prefieren hacer frente a este grave problema con sátira[http://www.muckwatch.com/news/6], los demás nos dan menos humouring informes que indican que Google está reemplazando programadores con abogados, o al menos la sustitución de las prioridades de crecimiento. En este artículo[http://techcrunch.com/2011/07/13/google-staffing-up-on-patent-lawyers-and-experts/] arroja una luz sobre el impacto de los abogados de patentes dentro de Google. Como hemos señalado antes – incluso hace años – es una transformación insidiosa que puso los partidarios de las patentes en el corazón de una compañía mejor conocida por su ingeniería. Esto está dañando la innovación y elevar el costo de los productos de todo el mundo compra[http://www.unwiredview.com/2011/07/13/the-real-cost-of-android-potentially-60-per-device-in-patent-fees/]. Realmente debemos presionar a Google para hacer lo correcto, ya que será cada vez más tentados a excluir al público, que es lo que los abogados que Google está contratando quisieran. Para requerir su puesto de trabajo necesitan garantizar sumergir Google profundamente al interior del consorcios de patentes.

“Realmente debemos presionar a Google para hacer lo correcto, ya que será cada vez más tentados a excluir al público, que es lo que los abogados que Google está contratando quisieran.”Microsoft y sus trolls de patentes están demandando[http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202500682192&Intellectual_Ventures_Turns_to_the_Courts_Again_in_Licensing_Battle] y extorsionando para ganarse la vida ahora (delito modo, con patentes que también van a Lodsys para atacar de manera innovadora[http://news.ycombinator.com/item?id=2759002] aplicaciones con enlaces a “Más aplicaciones”[http://www.ipodnn.com/articles/11/07/13/says.elicited.perception.important.factor/], debido al apoyo del ex director de tecnología de Microsoft), mientras que Google afirma que va a la caza de patentes “defensivas”. Eso es lo que todas las empresas que están ganando llaman a sus patentes. Pues bien, la única patente defensiva es la que se autodestruye con seguridad. Incluso las patentes de Red Hat son una amenaza porque Red Hat puede ser vendido algún día, por lo que la excusa de “patente defensiva” es bastante cojuda. En repetidas ocasiones hemos pedido a Red Hat para proporcionar una garantía legal para tales circunstancias, pero nuestras sugerencias cayeron en oídos sordos en todo el señor Fontana (cuya lealtad a los clientes viene antes de la ideología).

Por medio de la disuasión, cualquier patente – ya sea ofensivo o no – es un impedimento para la innovación y un reciente estudio ayudó a demostrar esto[http://techrights.org/2011/06/26/bessen-on-swpats/]. Incluso los abogados de patentes prestaron atención[http://www.patentlyo.com/patent/2011/07/recent-patent-law-scholarship-roundup.html] en lugar de ignorarla. Desde Patently-O:

James Bessen, una generación de patentes de software
¿Benefician las patentes a las empresas de software? James Bessen examina esta cuestión tanto a través de un estudio de la literatura existente y un nuevo estudio empírico. Bessen considera que, aunque el número de patentes relacionadas con el software ha crecido rápidamente durante la última década, la proporción de las patentes obtenidas por las empresas de software se ha mantenido relativamente pequeño, y se debe principalmente a la actividad de un pequeño número de empresas de software de gran tamaño. En otras palabras, la mayoría de las patentes de software van para empresas fuera de la industria del software. Bessen también proporciona los datos que pone en tela de juicio el valor de las patentes a las empresas de software de puesta en marcha y examina los cambios en la probabilidad de que una patente de software estarán involucrados en el pleito en los primeros cuatro años de su vida de la patente.

Richard Waters, un viejo defensor de Microsoft en el Financial Times, trata de retar a Google a entrar en las guerras de patentes[http://www.ft.com/cms/s/c4aa233a-ada8-11e0-9038-00144feabdc0,Authorised=false.html?_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2Fc4aa233a-ada8-11e0-9038-00144feabdc0.html&_i_referer=] (en lugar de la abolición de las patentes). Para Google, todo intento de entrar en estas guerras sería una tontería, ya que se inicia casi desde cero. Para dar una nueva numeración[http://techcrunch.com/2011/07/14/larry-page-android-patent-problems/] de las noticias de esta semana:

Durante la llamada de ingresos de Google anunció sus ganancias Q2 2011 hoy en día, se hizo una pregunta sobre el tema de las patentes que rodean Google en estos momentos. En concreto, Android está bajo el asalto de Oracle, así como Microsoft y Apple. Esto sucede porque Google sólo tiene alrededor de 700 patentes, y que recientemente fracasó en su intento de ganar 6000+ de Nortel,- las que van a, ¿quién más, Microsoft y Apple, entre otros. Entonces, ¿qué es Google va a hacer ahora?

Hemos instado a Google muchas veces antes de sólo invertir el dinero que gana en defensa de todo el mundo. Google puede ayudar a todos por poner fin a las patentes de software, o al menos intentarlo. El público participará.

“Hemos instado a Google muchas veces antes de sólo invertir el dinero que gana en defensa de todo el mundo.”No es demasiado tarde para Google para reformar el sistema y si no lo hace las cosas podrían empeorar, ya que Microsoft es probable que va para enviar su mole en Nokia para atacar a los fabricantes de teléfonos Android[http://www.itnews.com.au/News/262659,aussie-eyes-apple-google-over-cloud-music-patents.aspx] (aunque no sólo Android se ve afectada) después de que Nokia hizo esto a Apple[http://twitter.com/NokiaUpdate/status/91194026837016576]. Nokia y Apple son parte del cartel, y ambos han estado ayudando a la mafia de MPEG-LA[http://techrights.org/wiki/index.php/MPEG-LA]. Mira lo que Apple está haciendo[http://www.techeye.net/business/us-patent-office-awards-android-feature-to-apple#.Th_3IbK-6RE.twitter] gracias a la incompetencia de la USPTO: “la política de Apple es de tratar de reclamar las patentes para el mayor número posible de características Android ha continuado con la bendición de la Oficina de Patentes de los EE.UU..”

“Mob Jobs no está contento que está perdiendo su cuota de mercado gracias a Android, y parece estar aplicando por la mayor cantidad de patentes que sea posible, para patentar troll el sistema operativo -Android- fuera del mercado.”

“Lo alarmante es gracias a los caprichos del sistema de patentes de EE.UU. parece estar saliéndose con la suya.”

“Ayer la Oficina de Patentes y Marcas EE.UU. le dio a Apple una patente que cubre esa manera ingeniosa que los teléfonos inteligentes pueden transformar de vertical a de lado a un paisaje de inflexión”.

“La pérdedora Apple quiere prohibir los competidores”, dice[http://www.muktware.com/blogs/1802] Muktware que, además, afirma que las “Preguntas de Jurisprudencia de Oracle Damage[http://www.muktware.com/news/1800]” (Oracle está cerca de Apple, a través de los directores generales):

La máquina de trolls de patentes de software de Microsoft PR (Relaciones Públicas) está bombeando tanta des-información, ya que puede, oracling victoria de Oracle en Android caso en la corte. La realidad es que Oracle se enfrenta a uno tras otro los retrocesos en el caso. Tras el rechazo de la USPTO de la mayoría de las patentes de Oracle, el tribunal se negó a comprar informe Iain Cockburn y solicitó a ambas partes (Google y Oracle), por nombrar dos expertos para verificar los daños.

La razón Techrights ya no puede concentrarse en Novell y Microsoft en el aislamiento es que hay un gran problema detrás de todas estas formas de realización y personificar el problema tenía sentido hasta algún momento del año pasado, cuando Oracle y Apple juntos atacaron Android, mostrando su disposición a descarrilar la competencia de manera verdaderamente nefastos. Google debe saber cuál será la solución permanente, no se trata de ganar un caso aquí y allá, o incluso invalidar una patente aquí y allá. Google necesita para poner fin a todas las patentes de software de un solo golpe. La USPTO ha perdido el rumbo, como veremos en un post posterior. █

Traducción hecha por Eduardo Landaveri, Administrator of the Spanish portal of Techrights.

Translation produced by Eduardo Landaveri, the administrator of the Spanish portal of Techrights.

Summary: Google’s newly-found sources of cash should be used to remove software patents rather than make the whole system more toxic for everyone

GOOGLE has just announced that it activates over 550,000 Android devices per day. This pace keeps increasing at an amazing rate and Google’s stock has just jumped through the roof, so it’s easy to see why Microsoft and Apple are nervous. We’re now at a crucial crossroad where Google can either decide to abolish software patents (to the degree possible, and possibly by liaising with others) or start getting “evil” by jumping on the patents treadmill, aka the Patents Cartel (because that’s what it is — a cartel). Apple bounced on this bandwagon a very long time ago and Microsoft only did so years ago. While some prefer tackling this serious issue with satire, others give us less humouring reports that indicate Google is replacing programmers with lawyers, or at least substituting growth priorities. This one article sheds light on the impact of patent lawyers inside Google. As we pointed out before — even years ago — it’s an insidious transformation which put patents supporters at the heart of a company better known for its engineering. This is harming innovation and raising the cost of products everyone buys. We really ought to pressure Google to do the right thing as it will be increasingly tempted to shut the public out; that’s what the lawyers Google is hiring would want. To necessitate their job they need to ensure Google dives deep inside the patent pools.

“We really ought to pressure Google to do the right thing as it will be increasingly tempted to shut the public out; that’s what the lawyers Google is hiring would want.”Microsoft and its patent trolls are suing and extorting for a living now (offence mode, with patents also going to Lodsys to innovatively attack apps with ‘More Apps’ links, owing to support from Microsoft’s former CTO), whereas Google claims to be after patents for “defensive” purposes. That’s what all companies that are winning call their patents. Well, the only defensive patent is one that self-destructs safely. Even Red Hat’s patents are a threat because Red Hat might be sold one day, so the “defensive patent” excuse is rather lame. We have repeatedly asked Red Hat to provide legal assurance for such circumstances, but our suggestions fell on deaf ears around Mr. Fontana (whose loyalty to clients comes before ideology).

By means of deterrence, any patent — whether offensive or not — is an impediment to innovation and a recent study helped show this. Even patent lawyers paid attention rather than ignore it. From Patently-O:

James Bessen, A Generation of Software Patents
Do patents benefit software firms? James Bessen examines this issue through both a survey of existing literature and a new empirical study. Bessen finds that although the number of software-related patents has grown rapidly over the past decade, the share of those patents obtained by software firms has remained relatively small, and is largely accounted for by the activity of a small number of large software firms. In other words, most software patents go to firms outside the software industry. Bessen also provides data that brings into question the value of patents to startup software firms and examines changes in the probability that a software patent will be involved in litigation during the first four years of its patent life.

Richard Waters, a longtime Microsoft apologist from the Financial Times, tries to dare Google into entering the patent wars (rather than abolishing those patents). For Google, any attempt to enter these wars would be foolish as it starts almost from 0. To provide some new numbers from this week’s news:

During the earnings call after Google announced their Q2 2011 earnings today, a question was asked about the patent issues surrounding Google right now. Specifically, Android is under assault from Oracle as well as Microsoft and Apple. This is happening because Google only has roughly 700 patents, and they recently lost a bid to gain Nortel’s 6,000+ patents — with those going to, who else, Microsoft and Apple, among others. So what is Google going to do?

We have urged Google many times before to just put back the money it makes from everyone into defending everyone. Google can help everyone by putting an end to software patents, or at least trying to. The public would participate.

“We have urged Google many times before to just put back the money it makes from everyone into defending everyone.”It is not too late for Google to reform the system and if it fails to do so things might get worse because Microsoft is likely going to send its mole in Nokia to attack Android phone makers (although not only Android is affected) after Nokia did this to Apple. Nokia and Apple are both part of the cartel, and both have been helping MPEG-LA. Watch what Apple is doing thanks to the incompetence of the USPTO: “Apple’s policy of trying to claim the patents for as many Android features as possible has continued with the blessing of the US Patent Office.

“Jobs’ Mob is unhappy that it is losing market share to Android and appears to be applying for as many patents as possible to patent troll the operating system out of the market.

“What is alarming is thanks to the vagaries of the US Patent system it appears to be getting away with it.

“Yesterday the US Patent and Trademark office gave Apple a patent which covers that nifty way that smartphones can turn from a portrait to a landscape by turning.”

“Losing Apple Wants To Ban Competitors,” says Muktware, which furthermore states that the “Court Questions Oracle’s Damage Reports” (Oracle is close to Apple, via the CEOs):

Software patent troll Microsoft’s PR machine is pumping as much mis-information as it can, oracling Oracle’s victory in Android court case. The reality is, Oracle is facing one after other set-backs in the case. After USPTO’s rejection of a majority of Oracle’s patents, the court refused to buy Iain Cockburn’s report and asked both parties (Google and Oracle) to name two experts to verify damages.

The reason Techrights can no longer concentrate on Novell and Microsoft in isolation is that there is a big problem behind all of these embodiments and to personify the problem made sense until some time last year when Oracle and Apple both attacked Android, showing their willingness to derail competition in truly nefarious ways. Google ought to know what the permanent solution will be; it’s not about winning a case here and there or even invalidating a patent here and there. Google needs to end all software patents in one fell swoop. The USPTO has lost the plot, as we shall show in a later post. █

Summary: The anatomy of biased-by-design article or a deconstruction of IDG’s hostility towards Linux

IT IS NO secret that we distrust IDG, which recently ran a 30-day troll-athlon against Ubuntu. It’s just one recent example among many and it is hard to decide whether to ignore them or rebut them because regardless, Google, for instance, syndicates that as ‘news’, failing to distinguish between news and blogs (opinion). The same problem exists in ZDNet and to a lesser degree in CNET.

I was recently invited for an interview over at www.muktware.com, which is a new site bold enough to challenge the corporate press. This interview might be published here at a later date. The site also asked me for comments on a one-sided IDG piece which spreads FUD against Android, using software patents of course (Microsoft loves those as a form of FUD these days). Separately, wrote that site, the court suggests that Oracle won’t be getting its way in the case against Google. While Groklaw continues showing this with its sound analysis, the pro-Microsoft press conveniently ignores. It pays attention only to gloom-and-doom predictions, which pro-Microsoft lobbyists are constantly amplifying. To quote:

Software patent troll Microsoft’s PR machine is pumping as much mis-information as it can, oracling Oracle’s victory in Android court case. The reality is, Oracle is facing one after other set-backs in the case. After USPTO’s rejection of a majority of Oracle’s patents, the court refused to buy Iain Cockburn’s report and asked both parties (Google and Oracle) to name two experts to verify damanges.

My comments regarding the FUD from IDG’s Nancy are posted below in full (sorry if they are crude, short, and full of typos, I am still catching up after spending all day yesterday in London).

The author of the article is a Microsoft proponent, but I would not use personal angle to counter the hypothesis of the article, which is good for Microsoft. The story about Oracle’s demands has been exaggerated. Just because Oracle, the plaintiff, asks for X,
does not mean that Oracle will get X, even if it wins. Based on what we know, one by one Oracle’s (formerly Sun’s) patents fall into the can following re-examination. At Sun, proponent staff admitted they played a bit of a game trying to see who manages to get the most ridiculous patent application past the USPTO (i,.e. accepted as a monopoly). Nancy writes, “If Oracle wins the lawsuit that it brought against the software giant, the consequences for Google and the entire Android market could be dire, analysts say.” But which analysts did she ask? Has she asked those who are unfitting to her headline? Has she contacted Mark Webbink or Pamela Jones from Groklaw? The first person she mentions is a patent lawyer. Patent lawyers would love to see patents upheld and commissions paid to them. This is a case of self-fulfilling prophecies. The analyst with Deutsche Bank mentions Oracle’s desires, which are merely desires. SCO too had desires and all it got was bankruptcy

“Oracle declined comment on whether it is asking handset makers to license its technology and did not comment further for this story. Google did not reply to requests for comment.”

Nancy could not get those involved to comment. Instead, she relies on mere spectators

“That licensing cost would make using Android comparable to the cost of licensing Windows Phone 7, Goldberg said.”

Has Goldberg actually tried the platform? It’s not competitive, some would call it a joke. It did not even support cut and paste until recently. The number of sales of this platform (licences really) is just a few millions. Google activates that many in about a week. While making gloomy predications for Android and hailing Windows as the Only Other Choice {tm}, Nancy quotes just a couple of people, one of whom clearly has a patent agenda. There seems to be a missing side — one that has not been includes in the panel, so to speak. That same one-sided piece also closes with such a conclusion/quote which leads mysticism that cannot alleviate FUD

She quotes: “So the perception would be that Google lost. Oracle will probably insist on [confidentiality] to be able to keep this posture, whether it’s justified or not.”

No.

The real dilemma here. Is not whether it’s secret or not. It’s whether Google will win the case or not. They present a false choice. And then at the end, this writer who covered Microsoft for years gives the impression that she only covers phones.

“Nancy Gohring covers mobile phones and cloud computing for The IDG News”

She ought to tell readers what company she covered for a long time beforehand. Based in Seattle (near Microsoft), I also notice that her latest two tweets are messages to pro-Microsoft lobbyist, Mr Müller, who enjoys attacking all of Microsoft’s competition, esp. Android as of late.

If she is getting her information from lobbyists, then no wonder the reporting is so poor.

This whole article (link omitted on purpose, although one can find it based on quoted text) is not unusual, it’s characteristics of IDG’s spin zone. We need to continue pressuring IDG, which we previously called the Fox News of IT. IDG’s business model is attracting advertisers and clients for ‘reports’ (Linux does neither); it is not in the business of actually reporting accurately and the objective of articles (‘content’) is merely to attract crowds into the ads and make clients of IDC happy(ier). █