Summary: Apple and Microsoft are reportedly intervening/interfering with US law in order to ensure that the law is Free/libre software-hostile
HALF A DECADE after the Bilski case, where SCOTUS helped legitimise software patents by not striking them out, SCOTUS gets another chance to kill software patents in their country of origin.
The SFLC wrote about its role a few days ago, noting: “In each Supreme Court brief that SFLC has filed over the years we have included a little note on the first page declaring that the brief was made using only free software. This point was particularly important in our most recent brief, for a case named Alice Corporation v. CLS Bank, which was argued in front of the court last week. Our use of free software was particularly important this time because we argue in our brief that free software has been responsible for the major software innovations of the modern era. In partial support of that claim I want to show you our document creation process and tell you about the free software we use to take text from an email and turn it into a camera-ready Supreme Court brief, then a website, then an eBook.”
Watch how Microsoft and Apple work to eliminate the possibility that software patents or even patent trolls will be eliminated. As TechDirt put it some days ago: “Back in December, we noted that the House Judiciary Committee had approved an unfortunately watered-down, anti-patent troll bill. It was better than nothing, but we hoped that the Senate would approve a much stronger version. For a while it seemed like that was likely to happen, but… those who abuse patents are pretty damn powerful. Even those who have been hit by patent trolls in the past, like Apple and Microsoft, have decided to join forces in lobbying against meaningful patent reform. They’ve been pushing to water down the Senate’s bill, taking out nearly everything that would make the bill useful — and it appears that they’re succeeding.” █
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Summary: Reporting in corporate media generally lacks focus on patent abuse by large companies, but Topix has a long noteworthy article
PATENT coverage has been scarce here recently because corporations won. They warped the debate in such a way that almost no articles criticise software patents anymore; the focus has been shifted to small trolls and politicians are, accordingly, ignoring the big issue, instead pursuing fake ‘reforms’ that hardly address any concerns, other than the concerns of big corporations (it’s like Obama’s so-called ‘reform’ of the NSA). Here for a change is a good Topix article titled “How to Really Fix Patents – and Why Congress Is Unlikely to Do It” (via Glyn Moody).
The article says: “The total loss to the economy caused by junk patents far exceeds $29 billion per year when one takes into account that big companies act like patent trolls too, by obtaining junk patents to keep out their competitors.”
It also states that: “The real costs of junk patents are easy to imagine when you consider some of the egregious patents that should never have existed to begin with. Patent No. 5,851,117 was granted in 1998 to a company for using an illustrated book to teach janitors how to clean a building. Clearly that is not such an original idea that it deserves to be patented. Luckily the economic impact of that patent was likely very minimal.”
And finally: “Patent trolls should be dealt with, but if big companies are able to continue to obtain junk patents for things that are not inventions and then act like patent trolls, then they will be able to continue to corner markets and ensure that new emerging technologies can’t compete with them.”
We recently wrote about Apple's "holy war" against Linux/Android — a subject that was mentioned by a lot of media [1, 2, 3, 4]. Nokia‘s patent deal with Apple, which had already cross-licensed with Microsoft for quite a long time (we have written about this triangle for a number of years), helped show how this “holy war” was going on. This new article states that “Nokia makes up about 80% of them [...] the vast majority of licensing fees Microsoft collects — about $15 per device — comes from the Finnish company. Those fees are about to become an internal exchange once the acquisition deal closes between the two companies.”
The ultimate victim will be Android. They are working on it.
To make matters worse, Microsoft and Nokia feed Android-hostile patent trolls like MOSAID, passing patents for no purpose other than harassment (patent-stacking).
This is trolling. The European authorities have already warned/reprimanded Nokia.
What needs to change right now is the debate. We need to reject the idea that there is this thing called “patent trolls” which basically means small companies with patents and that this alone is the issue with patents. There are much bigger issues. █
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Summary: Update on the Supreme Court (SCOTUS) case which can effectively end software patents where they originally came from
THE SCOTUS, like the USPTO, practically exists to serve corporations while claiming to serve people’s interests. We showed many examples of this over the years, especially when we closely covered patent matters.
SCOTUS has just proven, yet again, that it serves the interests of the top fraction of the top 1% of income earners — people who provide the majority of funding to political candidates [1,2]. Sen. Bernie Sanders says that SCOTUS undermines democracy by allowing billionaires to “buy elections”.
SOCTUS us losing the trust of US citizens. There is no question about it. Meanwhile, however, “Software Patents On [are] The Ropes In SCOTUS,” Robert Pogson claims, citing some recent filings/proceedings. Where is Groklaw when you need it? Having witnessed the Bilski case some years ago (famous case at SCOTUS), we are highly sceptical of the possibility that anything significant will happen. SCOTUS is typically doing what the corporations are asking for. As TechDirt put it the other day: “Four years ago, the Supreme Court had a chance to establish once and for all whether or not software was patentable. The Bilski case got all sorts of attention as various parties lined up to explain why software patents were either evil, innovation-killing monsters or the sole cause of innovation since the cotton gin and everything in between (only slight exaggeration). Rather than actually answer the question everyone was asking, the Supreme Court decided to rule especially narrowly, rejecting the specific patents at stake in the case and saying that the current test used to determine patentability (the so-called “machine-or-transformation” test) need not be the only test for patentability. However, it declined to say what tests should be used, leaving it up to the lower courts to start ruling blindly, making up new tests as they went along. And muddle along blindly they did — right up to the height of pure absurdism in the CAFC (appeals court that handles patents) ruling in the Alice v. CLS Bank case, in which every single judge disagreed with each other. The ruling was 135 pages of confused mess where all justices only agreed on a single paragraph, which (like Bilski) said this particular patent was invalid, but no one could agree why.”
Let’s wait and see if the SCOTUS can surprise all of us by effectively putting at peril all software patents (in one fell swoop). This is the most important thing for Free software. The Register has this new article about “More software patent silliness,” noting that in China there are software patent applications, e.g. one relating to Wine on ARM (we covered that a few days ago.
“The filing has irritated Wine contributor André Hentschel,” the author says, “who points to his code commits from 2010, and remarks that “from my point of view there are no facts in that potential patent that should be patented”.
“Whether that’s sufficient to block the Chinese patent application CN102364433 is another question.”
We need to stop software patents in the US before they spread further. The tendency is for US law to get exported to almost every continent. █
Related/contextual items from the news:
The wealthiest 1% of Americans will likely play an even larger role in elections following the Supreme Court decision Wednesday that freed rich donors to give as much as $3.5 million per election to the array of candidates running for Congress.
The 5-4 decision struck down a Watergate-era limit that barred a single donor from giving more than $123,200 to congressional candidates every two years.
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Don’t do lawyers, Google
Summary: The British press names companies which are promoting software patents in the United States and Google is one of them
WE WARNED ABOUT this years ago. Rather than fight for people’s interests when it comes to patents, Google hired some of the same people who fight for themselves and against people’s interests (making themselves necessary through patent battles).
Now that SCOTUS is looking into software patents (Joe Mullin is distracting from the real issue by focusing on patent trolls, as usual, except when he takes this other angle) we have a real chance to redeem software developers from greedy business monopolists and their guardians, the lawyers. According to this report, however, Google is among those who argue for software patents. Having HP in there is not surprising given the company’s history of patent PR. It is definitely not surprising to see Microsoft and IBM there; they are the leading and biggest proponents of software patents. The report says that SCOTUS “will hear from a consortium of technology companies today that have weighed in over software patents.
“Later today, nine US Supreme Court Justices will sit for one hour of argument by representatives from companies including Google, IBM, Microsoft and HP.
“The software patent standards that the companies are seeking vary, however they are all calling for tightening patent law to protect software implementation in their field.
“Suzanna Michel, senior patent consel for Google said in a statement to Bloomberg, “The fact that we have not policed this patentability requirement and have allowed the issuance of a lot of abstract, overbroad patents for doing business on the Internet — those patents have fueled this litigation.”"
Google has a “senior patent counsel” (turns out it’s a former FTC official which AOL describes as one of “the commission’s top intellectual property officials” and whose education background confirms to be a laywer) and according to this report Google is now part of the problem, making the USPTO even more developers-hostile. Having read the original article, it is a little unclear whether Google actively promotes software patents (Michel speaks about business methods), but given Google’s track record of applying for and buying software patents — a trend we severely suffer from and have criticised — Google can no longer oppose software patents with a straight face. The press now claims that Google is actively harboring such patents. It’s the first time we see this. The author, Chris Merriman, cites this report from Greg Stohr and Susan Decker.
“Well, They can’t hide,” wrote Mr. Bosson from the FFII (Sweden), “Microsoft’s Amicus Brief is quite defensive for sw-patents, using EPO-style arguments to protect them.”
He quotes Microsoft, Adobe and HP as saying: “Software makes computing technology work” (so does silicon!).
“Only by looking at the each claim as a Whole,” is also what they say. “Just like EPO makes software patents OK,” Bosson remarks.
HP and Microsoft both did some nefarious things in Europe, as we have covered here in Techrights, so let’s not be misled by news that some HP laptops may come with GNU/Linux (in the UK) [1,2]. HP is definitely not a friend of Free software based on these policies; as for Google, it seems to be drifting away in its own trajectory. █
Related/contextual items from the news:
While anyone living in China or India can walk into a store and buy an Ubuntu laptop off the shelves, those of us in Europe and the US find hunting down brand-name notebooks loaded with Linux a bit of a hassle.
The HP notebook – priced at £219.99 and available at the end of April – will be the first computer of its kind to come pre-installed with the free operating system from Linux.
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Campaign of intimidation against Linux fueled by Dell, too
Summary: The dying computer assembly company is joining a notorious attack on GNU/Linux as if it is trying to appease Microsoft rather than today’s generation, which increasingly embraces GNU- and Linux-based platforms
Last year we called for boycott of Dell and at the end of the year we gave more reasons for it. Dell had done a disservice to Free software for a number of years and in 2007 it joined the Microsoft/Novell deal, perhaps implying (but never explicitly saying so) that it will play a role in putting patent tax on GNU/Linux.
“Dell did not have to do this, but it chose to.”Now that Windows (Microsoft’s common carrier) is in real trouble because many users are exposed to crackers other than the NSA (to which Microsoft provides back doors) Microsoft is very much focused on trying to scare vendors (and people, who usually rely on these vendors) away from GNU/Linux.
Chrome OS is a GNU/Linux distribution, possible the most widely used of its kind, so Microsoft has been running attack ads (smear campaigns) against it. In addition, adding to reasons to boycott Dell (Microsoft took over at least part of Dell and it has been getting worse since), Dell is reportedly joining Microsoft’s extortion and intimidation campaign against Android and Chrome OS. Dell did not have to do this, but it chose to. “Without disclosing too many details,” writes Monika Bhati, “the companies said they have agreed to license each company’s applicable intellectual property related to three product lines: Android, Chrome OS and Xbox.”
Monika Bhati’s softball ‘article’ is just parroting claims from press releases without investigating any further or at the very least checking what’s true and what’s FUD. This article repeats the unsubstantiated claims that Microsoft makes billions of dollars this way, despite lack of any actual evidence (the real goal is to deter against GNU/Linux adoption). She is not alone in it and we need to stop this. This whole thing is typical cross-licensing, intended for the most to disguise the reality of finances, as in Novell’s case (I spent years of my life researching this, so I recognise these patterns).
One must wonder: where is OIN in all this? The OIN brags about adding Verizon to its ranks this week, but it does absolutely nothing to stop Microsoft’s racketeering campaign. The OIN’s CEO, whom I spoke to several times over the phone, is quote as saying: “We appreciate Verizon’s industry thought leadership in joining OIN and supporting patent non-aggression in Linux. We believe Verizon is a bellwether for other communications service providers from an open-source and intellectual-property perspective, and look forward to working with other carriers so they can similarly come to understand the benefits of participation in the OIN community and partake of this growing culture of patent non-aggression.”
Mr. Bergelt is quoted as saying that he is into “non-aggression in Linux,” so how come he does nothing at all to stop the racketeering against OIN members like Google? This is beyond useless and the OIN will never even lobby against software patents because its large members are in favour of them. Some of them are very much part of the problem.
People need to vote with their wallets. The Linux Foundation and OIN are not going to save or preserve freedom in GNU/Linux; they don’t prioritise this. One is a mutual pact not to sue and another is a branding operation (employing for the most part marketing and branding professionals). █
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US judges under observation by the patents Mafia, Microsoft
Summary: Extortion and racketeering giant Microsoft prefers cognitive dissonance as software patents are at risk in the US; Microsoft’s patent arsenal Nokia is in trouble in India for the same reasons as Microsoft, namely tax evasion
WHILE we no longer focus on patents, we do continue our focus on FUD. Sites that call themselves “Patent Progress” continue to focus only on trolls (small trolls, not big trolls) and citing controversial boosters of software patents as arguing that “the numbers [of troll cases] are in for 2013, and it seems that patent trolling shows no signs of slowing down. According to RPX, trolls sued over 4,800 companies last year, up from the 4,282 they sued in 2012.” This is another distraction from the real issue, which is patent scope (e.g. software patents).
Last night Geza from the FFII’s mailing list said that “Forbes has an article highlighting the upcoming SCOTUS case Alice Corp. vs. CLS Bank” (we have covered this a couple of times before).
“Here we have a dying company which is busy trying to assault the winners (Linux-based) with troll proxies like MOSAID (armed with Nokia patents which Microsoft arranged for MOSAID to receive).”This case, according to Geza, “(at least the EFF thinks) concerns software patents” and he cites this new article which says: “Microsoft and its allies in the tech industry urge the court to avoid any pronouncements on software patents, because that could endanger one of the most vigorous segments of the economy.”
“Big SW-patent shops (like MSFT) instead argue thet the present case is only on business-methods patents,” notes Geza.
Well, isn’t it unsurprising that Microsoft would say that? Here we have a dying company which is busy trying to assault the winners (Linux-based) with troll proxies like MOSAID (armed with Nokia patents which Microsoft arranged for MOSAID to receive). Nokia’s software patents promotion is no secret and it predates Microsoft’s hijacking of Nokia (“Microsoft Nokia Takeover Is Delayed Until April,” according to this new report), which also commits some of the same offences Microsoft is committing (namely tax evasion, with conviction in India). According to ZDNet, “Indian taxes are proving to be a sticky problem for Nokia as it attempts to transfer its devices business to Microsoft.” ZDNet should mention that Microsoft does the same thing and was found guilty in India, too. Microsoft’s influence in the Indian government did not exempt the company and also has not yet assured software patents in India. █
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Summary: A lesson about Microsoft deals, this time courtesy of Barnes and Noble, the hero which turned into zero after a manipulative Microsoft bribe
Barnes and Noble (B & N) provided a fascinating example which reminded us of Novell. Back in the days Novell took Microsoft to court, but many years later, as Novell had more things to sue over (e.g. Samba, not just WordPerfect) Microsoft passed a large bribe to Novell and said goodbye to litigation, undermining Samba’s case in Europe. Similarly, Microsoft basically bribed B & N to drop the legal case that was challenging extortion of Android. Barnes & Noble is now in trouble. Like, who didn’t see that coming? See some of the details in . Making Windows pledges is a very bad strategy these days.
For some background and context see our posts as follows (chronological):
So, just as a recap, Microsoft extorts B & N, B & N takes Microsoft to court, B & N nearly ends Microsoft’s patent shakedown against Linux/Android, and then Microsoft pays a lot of money to B & N, the case gets dropped, B & N is pushed into using Windows and then has financial problems. Classic Microsoft routine! █
Related/contextual items from the news:
Redmond pumped $300m into Nook back in 2012, in a deal that gave it a 17.5 per cent stake in B&N’s underperforming e-book subsidiary. In exchange, Nook agreed to develop a branded reader app for Windows 8 – which it did – and another for Windows Phone, although the latter has yet to appear.
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Summary: The FUD machine of the Microsoft lobbyist is interjecting itself into the media again, despite clear warnings that were published for years
KNOWING THAT Microsoft Florian is a liar and ‘spammer’ (flooding journalists with identical E-mails) that’s employed for the smearing of Android, most journalists now ignore him and we rarely hear anything from him. A few months ago I visited his blog just to see if he was still ‘alive’ online as I had not heard of him for almost a year.
Joe Mullin, who is usually excellent when it comes to reporting on patents, perhaps fails to grasp Microsoft Florian’s poor record when it comes to covering events. He is a spinner, a deceiver, and he has been proven to be only an agenda pusher for several years now. He pretends to be things that he is not. That’s what he is good at, other than mass-mailing journalists so that they link to his nonsense. Pamela Jones would be tempted to reach out for her keyboard and log into Groklaw if she saw this.
No journalist — and it’s worth repeating — NO JOURNALIST should be taking it at face value what Microsoft Florian says, not without remembering who he works for. Microsoft Florian played a major role in the “Android is expenseive” PR campaign, making up or propping up fictitious figures. HTC already refuted the FUD from this lobbyist, who is paid by Android foes including Microsoft (they seem to be passing him material to publish, too).
“Yesterday,” writes Mullin, “Mueller published a hearing transcript from February 10 which featured each side’s lawyers arguing to limit or throw out the other side’s expert report.”
So this is just an argument, it’s not actually anything factual. It’s a wet dream of some lawyer. Mullin turned it into an incredible headline which then invited many comments. This is the manufacturing of “news” out of gossip. Mullin says: “New demand dwarfs licensing fees charged by Microsoft, and it will go to the jury.”
But wait, why assume that there are “fees charged by Microsoft”? Well, guess it’s Microsoft Florian again. As Mullin later mentions: “Microsoft patent licenses to Android phone makers have reportedly been in the $7.50 to $15 per phone range, with lower estimates hanging around $5 per phone. As Mueller points out in his post on the royalty demands, those fees are for a license to a wide portfolio of patents, not just five patents being hotly litigated in court.”
The key word here is “reportedly”. But reported by who? Microsoft Florian and some Microsoft-friendly analysts. We covered this before.
Mullin concludes as follows, prepetuating an ubsubtanitated myth: “It’s also possible to earn a lot of money by convincing Android OEMs to pay patent royalties, as Microsoft has shown. One analyst estimates Microsoft is getting $2 billion per year in patent payments over Android.”
Microsoft might not be paid anything, but people like Microsoft Florian, paid by Microsoft itself, helped create this fairy tail and given it some legs. So all that Mullin’s article does is basically reiterating speculations and making them look like facts.
Well done, Microsoft, for an effective deception and PR campaign. It is the “Android is expensive” strategy. █
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