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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Summary: IBM turns out to be using software patents in order to make money at the expense of much smaller companies; the threat of software patents resurfaces in India
IBM, the company which promotes software patents in Europe. is reportedly going after relatively small companies (not Sun) with patent demands. Citing this report, an expert in this area (Mullin) says: “Twitter’s first annual financial results were revealed on Thursday. Buried deep in the document is the price it paid IBM after it was confronted with a patent infringement threat by Big Blue: $36 million. Bloomberg was first to highlight the price tag.
“IBM sent a letter to Twitter in November saying it was infringing at least three IBM patents. That resulted in a negotiation that ended up with Twitter getting a license to IBM’s patents, acquiring about 900 of them for itself, and (we now know) paying $36 million.”
Shame on IBM.
Just as the US begins thinking about getting rid of software patents the #1 patent holder in the US (whose former staff headed the USPTO until recently) takes us back in time, demonstrating that IBM (with OIN) is not much different from those patent trolls we keep hearing about (OIN is powerless against trolls as well). Here is a new report about a troll: “Personal Audio LLC has recently become one of the more well-known “patent trolls” due to its broad claims to owning basic podcasting technology. The company has filed lawsuits in East Texas, claiming that its patents on “episodic content” technology, which stem from founder Jim Logan’s failed “Magazines on Tape” business, entitle it to royalties from podcasters large and small.”
How is that so different from what IBM is doing? iophk says: “Burning through the EFF’s scant resources playing whack-a-mole with patent trolls. That won’t do anything to solve the underlying problem which is that of patenting software. Get rid of software patents and the trolls will be gone.”
There is actually a correlation between software patents and trolls, as demonstrated by Mullin some years ago. Many boosters of software patents are also trolls (Microsoft, IBM and Nokia for example) and many trolls are using software patents in litigation (about 70% of the time).
IBM recently laid off many employees in India (we covered this thoroughly) as it’s moving into more of a surveillance business [1,2] (IBM is already a surveillance giant) and considers offloading more of its hardware business . Meanwhile, suggests this new post. the threat of software patents in India is back. Spicy IP says: “The reason why I am limiting the issue only to the term software per se is because of the recent discussions draft guidelines issued by our Patent Office on the topic, and the subsequent discussions on the same.”
The term “software per se” is similar to the phrase “as such” in Europe or even New Zealand. It is a trick. To quote further: “As we know that the term per se did not come into the act directly. It came in on the recommendation of the Joint Parliamentary Committee (“JPC”). The JPC inserted the term to address the patentability of inventions relating to computer programs that may include certain other things that were ‘ancillary thereto’ or ‘developed thereon’. Accordingly, if computer programs per se are not patentable, something that is ancillary thereto or developed thereon is patentable.”
This is bad and it deserves more media attention. Much of the anti-software patents lobby, however, is quiet or defunct now, in part because corporations hijacked the debate and shifted focus to small trolls (not large ones like Microsoft, Nokia, and IBM). █
Related/contextual items from the news:
IBM has acquired a bevy of cloud companies and built a Big Blue cloud stack. Here’s a look at the moving parts and how they fit together as IBM moves from hardware to the cloud.
IBM is considering a sale of its chip manufacturing operations, the Wall Street Journal reported last night. The company would not stop designing its own chips, however. Just as AMD outsources manufacturing of the chips it designs, IBM “is looking for a buyer for its manufacturing operations, but plans to retain its chip-design capability,” according to the Journal’s source.
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Summary: The return of discussions about patent stacking and the role played by the anti-Android camp
ANDROID really took off not just because it’s Free/Open Source software but also because it was free. Now, a few years down the line, Android phones can cost as much as €699 (Samsung Galaxy S5) and although the main reason may be Samsung’s greed (knowing that some people would be willing to pay this price), we should not forget the role patent stacking plays. We have written about it for years.
Microsoft Nokia and Apple signed a secret deal which Samsung now formally complains about, as we covered earlier this week (the latest Google and Samsung complaint is in China). “Nokia,” explains Sosumi, is “now a patent troll and a Microsoft tentacle” (it has been like that for 3 years).
There is secrecy there that harms Android. Not only do Microsoft and Nokia pass patents to trolls who target Android; they also try to engage in patent stacking themselves. A pro-Apple site mentioned this latest twist the other day: “Last October, Apple filed a motion seeking sanctions against Samsung and its outside lawyers, accusing both of unlawfully sharing sensitive data about Apple’s 2011 patent license agreement with Nokia. Specifically, the motion stated that a Samsung executive informed Nokia that the terms of the patent settlement were “known to him”, and used that information to negotiate other patent agreements in Samsung’s favor. The license terms between Apple and Nokia were marked “Highly Confidential – Attorneys’ Eyes Only”, but were shared with other Samsung employees.” Bear this in mind whenever pundits try to claim that Nokia is befriending Android.
Patents which are based on secrecy like this are a matter of price-fixing and collusion. This should be against the law, but guess who writes the laws these days? In India, for example, one major newspaper now publishes the article “India must call the US’ bluff on patents”  and in Red Hat’s site Rob Tiller is finally slamming software patents  (which he rarely does), adding to increased opposition to software patents these days , in light of an imminent SCOTUS milestone event (Red Hat too is involved). █
Related/contextual items from the news:
Apart from the deterioration of the business environment generally, which impacts both domestic and foreign investors, retrospective taxation has figured most prominently in the media as the principal cause of growing scepticism among foreign investors. Entirely missing from the discourse has been an equally potent factor with wholly foreign origins: the hijacking of the economic policy dialogue between the United States and India by pharmaceutical lobbies in the US. Big Pharma has convinced the US government that the country’s interests are synonymous with its own. With its own list of grievances against trade restrictions in India, the National Association of Manufacturers, a lobby group of the United States manufacturers, has lent its support to the pharmaceutical industry.
Software patent thickets are often compared to minefields, but with a note of resignation, as though there’s no avoiding them. The U.S. Supreme Court now has before it a case that could go a long way towards addressing the litigation risks and business uncertainties created by software patents. The case is Alice Corp. v. CLS Bank International, and the issue is whether claims to computer-implemented inventions are eligible for patents.
Public Knowledge is back at it, carving holes in dubious software patent claims by distilling supposedly “complex” ideas into a minimal amount of code. Late last year, Public Knowledge filed an amicus brief in a lawsuit involving Ultramercial, whose disputed patent basically involved appending “on the internet” to a very basic idea.
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Summary: An update on Nokia, Intellectual Ventures, and other proxies of the Microsoft camp that pass patents for trolls who attack Android/Linux, FOSS at large, and the industry as a whole (everyone but Microsoft)
WHEN Bill Gates, hiding behind his tax evasion ploy, funded his close friend’s so-called ‘business’ Intellectual Ventures he must have envisioned the potential for abuse against Microsoft’s competitors. Over the past few years we have demonstrated this happening. It’s not a theory but practice.
Glyn Moody, writing this update about Intellectual Ventures, notes that there were layoffs (due to lack of money) and months ago the troll was reported to have “grown to 800 employees, 70,000 patents.” It’s a bubble.
As we demonstrated and repeatedly showed some years ago, Intellectual Ventures was lobbying together with Bill Gates, showing the alignment in agenda (they work on some projects together, extorting real companies). “Intellectual Ventures,” notes a new report, “which is one of the country’s top patent owners but makes few of its own products, filed to organize the committee with the Federal Election Commission this week.”
So they continue to interfere with politics.
Speaking of trolls, Microsoft’s troll Nokia (which also sends patents to other trolls) is now the subject of complaints for its trolling (after the European regulators warned about it also) . “A little bit of revisionism there,” said iopkh, “the ground was lost because of Elop.” (A Microsoft mole)
Nokia, Intellectual Ventures etc. are just part patent-stacking techniques and elimination of fair competition by passing some patents to trolls (both Nokia and Intellectual Ventures use smaller entities for litigation). Meanwhile, as revealed in , the EFF continues to focus on “trolls” rather than software patents when it comes to patent reform. Perhaps they would do something to limit the ability of Nokia, Intellectual Ventures and others who are passing patents to troll as part of the current business model. Maybe Nokia, Intellectual Ventures, and others will just die quickly enough to reduce the damage they can inflict upon producing entities.
This is a serious issue. It deserves more attention. █
Related/contextual items from the news:
Google Inc. (GOOG:US) and Samsung Electronics Co. (005930) joined Chinese mobile phone makers in expressing concern to China that Microsoft Corp. (MSFT:US)’s bid to take over Nokia Oyj (NOK1V)’s phone business may result in higher patent licensing fees, two government officials familiar with the matter said.
The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court to crack down on patent trolls and the schemes they use to perpetuate their lawsuits in two amicus briefs filed today.
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Summary: The debate about software patents in the United States is back because many Free software advocacy groups and companies (not Open Invention Network though) are getting involved in a Supreme Court (SCOTUS) case
OVER THE past 6 months or so there have not been many debates about software patents. There were debates about trolls and other such distracting debates; many of them were ‘pre-approved’ by corporations and covered by the corporate press. We had highlighted this appealing trend several dozens of times before pretty much abandoning this debate and giving up on involvement; generally speaking, providing coverage for these debates is basically helping those who create obstacles for small players (monopolies/oligopolies) just shift the public’s attention away from patent scope.
Debates about software patents returned about a week ago. The Open Invention Network (OIN) was mentioned in the article “Software patents should include source code”, but it’s such an offensive idea because it helps legitimise software patents, which is what the Open Invention Network often does anyway. To quote the article: “Computer-implemented inventions that are patented in Europe should be required to fully disclose the patented invention, for example by including working, compilable source code, that can be verified by others. This would be one way to avoid frivolous software patents, says Mirko Boehm, a Berlin-based economist and software developer working for the OpenInvention Network (OIN).”
Why on Earth does the Open Invention Network get involved in pushing the idea of software patents in Europe? Source code or not, software patents are not legal in Europe and the same goes in most of the world, including India where lawyers’ sites still try to legitimise them.
In another blog post, one from a proprietary software company, the ludicrous notion of “Intellectual Property” is mentioned in the context of Free software and patents. The author is actually pro-Free software, but the angle he takes helps warp the terminology and warp the discussion somewhat. To quote him: “My usual response to the question, “Do I have to worry about patent trolls and copyright infringement in open source software?” is another question, “Does your proprietary vendor offer you unlimited liability for patent trolls and copyright infringement and what visibility do you have into their source code?” In the proprietary world I think you’d be hard-pressed to find a vendor who provides unlimited liability for their products against IP infringement, or even much over the cost of the products or services rendered. How often do you review their source code and if given the opportunity are you able to share your findings with other users. In open source that’s simply table stakes.”
Contrary to all the above, the Software Freedom Law Center, together with the FSF and the OSI (Simon Phipps and Luis Villa) actually fight the good fight. To quote Phipps: “How important are software patents? We know they’re a threat to the freedom of developers to collaborate openly in communities, chilling the commercial use of shared ideas that fuels engagement with open source. We know that the software industry was established without the “incentive” of software patents. But the importance of the issue was spotlighted yesterday in a joint action by two leading open source organizations.”
Here is how Phipps concludes his article at IDG: “I endorse and welcome this joint position calling for firm clarity on software patents. (I was obviously party to the decision to take it, although I’m not writing on OSI’s behalf here.) With 15 years of history behind us, there’s far more that unites the FSF and the OSI than divides us. We’ve each played our part in the software freedom movement that has transformed computing. Now all of us in both communities need to unite to end the chilling threat of software patents to the freedom to innovate collaboratively in community.”
Red Hat too is joining this battle and announcing this to shareholders, making some press coverage in the process amid many articles about SCOTUS in the post-Bilski case era (see some coverage in [1, 2, 3, 4, 5, 6, 7, 8, 910]).
Software patents are finally in the headlines again (not much sympathy for them), but there is also some focus on trolls, courtesy of companies like Samsung and Apple. Other recent reporting about patents covered patent lawyers’ business, the role of universities in patents (they help feed trolls these days), and also USPTO reform (that was a fortnight ago). None of this dominated the news, however, as much as the debate was on software patents. So, perhaps it’s time to get back to covering patents on an almost daily basis.
Software patents are the most important issue as they are the biggest barrier to Free software. We just need to have the subject of software patents and their elimination publicly discussed. █
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Summary: Secret deals and racketeering techniques elude journalists who are passing allegations as ‘facts’, damaging Linux for the most part
SOMETHING fascinating has been happening in the corporate press over the past few years (starting 2010 with HTC). Unlike with the Novell deal (Microsoft SUSE), when it comes to Android the press seems eager to push the “Android is not free” line. Even some pro-FOSS journalists are doing it, only to face opposition. To quote Pogson’s response to one of them: “I don’t often disagree with SJVN but I think his argument that M$ makes $billions from Android/Linux taxes is extreme. If that were happening, there would be some mention of it in M$’s SEC filings.”
Not only is this not happening based on any concrete evidence; the sources which make these claims are quoting some arbitrary analysts with Microsoft connections or Microsoft boosters/lobbyists who cite such people. Trace it all back to the source and it looks like make believe. It’s like a big lie that needs to die, at least until or unless there’s some kind of proof.
Those of us who see journalists perpetuating and spreading the claims that Microsoft makes billions of dollars from Android should respond to the authors/editors by equating them with so-called ‘conspiracy theories’ who throw around unsubstantiated claims. Microsoft has long been manufacturing dirt and lies, only to be caught some time later, after much damage had been done to the subject of libel. Bribed journalists often play a role in such big lies and nobody demonstrates this as well as the Gates Foundation, which is basically a lobbying and investment shell (masquerading as a charity and bribing the press to maintain this illusion). As Jamie Love put it yesterday: “The few reporters that have written about the trade disputes over cancer patents are not on the Gates payroll. [...] Gates has effectively aligned itself with Merck, Novartis and others, against cancer patients. Sometimes, discretely. [...] WHO is quite cautious on the IPR issues these days, because of fears that Gates will complain. [...] Gates Foundation funding of health news reporters, most health NGOs, contributes to lack of criticism of Obama’s actions on cancer patents” (we wrote about cancer patents before, including their impact on death). Remember that Gates received got a huge amount of money last year from this patent profiteering (gains of about 15 billion dollars). He is still all about patents and monopolies. Gates is also investing in patent trolls and collaborating with the world’s biggest patent troll, which he helped create (the head of this trolling entity is one of Bill Gates’ best friends).
As Joe Mullin put it the other day, frivolous litigation with baseless patents is still worthwhile in the US because the plaintiff never assumes the financial burden of the cases. This works well for trolls such as Microsoft, Bill Gates, and the world’s biggest patent troll which he created. It’s deterrence against defence. As Mullin puts it: “The American judicial system has long held to a general principle that each party in a dispute should pay for its own legal fees, win or lose.”
Microsoft is a patent troll based on its actions, signing secret deals using useless patents, knowing that the burden of a legal case would be put on the victim. As long as this kind of system prevails the corruption of the industry and the media (which cannot gain access to these secret deals) will continue.
Microsoft corruption is an immensely powerful phenomenon which now transcends the software industry. One way to address this issue is to work on changing the patent system (which is hard). █
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