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Software Patents a Dead End in the United States, But Some Large Companies and Trolls Can’t Help Trying (and Failing) to Float Them

Posted in America, Apple, IBM, Patents, SCO at 9:07 am by Dr. Roy Schestowitz

Even East Texas, which advertises itself as plaintiff- and troll-friendly, might not tolerate software patents for much longer

Rodney Gilstrap

Summary: Examining some of the latest software patents that make this week’s headlines and what we can learn from these

SOFTWARE patents are dying in the US, owing largely to § 101 (post-Alice). Patent lawyers, as expected, are in denial about it (misleading customers in order to maintain demand) and there is a new article today/this week about § 101 analysis. Mentioned therein is a “conclusion that the claims at issue fail to meet the standard for patent eligibility under § 101.”

“The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short.”The de facto ban on “abstract” software patents (that ought to cover all software patents) does not deter everyone, especially not deep-pocketed companies which simply hoard thousands (if not tens of thousands of patents) and then cross-license or shake down companies in bulk. According to dozens of news reports from yesterday (e.g. [1, 2, 3]), Amazon continues to patent software (this patent for audio surveillance) and today we learn that Disney tries patenting foot surveillance in parks. Talk about lack of ethics… Amazon has pushed software patents as far as Europe in spite of the clear exclusions.

As we mentioned here briefly at the start of this week, VirnetX's software patent attack on Apple is falling short, as does the stock of VirnetX [1, 2, 3, 4, 5, 6]. VirnetX is a patent troll whose existence (or worth) is little more than software patents, so the loss of the case (or at least a $625,000,000 award) was big news yesterday [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15], not just in Apple-centric sites.

The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short. Time to leave East Texas for a balanced venue? It’s probably a waste of time (and money) trying to assert these patents in a court of law, especially against large companies that can afford to withstand/endure lots of motions and appeals. That’s why the main victims of software patents (and patent trolls) are small businesses; they would often settle rather than risk the high cost of never-ending legal proceedings. The SCO case has gone on for 13 years because IBM can afford this and SCO, whose only remaining existence is this one case, goes to the grave (well past bankruptcy) in a desperate effort to extract some money (much like VirnetX).


El Horneado por Microsoft SCO Esta Todavía Atacando a Linux

Posted in GNU/Linux, IBM, Microsoft, SCO, UNIX at 2:18 pm by Dr. Roy Schestowitz


Publicado en GNU/Linux, IBM, Microsoft, SCO, UNIX at 12:26 pm por el Dr. Roy Schestowitz

Microsoft SCO
See Lawrence R. Goldfarb (Wikipedia)

Sumario: el caso SCO no ha acabado todavía, y permanece no claro quié esta subsidiando el caso

El caso SCO “se levanta de la tumba de nuevo,” dice hoy el titular de los medios Británicos (que lanzaron la historia). Esta historia que podría ser del 2009, 2010 y todo hasta el 2016. Nunca acaba. ¿De dónde viene el financiamiénto?

“Bueno, SCO levanta de la tumba o tal vez la información no era exacta. Se nos ha dicho esto durante 7 años y hasta hace 2 meses nosotros dudamos que esto fue el final de todo.”Bueno, SCO levanta de la tumba o tal vez la información no era exacta. Se nos ha dicho esto durante 7 años y hasta hace 2 meses nosotros dudamos que esto fue el final de todo. La razón que relmente no creímos que es el final de toda esa litigación es todo ese modelo de Groklaw (o medios citando Groklaw) de decir que estaba lejos de terminar. Groklaw todavía esta publicando PDFs que se relacionan a este caso y medios Británicos los citan (sabiéndo magicamente donde estos documentos están). Para citar a The Inquirer: “En un comunicado, el juez David Nuffer argumentó que “la naturaleza de las reclamaciones son tales que ninguna corte de apelación tendría que decidir los mismos problemas más de una vez si había alguna posteriores recursos”, efectívamente sugiriéndo que el caso tiene para rato.

“El 1 de marzo, que la presentación fue respaldada por una explicación completa del juez, declarando vencedor IBM enfático en la larga saga.”

“Se ordena y se adjudicó que de acuerdo con las órdenes del tribunal presentó el 10 de julio, 2013 5 de febrero de 2016, y 8 de febrero, 2016, se dictó sentencia a favor del acusado y las causas de los demandantes de acción son despedidos con prejuicio” se indica en el documento.”

“Para implementar exitósamente E.E.E. algo que debes dar es la impresión de buenas intenciones.”“Ahora, sin embargo, SCO se ha presentado una vez más para apelar la sentencia aunque, con precisión los motivos que aún reclaman no se han dado a conocer.”

También afirma que “no es claro quién continúa financiando el caso.” Bueno, talvez pregunten eso a Microsoft. Insiste que todavía “ama a Linux” mientras al mismo tiempo saca un E.E.E. sobre el (incluso hace unas horas). Para implementar exitósamente E.E.E. algo que debes dar es la impresión de buenas intenciones.

“…Microsoft quiso promover a SCO y su juicio pendiente contra IBM y el sistema operativo Linux. Pero Microsoft no quiso ser visto como atacando IBM o Linux.”

Larry Goldfarb, BayStar, accionista clave en SCO abordado por Microsoft


Microsoft-Backed SCO is Still Attacking Linux

Posted in GNU/Linux, IBM, Microsoft, SCO, UNIX at 12:26 pm by Dr. Roy Schestowitz

Microsoft SCO
See Lawrence R. Goldfarb (Wikipedia)

Summary: SCO case not over yet, and it remains unclear who’s still subsidising the case

The SCO case “rises from the grave again,” says today’s headline from the British media (which broke the story). This story looks like it could be from 2009, 2010 and all the way to 2016. It just never ends. Where does the funding even come from?

“Well, SCO rises from the grave or maybe the reporting was just not accurate. We have been told this for 7 years and even 2 months ago we doubted this was the end of it all.”Well, SCO rises from the grave or maybe the reporting was just not accurate. We have been told this for 7 years and even 2 months ago we doubted this was the end of it all. The reason we didn't really believe it's the end of all that litigation is Groklaw’s pattern (or media quoting Groklaw) of stating it’s all pretty much over. Groklaw is still uploading PDFs which relate to this case and British media cites them (magically knowing where files are located). To quote The Inquirer: “In a filing, Judge David Nuffer argued that “the nature of the claims are such that no appellate court would have to decide the same issues more than once if there were any subsequent appeals”, effectively suggesting that the case had more than run its course.

“On 1 March, that filing was backed up by the judge’s full explanation, declaring IBM the emphatic victor in the long-running saga.

“”IT IS ORDERED AND ADJUDGED that pursuant to the orders of the court entered on July 10, 2013, February 5, 2016, and February 8, 2016, judgment is entered in favour of the defendant and plaintiff’s causes of action are dismissed with prejudice,” stated the document.

“To successfully E.E.E. something you must give the impression of good intentions.”“Now, though, SCO has filed yet again to appeal that judgment, although the precise grounds it is claiming haven’t yet been disclosed.”

It also states that “it’s unclear who continues to bankroll the case.” Well, maybe ask Microsoft. It insists that it “loves Linux” while pulling an E.E.E. on it (even just a few hours ago). To successfully E.E.E. something you must give the impression of good intentions.

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

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


If This is (Really) the End of SCO, Don’t Forget Who Funded and Supported SCO’s 13-Year-Long Attacks on Linux

Posted in GNU/Linux, Kernel, Microsoft, SCO at 12:39 pm by Dr. Roy Schestowitz

Microsoft loves Linux SCO

Microsoft SCO
See Lawrence R. Goldfarb (Wikipedia)

Summary: An important reminder of the role Microsoft played in SCO’s massive (multi-billion), never-ending attacks on the legitimacy and the cost of Linux

IS the SCO saga “over”? That’s what they told us half a decade ago, yet today’s (and yesterday’s) headlines [1-4] suggest this is definitely it, no matter what happens next. Novell was actually “over” a long time before SCO was truly “over” (“don’t make me over,” it perpetually insists and shouts at the judges, like Dianne Warwick while throwing her now-famous fit at Burt Bacharach and Hal David), unless one counts the “Novell” brand which was carried forward, or abandoned efforts/teams such as Mono/Ximian, which based on this news from Phoronix is already being used for E.E.E. (this time involving Vulkan), shortly after Microsoft tied the knot. Don’t ever forget Microsoft’s true colours. The company hates GNU/Linux with a great passion; it just tries to hide it while working to undermine GNU/Linux.

Related/contextual items from the news:

  1. Win for Open Source: SCO Court Case against Linux Hits End of Road

    The case was opened in 2003, when SCO filed a $1B claim against IBM. The suit alleged that IBM had inserted some code from Unix, over which SCO claimed ownership, into the Linux kernel.

  2. SCO vs. IBM looks like it’s over for good

    The long-running SCO vs. IBM case looks like it might just be over.

    A new filing (PDF) scooped up by the good folks at Groklaw sees both SCO and IBM agree to sign off on two recent decisions in which SCO’s arguments advancing its claims to own parts of Unix were slapped down by the US District Court.

    As The Register reads the PDF we’ve linked to above, and our informal legal counsel concurs, the new document describes IBM and SCO both signing off on the recent court orders. Those orders left SCO without a legal argument to stand on.

    The new filing also points out that SCO remains bankrupt and has “has de minimis financial resources beyond the value of the claims on which the Court has granted summary judgment for IBM.”

    Or in plain English, SCO is broke and the only asset it possess of any value is its claims against IBM, and now it doesn’t even have those because it just lost a court case about them. That leaves SCO in no position to carry on.

    “Accordingly,” the new filing continues, “the disposition of SCO’s appeal is the practical course most likely to conserve both judicial and private resources.” That’s the legal sense of “disposition”, by the way, so what the document’s saying is that SCO giving up its appeal is most likely to stop the courts spending any more time or energy on this matter. Courts don’t like wasting resources. So this is both parties explaining that wrapping things up now is a desirable thing.

  3. Gentoo Choice, Awful Fedora 24, Debian Firefox

    Today in Linux news the Ubuntu ZFS controversy isn’t quite settled after all. Fedora’s Adam Williamson today blogged, ” Lots of stuff is busted. We are aware of this, and fixing it. Hold onto your hats.” Richard Freeman reminded folks the systemd disagreements aren’t over either and Debian has finally stopped renaming Firefox to Iceweasel. Dedoimedo said today that Mepis derivative MX-15 is on the “highway to rad” and Christine Hall signed SCO’s death warrant.

  4. SCO Is Undeniably and Reliably Dead

    It appears as if SCO’s case against IBM, which began as a blustering tornado back in 2003, finally died with a whimper last week. The death notice came in the form of what is essentially a one page agreement between SCO and IBM which calls “for certification of the entry of final judgment on the Court’s orders concerning all of SCO’s claims….”


Microsoft’s Copyrights- and Patents-Based Attacks on GNU/Linux Carry on

Posted in GNU/Linux, Microsoft, Patents, SCO at 8:56 am by Dr. Roy Schestowitz

“Microsoft hardly needs an SCO source license. Its license payment to SCO is simply a good-looking way to pass along a bribe…”

Bruce Perens

Summary: The SCO case is still going on and Microsoft has just signed a patent deal with GoPro over its FOSS-based software, relating to “certain file storage and other system technologies”

THE ‘new’ Microsoft is not new. It’s the same old Microsoft — the company that committed crimes to get where it is today. The SCO case makes a return to some headlines, not just in FOSS sites but also in general (but technology-centric) news sites. Groklaw is still uploading new documents [PDF] and FOSS Force wrote: “Judge David Nuffer with the US District Court in Utah gave SCO another day in court last week and returned a judgement against the bankrupt company.”

“It’s the same old Microsoft — the company that committed crimes to get where it is today.”The Register wrote: “The SCO Group has suffered another reversal in its long-running attempt to squeeze some cash out of IBM for allegedly pinching its code and tossing it into Linux and maybe AIX too.”

Remember that this is a Microsoft-funded (in least in part) attack on Linux. It’s over a decade old. It’s nearly 13 years in the making. As Larry Goldfarb from BayStar, a key investor in SCO, once put it: “Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

Yes, Microsoft loves to hide between or behind proxies, otherwise it might jeopardise the lie which is “Microsoft loves Linux.” It might make it harder for Microsoft to seduce fools into Azure for GNU/Linux hosting.

When it comes to patents too, there are Microsoft-connected FRAND lobbyists, as we last noted yesterday, on the same day that WIPR wrote: “Companies that own standard-essential patents (SEPs) must stick to their obligation of licensing them on fair, reasonable and non-discriminatory (FRAND) terms, the EU commissioner for competition has said.”

“It might make it harder for Microsoft to seduce fools into Azure for GNU/Linux hosting.”The commissioner ought to have mentioned the problems that SEPs FRAND in its own right poses. It’s incompatible with Free/Open Source software (FOSS), and not by accident. There are standard-essential patents where interoperability between file systems is required. See the Samba case (in Europe, where Microsoft fought for file sharing monopoly) and then recall the Microsoft v. TomTom case, where Microsoft fought for a software patents tax in Europe (where such patents are not even legal), impacting Linux itself. FRAND is a vehicle for pushing software patents into Europe and Microsoft loves FRAND for this reason. Remember when Microsoft did this kind of FRAND lobbying with the BSA.

Right now, after Alice, Microsoft is still utilising software patents in an effort to tax everything, exploiting its monopoly to make the tax inescapable. The ‘new’ Microsoft is extorting Android and Linux using software patents on file systems, still (probably exFAT if not FAT also, as per the TomTom case). This new article from WIPR states: “Microsoft has signed a patent licensing deal with action camera maker GoPro.

“According to statement from Microsoft on Friday, February 5, the agreement covers “certain file storage and other system technologies”.

“And some people honestly believe that Microsoft has changed…”“The terms of the deal, in which Microsoft is the licensor, have been kept confidential.

GoPro, based on its own Web site, uses a lot of FOSS, Linux included (and Android is a key target platform). So what we see here is Microsoft engaging in patent extortion against FOSS, yet again.

And some people honestly believe that Microsoft has changed…


Canonical Goes to Bed With Company That Sues Linux Using Software Patents and Copyrights (Through SCO)

Posted in Microsoft, SCO, Ubuntu at 9:58 am by Dr. Roy Schestowitz

“Microsoft hardly needs an SCO source license. Its license payment to SCO is simply a good-looking way to pass along a bribe…”

Bruce Perens

Summary: Despite Microsoft’s continued assault on GNU/Linux, Canonical is foolish enough to give Microsoft control over many Ubuntu instances

MICROSOFT is fooling the GNU/Linux world when it says it “loves Linux”. Based on its actions in this past month alone [1, 2, 3, 4, 5, 6], Microsoft very much hates GNU/Linux and fights it viciously. More than ten years ago Microsoft paid SCO and look how long-lasting the impact of this backing has become. Tom Harvey’s latest report (he is usually pro-SCO) overstates the chances of the lawsuit not being tossed out preemptively as every time in recent memory. Suing for huge sums does not equate to merit, but Harvey floats the claim of “damages of $5 billion” as if there’s a change that SCO will ever see any money at all. Quoting Harvey’s report:

Nearly 12 years after it was filed, a lawsuit against IBM Corp. that riled the open-source computer code community is back on the federal court docket in Utah.

The nearly defunct Utah company SCO Group Inc. and IBM filed a joint report to the U.S. District Court in Salt Lake City saying that legal issues remain in the case, which was initiated in 2003 with SCO claiming damages of $5 billion against the technology giant, based in Armonk, N.Y.

This received more attention than it deserved because of the headline, which reads: “It’s alive! Utah software company’s decade-old suit against IBM revived” (drama over substance).

Microsoft is now swapping money for power (which begets money) in its patent extortion strategy. Samsung has been a top “asset” (like a “high value target”) and Kyocera may be next. It’s all about control. Microsoft now has greater control over Samsung (and by extension over Android), owing to blackmail followed by settlement.

One way or another we should deduce from this that Microsoft’s nefarious attacks on Linux using patents and/or copyrights are not over. Nevertheless, Canonical decided to mimic Novell’s footsteps only in the sense that Canonical trusts Microsoft to prop it up a bit. As FOSS Force put it last week: “There’s little doubt that a few eyebrows were raised by the news on Friday, when Larry Cafiero reported on FOSS Force about Canonical’s partnership with Microsoft involving Microsoft’s OCS hardware and Ubuntu’s open source Metal-as-a-Service (MAAS) deployment product. Those with a little memory might wonder if this is a case of history repeating itself, as we’ve seen Microsoft court aspiring princess distros before, with SUSE, not long after the distro was purchased by Novell, a company with an uneven history.”

The author recalls that “In November, 2006, three years after acquiring SUSE, Novell received an eleventh hour bail out when it entered into a joint compatibility and patent agreement with Microsoft. In the pact, Microsoft agreed to pay SUSE $348 million up front and $46 million annually for five years, with return payment by Novell being mainly in the form of support subscriptions for SUSE Linux Enterprise Server (SLES).”

The conclusion is as follows: “So what does the old SUSE/Microsoft deal have to do with Ubuntu and Redmond’s new partnership arrangement? The quick answer: everything and nothing. Or, perhaps more appropriate for this stage of the game: It’s too soon to tell. One thing’s for sure, even if the deal turns out to be benign and never develops into anything as toxic as SUSE/Microsoft has been, this is sure to develop into something of a brouhaha in the FOSS user community. At the very least, this will become a hot topic on the forums.”

This was posted after Cafiero had written that “Canonical trumpets its partnership with Microsoft — yep, Microsoft — this week at the Open Compute Summit, where the Isle of Man reached across to Redmond to demonstrate how Canonical and Microsoft are working together to create scalable, OCP-compliant architecture.”

Here is Canonical’s original statement, some press coverage, and a blog post stating that “Canonical Deepens Partnership with Microsoft”.

Microsoft had used Novell not just for patent extortion. It later used it for Linux Foundation and events intrusion (like a free press or ticket), HyperV promotion, OOXML promotion, .NET promotion (through Mono), and Silverlight promotion (through Moonlight).

Canonical does not need Microsoft. “MS is reported to have only 10% share of the cloud,” writes Robert Pogson in response to Microsoft propagandist Tony Bradley, so what is Canonical thinking? Microsoft needs Canonical more than Canonical needs Microsoft. When Microsoft says it is changing, well… this is correct; unlike before, it is now embracing and extending (to extinguish) FOSS. It’s s strategic change. It is easy to envision how some time in the future Microsoft will offer ‘in-cloud’ conversions from Ubuntu to Windows. If Microsoft decided to patent the business method of embrace, extend and extinguish (EEE), it would probably not ‘license’ it to anyway. It is its secret weapon and Canonical should be smart enough to know this.


Reminder of Patent Lawsuits From Proxy Entities

Posted in Microsoft, Patents, SCO at 12:41 pm by Dr. Roy Schestowitz

Many road signs

Summary: Possibilities of lawsuits of interest that target Microsoft rivals and help discourage public participation (like SLAPP but bigger)

THE mysterious company that had famously sued Microsoft (VirnetX) and got paid a huge amount of money from Microsoft recently sued Apple again. It is on a path of destruction:

VirnetX Holding Corp. (NYSE MKT: VHC) today announced that on August 7, 2013, it signed a Patent License Agreement (the “Agreement”) with Avaya Inc. Under the terms of the Agreement, VirnetX has agreed to license certain of its patents to Avaya, in exchange for multiple payments to VirnetX and an ongoing reasonable royalty for future sales through the expiration of the licensed patents as outlined in the Agreement with respect to certain current and future IP-encrypted products. In further consideration, Avaya has agreed to license certain of its patents to VirnetX for its ongoing Gabriel technology product development.

Now that Apple is suing Samsung we should remember that any such troll which Microsoft and Apple pay can go after Android and GNU/Linux, equipped with precedence. Think of Nokia and its patent arrangements with Microsoft and Apple. Here is the latest from Apple’s lawsuit against Samsung:

There will be a hearing in Apple v. Samsung I in Judge Lucy Koh’s courtroom, Courtroom 8 on the 4th floor, on August 21 at 2:00 PM, so if any of you stalwarts can attend, that would be fabulous. You don’t even have to wake up early.

What’s it about? Didn’t they just have a case management hearing in April? Why yes. Yes, they did, but there have been “progress and changes” since, according to the parties’ Joint Case Management Statement [PDF], which fills us in on the details. Both parties would like some changes since the last case management hearing. Here’s the last joint case management statement, back in April. And the judge’s order on April 30 was to go forward immediately with the damages trial, unless certain things happened in the USPTO reexaminations of Apple’s patents at issue. Some of those things have almost happened, and there are other quirks, so some changes are being requested.

An article by Richard Hillesley, titled “the litigation business”, reminds us of the notion of lawsuits by proxy:

SCO’s action against IBM and others failed, but reflects a fashion in the technology industries – not restricted to SCO – for replacing innovation and business with teams of lawyers and threats of litigation, says Richard Hillesley

Lawsuits that involve patents — not copyrights — are the next wave of FUD against FOSS. Steam, a company whose CEO is “formerly” of Microsoft, has another legal tie with Microsoft created:

Jason Holtman, who spearheaded Valve’s Steam business for eight years before leaving the company in February, has a new job.

The former lawyer has taken a job with Microsoft, with a focus on PC gaming and entertainment strategy. Because he has just started at the position, Holtman declined an interview request, but confirmed the move.

Lawyer, not a technical guy. Will he help sue Microsoft’s competition over patents? Maybe, but ether way, it is important to keep track of these movement because entities like Acacia absorbed lawyers from Microsoft shortly before suing GNU/Linux from multiple fronts.


Insulting GNU/Linux and Free Software, Courtesy of Microsoft Moles

Posted in Free/Libre Software, GNU/Linux, Microsoft, SCO at 10:04 am by Dr. Roy Schestowitz

Stephen Walli

Summary: Microsoft staff which infiltrates the opposition is smearing this opposition from the inside and pushing Microsoft’s proprietary software deep within

We are still seeing that typical smear from Walli [1, 2, 3] and fellow Microsoft staff who try to demonise FOSS users, calling them “freeloaders”. This is not the first time we see this insult, but why does Red Hat give Microsoft’s Walli a platform with which to spread the insulting ideas? Here is the link (don’t click) and here is some more brainwashing where Microsoft interviews Microsoft on Linux (at a Microsoft site), grooming another puppet and infiltrator like Hilf and Ramji [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12] before he quit. This one is K.Y. Srinivasan, whom we wrote about in relation to what he does inside Linux. Some Microsoft Web site recently pushed some articles repeatedly, trying to paint Microsoft as a friend of Linux. Will they kindly just step away and stop insulting Free software advocates while pushing Microsoft into everybody’s life, even GNU/Linux users?

People will never forget how Microsoft bankrolled the SCO case, which more than a decade later is still going on:

SCO is saying, we don’t have the copyrights. But we had contracts. The “among other things” means they have more in mind they don’t wish to tell us about yet, as is SCO’s wont. It’s about post-1995 SCO products and Project Monterey and IBM allegedly turning folks against SCO. Like they needed to turn anyone away from SCO. When a company shoots itself in the foot by suing its own customers right and left, it tends to create an atmosphere of alarm and distrust, resulting in others putting space between them and the foot-shooter.

IBM gets to respond next, and I expect them to say that SCO has zero claims left standing. And then we’ll get to IBM’s counterclaims, at last. Here’s a chart of all the summary judgment motions left hanging when SCO filed for bankruptcy protection.

Remember that some people from SCO moved to Microsoft, where they now pretend to be FOSS people. notably Sandeep Gupta.

“[Microsoft's] Mr. Emerson and I discussed a variety of investment structures wherein Microsoft would ‘backstop,’ or guarantee in some way, BayStar’s investment…. Microsoft assured me that it would in some way guarantee BayStar’s investment in SCO.”

Larry Goldfarb, BayStar, key investor in SCO

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