In Soviet Russia, only Microsoft ever gets sued
Summary: Misleading article helps portray the aggressor as a negotiator, using patently false claims that are easily disprovable
The notion of SLAPP (strategic lawsuit against public participation) is well understood in the legal world. If the cost of defending oneself in court is higher than the cost of settlement and the outcome at the court is not so crucial (e.g. if you make Android devices but not Android itself), then the legal system can be perturbed and radically manipulated. It enables people in suits to call ‘business’ what really is the direct equivalent of the Mafia demanding ‘protection’ money from local shops. It’s akin to what some label “financial terrorism”, evoking particular detrimental behaviour through economic strangulations.
“It enables people in suit to call ‘business’ what really is the direct equivalent of the Mafia demanding ‘protection’ money from local shops.”Matt Asay, whom we sometimes refer to as Mac Asay for his advocacy of Apple products and Microsoft apologism*, has this article titled “Microsoft’s Mobile Patent Strategy: Threaten, Don’t Sue” (untrue, see TomTom and others, as it was definitely neither the first nor last). The article comes from a site formerly (until very recently) managed by an inflammatory anti-Linux man.
SLAPP tactics are not taken into account by Mr. Asay, so his hypothesis is misleading. It makes Microsoft look quite soft. Asay cites this article from many years ago and says “Microsoft has never been one to sue. In its long history, the company has only taken someone to court a small handful of times, and itself has had to pay out more than $9 billion in damages. Perhaps because of how hard Microsoft has been spanked by the courts, it has taken a different tactic with Google Android.”
This is nonsense. Microsoft sued plenty of times. We covered many examples.
“As reported by Reuters,” he continues, “Microsoft now makes far more on Android patent royalties than it does on its own Windows Phone OS. (For some this might make Microsoft a patent troll, but we’ll leave that for a separate blog post.) In fact, by some estimates Microsoft will clear $3.4 billion in Android royalty fees in 2013, and is on pace to top $8.8 billion within the next few years.”
“Truthfully, given Microsoft’s business practices, it deserves no real opportunity in mobile devices and its executives should be trailed for racketeering, among other abuses.”No evidence for that, as we noted the other day. These are mere guesses and FUD that Microsoft just loves printed/echoed in the media (it leads to intimidation against Android adoption by companies). There are numerous other issues with Asay’s article. He doesn’t use facts properly. But it it is easy to agree with his closing words: “It’s time to give Microsoft the chance to prove itself in mobile, too, rather than collect fees on others’ hard work.”
Truthfully, given Microsoft’s business practices, it deserves no real opportunity in mobile devices and its executives should be trailed for racketeering, among other abuses.
Gutierrez, Smith and other top lawyers, even Steve Ballmer and Bill Gates to some degree, are behind the racketeering. There is a law against racketeering and it should be put to use at long last. It was put there for a reason. █
* Asay, a former Novell employee, routinely communicates with Microsoft employees and he was also interviewed for a job at Microsoft at one point, later letting the company intrude the FOSS world via OSBC, OSI, etc.
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Summary: BlackBerry maker is said to have signed a FAT-related deal with the abusive monopolist
The increasingly struggling RIM is said to have recently signed a patent deal with Microsoft — one that helps traitors like Tuxera tax Linux through exFAT and similar file systems. This is legitimisation of FUD.
Tuxera and Novell are similar in this regard. RIM, unlike TomTom, did not take this to court and it’s likely to have stooped low for Microsoft because those two companies signed some deals before, e.g. Bing search and map.
“This is legitimisation of FUD.”Microsoft uses those deals to extort Google/Android backers including Samsung. Speaking of Bing and extortion, watch what Microsoft is foolishly doing: “A series of monumentally sloppy, automatically generated takedown notices sent by Microsoft to Google accused the US federal government, Wikipedia, the BBC, HuffPo, TechCrunch, and even Microsoft Bing of infringing on Microsoft’s copyrights. Microsoft also accused Spotify (a music streaming site) of hosting material that infringed its copyrights. The takedown was aimed at early Windows 8 Beta leaks, and seemed to target its accusations based on the presence of the number 45 in the URLs.”
Here is another set of good rebuttals to that. Microsoft has gone insane with so-called ‘IP’. █
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Summary: A few updates on the patent wars which target Linux and Android
THE fight against TomTom gave considerable force to Microsoft’s extortion-esque attacks on Linux. Unlike the Novell deal, this court case was about resistance to Microsoft, whereas Novell was the one that came to Microsoft, asking for the deal. Here we are in 2012, merely 3 years after the TomTom case and nearly 6 years since Novell came to Microsoft.
“Microsoft [is running scared from Germany because of #swpats", writes Alan Lord, noting that just after the FAT decision and involvement from Linus Torvalds the Motorola case is weakened even further. We wrote about FAT recently because Microsoft is losing its patent teeth, which are rooted in lousy patent gums. One report on this subject comes from Reuters:
Microsoft (MSFT.O) is moving its European software distribution to the Netherlands from Germany after being caught up in patent disputes with mobile phone and tablet maker Motorola Mobility Inc (MMI.N).
“We would have preferred to keep our European distribution center in Germany, where it has been for many years. But unfortunately the risk from disruptions from Motorola’s patent litigation is simply too high,” Microsoft spokesman Thomas Baumgaertner said on Monday.
Foolishly enough, Reuters quotes another Microsoft mouthpiece and lobbyist (Florian Müller). As Microsoft is grooming its lobbyists and paying them to spread lies, it is possible to inject yet more Microsoft talking points into articles, then pretend they are from an “independent” source.
As under pressure this lobbyist admitted to be paid by Microsoft, a reputable news source like the above should refrain from quoting him in articles about Microsoft (also its rivals).
As one commenter put it in an external comments section when he saw the lobbyist quoted:
This is where I stopped reading, as I knew at that point that the article was going to be worthless.
This guy is like Gartner: always wrong, but somehow always quoted. How do I get a job where I can just make stuff up, always be wrong, and still get paid?
He is still spreading Android-hostile disinformation. “Both Oracle and Google, not content with letting Dr. Kearl, the court-appointed damages expert, introduce his damages report and testimony without challenge, have filed Motions to exclude portions of Dr. Kearl’s report. However, each party only seeks to exclude one narrow area of Dr. Kearl’s testimony,” says Groklaw when it became clearer that the trial goes on:
Oracle and Google are now set to go before the US District Court of San Francisco on 16 April. Oracle had turned down a settlement offer from Google last week which has led Magistrate Judge Paul S. Grewal to decide that the case will go ahead.
The war on Android is always based on software patents. Get rid of software patents, then the problem will mostly go away. SJVN notes that CISRO [1, 2, 3] is still exploiting Wi-Fi patents to essentially troll real companies:
Australia’s Commonwealth Scientific and Industrial Research Organization (CISRO) has snatched picked up $229-million from technology companies for their Wi-Fi patent. This time around, CISRO hit up Lenovo, Acer, Sony, AT&T, Verizon, and T-Mobile. These companies settled with CISRO rather than face in the infamously pro-patent Eastern District Court of Texas, United States.
This isn’t the first time CISRO has cashed in big with its overly-broad patent. The research arm of the Australian government hit up 14 companies in 2009, including HP, Microsoft, Intel, Dell, Netgear, Toshiba, 3Com, Nintendo, D-Link, and Buffalo Technologies, for over $200-million.
During Easter we shall catch up with patent news. We fell behind a bit. █
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Summary: The primary patent extortion vector against Linux is falling apart with help from the creator of Linux
A FINNISH company called Tuxera is doing a lot of damage by making it standard practice to pay Microsoft for Linux, due to dubious claims of file system patents. Here is the latest attack from Tuxera and Microsoft. But another Finnish entity, Linus Torvalds, is meanwhile knocking down the very basis for this extortion, namely some controversial file system patents. As one writer put it:
Open source pin-up Linus Torvalds has managed to stuff up an important Microsoft patent which was being used to force Google Android and Linux handset users to pay up.
According to Wired, the Vole had forced many Android phone makers into paying licensing fees for various Microsoft patents related to operating system design.
It looked like Microsoft was vindicated when ITC Administrative Law Judge Theodore R. Essex found that Motorola had violated four Microsoft patents. But Torvalds helped convince the Administrative Law Judge that the patent was invalid.
So, will they issue a refund to many companies such as TomTom when this patent charade is buried? Here is the original article that everyone is linking to. It says;
Linus Torvalds just can’t help but be a thorn in Microsoft’s side.
First, he created an open source project that completely upset Microsoft’s business model. And now, he has helped shoot down an important Microsoft patent in Redmond’s crusade to wring licensing dollars out of Google Android and other versions of Linux.
Microsoft has coerced many Android phone makers into paying licensing fees for various Microsoft patents related to operating system design, and in some cases, it has actually taken legal action against such companies, including smartphone manufacturer Motorola. In October of 2010, it sued Motorola in federal court, and it filed a complaint with the United States International Trade Commission, or ITC.
Last December, Microsoft scored a victory when the ITC Administrative Law Judge Theodore R. Essex found that Motorola had violated four Microsoft patents. But the ruling could also eliminate an important Microsoft software patent that has been invoked in lawsuits against Barnes & Noble and car navigation device-maker Tom Tom.
According to Linus Torvalds, he was deposed in the case this past fall, and apparently his testimony about a 20-year-old technical discussion — along with a discussion group posting made by an Amiga fan, known only as Natuerlich! — helped convince the Administrative Law Judge that the patent was invalid.
This is very important news.
One debate which relates to this is whether software patents should be permitted in standards. The Business Software Alliance (BSA), a Microsoft front group, lobbies in favour and Glyn Moody takes note:
This is a perfect example of why this is not just about big companies versus little companies. Samba is not a company, and has no funds, and yet it has created and continues to develop one of the most widely-used pieces of software in the world. According to Mutkoski, it should be perfectly acceptable that this group of public benefactors – for that is what they are – should be denied access to key information held by a company that was found to have abused its monopoly, simply because that group has no funds. And that, in general, is what will happen if open standards are allowed to be FRAND, and not RF.
And to the argument that Samba did, indeed, obtain that key interoperability information, which proves the current system works, and doesn’t need changing, consider this. Samba obtained that information only because, once more, two things happened: a one-time access fee was charged, and a Fairy Godmother appeared to pay it.
But the point is, a belief that companies will always grant one-time fees, and that Fairy Godmothers will always magically turn up in the nick of time to save open source projects that otherwise will be excluded from key sectors, is not a basis for European policy making. The European Commission must plan on the basis of reality, not fantasy. The only rational way of protecting open source projects and allowing them to continue to make their contributions to society is to insist on RF, not FRAND licensing for open standards.
Of course, there is an alternative which Mutkowski may like to consider: that Microsoft commits irrevocably, perpetually and unconditionally to take on the role of Fairy Godmother by covering all FRAND fees that may be demanded from any open source project for implementing open standards.
exFAT is a major sham that should not be permitted as de facto standard because of patents. Now that the patents in question are scrutinised, might there be a massive refund for Microsoft extortion? Unlikely perhaps, but one can hope. █
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Summary: Further discussion about the Casio extortion and what it might really be about
YESTERDAY we alluded to the 'deal' with Casio and unfortunately it’s mostly Microsoft boosters who cover it, so they do it in a shallow way that is not critical at all. Articles like this one do a disservice to justice. They are more like PR and not investigative journalism. This other coverage makes it seem like Casio is on equal footing and the most trollish article (article at The Register) plays along with Linux FUD, stating: “In the last four years, the software giant has been quietly threatening legal action for any Linux-using company that refuses to sign patent deals with it. Amazon, Novell, Linspire, TurboLinux and Xandros have all put their X on the dotted line. Others, like satnav maker TomTom, ended up in court, but eventually settled.”
And what exactly was TomTom sued over? That’s right, FAT. That’s hardly Linux at all and recently we learned from the OIN that some of those deals Microsoft called “Linux deal” are in fact just FAT deals. So caution is required, Microsoft is lying.
On USENET, the distinction between FAT and Linux is already being brought up. More people ought to start pressuring Microsoft to disclose what patents it claims to be involved. How many of them actually relate to Linux (if any at all)?
“More people ought to start pressuring Microsoft to disclose what patents it claims to be involved.”It is not just companies that need to be concerned about the lack of disclosure of patents. Customers are all paying the price for these extortions (cascading down to price tags and ending up in bank accounts of Microsoft billionaires), so antitrust regulators must really wake up and do their work on behalf of those customers. “Microsoft faces fresh antitrust probes in Ireland and Spain” according to another headline from The Register and this relates to what we mentioned yesterday. Both are about “licensing” and illegal tactics that somehow escape scrutiny.
“Microsoft is facing more antitrust scrutiny as Spanish competition authorities announced an 18-month review of Redmond’s licensing practices in Spain and Ireland,” says the article.
A translation from the complaint goes as follows: “This case originated in a complaint filed by Elegant Business SC for a possible breach of competition law.”
What are the European laws that may apply to Microsoft’s secret extortion racket? There would probably be a RICO Act equivalent and someone really needs to look into it. US regulators fail to do their job. █
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DESTROY THIS MAD BRUTE – Enlist U.S. Army” is the caption of this World War I propaganda poster for enlistment in the US Army. A dribbling, mustachioed ape wielding a club bearing the German word “kultur” and wearing a pickelhaube helmet with the word “militarism” is walking onto the shore of America while holding a half-naked woman in his grasp (possibly meant to depict Liberty). This is a US version of an earlier British poster with the same image. Dated ca 1917. [source: Wikipedia]
Summary: Why software patents should be confined geographically, as Microsoft mostly manages to extort Linux distributors in few places that acknowledge patents (monopolies) on algorithms
LWN, one of the best Linux sites out there, says that In Re Bilski means “business [method patents] as usual” (that’s the headline).
“Business method patents nearly bite the dust,” says SCOTUS Blog in the headline. In summary:
Reflecting on Justice Stevens’ lost majority opinion in Bilski
Brad Feld, a critic of this system [1, 2] with a long series of rants about software patents, previously wrote about “Why Bilski Really Means That Software Companies should leave the US” (snippets in Digital Majority).
The problem is made greater when countries other than the United States become equally hostile towards software developers and more friendly towards their lawyers.
According to this patents blog, there are changes in Germany that almost overlap horrible news about the Siemens case [1, 2, 3, 4, 5] and even Microsoft’s FAT patent (upheld in Germany).
The German Federal Supreme Court (Bundesgerichtshof) has recently made clear that every court has to take into account preceding decisions of the European Patent Office (EPO) and of courts of other contracting states to the European Patent Convention (EPC) if these decisions essentially concern the same questions. Although there is no principle of precedence in Germany – neither in respect of German nor of foreign decisions –, the recent ruling of the Federal Supreme Court (Bundesgerichtshof, 15 April 2010, Xa ZB 10/09 – “Walzenformgebungsmaschine”) requires more than just regarding other decisions with favour. Every court has the obligation to deal with the arguments brought forward in other – German, EPO or foreign – decisions.
Two years ago it was a Symbian-related case that seemingly brought software patents into Europe via the UK. Earlier this year Germany’s legal system was named as a similar type of culprit and it’s important to watch and report these precedences. According to this report, DENSO, which is based in Japan (where software patents are legal), has just signed a patent deal with Microsoft. Linux is not mentioned at all, except by The Register which brings TomTom‘s case into it (gymnastics in logic?):
Microsoft scored yet another patent licensing deal yesterday, this time with automotive tech firm DENSO Corp.
Famously, Microsoft’s original court allegations over the three file management patents involved TomTom’s use of the Linux kernel, and according to Redmond at the time the settlement provided TomTom with coverage under those three patents in a way that was compliant with TomTom’s obligations under the General Public License Version 2 (GPLv2).
Many people must have noticed by now that Microsoft is capable of signing Linux-hostile software patent deals in the few places other than the United States (where Xandros, Linspire, and Novell are/were based) that acknowledge software patents. Examples include Fuji Xerox, Turbolinux, Kyocera Mita, and I-O Data (based in Japan too). It is therefore important to ensure that software patents never reach Europe, not in any formal sense anyway.
Korean giants like Samsung and LG have sold out to Microsoft as well (software patents are arguably valid over there). These two companies pay Microsoft for Linux on any items they sell, so it’s not clear why some Linux proponents are jubilant:
LG, Samsung big on Android
And now most other mobile phone makers, and those readying to ship tablet PCs, are embracing Android. Among them are LG and Samsung both of which are on the brink of releasing Android-based devices.
Microsoft makes money from those. It is better to buy an Android handset from Motorola, for example. █
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Summary: How to put Microsoft’s and Novell’s Mono where it belongs (the garbage can)
SOMEONE has just published these instructions for removing Mono from the Ubuntu distribution of GNU/Linux and one reader of ours wrote an ode about Mono earlier today:
Life with Mono – Mononono
They sold us it was free
>From someone else’s claims
The code began to show
And no one spoke at all
But when I asked to Novell,
If I’m protected…
I just don’t know what to do
Brought us a perfect doom
F-Spot, Banshee and a paint
Made us target for threats
But if you still trust MS
Then you are a complete…
I just don’t know what to do
I just don’t know what to do
For reasons we explained before, Mono is a gift to Microsoft and a Trojan to GNU/Linux. Even Canonical's CTO is aware of the issues associated with Mono. According to this uncertain post from Groklaw, Microsoft’s preparations for lawsuits against GNU/Linux (like SCO and later TomTom) may take a long time to ‘cook’ before action is taken. Groklaw’s post uses evidence that we covered a year and a half ago [1, 2, 3, 4], thanks to Comes vs Microsoft exhibits.
What did Microsoft know about SCO’s plan to attack Linux, and when did it know it? And was it a force behind it?
But now, thanks to a volunteer working on doing the exhibits in the Comes v. Microsoft antitrust litigation as text, we find an email thread in Exhibit 8953 [PDF] where Microsoft employees, including the managing director of Microsoft in India at the time, mention SCO in a discussion about heading off the Linux threat in India. The emails are dated September 11, 2002. Given the date, I believe this opens up the question of Microsoft’s involvement once again. At a minimum, it needs clarification. If it doesn’t demonstrate Microsoft knowing about SCO’s plans before they unfurled, what does it mean? I’d like Microsoft to tell us. Because I have a lot of questions about the email thread.
If you recall, EDGI was about pushing Microsoft in India so as to head off Linux and StarOffice use there in government and education. This email says Bill Gates thought they should just give away their software in India and wherever necessary to head off the threat, and that is part of what is being discussed, because some disagreed about giving it away for free. But EDGI was not restricted to India; it could be implemented wherever needed.
I believe this exhibit may be a smoking gun. At a minimum, it calls for clarification, and if and when SCO v. IBM starts up again, I believe it could provide a basis for limited discovery on this very topic or if Michael Anderer is put on the stand, it opens up a fruitful thread. Regulatory bodies are also completely free to investigate whether it was indeed Microsoft using SCO as an anti-competitive weapon against Linux in violation of antitrust law.
The email mentions Novell, SCO and Trishul, and I thought it might be referring to an inside name for the strategy, since that is the name of a Trident air defense missile (“The Trishul air-defense missile is intended to counter a low level attack with a very quick reaction time and has an all weather capability.”), but it is also possible it’s referring to a Microsoft employee who heads up the Runtime Analysis & Design research group, so I’ve written to him asking him which it might be or if he can clarify the email. Meanwhile, take a look. The reference to Novell is more puzzling, but it is certainly possible, given the evidence that SCO thought Novell would join them, that Microsoft back then thought so too.
This fascinating part of an antitrust exhibit about EDGI and the mentioning of SCO was covered by Techrights last year, but for those who are interested in a detailed analysis and some background, the above will do. Mono — like FAT — is a form of an ambush. Microsoft recently validated a FAT patent in Germany. But Mono is not just about software patents; it’s about controlling developers and it’s developed/coordinated by a Microsoft MVP. █
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Summary: Software patents apparently encounter new barriers in the USPTO, whereas in Europe there is a reversal which seems to contradict EPO rules
Microsoft’s business model currently depends on software patents, which is why it has hired lobbyists and recruited front groups to lobby for them all around the world. Yesterday we used Hugo Lueders (CompTIA) as an example, not a scapegoat. CompTIA has lobbies for software patents in Europe even this month.
According to Benjamin Henrion, the president of the FFII (Europe-based), having seen some months ago that the Bilski decision started killing software patents, there might be more of the same. Henrion points to this news and asks: “USPTO starts rejecting software patents?”
From the source:
BPAI Remanding Cases Involving Computer-Oriented Means-Plus-Function Claims
In Ex party Rodriguez, the BPAI rejected a patent applicant’s means-plus-function (MPF) claims as indefinite for failing to provide any corresponding structures in the specification beyond a general purpose computer. That decision followed the Federal Circuit’s Aristocrat holding that “simply disclosing a computer as the structure designated to perform a particular function does not limit the scope of the claim to ‘the corresponding structure, material, or acts’ that perform the function, as required by section 112 paragraph 6.”
This is important news because it’s a software patent on the face of it. A few days ago we saw a film about In Re Bilski being released [1, 2] and there are long discussions about it these days [1, 2]. There is increasing pressure to see the end of software patents.
Ironically, while the US seems to be moving in a better direction, Germany messes up royally by upholding Microsoft’s FAT patent after it was rejected. [via]
The German appeal court has overturned a decision by the German Federal Patent Tribunal to declare Microsoft’s patent for the File Allocation Table (FAT) file system invalid. In judgement number X ZR 27/07, handed down on Tuesday, the tenth civil division of the Karlsruhe-based court confirmed the enforceability of the company’s commercial rights in Germany. It has not yet published its reasoning, but has confirmed the decision in a short press release (German language link).
Some readers have told us about this disruptive development because it relates to the TomTom case and it affects Linux. On the face of it, Scharen is involved but it might be Richter Scharen, not Uwe Scharen, whom we consider to be in Microsoft's fold. █
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