Reign by fear and terror, protectionism for few mega-corporations
Summary: A look at the US patent system, as viewed from the lens of Professor Dennis Crouch, founder of Patently-O
Continuing our emphasis on the USPTO today, right now we focus on Patently-O, a decent source of information about patents (albeit sometimes a tad biased because of Dennis Crouch's occupation and surroundings/environment).
Based on this new article, the Court of Appeals for the Federal Circuit (CAFC) has ruled that ITC cannot weigh in on “Purely Electronic Products”, however that’s defined. Remember that the ITC helped Microsoft embargo competing mice from Asia when Microsoft’s patent aggression began, not too long before the historic TomTom lawsuit which served as a deterrent to many other Linux distributors after 2009. “In its panel opinion,” says Patently-O, “the Federal Circuit held that the USITC jurisdiction over the importation of “articles that infringe” does not extend to the “electronic transmission of digital data”. Rather, Section 337 of the Tariff Act is limited to “material things” as used in common parlance (i.e., beyond an “electron’s invariant mass” that may be associated with a digital transmission). See Dennis Crouch, Federal Circuit Bites Back against USITC Expansion into Electronic Importation, Patently-O (November 10, 2015). That original panel included Chief Judge Prost who wrote the majority opinion along with Judge O’Malley who also issued a concurring opinion and Judge Newman in dissent.”
“Remember that the ITC helped Microsoft embargo competing mice from Asia when Microsoft’s patent aggression began, not too long before the historic TomTom lawsuit which served as a deterrent to many other Linux distributors after 2009.”Other articles from Patently-O note (regarding Cuozzo v. Lee) that “it may make the most sense for the Supreme Court to dismiss the claim construction issue as improvidently granted but retain question two regarding the appeal of institution decisions.” We wrote about this case in the middle of February, right after Antonin Scalia had died.
Another new Patently-O article says: “Most firms, of course, are aware of their ethical obligations to take reasonable precautions to secure client confidences, no doubt in part because the standard of care requires it, hacks are public knowledge, and in fact the FBI issued a warning several years ago on this point. But a Citigroup report dated almost exactly one-year ago said that lawyers still were behind the curve, and articles specific to IP firms (such as this one, calling IP firms the low-hanging fruit compared to the USPTO’s data) are out there also signaling warnings.”
“It’s as though we’re dealing here not with a patent system but a filing system, wherein patents are properly examined only when taken to court (or to PTAB).”Both IP [sic] firms and the USPTO are biased. They cater for themselves. Then there are the extremes like IAM 'magazine'. It’s expected that many people out there will be biased, but realisation of this bias is key. In many people’s view, Techrights too is “biased” — a claim we’re not trying to deny but at least make rather evident (e.g. from the style). Even journalists are biased, but they do a better job hiding it (or their publishers hide it while commissioning journalistic endeavors based on the paper’s agenda).
One very recent article from Patently-O said “lawyer must certify that, based upon a reasonable investigation, that a substitute claim is patentable” (lawyers typically do whatever it takes to just get the job done, i.e. patent something if working for an applicant/plaintiff or invalidate if working for a defendant/challenger).
“The US patent system is in a sordid, sad state.”One last article from Patently-O said: “The second point seems to be that conflict-free counsel would have obtained broader claims that covered Savi’s commercial products. Here, the appellate court said there was no evidence the USPTO would have issued the claims. It is not clear what was done by Axcess: did the expert compare the hypothetical claims to the prior art of record? If so, that would seem to be enough, but the appellate court stated that there had to be evidence of how the USPTO would have responded to hypothetical patent applications and “evidence from similar cases.” In a vacuum and without the full trial record, this seems odd. Again, the opinion is hard to follow.”
Given the PTO’s figures, it’s hard to imagine that they do any quality control at all, but now that there’s a $42 million verdict at stake suddenly they actually try to get the job done properly. It’s as though we’re dealing here not with a patent system but a filing system, wherein patents are properly examined only when taken to court (or to PTAB).
The US patent system is in a sordid, sad state. █
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Microsoft extortion red-flagged in Germany
Summary: A new ruling in Germany threatens Microsoft’s campaign of fear and racketeering against Android (and GNU/Linux), but Microsoft allies from the now-defunct Novell help patent-pushing efforts, threatening to add new bait to Android
The traitorous company known as Xamarin, run by former Microsoft staff and a Microsoft MVP (also funded by people from Microsoft), keeps pushing Mono (Moonlight is dead now) into Linux and Android, no matter how strongly users are rejecting it. Now they go after Google’s CCTV Glass, trying to make it Microsoft dependent (including patents).
“Xamarin is now (more than before) very closely connected to Microsoft and it is funded by former Microsoft executives.”People like Miguel de Icaza once pretended that Microsoft would not sue, but even de Icaza had to shut up when Microsoft actually sued TomTom in 2009. Why are these people still pushing Mono into Linux and Android (not to mention Wine )? Well, that’s simple. Xamarin is now (more than before) very closely connected to Microsoft and it is funded by former Microsoft executives. They are up to no good.
It should be noted that based on my phone conversations with the OIN’s president, Microsoft typically uses FAT patents to sign patent deals which it characterises as "Linux" ones (TomTom’s included).
People should now shun Xamarin and avoid all Microsoft APIs (Samba got exemptions only after a very long antitrust battle in Europe). It oughtn’t be shocking that those who remain interested in Xamarin’s work are all sorts of developers who hang out in Microsoft forums and develop with Microsoft products; they are not GNU/Linux users.
“Now that the FAT patent may be in its deathbed we need to ensure that Microsoft does not ‘plant’ more such traps/bait (like C#) in Linux/Android.”Now we come to the rather important news. In this age when large companies reject the idea of software patenting and most countries in the world do likewise it was rather shocking to find a FAT-related patent upheld in Germany some years back (April 2010). It was pretty much against the law and it helped Microsoft impose a reign of terror on some companies that use Linux in their products.
Well, according to this bit of news that links to a deceiving Microsoft lobbyist as the source, Microsoft’s FAT patent got invalidated and later coverage helped confirm this. While nobody knows if Microsoft actually makes money from Android (it's all speculations from unreliable sources), Steven J. Vaughan-Nichols says that Microsoft FAT patent loss endangers its Android revenue. “A patent loss in a German court may lead to trouble for Microsoft’s Android strategy,” Vaughan-Nichols writes.
As one person put it today, “it’s not the news I wanted to hear “Microsoft could appeal” but its a step in the right direction.”
It’s almost as though Germany might actually uphold EU law for a change, at long last rejecting software patents in spite of distortion of the facts from Microsoft Florian and other pseudo-European lobbyists like ACT.
Now that the FAT patent may be in its deathbed we need to ensure that Microsoft does not ‘plant’ more such traps/bait (like C#) in Linux/Android. We need to shun Xamarin and explain to people who Xamarin, the Trojan horse, is really serving. Android already reduced its dependence on some Microsoft patented blobs (like ActiveSync). It needs none of the same troublemakers. This isn’t the first time that Xamarin tries to push Mono into Android [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16] and it definitely won’t be the last. █
Related/contextual items from the news:
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From a patent with Joosun Hahn on it…
Summary: Samsung and its developers appear to be helping Microsoft’s patent war on Linux and also violating the GNU GPL at the same time
The mischievous role played by Samsung in advancing Microsoft’s Linux tax is nothing new. It turns out to be not only proprietary but quite likely a GPL violation. Companies like Tuxera are working for Microsoft by spreading exFAT to manufacture more victims like TomTom, a FAT scapegoat. Microsoft most routinely uses FAT-related patents to tax users and distributors of GNU/Linux (users are being silently taxed through secret deals). It is hard to work around these traps.
Samsung, a patent friend of Microsoft which we reported for GPL violations in the past, pays Microsoft for FAT and then spreads this patent trap further. We recently wrote about some mysterious code from Korea (more details are in IRC logs) and we studied the author of this code in order to better understand her interests and to find out why she may be promoting exFAT. Now there is clarification. Michael Larabel explains: “Last month there was news of a native Linux driver for Microsoft’s exFAT file-system. It turns out that the driver wasn’t developed through any clean-room reverse-engineering but was rather the apparent rebadging of a Samsung exFAT driver for Linux.
“After being informed via email by a user today with this open-source Linux exFAT driver appearing on GPL-Violations.org, the exFAT Linux driver comes with nefarious intentions.
“A lot of people have berated the alleged leaker, but if it proves GPL violations, then it may as well justify the leak and serve as a case of whistleblowing”“It appears (and evidently its “developer” is admitting it) that the exFAT Linux kernel module was based upon source-code found from a Samsung developer for their exFAT driver. The code likely leaked out of Samsung accidentally by a developer pushing their Linux kernel source tree externally to GitHub when it should have been made private.”
Now, the main question is, was the code modified before being uploaded? If so, whose GPL violation is it (assuming it has not been tampered with)?
The developer, Joosun Hahn, has almost nothing on the Web about her (at least not in English) but has various publications (connected Seongsoo Hong in some publications) in decent journals and also patents like this one. Assuming it’s the same person, a 2009 paper describes her as someone who “received her B.S. degree in Computer Science from Soongsil University, Seoul, Korea, in 1994. She received her M.S. and Ph.D. degrees in Computer Engineering from Seoul National University, Seoul, Korea, in 1996 and 2004, respectively. She is currently a research professor in the Department of Computer Engineering at Hongik University, Seoul, Korea. Her research interests include computer architecture, real-time computing, embedded systems, and wireless sensor networks.”
To quote Phoronix Forums (last page), “This source code is not under GPLv2. This source code cannot be redistributed. This code contains Microsoft’s IP. It cannot even be made publicly available – that’s a direct violation of the law.”
In a later thread someone points out: “I’d rather see exFAT burn in hell with its patents, it’s sad that we see this attempt instead.”
As pointed out here, “I examined exfat_super.c and compared it to fs/fat/misc.c, fs/fat/dir.c, fs/fat/namei_vfat.c, and fs/fat/file.c. I will avoid sharing my conclusions here, but any one else is free to look.”
exFAT needs to be killed at all costs. This is poison and those who develop it, be it a person or a brand (Samsung) needs to find other things to do. Right now it’s helping patent terrorists. GPL violations aside (the guilt cannot be established based only on allegations*, but Samsung has poor history when it comes to GPL compliance), the main issue here should be patents.
A lot of people have berated the alleged leaker, but if it proves GPL violations, then it may as well justify the leak and serve as a case of whistleblowing. We shall wait and see how this story evolves. █
* This page shows:
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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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