Bonum Certa Men Certa

Shades of SCO in Action Against Android

Film clapper

Summary: Same script, new players; or how the Android case resembles the situation of Linux under SCO's legal attacks

SCO is only history, but the lesson to be learned from the SCO case is that Microsoft, for example, will compensate other companies for attacking Microsoft rivals in the courtroom. One of the people who played along with SCO and Microsoft was DiDio from the Yankee Group and she is was quoted a lot by ECT over the years, even in Linux Insider. The same goes for other SCO friends, who wrote entire columns for ECT and also moved on to ZDNet where they pushed the SCO line/talking points. ECT still quoted DiDio last week (spreading FUD about "support" for GNU/Linux, in a Web site called Linux Insider).

One of our readers, speaking in IRC, suggested that Oracle, Apple, and Microsoft might be working together/in tandem, maybe even colluding to eliminate free platforms (they are all in CPTN after all). Pamela Jones linked to this new article and wrote: "That's the same reasoning behind SCO's attack on Linux, to make it cost. Where are the regulators, you ask? Where are *you*? If you refuse to buy from companies that behave like this, they'll get the message, just as SCO got the point eventually." From the article:

It's the same reason why Microsoft is suing makers of Android phones: to give Android a price.

Android is free. In some cases, it's even cheaper than free, with Google sharing some revenue from Google searches on Android phones with partners. This is hugely disruptive to both Microsoft and Apple's business models; Microsoft because they make money on software licenses, and Apple on hardware. And this disruptive approach is winning: Android is surging past iOS in marketshare.

A lawsuit from a big company, even if doomed, still takes a lot of time, energy and money to fight off. So a Samsung or someone else might settle, accepting to pay some form of license. If that happens, Apple can go around the other manufacturers asking for the same license and have a much stronger claim. And now OEMs have to factor that cost into the decision to choose Android. And all of a sudden, Android has a price.

Microsoft has said that it would pursue this strategy. There need not be speculation here. John C. Dvorak wrote a similar article over the weekend. In summary he adds:

The rise of the Android operating system seems to have gotten the attention of just about everyone, as Google Inc. is under attack by various patent holders looking to derail the software and the company. The beneficiaries are Apple Inc. and Microsoft Corp.

Separately, Jones wrote that "Patent Verdicts Are Usually Appealed, Often Reversed". Her comment in News Picks went like this (it is a shame that there cannot be permanent link to her insights in News Picks, therefore reproducibility matters):

I see Florian Mueller is once again predicting gloom and doom for Linux, this time due to a jury win for Bedrock against Google, but let me show you something that should calm the waters.

Here's the website of the Federal Circuit Court of Appeals, which is the specialty court that hears appeals of patent infringement cases in the US, and the link is to the page on statistics, and here [PDF] are the latest statistics on what happens to patent infringement cases on appeal. I think you can see from the stats why patent cases so often are appealed -- your chances are very good that you can get matters reversed on appeal, almost a 50-50 chance.

In fact, here's the intro to a paper [PDF] titled TOWARD CERTAINTY AND UNIFORMITY IN PATENT INFRINGEMENT CASES AFTER FESTO AND MARKMAN: "The increasingly complex technology involved in patent infringement cases has lead many to question the ability of district court judges and jurors in such cases to issue uniform and predictable decisions. In fact, there is evidence that the Federal Circuit Court of Appeals - the appellate court with sole jurisdiction and accumulated expertise in patent law - routinely overrules district court decisions regarding claim construction and prosecution history estoppel under the doctrine of equivalents. Given the frequency with which the Federal Circuit overturns district court decisions, and the fact that nearly every patent infringement case involves a dispute over claim construction or prosecution history estoppel under the doctrine of equivalents, patent infringement cases are typically uncertain until after appeal."

So calm down. There will likely be an appeal of the jury's decision in the case brought by Bedrock against Google. And given the nature of the patent, I expect Google will prevail, frankly. In fact just today, Dave Farber wrote on his IP list: "I believe I used that technique in SNOBOL in the early 60's," meaning the technique that awed the jurors so. When it comes to tech, it isn't so easy for juries, and this was in Texas, where the juries have a rep for finding for patent holders whether they deserve it or not. So, I'd suggest everyone just relax and let it all play out. It's way too early to be worried. I'd also point out that $5 million isn't very much for Google, even if it were upheld, and if that were the worst that were to happen in the Oracle suit, it hardly would spell doom and gloom for Android. Of course, the real problem is that a lot of stupid patents have issued, and real solution is that software and patents need to get a divorce.] - Federal Circuit Ct. of Appeals

Let us remember that Microsoft Florian is busy attacking Android (even today) while he mostly ignores what Apple and Microsoft are doing; instead he promotes cartels like CPTN -- a cartel with Apple inside it. Here is something that Glyn Moody wrote a few days ago on this matter.

So far, I've held off from writing about the proposed sale of 882 Novell patents to a consortium “organised by Microsoft”, since there have been so many twists and turns - first it was on, then off - that making sensible statements about the likely impact on free software was well-nigh impossible. As is so often the case, the devil would clearly be in the details.


Again, it is pretty amazing to read in an official press release from the terribly serious German Cartel Office concerns about the use of patents to spread FUD, specifically against open source. This argues a widespread appreciation of the way in which broken patent laws have allowed what was designed to be a spur to innovation to become a weapon for hobbling competitors - not just directly through the courts, but as a vague but real threat to hold over them.

The fact that the US Justice Department clearly shares that view - and “will continue investigating the distribution of the Novell patents to the CPTN owners” - is significant; it means that all of those involved in the CPTN consortium will remain under scrutiny to guard against any future abuse of the patents involved, or FUD based on them.

Now that Microsoft's gadgets die along with all the rest of its products (bar the cash cows), even ZDNet does an article about it, even though it spins it a bit (as expected). For example:

Microsoft declined to confirm the rumours, although plenty are speculating that the company will keep the Zune brand and continue to produce media player software for Windows Phone 7 and the Xbox 360. If true, that would relegate the much hyped device to the dustbin of failed tech products.

Zune is one example among many where Microsoft fails in gadgets. This is why it wants to tax Android, for example. Increasingly, Apple chooses a similar route because Android is taking over many areas, thanks in part to its licensing model and wide channel strategy.

As CPTN includes the company behind iPatent, its legal actions make it a suspect. Not only Microsoft had something to gain from the SCO case. Sun too paid SCO. As we explained before, there is some evidence that can suggest collaboration on patents between Microsoft and Apple (they are already cross-licensing), including the irrational litigation against Android.

This post hopefully contains enough pointers to encourage further reading.

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