But is this reaction justified? Is Microsoft truly out to wrestle control of Linux? To ’embrace, extend and extinguish’ like the well-worn mantra proclaims?
Who better to ask than Linus Torvalds, founder of the Linux kernel.
ZDNet‘s Steven J. Vaughan-Nichols (svjn) put the question to Linus at recent Linux developer conference — and the newly-relaxed Finn’s opinion doesn’t deliver what some users might have wished to hear.
Linus is quoted as saying: “The whole anti-Microsoft thing was sometimes funny as a joke, but not really. Today, they’re actually much friendlier. I talk to Microsoft engineers at various conferences, and I feel like, yes, they have changed, and the engineers are happy.“
“And they’re like really happy working on Linux. So I completely dismissed all the anti-Microsoft stuff.”
But how did we get to cloud computing in the first place? While these are not the only reasons, cost, availability and disaster recovery were a large part of what motivated companies to transition from on-prem [-only] deployments to cloud or hybrid approaches. Now, let us fast forward to the present and we are seeing something entirely new: a complete decentralization of the data center.
But what does that mean? Once upon a time, companies transitioning or starting their operations in the cloud shopped around and found a public cloud service that best suited their needs. The final decision typically boiled down to cost and services. I would know. I used to work in a division of one of these large cloud providers and we were always going neck-to-neck with the other major players for mainly these key topics.
At the recent Cloud Foundry Summit EU in the Netherlands, Mario Manno of SUSE and Enrique Encalada of IBM gave a presentation about two popular platforms for deploying your cloud-native applications – Kubernetes and Cloud Foundry. Kubernetes is the great for its flexibility, control over your application and is a great container orchestrator. Cloud Foundry is the go-to platform where you don’t want to worry about your infrastructure, networking, scaling, and routing. It also has the best developer experience in the industry. With Quarks, deployment is simplified using BOSH features, but keeping the flexibility of Kubernetes. Believing that Quarks is the next buzzword for Cloud Foundry conferences, they described and demonstrated the new framework and its building blocks for deploying cloud-native applications which has the best features of the two worlds.
This Service Pack 5 is a consolidation Service Pack release.
CentOS is a distribution of Linux based on a fork of Red Hat Enterprise Linux (RHEL). The team that oversees CentOS operates independently of Red Hat. That team in collaboration with Red Hat is making available an additional distribution dubbed CentOS Stream, through which a continuous stream of content will be updated several times daily. Mike McGrath, senior director for Linux engineering at Red Hat, said those innovations eventually will find their way into RHEL, but until then developers who want to build applications using those features as they become available can use CentOS Stream. This latest distribution of Linux from Red Hat is intended to act as a bridge between Fedora, a distribution of Linux through which Red Hat makes available experimental technologies, and RHEL, he said.
It is October, and in the US it means that all the decorations for Halloween are going up. This is a time of year I love because you get to dress up in a costume and give gifts to people. In the spirit of Halloween, I am going to make various packages available in a COPR to add onto the EPEL-8 repositories.
There are a lot of packages which are in EPEL-6 or EPEL-7 but are not in EPEL-8 yet. Some of these may not be possible due to missing -devel, others may just need someone interested in maintaining a branch for EPEL-8, etc etc. In order to try and get a push on this I wanted to see what packages could be built and made ready at some point. I also wanted to make it possible that if you really needed this package, that they could be available.
Our review of of Zorin OS includes a give-away of one copy of Zorin Ultimate.
Designing and maintaining enterprise networks and the associated hardware is a complex and time consuming task. Network automation tools allow network engineers to codify their workflows and make them repeatable. In this episode Antoine Fourmy describes his work on eNMS and how it can be used to automate enterprise grade networks. He explains how his background in telecom networking led him to build an open source platform for network engineers, how it is architected, and how you can use it for creating your own workflows. This is definitely worth listening to as a way to gain some appreciation for all of the work that goes on behind the scenes to make the internet possible.
The FSF is looking for some direction, StackStorm joins the Linux Foundation, and GNOME users who like it a little traditional get some good news.
Plus the Pinebook Pro starts shipping to customers, and more.
Imad Sousou was the founder of the Intel Open-Source Technology Center that had been leading the company's open-source efforts now for nearly two decades. Most recently his title was as the Corporate VP and GM of the Intel Open-Source Technology Center and System Software. In his role he guided the company's many open-source efforts from the open-source drivers through the MeeGo/Moblin days, the numerous virtualization projects, Clear Linux, and much more. One just needs to browse 01.org to see the incredible breadth of open-source projects he oversaw.
While just one week past the Linux 5.4 merge window cut-off and now with XDC 2019 out of the day, Intel's open-source graphics driver team sent in their first batch of new material they will be targeting for the Linux 5.5 cycle.
The Linux 5.5 merge window isn't until around the end of November and there will be several more weeks worth of Intel graphics driver changes destined for Linux 5.5. But already this first pull request to DRM-Next has a lot of new material.
My music requirements are simple. I have many great qualities, but a refined ear isn't among them. With an aural sensitivity of a comodo dragon, my needs come down to a simple player that is pleasing to the eye, comes with a semi-modern layout, and most importantly, will not annoy me with badly arranged albums, titles and tags. The last piece has been my chief music-related woe for years.
When it comes to music players, I'm kind of okay here. VLC does the job, and when you tweak it, it's quite delightful one must say. Then, when I'm feeling adventurous, there's Clementine, which features splendidly on the desktop, with a clean interface and tons of goodies. And yet, now and then, I go about testing music applications, because music collections won't sort themselves, now will they. To wit, Quod Libet.
Amanita Design are the developers of games including Machinarium, Botanicula, Samorost and more. Today, they released Pilgrims, a playful adventure game and it supports Linux. Note: Key from the developer.
Seems they've now moved over to using the Unity game engine, which has likely helped them support Linux again as previous titles used a mix of Flash and Adobe Air. As for Pilgrims, I had honestly not heard of it at all so it was quite a surprise to see it in the GamingOnLinux inbox this morning. Seems they were a bit sneaky and just stealth released it!
A day some of our readers have been eagerly awaiting, 7 Days to Die has a big Alpha 18 experimental build available to try. It's an absolutely massive release as usual, as they leave it a long time before updates.
Performance has been a bit of a focus for this release. Thankfully. A new Occlusion System made it in, so that a lot of things that are on-screen but not visible to you don't actually render to improve FPS. However, they said it adds "some minor popping artifacts, where occluded objects may take a moment to appear" and so it's a setting you can turn off. The Unity game engine was updated to Unity 2019.1 as well, which should prevent a lot of the hitching seen before with better "Garbage Collection". There's plenty more performance work that went in, which all sounds pretty great. While the gameplay in 7 Days to Die has been fun for a long time, performance has been a serious weak point for it.
The item schematic system is back in the game. Meaning on your travels you can now find them and permanently unlock how to craft certain items and entire groups of items. The early game should be a bit more forgiving on encumbrance, as they've removed a whole row and there's pocket mods to craft for clothing to reduce encumbrance early on. HD icons were added for all blocks and items, a new terrain shader, improved reflections, a coyote and mountain lion were added, Zombies can ragdoll when they fall and the list just keeps going on.
NVIDIA is the latest high profile company now contributing significant funds for advancing the open-source Blender 3D modeling software.
NVIDIA has joined Epic Games at the premiere "patron" level in which they are contributing at least €120k per year. NVIDIA and Epic are the two companies contributing the most to Blender's Development Fund but also making significant contributions are the likes of Ubisoft, Google, Ubuntu, Intel Software, Valve, and others.
Following on from Ubisoft and Epic Games becoming Blender sponsors, NVIDIA have also thrown a bucket full on money into the ring.
Dash to Dock v67 adds support for the recently released GNOME 3.34. This change wasn’t trivial and is said to have necessitated “significant modernization of the code base”.
As a side effect, Dash to Dock developer Michele G says support for previous GNOME Shell versions has been dropped with this version.
Don’t panic unnecessarily though as older versions of Dash to Dock are still available to install from extensions.gnome.org (EGO) for previous GNOME Shell releases.
Anyway, 20 years later there will be a talk and presentation by GStreamer co-founder Wim Taymans (wearing blue shirt and black pants in picture above) at the GStreamer Conference commemorating 20 years of GStreamer. Detailing taking the project from idealistic spare time effort to the multimedia industry juggernaut it is today. Of course the conference is not going to be focused on the past, as there is a long line up of great talks talking about modern streaming with DASH, HDR support in GStreamer, latest developments around GStreamer and Rust, Virtual reality, Vulkan and more. Actually on the ‘and more’ topic, Wim Taymans will also do a presentation on PipeWire, the next generation audio and video server, at the GStreamer Conference this year, hopefully demoing some of the great improvements in things like our pro-audio Jack emulation support. So if you haven’t already, make your way to the GStreamer Conference 2019 website and register for the 10th annual GStreamer Conference!
For those going be aware that there will also be a joint GStreamer fall hackfest and PipeWire hackfest in the two days following the GStreamer Conference. So be sure to sign up for those if interested. They will be co-located with participants flowing freely between the two events.
In this video, we are looking at SolydX 10. Enjoy!
Welcome to the Ubuntu Weekly Newsletter, Issue 599 for the week of September 29 – October 5, 2019.
IoT workloads are moving from central clouds to the edge, for reasons pertaining to latency, privacy, autonomy, and economics. However, workloads spread over several nodes at the edge are tedious to manage. Although Kubernetes is mostly used in the context of cloud-native web applications, it could be leveraged for managing IoT workloads at the edge. A key prerequisite is lightweight and production-grade k8s distributions like MicroK8s, running on Ubuntu Core. In this blog, we describe the most compelling Kubernetes resources for IoT.
TechNexion has launched a rugged “XOREIMX8MM” module with a 30 x 30mm LGA form factor that runs Linux on an i.MX8M Mini with up to 4GB LPDDR4 and 16GB eMMC. There’s also an “XCORE-WIZARD” carrier in the works.
We’ve seen a lot of tiny compute modules based on the i.MX8M Mini, which is understandable considering the up to quad-core, 14nm fabricated Mini has a small footprint and is aimed at IoT devices such as smart speakers. Yet, TechNexion’s 30 x 30mm XOREIMX8MM (or XORE-IMX8M-MINI) beats them all on miniaturization, including the previous size leader, CompuLab’s 38 x 28mm UCM-iMX8M-Mini.
Other extremely small Mini modules include TechNexion’s own, 40 x 37mm PICO-IMX8M-Mini, which has just been updated with Qt BSP support (see farther below) and InnoComm’s recent, M.2 form-factor WB15, which has a 50 x 45mm footprint. TechNexion also offers a larger, customizable AXON-IMX8M-Mini and a SODIMM-style FLEX-IMX8M-Mini module that were announced with the PICO-IMX8M-Mini.
Whether you’re looking to tweak your desktop machine or build a Raspberry Pi kiosk, the commands and tips that [Stephen] shows off are sure to be interesting for anyone who’s not quite satisfied with how their Linux distribution of choice looks “out of the box”.
But there’s more to this project than a custom wallpaper and some retro fonts. [Stephen] actually took the time to create a facsimile of the “Personal Terminal” computer interface shown in the recent Alien: Isolation game in C using ncurses. The resulting program, aptly named “alien-console”, is released under the BSD license and is flexible enough that you could either use it as a base to build your own cyberpunk UI, or just load it up with custom text files and use it on your cyberdeck as-is.
Portwell’s rugged, Linux-friendly “Kuber-2000” embedded computers are based on Intel’s Apollo Lake and measure only 99 x 92 x 46mm. Different models are optimized for isolated I/O, CAN/automotive, PoE, soft PLC, and wireless.
American Portwell Technology has launched a family of six Kuber-2000 industrial mini-PCs with different I/O packages aimed at specific applications. The rugged, fanless, 99 x 92 x 46mm computer runs a Yocto 2.5.1 flavored Linux stack or Windows 10 IoT Enterprise LTSB 2016 on Intel’s Apollo Lake SoCs. The default processor is Intel’s dual-core, up to 2.4GHz Celeron N3350 but you can also choose from optional dual-core Atom x5-E3930 or quad-core Atom x5-E3940 parts.
A crowdfunding campaign about a paper plane… This can’t go very far, can it?
QR Code are pretty common, and until today I used a third-party app to scan the codes and get the embedded information such as a webpage.
We published the Linux App Summit 2019 schedule last week.
We have a bunch of interesting talks (sadly we had to leave almost 40 almost as interesting talks out, we had lots of awesome submissions!) ranging from flatpak and snaps to how product management is good for Free Software projects with some thought provoking talks thrown in to make us think what's the future of our platform.
I am going and you should totally come too!
If you're attending the All Things Open conference in Raleigh, NC this year be sure to check out our Lightning Talk series on Tuesday, October 15 at 12:45 pm EDT.
This is an amazing line-up of quick talks you won't want to miss. Speakers have five minutes to enlighten the audience about an open source topic they are passionate about. We've got everything from DevOps to Kubernetes, and how open source is used in education, healthcare, government, design, and more. Grab your lunch, find a seat, warm up your Twitter fingers, and get ready for the fastest hour at All Things Open.
Martin Stransky landed the dmabuf texture work which was at the prototype stage at the time of the previous newsletter. This is only used with the GL compositor at the moment which is not enabled by default (gfx.acceleration.force-enabled pref in about:config). Work to get dmabuf textures with WebRender is in progress.
While Richard Stallman has resigned from the Free Software Foundation and MIT, he continues to hold onto his position as the head of the GNU project. Now, the FSF has announced that it is "working with GNU leadership on a shared understanding of the relationship for the future" and is seeking comments from the community on what that should be.
Meanwhile, a group of maintainers for specific GNU project has posted a joint statement calling for new leadership at GNU. "We believe that Richard Stallman cannot represent all of GNU. We think it is now time for GNU maintainers to collectively decide about the organization of the project. The GNU Project we want to build is one that everyone can trust to defend their freedom."
Richard Stallman, an industry icon who created the first open-source operating system and has spent his career fighting for free and open software, resigned from his positions at the Free Software Foundation and MIT-CSAIL over remarks he made regarding, of all things, the Jeffrey Epstein case.
The blowup occurred in response to a Facebook event urging MIT students to rally against the university accepting anonymous donations from Epstein, an accused sexual predator of young girls — children, actually. (Our universities are as corrupt as many of our institutions, so looking the other way while money comes in is a matter of practice. See Stanford, Yale, USC and Felicity Huffman, Lori Loughlin and unnamed others of wealth. But this is beside the point of this story.)
Stallman’s comments were in defense of another industry thought leader, the late Marvin Minsky, who was a pioneer in artificial intelligence and co-founder of the MIT AI lab. It is reported that one of Epstein’s girls was directed to have sex with Minsky. While some reports called this a sexual assault, Minsky was never charged with a criminal act. But his guilt or innocence also is beside the point of this article.
On Monday, a group of maintainers of the GNU Project, the free operating system created by Richard Stallman, questioned Stallman's leadership and emitted a joint statement for rethinking how the project should be managed going forward.
Late last month, after resigning as president of the Free Foundation in the wake of catastrophically insensitive statements posted to an MIT mailing list, and a social media backlash, Stallman also appeared to resign as the head of the GNU Project.
A statement saying as much appeared on his personal website. But then it disappeared, leaving speculation that his site had been hacked.
In an email to The Register, Matt Lee, a free and open-source software developer and one of the 18 signatories of the joint statement, offered support for that theory.
"Regarding his website being defaced, Stallman's personal site has been hosted by Positive Internet in the UK for a long time and he has many volunteers who update parts of the site daily," Lee said.
APIs allow us to make requests from servers to retrieve data. APIs are useful for many things, but one is to be able to create a unique dataset for a data science project. In this tutorial, we’re going to learn some advanced techniques for working with the Last.fm API.
One of the world’s most popular coding languages, Python was first conceptualized in the late ’80s, influenced by the ABC and Modula-3 languages. It has come a long way from its first release in 1991 to the 2.0 release when it became an open-source project, and to this day it is gathering a huge, professional community that is constantly improving the technology.
There are several ways in which you can extend the functionality of Python. One of these is to write your Python module in C or C++. This process can lead to improved performance and better access to C library functions and system calls. In this tutorial, you’ll discover how to use the Python API to write Python C extension modules.
As of November, 2018, I have been working at Quansight. Quansight is a new startup founded by the same people who started Anaconda, which aims to connect companies and open source communities, and offers consulting, training, support and mentoring services. I work under the heading of Quansight Labs. Quansight Labs is a public-benefit division of Quansight. It provides a home for a "PyData Core Team" which consists of developers, community managers, designers, and documentation writers who build open-source technology and grow open-source communities around all aspects of the AI and Data Science workflow.
My work at Quansight is split between doing open source consulting for various companies, and working on SymPy. SymPy, for those who do not know, is a symbolic mathematics library written in pure Python. I am the lead maintainer of SymPy.
In this post, I will detail some of the open source work that I have done recently, both as part of my open source consulting, and as part of my work on SymPy for Quansight Labs.
The brilliant 2014 science fiction novel “The Three-Body Problem,” by the Chinese writer Liu Cixin, depicts the fate of civilizations as almost entirely dependent on winning grand races to scientific milestones. Someone in China’s leadership must have read that book, for Beijing has made winning the race to artificial intelligence a national obsession, devoting billions of dollars to the cause and setting 2030 as the target year for world dominance. Not to be outdone, President Vladimir Putin of Russia recently declared that whoever masters A.I. “will become the ruler of the world.”
To be sure, the bold promises made by A.I.’s true believers can seem excessive; today’s A.I. technologies are useful only in narrow situations. But if there is even a slim chance that the race to build stronger A.I. will determine the future of the world — and that does appear to be at least a possibility — the United States and the rest of the West are taking a surprisingly lackadaisical and alarmingly risky approach to the technology.
The plan seems to be for the American tech industry, which makes most of its money in advertising and selling personal gadgets, to serve as champions of the West. Those businesses, it is hoped, will research, develop and disseminate the most important basic technologies of the future. Companies like Google, Apple and Microsoft are formidable entities, with great talent and resources that approximate those of small countries. But they don’t have the resources of large countries, nor do they have incentives that fully align with the public interest.
Today's Nobel Prize in Medicine was awarded to three researchers who helped figure out how the human body senses oxygen. William Kaelin of Harvard Medical School, Sir Peter Ratcliffe of Oxford, and Gregg Semenza of Johns Hopkins have each been awarded an equal share of the prize for work that spanned decades.
But the work itself shows how it's nearly impossible to study a complex pathway like this without relying on information from dozens of other researchers. And the details of how the pathway was teased apart read like a textbook of the methods of modern biology.
While we hear a lot about DNS threats, we tend to think of how they will affect us personally and aren’t really looking at everything they could attack. But we need to remember many of these attacks are on businesses which also affect us. Yet, businesses are continuing to not protect themselves against DNS attacks, which costs millions and affects us, the consumers.
[...]
Efficient IP reports that the trends in DNS threats are the worst in the five-year history of the report that examines threats to businesses. The average cost of a DNS attack in the United States is more than $1.27 million. Almost half of the businesses lose more than $500K, and close to 10 percent lose over $5 million. That’s not overall in a year – that’s each time they have a breach.
There's even a faux O'Reilly-styled book of sorts, "Copying and Pasting from Stack Overflow," to highlight the practice, which turns out to be not just lazy but also a security risk.
In a research paper submitted to pre-print service ArXiv, six computer science boffins who hail from Shiraz University, Iran, Polytechnique Montreal University, Quebec, Canada, and Chamran University, Iran – Morteza Verdi, Ashkan Sami, Jafar Akhondali, Foutse Khomh, Gias Uddin, and Alireza Karami Motlagh – say that they looked at more than 72,000 C++ code snippets in 1,325 Stack Overflow posts and found 69 vulnerable snippets of 29 different types.
That's not a lot in absolute terms but those 69 vulnerable snippets show up in 2,589 GitHub projects. The researchers say they notified the authors of affected projects and some, but not all, chose to fix the flaws, which consist of known CWEs.
The Afghan government is failing to provide sufficient psychosocial, or mental health, support to Afghans who have experienced traumatic events, Human Rights Watch said today.
The emaciated polar bear, a sorry remnant of magnificence, raiding garbage cans in an iconic, even infamous photo, is one consequence of global warming. As the September (2019) National Geographic cover story displays depressingly, Arctic ice collected over winter is sparser, thinner, and now disappears completely during summer in parts of Canada.
According to conventional wisdom, the Trump administration, as well as its regional allies in the Lima Group and the Venezuelan opposition, were set to intensify the diplomatic war on the Venezuelan government at the U.N. General Assembly.
Senator Bernie Sanders is not just one man. He is a movement. What he represents is a set of ideals that will pull this nation out of the soul-sucking quicksand in which we currently find ourselves.After the news of the senator’s recent health setbacks, many people are worried about the future of the Sanders campaign. I was one of them.
"Grateful that he's a candidate and grateful to be in this race with him," Beto O'Rourke told reporters Saturday
An independent journalist and political opposition activist risks torture or other ill-treatment if he is forcibly returned from€ Belarus€ to€ Tajikistan, a group of eleven human rights groups said today. Belarusian authorities should not extradite or deport the activist, Farhod Odinaev, or otherwise facilitate his forced return to Tajikistan.
Protests broke out again in Baghdad on Saturday, leaving 15 dead. The government had shut down the internet a few days ago in a bid to quell the widespread rallies, but returned partial service yesterday, which allowed activists to call for further protests.
A second whistleblower has spoken to the intelligence community’s internal watchdog and has information that backs the original whistleblower’s complaint about President Donald Trump’s dealings with Ukraine, according to the lawyer for the two.
The Pakistan Supreme Court’s decision to quash the conviction of a man who had spent almost 18 years in prison for blasphemy spotlighted abuses inherent in the law.
"The public deserves to know the truth about whether Kavanaugh lied under oath, whether he committed sexual assault, and whether he really deserves to be on the Supreme Court."
When the World Intellectual Property Organization was established in April 1970--tracing its origin back to the adoption of the WIPO Convention in July 1967--the organization was at the center of a deeply divisive debate between developed and developing countries on the appropriate design of the international intellectual property system. A few years later, WIPO became a U.N. specialized agency and coauthored the report entitled The Role of the Patent System in the Transfer of Technology to Developing Countries with the United Nations Conference on Trade and Development. The report’s pro-development views contrasted significantly with the traditional positions of WIPO and its predecessor. The latter aligned more closely with those of inventors and their supportive developed countries.
[...]
How have emerging countries influenced the mandate, structure and activities of WIPO? What are the positive and negative impacts of these countries? Has their arrival transformed this U.N. specialized agency? Tackling these questions in turn, this chapter begins by describing the changing landscape in the international intellectual property regime. It then explores the positive and negative impacts of emerging countries on WIPO and its activities. The chapter concludes by offering insights into the future of this organization.
We build a model of innovation and patent adjudication under two forms of uncertainty; uncertainty regarding whether the original invention merits protection (non-obviousness), and uncertainty as to whether a particular competitor's product should be barred (infringement). We find that when it is practical to increase the rewards from innovation by extending patent length, the standards of proof for non-obviousness should be high. The intuition for this is that patent length should be set so that the increase in innovation from extending patent length is balanced by the increase in deadweight loss from extending monopoly pricing. In this situation, the ex-ante cost of failing to protect a good patent is minimal, but there is substantial deadweight loss from protecting a bad patent. In contrast, if non-infringing competing inventions substantially decrease the original inventor's profits, it might be desirable to have a very low standard of proof for infringement, since the deadweight loss from an incorrect finding of infringement is mostly balanced out by the increased ex-ante incentive to invent.
Induced infringement liability stems from 35 U.S.C. €§ 271(b), making it an act of infringement to actively induce someone else to infringe. Active inducement, in turn, has been defined as intentionally causing someone else to take an action that you are aware is patent infringement—i.e., you have to know the patent exists and that the act would infringe it. As the Supreme Court held in 2015, “deliberate indifference to a known risk that a patent exists is not the appropriate standard.”
But the Court left a window slightly ajar—they noted that “willful blindness” can be sufficient to charge an alleged infringer with knowledge of a patent. Willful blindness, in turn, requires a defendant to “subjectively believe that there is a high probability that a fact exists” and to “take deliberate actions to avoid learning of that fact.”
HTC allegedly has a policy of instructing its engineers not to review other people’s patents. And that’s what Gilstrap claims is willful blindness.
In the first week of law school, I learned about the act/omission distinction—and how an omission requires a corresponding duty to act if it is to have a legal implication. And there’s no obligation to search for patents before placing a product on the market—in fact, if the patent owner hasn’t provided notice to an alleged infringer, they can’t recover pre-notice damages even if the infringement is confirmed in court. HTC didn’t take a deliberate act to avoid learning of Motiva’s patents, much less of their infringement—HTC decided not to search for patents, something it was under no obligation to do.
HTC’s conduct is exactly what the Supreme Court determined was not sufficient by stating that “deliberate indifference to a known risk that a patent exists is not the appropriate standard.” Judge Gilstrap ignores that and in the process creates a no-win situation in which a product manufacturer willfully infringes if it does not search for patents—but also willfully infringes if it does search and finds the patent.
That’s not what the law requires. And it doesn’t stop there—Judge Gilstrap’s error regarding willful blindness infects another aspect of infringement.
[...]
There’s even a reasonable argument that Judge Gilstrap’s decision could lead to damage awards that violate the Due Process Clause. The Supreme Court has held that an award of punitive damages is only appropriate if “the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” And enhanced damages in patent cases are “punitive, not compensatory.” Given that willfulness is one of the hallmarks of when enhanced damages are appropriate, the creation of a doctrine that would impose punitive damages on a defendant for not doing what it is under no obligation to do raises serious constitutional concerns.
Judge Gilstrap sees a large portion of the patent cases that flow through district courts each year. Decisions like this are one small part of why his courtroom is sought after by patent trolls.
Four weeks ago, USPTO director Andrei Iancu gave a keynote address at a Brussels conference on standard-essential patents (SEP) strategy. That event, organized by commercial conference organizer Premier Cercle, covered a wide range of SEP-related topics (unlike my upcoming conference, which is focused on the #1 hot-button issue, component-level licensing).
After explaining the importance of standards, Director Iancu recalled the 2013 joint statement with the USPTO on SEP remedies. Mr. Iancu, without attributing this view to any particular organization or person, said that the 2013 policy statement has been interpreted "as putting the thumb on the scale against injunctive relief for FRAND-encumbered standard essential patents in most cases." And he then mentioned the recent decision of the DOJ Antitrust Division, under Antitrust Assistant Attorney General Makan Delrahim, to withdraw their agency's support for that joint statement.
In that Brussels speech, Mr. Iancu repeatedly indicated that the 2013 policy might not give SEP holders as much leverage as he--a former patent litigator--would like them to have. While the USPTO had not and has not withdrawn its support for the statement yet, he said his agency was "now carefully studying the issue and discussing it internally, with [their] stakeholders, and with other relevant government agencies." He describes the possibility of a new policy in the hypothetical, but let's be realistic: he's not going to stick to the 2013 policy, and the question is just how radical (on a scale from "grossly unbalanced" to "extremist") its replacement will be.
Rutgers Law School professor Michael A. Carrier published a reply to Director Iancu's speech on Law360 (and SSRN) a few days ago. Professor Carrier diplomatically exposes Director Iancu's quest for balance as unwarranted, given that the 2013 policy statement already struck one between SEP hold-up on the one hand and delay tactics by unwilling licensees on the other hand. As the paper notes, the Federal Circuit even cited to that policy statement in a decision clarifying that injunctive relief was available to SEP owners in more situations than a district court had said.
[...]
I'd love to be wrong on this, but I'd be surprised if Mr. Iancu didn't simply agree with Mr. Delrahim on virtually every aspect of SEP enforcement, just that Mr. Iancu tries to mislead people to think that he's open-minded about it. He's a patent enforcement extremist, the proverbial fox in charge of the hen house, and even Professor Carrier's strong defense of the existing SEP policy statement sadly won't change Mr. Iancu's mind, I'm afraid.
Drug patents are distorted. Unlike most other inventors, drug inventors must complete years of testing to the government’s specifications and seek government approval to commercialize their inventions. All the while, the patent term runs. When a drug inventor finally launches a medicine that embodies the invention, only a fraction of the patent life remains. And yet, conventional wisdom holds — and empirical studies show — that patent life is essential to innovation in the pharmaceutical industry, perhaps more so than any other inventive industry. Congress tried to do something about this in 1984, authorizing the Patent and Trademark Office to “restore” a portion of the patent lost to premarket testing. PTO doesn’t restore all of the lost time, though, which raises the question whether the U.S. legal system may steer researchers away from drugs that take a long time to develop. This Article focuses on that question. It examines every grant of patent term restoration for a new drug or biologic from the scheme’s 1984 enactment to April 1, 2018. And it fills a conspicuous gap in the literature: few scholars have considered patent term restoration from an empirical perspective, none has used a dataset of this size and scope, and none has addressed the questions this Article addresses. Two significant conclusions stand out. First, longer clinical programs lead to shorter effective patent life, even after PTO has granted patent term restoration. The results are strongly statistically significant and contribute to a growing body of literature raising the alarm that the U.S. legal system may be systematically skewing drug research incentives away from the harder problems — such as a cure for Alzheimer’s Disease and interventions at the early stages of cancers. Second, Congress decided to allow drug companies to apply patent term restoration to continuation patents, specifically because this would increase the chances of reaching 14 years of effective patent life. Ten years later Congress changed the way patent terms are calculated without considering the effect on patent term restoration. Selecting a continuation patent no longer has the same effect. Today a drug company is most likely to achieve the 14 years of effective patent life by securing a new, original patent that issues late in clinical trials. Policymakers and scholars complain when companies secure these later-expiring patents, but the findings in this Article suggest those patents may be necessary to accomplish what Congress intended in 1984.
Frivolous litigation over patent issues poses a significant barrier to innovation, especially in United States where so-called “patent trolls” or PAEs are responsible for most legal conflicts on patent issues. In comparison, Europe has far less PAE-activity than the United States, but the number of such cases in Europe has increased in recent years. Although the situation is complex, the differences between PAE-activity in Europe and the United States are most likely caused by the use of different legal frameworks for fee-shifting, i.e. the presence and absence of a loser-pays-attorney-fees regime, respectively.
In analyzing the arguments for and against moving to a loser-pays system, this paper concludes that the existing troll problem can be reduced by adopting, as a standard practice, a system under which the loser must pay the winner’s attorney fees. It follows that a loser-pays-attorney-fees system disincentivizes PAEs from filing frivolous suits, increases the quality of patents in lawsuits, ensures a more equal bargaining position for defendants in settlement negotiations, and results in lower settlements.
Nevertheless, this paper also cautions that the benefits of fee-shifting substantially depend on the mechanism chosen. Limiting the reimbursable fees by pre-determined caps might render fee-shifting less effective. However, placing no limits on reimbursable fees might disincentivize innovation and potentially threaten access to justice.
Therefore, this paper recommends two features to find a right balance between the reimbursable costs subject to fee-shifting on the one hand, and innovation and access to justice on the other. First, legislative and judicial authorities are advised to implement certain procedural safeguards to shift only reasonable and proportionate attorney fees. This can be accomplished through an issue-based approach and/or the adoption of mandatory case management conferences.
Second, automatic fee-shifting should be limited to “PAE losers” only. In determining which parties should be exempted from automatic fee-shifting, this paper suggests, in line with the never adopted working-requirement, to exempt only those parties that submit proof of adequate patent commercialization.
Keywords: Patent Troll, Patent Assertion Entities, Cost-Shifting, United States, Europe, Loser-Pays-Attorney-Fees Regime, Troll Problem, Patent Law, Patents, Innovation, Access to Justice
The RIAA came up with a rather unusual revelation this week. The music industry group, widely known for its anti-piracy activities, reported that The Pirate Bay started blocking U.S. IP-addresses this year. This is big news, except for the fact that it doesn't hold any water. The Pirate Bay has no idea what the RIAA is referring to and the US remains the top traffic source for the torrent site.
Convincing pirates to part with their cash is one of the key aims of the entertainment industries. As a result, they're increasingly running awareness campaigns and offering online tools to help achieve that goal. But if even the most dedicated fans desperate to part with their money leave disappointed, how many bites at the cherry will they get?
