Summary: The US Department of Justice takes on FRAND, but systemic patent problems endure
The monopolists’ offices celebrate patent monopolies wherever they may be. Their business of monopoly grants benefits a lot when nations compete over who has more monopolies on more ideas. It’s nothing to do with the public benefiting; the contrary is true when it comes to the public. The EPO too is part of the problem and The Greens funded a group to show this:
In December 2012, M∙CAM, Inc. was tasked by The Greens|EFA in the European Parliament to analyze, on a preliminary basis, certain outputs of the European Patent Office (EPO) that may be problematic in the context of the patentability standards of the European Patent Convention (EPC), Articles 52 and 53. To do so, M∙CAM aggregated a total of 482,102 patent issuances from the United States Patent and Trademark Office (USPTO) in eighteen selected US classification codes, and determined if European equivalents for any of those documents existed.
The duplicates are not a problem for patent offices because the offices around the world gain more money from duplicate applications, irrespective of whether they are accepted or not. Watch the USPTO getting excited about patents sum rather than quality. “The patent system is busted,” says this new article about attempts by USPTO to legitimise software patents as a concept.
Another news site says: “The US Patent and Trademark Office wants to fix the horribly broken US patent system as it pertains to software and the agency is asking for help from the public.”
It already knows what is broken and what the public wants. With strong public (and at times corporate) backlash we can help change things, but changes will be made from within. It’s corporate backlash that antagonises patents in standards, for example, leading to real changes as we’ll show later. Masnick says “Congress So Dysfunctional, It Can’t Even Fix The Errors It ADMITS It Made In Patent Reform” and he also criticises USPTO by writing that “US Patent Office Seeking ‘Partnership’ With Software Community, Hoping To ‘Enhance Quality Of Software Patents’” (also covered in light of motives).
Another class of controversial patents is all about profit disguised as benefit like feeding poor people. Here is Masnick’s response to this:
he Main Problem With Patented GM Food Is The Patent, Not The Fact That It’s GM
Initially, Monsanto and Pioneer asked to license the gene, but then lost interest for some reason. So eventually Dr Ronald made the GM rice freely available to developing countries, thus allowing them to exploit it for their peoples’ benefit without needing to pay.
Seeding the market with patents, not just metaphorically speaking, is now Monsanto’s business model, aided in part by the Gates Foundation. Going back to the issue of patents in standards, i.e. patents that are requiring payments from anyone wishing to comply with standards, the DOJ/FTC’s action addresses them while Microsoft shows its hypocrisy in a biased Seattle court with ITC (USPTO border enforcement facility) bans being used to sanction import of Android devices. There is a step in right direction as US DOJ steps in to impede FRAND:
The Department of Justice and the US Patent and Trademark Office sent a policy statement [PDF] today, suggesting that the International Trade Commission or ITC back away from enforcing “exclusion orders,” which can kick a product off the US market in cases involving standards-based patents.
It’s an important issue which just came up last week when the Federal Trade Commission closed its 19-month investigation of Google over antitrust issues. A variety of corporate patent battles have been moved to the ITC recently, including some of the biggest struggles over smartphones.
In closing that investigation, the FTC said that Google shouldn’t ask for exclusion orders or injunctions on its standards-based patents.
Andy Updegrove wrote about this as well:
Yesterday the Antitrust Division of the U.S. Department of Justice (DoJ) and the U.S. Patent Trademark Office (USPTO) united in issuing a rare joint policy statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. As the title suggests, the policy focuses on those patent claims that would be necessarily infringed by the implementation of a standard (so-called standards essential patents, or “SEPs”), where the owner of the claims has pledged to make the claims available on “fair, reasonable and non-discriminatory” (or “F/RAND”) terms. More specifically, the policy statement addresses the question of whether, and if so when, the owner of SEPs should be entitled to ask the International Trade Commission (ITC) for an injunction to bar the importation of products implementing the standard in question.
Until recently, the ITC rarely found itself in the limelight, as its purpose is to protect U.S. markets from unfair inroads by foreign commercial interests. One way it can do so is to protect the owners of U.S. patents from unauthorized foreign vendors when they seek to sell products into the U.S. that would infringe the U.S. patents. In such a case, the ITC has the poser to bar the importation of the goods until such time, if ever, as the vendor has acquired a patent license from the owner of the infringed patent claims on terms satisfactory to the owner.
Carlo Piana wrote an article about altogether stopping those patents and his strong opening goes like this:
“Patents are here to stay.” This is the sort of statement that makes me uneasy. I guess in the 17th century the common wisdom was “slavery is here to stay.” In the 18th century giving voting rights to women seemed absurd and foreseeing open borders between France and German was crazy talk in 1945. At a certain point, fortunately, those things changed for the better. Is it time to change the common wisdom on patents as well? Is the time ripe—will it ever be?—to utter the frightening word abolition? I do not have the privilege to know the answer, but I regard the question as a legitimate one. According to some patent experts, however, questioning the very existence of patents seems blasphemous.
In an increasingly-degrading system integrity that’s designed to just suit corporations (like the USPTO does) we ought to expect no real reform, not without some major intervention. Officials who assassinate people against the principle of due process (including their own citizens), torture people and not releasing them when they are found innocent (abroad in order to dodge laws), and use secret services to crush protests against bankers are clearly corrupted by power. At home, FISA is passed to spy on domestic folks, NDAA allows the citizens to to be assassinated, tortured, and be indefinitely detained. So the software patents issue is part of a systemic issue. Here we have another case of ITC going Rambo for some parasite with patents:
InterDigital, known for owning a number of patents related to wireless products, has filed a complaint with the United States International Trade Commission against several technology firms.
Claiming they infringed seven of its patents, InterDigital has requested the ITC apply a ban on the U.S. import of products created by Samsung, Nokia, ZTE and Huawei.
With many rogue patents from giants like Sony [1, 2] and Microsoft we just know that things won’t improve. Nothing will change unless legal action by the likes of the DOJ is taken. So the news about FRAND being challenged is a step in the right direction. █
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Summary: A bundle of recent reports about the patent trolls pandemic in the United States
WHEN even Carnegie Mellon University joins the crowd of patent parasites we know that this culture has become mainstream yet endemic in a sense. Masnick et al. tackled some stories in December and January. Not much needs to be added, it is self-explanatory really. █
● Patent Trolling Carnegie Mellon Wins What Could Be Largest Patent Verdict Ever: $1.2 Billion
The Apple/Samsung patent battle has been getting lots of attention, but a new verdict has eclipsed the record $1.05 billion that a jury awarded in that case — and this time its to Carnegie Mellon University, after a jury has ruled that Marvell Technology Group should have to pay $1.17 billion for infringing a single claim in each of two patents.
● The Problems Of Patent Trolls Continuing To Get Mainstream Attention
There’s been a recent uptick in stories about patent trolling getting mainstream media attention, and the latest example is a recent segment on CBS’s national morning program, CBS This Morning, which explored how patent trolls are hurting the US economy, mainly by focusing on the story of Uniloc suing the maker of X-plane.
When we last wrote about that lawsuit, X-plane developer Laminer Research wasn’t sure if it was going to fight the lawsuit, but as you can see in the video above, Laminer’s Austin Meyer has decided he’s going to fight the case no matter what — even if it costs him $1.5 million (way more than it would cost to settle). Of course, this is how the trolls operate, by trying to make it cheaper to settle than to fight, but sometimes people have to take a stand and Meyer has decided to do exactly that.
● Patent Trolls Now Make Up More Than Half Of All Patent Lawsuits
● No, Making Patent Trolls Pay Up For Bogus Lawsuits Does Not Violate International Agreements
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Freedom is not a crime
Summary: How patent parasites and parasitical legislation make free platforms and services a violation of patent law, even in places where software patents are not legal
The Microsoft- and Nokia-armed Vringo (like MOSAID) is still attacking Google with software patents. Daniel Ravicher, Executive Director of the Public Patent Foundation, says: “I’ve written previously about the Vringo (VRNG) v Google (GOOG) patent infringement case, where the jury awarded Vringo’s I/P Engine affiliate a mere $31M, which was a small fraction of the $493M it asked the jury to award. The litigation appears highly material to Vringo’s valuation, currently around $250M, as some suggest it could provide future royalties for Vringo from Google of hundreds of millions of dollars.”
What companies with Microsoft ties are doing is, they try to elevate the cost of free products from Google, in the form of flat-rate tax, technically akin to FRAND. Speaking of which, FRAND is a backdoor route for software patents in Europe, putting aside other back doors that crooked politicians promote. Microsoft lobbying, usually through proxies like BSA and ACT, is succeeding at bringing FRAND to Europe. The President of the OSI writes:
The final report from a European Commission meeting designed to whitewash patents in standards may prove a helpful marker for watchful eyes looking out for abuse.
The writer, Phipps, is a Brit, just like Glyn Moody who pointed to this. It sure looks concerning that Europe is getting two backdoors for software patenting in such a short period of time. █
“There’s no company called Linux, there’s barely a Linux road map. Yet Linux sort of springs organically from the earth. And it had, you know, the characteristics of communism that people love so very, very much about it. That is, it’s free.”
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Summary: The irrational dealings of Novell bring belated legal wrath
We hardly cover Novell anymore. The company is history. But just as WordPerfect keeps Novell at present, so does the Attachmate sellout, which Pamela Jones says will haul back the perpetrators. Hovsepian left and moved elsewhere, but his sellout might not go unpunished:
If you thought the deal smelled funny back in 2011 when Novell sold itself to Attachmate and its patents to a Microsoft consortium, you are not alone. Some shareholders — the Oklahoma Firefighters Pension and Retirement System, Louisiana Municipal Police Employees’ Retirement System, Operating Engineers Construction Industry and Miscellaneous Pension Fund, and Robert Norman — sued.
The named defendants, Novell’s Board, Attachmate and Elliott Associates, all moved to dismiss on summary judgment. Attachmate and Elliott succeeded and get to waltz away, but Novell’s board is left on the hook will have go to trial on the shareholders’ claim that the board breached its fiduciary duty, acting in bad faith, a Delaware Court of Chancery judge has ruled [PDF]. I have it as text for you.
Specifically, they claim that Novell favored Attachmate over other bidders, especially a “Party C”, and the judge, under Delaware’s reasonable ‘conceivability’ standard, denied summary judment with respect to the board and decided there will need to be a trial.
“Party C, a private equity firm” ended up with Attachmate at the end of negotiations as the two bidders still standing. Party C actually bid a bit higher than Attachmate. But the allegation is that Attachmate was favored with information that Party C was not given, such as a bid by a Microsoft consortium to buy Novell’s patents, and various other maneuvers that ensured the Attachmate deal prevailed. After Microsoft stepped in with an offer to buy the patents, Attachmate’s deal was better than Party C’s. But, the judge points out, if Novell had told Party C about the offer, it logically might have offered more to match or exceed Attachmate’s bid…
Here’s some background:
As 2010 ended, everyone was digesting the news of Novell’s acquisition by Attachmate, valued at more than $2 billion, and would soon digest the news that Microsoft was acquiring many of Novell’s patents. There were many people who noted that all the signs were there that Novell wouldn’t be sustainable as an independent company. Still, as Groklaw confirms, in 2011 a group of shareholders found the deal to “smell funny” and filed suit. And now, after all this time, the Novell board has to go to trial to address the claims.
Don’t forget the monkey business. █
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Evidence of chip-level offences (using silicon to block Linux) fading away
Summary: Microsoft’s use of discriminatory and potentially illegal contracts to stop GNU and Linux at OEM level
GNU and Linux benefit from the failure of Vista 8, but UEFI makes it hard to boot Linux, as we last noted yesterday in a guest post about this news. A new article from the Indian press covers this problem:
Microsoft’s brand new version of its flagship product, the Windows operating system, has pitted it once again against Linux users who have had a longstanding battle with the giant. The Linux community has been particularly offended by the operating system’s Unified Extensible Firmware Interface (UEFI), or popularly known as Secure Boot.
The GNU Linux community’s fundamental objection to the feature is that it amounts to collusion between Microsoft and hardware manufacturers to lock users, depriving them of the freedom to install other operating systems in a Windows environment. They were later mollified by Microsoft’s clarifications that there will be a ‘Secure Boot-disable’ option on PC’s shipping with Windows 8. Although this option would have allowed installation of multiple operating systems, it is still arduous on Secure Boot machines.
A blog post on Free Software Foundation website reads, “When done correctly, Secure Boot is designed to protect against malware by preventing computers from loading unauthorised binary programs when booting.” In the case of the Microsoft implementation, it hasn’t been done correctly. Making the apprehensions of Free Software crowd come true, Microsoft has now made it mandatory for ARM-based devices to have “Secure Boot” on, without an option to disable it. This means ARM-based devices certified for Windows do not have the option of booting into another operating system (unless the operating system in question is also certified by Microsoft).
Here is a new suggestion for a workaround:
TLWIR 52: Secure Boot Reveals the Need for a GNU/Linux Reference System
Perhaps the reference devices could be named once per year to give manufacturers a year to compete, develop, and deliver their new reference candidates. The reference candidates that did not get picked would probably still be great choices for people building new GNU/Linux systems. Some hardware manufacturers would get angry, but their only recourse would be to get better at supporting GNU/Linux, or risk becoming obsolete in the GNU/Linux community. The confusion around Secure Boot would go away: anyone could be certain that they would have no problems at all with a reference system. The reference system would provide a system 100% guaranteed to work with no problems at all.
More outrageous than that is the revisionism we see in the press. Charles Arthur from the Bill Gates-funded Guardian chooses to eliminate from history a previous anticompetitive tactic from Microsoft, where companies behind netbooks were encouraged to prevent GNU and Linux from spreading. Pamela Jones called Arthur’s piece “hilarious rewrite of history.” She explains: “Microsoft saw Linux on netbooks as a threat, and it deliberately set out to kill Linux on netbooks by requiring vendors to follow their specs, which blunted the Linux benefits. (“‘Microsoft would like the netbook to go away and be replaced by lightweight laptops — ones with long battery life that cost enough to justify running full Windows on them,’ he said. Helm added that Microsoft is trying to discourage the production of inexpensive computers where Windows becomes the most expensive component because it can’t make as much money on Windows on these devices, and they could drive down the price of Windows.”) There were also reports of arm-twisting vendors to drop Linux and the typical ugly Microsoft FUD.” █
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Summary: Apple uses the protectionists’ office — a monopoly henhouse guarded by wolves — to ban competition at home and away
At the USPTO it's all about quantity (money or monopoly on words and ideas), so no plans of reform are sincere. The USPTO offers fake choice on the subject of software patents and a debate in Slashdot shows FOSS-oriented comments. The debates are rigged by design from the get-go. Now, some columnists downplay the view that software patents should just be dumped while others put out there the news about consultation from developers:
The world of software patents is a strange, confusing, inefficient place. There’s a pretty serious question as to whether or not software patents should really even exist. Now, the USPTO is making moves to at least step in a better direction by calling out to software developers anywhere and everywhere for advice on fixing the whole thing up.
The call for advice will take the form of two round table events in February, one in Silicon Valley, the other in New York City. Seats are limited but pretty much any developer can attend if they RSVP by email and include some credentials. The events will also be webcast, and any developers/spectators who can’t/don’t want to attend can also just send in written comments.
Remember that they are allowed to debate software patent “quality”, not abandonment. So the panel omits the view that many if not most developers hold. Here is another article:
The United States Patent and Trademark Office is seeking input from the software industry about the performance of the patent system. A pair of February “roundtable” events—one in Silicon Valley and the other in New York City—will give members of the public an opportunity to comment on how to improve the quality of “software-related patents.”
“Each roundtable event will provide a forum for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community,” according to a notice in the Federal Register. “While public attendees will have the opportunity to provide their individual input, group consensus advice will not be sought.”
How many people — if any — will speak for the view that software patents must all go away? Watch what patents are doing for Apple against Linux:
Apple was supposed to have won big in the suit against Samsung in a massive series of claims of patent infringement. This was the apparent result of a jury verdict last August in which there were charges of attorney misconduct, juror misconduct and trial errors before the ink was dry on the decision.
But a few weeks later, the U.S. Patent and Trademark Office (USPTO) invalidated one of the key patents that Apple used to win its case. This is the patent in which a menu or other screen item will bounce back if it’s scrolled past the end.
According to Wired, Tim O’Reilly, seemingly a software patents opposer who likes Apple, says about Apple that “They’re clearly on the wrong path. They file patent suits that claim that nobody else can make a device with multitouch. But they didn’t invent multitouch. They just pushed the ball forward and applied it to the phone. Now they want to say, “OK, we got value from someone else, but it stops now.” That attitude creates lockup in the industry. And I think Apple is going to lose its mojo precisely because they try to own too much.”
Apple’s patent strategy goes ahead and trademark confrontation too is at the core of this branding company:
A California judge says Apple can’t bring up false advertising claims against Amazon in a case between the two companies.
The problem is not trademarks per se but particular trademarks which go too far (broad, not narrow). With Kindle Fire, Amazon has become a major rival to Apple. It’s not just the digital stores. Apple continues to rely on monopolies in shoring up its badgeware. Apple’s main competition is Android/Linux now. █
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