Summary: Backers of Android successfully fight back against the duopoly (Apple and Microsoft), which in turn uses FRAND smears to just act like a victim rather than an oppressor
THE Android defence in the face of Apple’s patent aggression has usually been based on the claim that Apple’s patents are not novel (prior art exists) or that Apple too violates patents — patents owned by the defender. Well, that is where counter-suing comes into play (deterrence).
A ban against the successful Android tablets has been lifted by the now-controversial Judge Koh [1, 2] and it is said that Apple may owe Samsung money, proving again that deterrence might be effective. Pamela Jones writes: “Judge Lucy Koh has dissolved the preliminary injunctions against Samsung’s Galaxy Tab 10.1 saying that the sole basis for it was the Court’s finding that Samsung likely infringed Apple’s D’889 patent, but the jury has found otherwise. ”
Apple is clearly getting angry at Samsung, its own supplier. HTC seems to be following similar footsteps [1, 2] where patents are being used against Apple’s patents. HTC was Apple’s first victim and Eric Schmidt gets personally involved. As one news site put it last month, “Google executive chairman Eric Schmidt on Thursday criticised raging patent disputes in the global mobile industry, warning that they stifled innovation and reduced consumer choice.”
Larry Page, the CEO of Google, is also participating in the battle against patent aggression and Pamela Jones looks at Google’s own case to defend from Microsoft extortion. She writes: “A lot of you have been asking questions about Friday’s decision [PDF] in Microsoft v. Motorola by the 9th Circuit Court of Appeals. Motorola lost its appeal of the district court’s decision that it can’t enforce currently the German permanent injunction it won against Microsoft for infringing Motorola’s patents. Of course, after the trial in Washington State, it can appeal again then, ot it can ask for reconsideration and for en banc review, but for now, that door is closed by this decision.”
Motorola, as far as this division goes, is part of Google now. This makes it the common target of Microsoft FUDMeisters like Florian Müller and the judge who sought to address the FUD epidemic changes course: “So, after thinking about this all day, here’s what I think it means. I think it is significant that he mentions this in connection with Google’s request for a new trial or JMOL. That is the context of the judge’s request for a list of any paid bloggers or commenters on the trial. I infer therefore that somebody put an ugly bee in his bonnet, and now he has learned that it was false. And ugly. That’s the thing about smear campaigns. A lot of people will believe there must be something to them, even when there isn’t a wisp of truth to the smears. Google is the target of a smear campaign, without a doubt in my mind. And the funny part is the judge is saying that it didn’t influence him at all. That makes me smile. ”
“Apple has been on Microsoft’s side for years; they share an enemy called Android.”One common smear against Motorola is FRAND and Jones explains why it is nonsense: “There was a hearing in the 9th Circuit Court of Appeals on September 11th that centered on Microsoft and Motorola’s dispute over Motorola’s standards-essential patents that Microsoft uses but so far has refused to pay a penny for. And that gives us an opportunity to look a little more closely at what I have now decided to nickname the Microsoft Standards Patents Shell Game. Apple is holding hands with Microsoft and singing the same tune, as we noticed the other day.”
Apple has been on Microsoft’s side for years; they share an enemy called Android.
It is worth adding that Xamarin, especially after getting money from sources close to Microsoft, pollutes Android with proprietary Mono software. The idea is to make new apps dependent on Microsoft patent trap. Their business model goes like this: “Customers with update subscriptions can download MonoTouch and Mono for Android via their Xamarin Store accounts. Trial versions are also available, but apps created using these versions are limited to only running in emulators, not on actual hardware.”
Android’s last adoption barrier is patents, especially the patent attacks from Apple and Microsoft. █
Summary: ODF gets the cold shoulder treatment from a prominent participant in the office suites market
THE editor of Muktware learns that Google has taken a step which legitimises and further spreads a Microsoft format that few applications support and none supports fully. According to this, “Google has announced that it is dropping support for older Microsoft Office formats. Google Docs will not export any files in older Microsoft Office formats namely .doc, .xls, .ppt. User will be able to export files in modern Microsoft Office formats such as .docx, .xlsx, and .pptx.”
The problem is, as I found out while I spent three days in Warwick this week, businesses that use Google Apps start spreading around a lot of OOXML. This is not just a technical problem.
“Spreading OOXML files is just about the worst thing Google could do.”Further down in the article it is correctly stated that “Microsoft OOXML was approved as an ISO standard after a lot of controversy and charges of bribing voters [read the full story here & here]. The ODF was already an ISO standard so there was no need for another standard, but Microsoft wanted it’s own format to become a standard so they got it though hook or crook.”
It was not just bribes. The level of corruption was systemic, too.
Given the fact that Microsoft was left without choice but to implement ODF import filters — however poorly — Google should have fallen back on or defaulted to ODF. Spreading OOXML files is just about the worst thing Google could do. So much for “do no evil” policies… █
Summary: A roundup of news relating to Android for the most part
With large companies such as Amazon bastardising Android by selling it down the river to Microsoft, Google is left almost alone here, along with a newly-acquired part of Motorola. But that is not enough. As one reports puts it, “Google’s $12.5 billion purchase of Motorola may not have given it the legal ammo it expected to acquire, based on a court ruling in Germany. Several Motorola devices were found to have infringed an Apple patent. “Google is in a bad position, because this is something they license to all mobile phone manufacturers that use Android,” noted law professor Christal Sheppard.”
Samsung, which pays Microsoft for Android, tries not to let Apple get even a dime. Not all is well yet because: “The ruling against Samsung last week that found it infringed on Apple’s patents might truly have shaken the technology world, and the decision could have a ripple effect of unintended consequence across the industry.”
We must remember that Apple relies on US bureaucracy (e.g. ITC) where corporations control the government and can impose unjust sanctions. It’s a sort of systemic corruption. There is also control of the media (by corporations), not to mention lobbying. Florian Müllerthe liar keeps promoting his funding sources, too, invalidating his claims by forced disclosures. Jonathan Corbet has been quoting him and got berated for it in the comments at LWN. He too seems to realise that it is not a wise thing to do anymore.
Summary: An overview of articles and some observations about Apple’s assault on Android
THE vanity of Apple has been made much easier to see in light of reports that a billion dollars are not enough for bogus allegations. As Forbes put it: “I’m not surprised that this is what they’re thinking, it’s just interesting to see the point being made openly. This isn’t a fight about who sells what telephone hardware: it’s a fight about who gets to dominate the future ecosystem.
“Every so often we get to a break in a technology. When the incumbents find themselves faced with disruptive insurgents. Examples abound: the move from horses to cars meant that those providing energy for transport found that their incumbency protected them not one whit. For that energy for travel moved from hay and oats, or perhaps teams of horses, to the provision of petrol. So there was no value any longer in that supply chain that provided horses, hay and oats. And no incumbency value either: that you had such a chain, that an insurgent would have to spend a lot of capital to build one, didn’t help you either.”
Apple’s aggression against Free software goes quite a way back; tax on libre platforms can be imposed indirectly with distant oversight from influential people like Steve Jobs and in turn tax platforms that are price-sensitive. As one reporter put it: “The Raspberry Pi Foundation answered those pleas on Friday, revealing that it has struck deals that allow individuals to buy the licences if they want to add them to the H.264 support baked into the Raspberry Pi’s hardware.”
This is why patents on software are so probematic. They elevate costs or impede distribution of innovative products. Apple not only wants a tax; it seeks embargoes that will not work because “The weird verdict in the Apple vs Samsung case has opened a Pandora’s box – the more the foreman is talking to the press the more inconsistencies we are getting to know. This disclosure makes Apple’s victory look like a soap bubble. However, there is one clear win for Samsung. The jury did not find the ‘banned’ Galaxy Tab 10.1 infringing upon any of Apple’s patents.”
“Gizmodo asked him to sit today for live questions. And believe it or not, he did it. And when asked if the jury was ever asking whether or not a patent should have issued, he claims that they never did because that wasn’t their role and the judge told them to assume the patents issued properly and not to second guess that determination.”
One author criticises — as we did many times before — the ITC, which often plays a role at the behest of US-based corporations. Timothy B. Lee writes: “If you follow the smartphone patent wars, you’ve probably heard of the International Trade Commission (ITC), which seems to get dragged into every high-profile patent dispute over the devices. Just this month, Motorola asked the ITC to ban various Apple products from the US, and the ITC separately ruled that Apple doesn’t infringe some Samsung patents. But how did this obscure Washington bureaucracy become a major front in the patent wars?”
The combination of agencies like the ITC and USPTO helps protect American business from competition; it is nothing to do with justice and innovation but it’s about business interests.
No matter how we feel about the total victory handed to Apple against Samsung in the landmark patent infringement case recently concluded, it is what it is. The court ruled that many functions of Android are too similar to those of iOS protected by patents. It also found that the look and feel of Samsung’s device interfaces, and Android’s by association, also infringe on Apple’s patents.
“This doesn’t necessarily mean that it’s ultimate goal is to prevail through litigation, because it will constantly be running into existing and new Apple patents for so long as they remain competitors in the marketplace. Ultimately, what should make the best sense for Samsung is to negotiate the most comprehensive patent cross license with Apple that it can, and maintaining a full court press throughout the world’s legal venues is the best way to ensure that it can get the best terms possible in such a license.”
Dr. R. Keith Sawyer says that innovation loses. To quote his column: “As a scholar of creativity and innovation, I believe it’s too easy to get a patent and too easy to defend a patent. This blocks innovation because patent holders are allowed to prevent others from building on and improving their patents. That’s a problem because ‘innovation is incremental; every new step forward always builds on a long chain of prior innovations.’ If any one link in the chain is allowed to block all future enhancements, then innovation stops.”
Apple’s hyped-up products (like the hypePad) are getting ridiculed and their chances of beating Android are seriously doubted by some. To quote SJVN: “I hate to break it to you, but the new iPhone 5 is not going to be the second coming of Steve Jobs; it’s not going to give the economy a big push upward; nor will it be the best phone ever. It’s just going to be a new smartphone.
“The real news, which has been written on analyst walls around the world for months, is that Android phones continue to out-sell iPhones by a wide margin. For all the hype, for all the hysteria, iPhones come in second to Android.”
Microsoft has no chance in this area and when it comes to tablets too, Android is far more attractive an option. As SJVN puts it: “I mean seriously. Asus, a mid-range computer vendor, wants $599 for a Nvidia Tegra ARM-powerd Windows RT tablet? The Windows 8 tablet with an Atom processor for $799? Oh, and if you want a keyboard for either one, it will cost you an extra $199!?
“Come on! My Nexus 7, the best tablet I’ve found to date, cost me $250. A totally maxed out iPad 3 runs runs $829. I’ll take either of those in a New York minute over a Windows 8 tablet at those prices.”
There is also a report about the realisation that Apple is overhyped. It says that “[a] school which spent a fortune “upgrading” its teachers from their laptops to Apple iPads and TVs has admitted it made a big mistake falling for the hype.
“According to PC Pro, the unnamed school’s headmaster was seduced by a scheme that allowed all the school’s staff to replace their laptop computers with an iPad 2.
“At first, staff, who knew nothing about technology, were thrilled at the prospect and jumped at the chance of exchanging their laptop for an iPad.
“Now they are finding that the whole thing was a little hasty and there is a black cloud hanging over the staff room which has not been seen since they banned smoking there.”
It is quite irresponsible to use Apple in schools because the users are denied control of the device, or, to quote how Apple would like to put it: “A new patent, granted to Apple, could prevent academic cheating, cinema interruptions, but also see areas of political protest activity ‘ring-fenced’ disabling phone and tablet cameras.”
It is good that Apple has a monopoly on it as fewer companies will try to implement such hostile features (or “antifeatures”) that work against the users. Why would people want to pay for such a thing?
It is being alleged thatApple did not invent anything. Even a former Apple executive says so. To quote: “As Apple (AAPL) prepares to launch what by all accounts will be the most successful device it has ever built — and just a few weeks after the company was awarded more than $1 billion in damages when Samsung (005930) was found to have infringed on its IP — an article penned by a former Apple executive questions exactly what Apple’s role is in the consumer electronics industry. Jean-Louis Gassee, who came very close to becoming the president of Apple in the late 1980s before being ousted by CEO John Scully and Apple’s board, claims that while Apple’s success in the industry cannot be disputed, its perception as an innovator is open to discussion.”
Microsoft boosters such as Jon Brodkin latch onto the case to spread FUD against Android. This is all that the duopoly can do against Android now. Innovation was never on Apple’s side. █
“IBM and Microsoft successfully rewrote NZ software patent law,” says the FFII’s president, Benjamin Henrion, quoting a source about “replacing an exclusion in clause 15(3A) (which relates to computer programs) with new clause 10A. Rather than excluding a computer program from being a patentable invention, new clause 10A clarifies that a computer program is not an invention for the purposes of the
Bill (and that this prevents anything from being an invention only to the extent that a patent or an application relates to a computer program as such). This approach is considered to be more consistent
with New Zealand’s international obligations (the TRIPS agreement, in particular, contains restrictions on the ability to exclude inventions from patentability). This approach is also more consistent with
overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection. Under the Bill, a patent may still be granted for an invention that meets all of the criteria for patentability (for example, novelty and an inventive step) despite the fact that the relevant invention involves a computer program in some respect…”
“This is a real shame,” he noted.
Here is further commentary on it: “Last week we reported the last minute backtrack by the New Zealand government, deleting a controversial provision in its new Patents Bill stating that ‘a computer program is not a patentable invention’, and replacing it with a controversial provision which still says that ‘a computer program is not an invention’, but only to the extent that it is ‘a computer program as such’. (See NZ Government Backtracks – to Europe – on Software Patents.)
“The basic idea behind this change is to import about 30 years of European and UK jurisprudence on what it means for something to be a computer program ‘as such’, in the expectation that this will allow – amongst other things – inventions implemented using embedded software systems to be patented.”
Clare Curran responded to this abomination in NZ. Prior to it, wrote the FFII’s president: “Patent law in New Zealand will be voted tomorrow, with or without the as such provision, but I was wondering if the exclusion proposed here by opponents was enough to shield software developers from lawsuits:
http://no.softwarepatents.org.nz/
“”10A(2): Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.”
“I find it a bit odd as a clarification.
“Software developers should not care about patent law, even if they develop “embedded software”, whatever that means.
In response, wrote another knowledgeable activist against software patents: “It’s not a great amendment. (I didn’t write it.) But it might still
work.
“Unclear law is a big problem in Europe because it was all written before software became commonplace, so judges can’t be sure if the author (of the EPC for example) really wanted to exclude software patents.
“In NZ the situation will be better because they have a law that allows software patents, and then the politicians said “no software patents”, and now the law is getting changed. When a judge has to interpret it, she should take into account that this law is supposed to have different effects to the previous law, and the intention was to reduce or abolish software patents.
“(That said, I haven’t been able to confirm that this is how NZ judges work.)
“The other good thing is that the petition has helped to get people organised. If the petition is a success and the politicians listen, then it means the anti-swpat camp is in control and maybe some slight changes can still be made, for this reading or for the subsequent reading. Maybe a few words can be added to the end to clarify that it means inventions controlled by an embedded computer.
“But the short answer is yes, the text does contain a loophole, but it’s too late to change it so we have to look for ways to bring the campaign back to the right direction.”
These are the words of Ciarán O’Riordan who worked with FSFE. The FSF highlights similar problems that go on in Europe and the FSFE does the same by noting: “Now the European Parliament is about to decide on setting up a single patent for Europe, known as the “unitary patent”. This is a chance to get rid of software patents. But if we don’t manage to achieve a real change in the current proposal, software patents will become even more entrenched in Europe.”
Glyn Moody says that “MEPs are back at work, and the Unitary Patent rears its misbegotten head again.”
After TomTom gave up in Europe and Microsoft had its FAT patents upheld in Germany we already see the serious consequences of software patents in Europe. Microsoft bans Motorola devices in Germany and to quote Murdoch’s press, “Google has suffered yet another defeat in its overseas patent battle with Microsoft.
“A German court ruled Thursday that a number of tablets and smartphones made by Google’s Motorola Mobility division infringe a Microsoft patent, and granted the software giant a ban on their sales in Germany. Microsoft must pay a bond of $61.4 million if it wants to see the ban implemented.”
There is more coverage of this and some background: “A court in Munich ruled on Thursday that Google-owned Motorola Mobility (MMI) must recall all the Android tablets and smartphones it has shipped in the country which infringe Apple’s “rubber band” scrolling patent, which was key in its billion-dollar lawsuit win against Samsung in the US.
“The dramatic decision, the latest in an escalating war between Apple and the smartphone and set-top box company MMI, follows earlier cases in which Apple had to disable automatic “push” delivery of email to its iPhone and iPads after MMI won a separate patent fight in Germany.”
Microsoft is getting desperate because “HP has already decided to halt development of Windows RT tablet PCs, while Dell reportedly may also back away from the segment, according to sources from the upstream supply chain.”
Thankfully, people across Europe fight back against inane patent laws. April, a French group advocating software freedom, says: “On September, 13th, 2013, over 460 companies from all over Europe got involved to demand the improvement of the proposal for a unitary patent, following the call for action launched by April and by signing the resolution proposed with StopSoftwarePatent.eu and FFII.”
There is more from April [1, 2] and other groups or individuals who say that “a patent does NOT protect the innovator. It protects the one that filed the patent. It’s called the first-to-file doctrine and is used almost everywhere on this planet now.”
In NZ, this has been a subject of much debate. One person writes:
“Queen’s Counsel Andrew Brown has today written an article in which he confirms that the “as such” proviso added to the Patents Bill in its second reading will allow software patents to continue to be granted in New Zealand.”
Chuan-Zheng Lee has been “[r]eading lots of interesting blogs on #NZPatentsBill #swpats “embedded” vs “as such” debate” and Moody writes that “New Zealand capitulates to the #swpats lobby (see second clause) – http://bit.ly/TmW6Lp sad; #NZ will live to regret this” (background here).
There is even a whole new blog about it, called “No Software Patents in NZ“; it is protesting against software patents n NZ.
So the good news is, as was mentioned before, the public is starting to realise what happens and it gets involved. █
Summary: Nokia is reportedly looking at the option of kicking out the Microsoft mole and going ahead with Linux instead
Android is all over the place and even Techrights’ site articles are now being composed in Android ICS. According to reports, even Nokia might soon turn to Android and kick out the Microsoft mole. As one site put it, “Magnus Rehle, a senior partner at telecom advising firm Greenwich Consulting, tells Reuters in an interview, “Elop has not been able to attract customers and that is what counts. You can say that he has not had enough time, but he has been there for two years. Time is up.”
“The alter-ego which is Microsoft did irreparable damage to Nokia.”“He’s referring to Nokia Oyj. (HEX:NOK1V) CEO Stephen Elop, the former Microsoft Corp. (MSFT) executive who now leads the embattled Finnish phonemaker.”
If Nokia turns to Android, it will have a lot of explaining to do after feeding patent trolls, leading to antitrust complaints from Google. The alter-ego which is Microsoft did irreparable damage to Nokia. It never pays off to partner with Microsoft. Only one side (or none) is set to gain. █
Summary: Another legal victory for Android may be only days away because Apple’s claims do not add up
TECHRIGHTS is not a legal-oriented site, but it does try to keep abreast of cases that affect Linux (and by extension Android). Oracle has already lost one high-profile case against Android.
There are “Ridiculous Moments” in this trial and it is headed to a jury which in due time coulddecide that no side gets anything. Google was right to suggest that the patent wars are helpful to nobody (except patent lawyers). To quote one report about it, “Google suggested that fighting patent wars is not innovative or helpful in any manner. It seems like Google is getting fed up with software patents, just after the former got an upper hand in the court with Oracle, which was declared as the patent battle of the decade.”
“We meanwhile learn that nobody is expected to win the case, so at the end of the day Apple will have wasted its time.”Korea hurts customers by removing products: “A SOUTH KOREAN COURT has Imposed bans on a number of mobile devices from rival companies Apple and Samsung’s, having found that both firms infringe each other’s patents.” Mutual destruction.
We meanwhile learn that nobody is expected to win the case, so at the end of the day Apple will have wasted its time. The jury will decide soon despite alleged difficulties, but it is not known when. As CNN put it: “You can probably expect deliberations to continue into next week. If there are still holdouts a week from Friday, however, the prospect of a spending one more weekend with Apple v. Samsung hanging over their heads could bring the jury to a rapid consensus.” █
Update: Minutes ago we found out that a decision had just been made and Apple’s allies from Redmond celebrate. Apple and Microsoft collaborate in attacking Android and collecting patents, as we showed before (e.g. CPTN, Nortel, cross-licensing, other pacts).
Now it turns out that “Apple has retained Florian Mueller as a consultant,” which is a known way of passing a bribe (it’s the business model, as Microsoft privately calls it). “So GROKLAW keeps catching FM showing bias while publicly holding himself up to be an expert on FLOSS patent violations and the like, and a blogger/journalist,” writes Pogson, who adds: “The guy really is in “Technology Evangelism Mode”. He even sent me an e-mail about Oracle v Google, unsolicited. I reported it to PJ at GROKLAW as did others so she has been on FM’s case for a while.”
“They use the same tactics of misinforming journalists en masse. That’s their service.”Groklawcontinues investigating this case and remarks from bloggers are telling: “So, the guy is clearly not an expert on FLOSS patents and is an advocate for those who pay him, not just a “consultant”. Apple clearly did not want the judge digging too deeply into that relationship and for sure telling the jury about it. I find it particularly interesting that FM used e-mail to contact me and to comment on the blog rather than commenting using WordPress. What’s with that? Clearly, he went to some trouble to dig up the e-mail address (It’s not as if I stick it on the front page.) rather than just clicking. Was he trying to influence me, going for a larger goal than just providing feedback? I “bit him on the hand” and I hope he does not return.”
Did you too get contacted by this lobbyist? Please speak out if so. Some bloggers come out saying they too were his victims.
Speaking for myself, I fell into his trap in the early days (Techrights quoted his talking points after he had mailed us repeatedly), but I soon woke up; now I find him to be an extremely scummy guy who takes money from companies to conduct AstroTurf campaigns that involves mass-mailing writers and even threatening those who criticise him (yes, he threatened me too).
Mr. Microsoft will be reported to the FTC for AstroTurfing (I am working on my submission), just like Waggener Edstrom
or Burson-Marsteller. They use the same tactics of misinforming journalists en masse. That’s their service.
Putting the lobbying aside for a moment, Apple’s case is shown to be weak in the following recent video about Apple’s lack of innovation.
Samsung won’tsettle because it has a strong case, or maybe because Apple remains too delusional to drop the case as decision comes. The following video was sent to us by a reader yesterday:
The jury, a bunch of ordinary people, will soondecideon the case, but to what extent does deception from lobbyists and Apple’s misleading claims going to affect the outcome? As one article put it, “[t]he summer blockbuster that is Apple v. Samsung is coming to a close as both companies have delivered their closing arguments. Neither side held back in their last opportunity to argue their case, with Apple telling Samsung to make its own phones and Samsung warning the jury that Apple is trying to mislead them.
“It’s been an exciting four weeks. Along the way we’ve seen Samsung leak evidence that was refused by the court, never-before-seen prototypes of iPhones and iPads, and previously unreleased sales figures for both companies. We even got a hilarious parody from Conan O’Brien.”
“Apple decided to sue different rather than think different.”Here is the take from Pamela Jones [1, 2, 3, 4] and something about the Motorolacomplaint that is indirectly relevant to the case (similar allegations).
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