“Google’s Rivals Accused of Colluding Against Android” ~Forbes.com headline (this week)
Summary: As the patent assault on Linux/Dalvik/Java (Android) becomes ever more intense, calls are made for Google to get its act together and join the side of the public, liaising with those seeking to put an end to all software patents
MICROSOFT THINKS it has got it all figured out. It promoted Horacio, the key patent racketeer, not so long ago, whereas Apple is said to have let its chief patent lawyer go (maybe he left on his own, but it does not seem so because IDG says that “Apple’s current chief patent lawyer is reportedly leaving the company after failing to block Android manufacturers from using iPhone-like features”).
So anyway, major changes at Apple are evident after failing to harm Android with the patent attacks. HTC has not surrendered (Apple is retrying) and Samsung dealt a major blow to Apple following Apple’s impulsive lawsuit. The branding company, Apple, cannot quite manage to transform into an extortion company. Neither can Microsoft though, as it has tried since 2006 (with Novell). Microsoft’s ‘progress’ mostly involves small companies that nobody cares about, not Red Hat or even Canonical. Here we see the nuisance called Tuxerafinding another place to put some Microsoft patent tax, but again, who ever heard of Rockchip? Wikipediabarely even mentions it. As we explained recently, whenever Microsoft strikes against a medium- or large-sized company, it faces blowback, so now it just plays ‘safe’ by attacking the feeble ones in the school yard. That’s just Microsoft’s game. Pathetic. Why won’t Microsoft sue Google and see its patents invalidated one by one, jin the same way Oracle does? Just watch the latest from Groklaw:
Judge Alsup clearly believes the Oracle damages report provided by Prof. Iain Cockburn has failed to provide a basis for applying the “entire market value” theory of damages. So what is the “entire market” theory of damages?
In another instance, the court’s claim construction opened up prior art that was not usable before (see Sec. A under Argument in the Motion). In their obviously very thorough search for prior art, Google also found references that it says demonstrate obviousness. (See Sections E, G and H under Argument in the Motion) In a fourth instance Google says that Oracle’s JavaOS itself is prior art, and JavaOS was publicly available for more than a year prior to the asserted patent.
“Google recently made very large bids for the Nortel patents,” wrote to us a reader this morning. “What Google can do with the approximately $4B USD that they would have used for the Nortel patents would be to jump into US politics with both feet and get software patents banned again. There are several options ranging from direct campaign financing (due to new rules) or regular lobbying.
“Such a law would ultimately save Google more than it would do by fighting each case separately. There is an increasing number of “non-producing entities”, often referred to as patent trolls, and fighting them one at a time or one patent at a time isn’t going to help anyone except the patent lawyers. In the example of Android, they may ask for smallish sums per handset, but 5 or 10 dollars multiplied several times will quickly price the devices out of the market. Best to focus at the heart of the problem and go directly after the patentability question.”
Google’s loss in bidding for the $4.5 billion (U.S.) portfolio of Nortel Networks Corp. patents last week means the Internet-search company will be looking to buy other inventions to build a bulwark against lawsuits targeting its Android system, patent brokers say.
“There are a lot of phenomenal portfolios for sale,” said Dean Becker, chief executive officer of ICAP Patent Brokerage in Palm Beach, Fla., the world’s largest patent seller. “Every operating company is in the market because of the expense, distraction and the potential financial risk of patent litigation.”
Some days ago we noted that Canadian and US regulators were potentially stepping in, but after an unfortunate breakthrough and then authorisation of the sale [1, 2, 3] we are left assuming that the government once again sidles with corporations rather than with public interests. The courts give a go-ahead:
Apple Inc(AAPL.O), Microsoft Corp(MSFT.O), Research in Motion Ltd(RIM.TO) and three other leading tech companies received court approval on Monday to buy wireless patents from bankrupt Nortel Networks Corp for $4.5 billion.
Judges in the United States and Canada approved the sale of 6,000 patents and applications, which fetched three times what some analysts expected from the four-day auction in June.
Nortel Networks Corp (NRTLQ.PK) filed for bankruptcy protection from creditors in January 2009 and courts in the two countries are overseeing the disposal of the company’s assets as the former telecommunications giant winds down its operations.
Well, color me surprised that the tyrant known as Microsoft has taken to doing everything it can to chip away at the competition — no matter what the cost, what the stakes, or what the perception of the public at large. Here’s the deal: Back in April, Microsoft struck a deal with Samsung wherein Samsung would pay the software giant an undisclosed sum for every Samsung handset sold — get this — powered by the Android OS. That’s right, MS made it’s usual claims that Android (along with every company on the planet — regardless of what they produce) infringed upon patents held by Microsoft. Would they disclose the said infringed patents? Of course not. After all, it’s been Microsoft’s modus operandi for decades to obfuscate the real truth for fear of looking like a spoiled baby taking its toys and going home.
So there the public was (the public that cared about Samsung and Android) wondering what the sum and the patents were. Well, we now know that Samsung is to pay a whopping $15.00 per Android-based handset sold. Let’s do that math:
Samsung sold over 19 million Android-based handsets in the second quarter of 2011. At 15 smackers a pop, that equals $285 Million Dollars.
“The FUD gets a lot worse,” argues Jonathan Angel in Linux For Devices (eWEEK). Quoting the relevant parts: “As far as we’re aware, there has been no public explanation of what Microsoft patents Android devices infringe. Nor is it clear whether, ultimately, it will be possible for any manufacturer to create an Android devices without paying a tithe to Redmond.
“What we do know is that the FUD just got a lot worse. As we reported last week, Microsoft joined Apple, EMC, Ericsson, Research in Motion (RIM), and Sony in a consortium termed Rockstar Bidco LP — which successfully gained more than 6,000 Nortel Networks patents and patent applications at a bankruptcy auction. The $4.5 billion Rockstar bid beat out Google’s own, which could have purchased some protection for Android, by more than $1 billion.”
The American Antitrust Institute is asking regulators to investigate Nortel’s patent sale, suggesting the winning bid to Google’s biggest rivals may imply collusion against Android.
The group calling itself Rockstar Bidco, which include Apple, Microsoft and Research in Motion, bought Nortel’s trove of patents for $4.5 billion, possibly the biggest intellectual property auction of all time. The sale immediately raised concern from antitrust advocates, since the members of the coalition, mainly Google’s rivals, may use the patents to attack Google’s Android operating system.
Some lesser-known blogger from CNET did the right thing for a change by going with a more pacifying title, “Android users: Don’t fret over Google’s fee battles” (that’s a defence in principle).
Handset makers using the Google Android mobile operating system may be slapped with additional licensing fees if Oracle and Microsoft have their way. But what might that mean for the average cell phone consumer? Would the price of Android devices go up?
It’s not likely, say experts. There are several reasons to think that legal victories from Oracle or Microsoft would do little to move the needle in terms of pricing for consumers. What’s more, whatever additional costs might be added to the phone would likely be offset by savings elsewhere, still guaranteeing that handset makers generate decent margins on these products as the cost of making them also goes down.
There is no reason to assume increased costs just yet. We wrote about this yesterday. It’s part of the FUD campaign which Android foes like Microsoft are coordinating.
Chris DiBona from Google gave a good interview yesterday and he is widely quoted for saying that Android is a realisation of the Linux dream ([1]-[3] below). Google has in fact just released some GPL-licensed code for the latest Android version, although not all of it ([4]-[5] below). We really ought to defend Android and also attack software patents, which Microsoft and Apple will increasingly try to use against Linux because it’s the only weapon these gorillas have left, except marketing and FUD. If we manage to defeat software patents, hopefully with Google’s support, Linux will definitely win. We gave DiBona’s address (cdibona@google.com) hoping that people can write to him politely as he usually replies to E-mails. Let’s hope that idiotic press releases like this new one which says “[w]e recently filed an exciting new software patent” will come to an end. The US economy has enough problems even without the patent cartels. Every patent filed only makes matters worse, although not to those who see the cartels as inclusive and ignore the externalities. Google must fight those cartels, not find a way to buy a membership (with massive patent acquisitions). █
Chris DiBona, Googles Open Source Boss talks about the role of Linux inside the company and why Chrome and Android use so fundamentally different release models
Right from the start Open Source has been playing an important role at Google. Nowadays it’s used nearly “everywhere” inside the company. From server to the engineering desktops and smartphones as Chris diBona, Googles “Open Source Manager” points out in an interview with derStandard.at. He goes on to talk about Android as the “Linux desktop dream come true” and explains why the release model of Chrome and Android are so fundamentally different.
With half a million Android devices being activated everyday, there is no doubt that Android is one of the most popular operating systems today. Not many users realizes this but Android is based on Linux.
Android is without any doubt the most popular Linux-based operating system in the world. In an interview with German website derStandard.at, Chris DiBona, who is the Open Source Manager at Google, has said that Android is the Linux dream come true.
Summary: Yet another call for Google to fight against the Great Patents Cartel rather than find ways of joining this exclusionary club
IN A NEW article by Dr. Glyn Moody exists a rather eloquent explanation of why Google should quit trying to play with patents and instead just put an end to software patents, despite the advice it receives from its self-serving patent lawyers. Moody explains that “Android is under serious threat”. But as he immediately points out, “Techdirt’s handy diagram illustrates, practically everyone in the smartphone space is suing everyone else. But the big difference is how the others are addressing this.
“Some are cutting deals among themselves, such as the recent, if still rather mysterious, one between Nokia and Apple. Others, with less in the way to offer in exchange, are simply coughing up licensing fees. Worryingly, that includes an increasing number of Android manufacturers.”
The summary of this which appears in Slashdotsays:
“When challenged directly by Oracle over Android intellectual property, Google has proven itself a feisty opponent. So why is it sitting back and letting Microsoft shake down OEMs over its claims to own patents that Android infringes? A disheartened Tom Henderson thinks it’s because Microsoft has been smart to go after the vendors rather than poke at Google directly. Still, he wonders when Google will get into the fight.”
Can we be persuasive enough, even to the point where the PR factor will compel Google to join campaigns such as “End Software Patents”?
Apple has ratcheted up its attack on Taiwanese smartphone manufacturer HTC, filing a second patent-infringement complaint that, if successful, could bar HTC products from being imported into the US.
The complaint was filed with US International Trade Commission (USITC) on Friday, Bloomberg reports, and was revealed in a brief notice on the USITC website.
I some cases, Apple and Google are both targeted at the same time by patent trolls. To use a similar new scenario (more in Bloomberg about software patents used in reverse), sometimes Microsoft and Google share this pain too. What’s more interesting though is the increased collusion among Apple and Microsoft, which sometimes even congratulate one another on patent strategy, having cross-licensed for a long time, then taken Novell’s patents, and most recently taken Nortel’s patent although that is currently being challenged by federal investigation, as we noted twice before (in the US and also Canada).
The answer, as every patent litigator in the US knows, is Google. It is the only one not in the consortium buying a portfolio of thousands of technology patents from the bankrupt Canadian firm Nortel Networks.
The winning consortium comprised the three big operating systems firms plus Sony and Ericsson, handset makers, and EMC, a data storage firm. It called itself Rockstar Bidco, though it might as well have called itself Everyone But Google Inc.
Android may be winning more ground than any other type of smartphone in the battle for consumer loyalty, but on a parallel legal battleground, Google just found itself surrounded by heavy artillery. The outcome of the auction represents the largest competitive threat to Android since its 2008 launch and threatens to derail its sensational growth.
This is the sort of thing that would happen to desktop GNU/Linux too as it grows bigger (Google has just released statistics showing a growth of 15% year-to-year). Not only “commercial” distributors like Canonical are affected. Based on this new move from Debian, such a decentralised project too is concerned and as the British press puts it, “[t]he Debian Project, which is best known for the Debian Linux distribution, has served up the Community Distribution Patent Policy FAQ, a document that tries to explain patents and patent liabilities in plain English for developers working on FOSS projects. The information was prepared by lawyers at the Software Freedom Law Center and it applies to US patent law.”
Of course, many Debian developers are based outside the US, so these ludicrous laws do not apply to them, except when they distribute their software in the US (which is a large market overall). We really need to eradicate this problem at the root and without support from a billionaire company like Google it would be hard to abolish software patents. Intel and IBM are a lost cause in this regard because, although they support Linux for parts of the business, they actively lobby for software patents and they haven’t as much to lose from them as Google has. Google’s door is therefore the right one to knock on. But it’s important to be diplomatic and polite about it. █
Summary: “Antitrust officials probing sale of patents to Google’s rivals,” reports the Washington Post, naming action from the American Antitrust Institute (AAI)
IMPORTANT news comes from the Washington Post which suggests that, just as CPTN got scrutinised by the USDOJ, so will the Nortel sale, at least potentially (the AAI has made a start):
The sale immediately raised concern among some antitrust experts. This week, the American Antitrust Institute sent a letter to the Justice Department asking antitrust officials to begin an investigation of the sale ahead of Nortel’s bankruptcy proceedings, set for Monday.
Canadian regulators too are looking at this, so we need not assume that the patent sale is final. Maybe the regulators will defang the buyers by adding a condition such as, “these patents cannot be used offensively.” We saw CPTN facing some barriers tied to the GPLv2.
In our latest daily links we included 2 links that show how Android is growing at the expense of the iPad, share-wise. Apple and Microsoft would love to stop this rapid growth and the only method they have left is the last resort of patent offensives. █
Posted in Apple, Patents at 9:23 am by Dr. Roy Schestowitz
A campaign is born
Summary: Larry “phpnut” Masters launches “Developers Against Patents” to defend pre-emptively against patent trolls; Apple is still casting a shadow on the W3C
We are collecting name and contact information of individual developers or companies who are interested in forming a group to start suing patent trolls for Declaratory Judgement that our work in the software world does not violate any of their patents.
“[A] group to start suing patent trolls for Declaratory Judgement,” emphasises the FFII’s president, who suggested a reminiscent idea to me some years ago (actually creating a patent troll to try and embargo Microsoft Office). The site is looking for involvement, so perhaps someone can weigh in.
The universe of patent monopolies is definitely getting hit by a wave of bad publicity after lawsuits like this one against Apple and patents like these ones:
Brilliant Digital Entertainment subsidiary Kinetech has its eyes on the digital music industry, announcing that it has been granted three US patents covering content discovery and rights enforcement.
Back in 2009, Kevin Bermeister of Kazaa fame switched focus to legal music alongside former pirate-buster Michael Speck, and BDE acquired Kinetech, whose patents it had been using since 2002.
The World Wide Web Consortium (W3C) this weekend put out a call for prior art that might invalidate two Apple patents potentially keeping the web from using the concepts as standards. The W3C’s Patent Advisory Group is hoping to make Apple either give a royalty-free license for the patents, which cover widget security and safe distribution, or else lose control of the patents so that they can be used royalty-free.
Had Apple cared about the Web, it would have done something. Instead, however, Apple is working to pollute the Web with MPEG-LA patent tax. █
Summary: A critical look at Microsoft’s and Apple’s innovation-harming lawsuits that the mass media/press fails to cover as properly as it ought to
IN THE FORM of “Android”, Linux is taking over yet more areas of computing. Apple and Microsoft are both rather nervous because nothing technical that they can do is going to stop Google. Instead then, Microsoft goes ever more thuggish and Apple gets very litigious (at least Apple names the patents, but it does not sue Google, instead targeting those further down the ‘food chain’). Google is “disappoint[ed]” to see Apple and Microsoft forming yet another patent cartel against rivals like Google and the second Microsoft booster in a while plays along with a headline like “Is Android Microsoft’s next cash cow?”
It’s shoddy reporting like this which helps us see why “Microsoft boosters” as we call them are a major part of the problem as they do the opposite of watchdog press. To quote:
In the hunt for the next billion-dollar business, Microsoft may have discovered one in mobile software. It costs Microsoft nothing to produce and sell, and it’s not Windows Phone.
It’s Android, the wildly popular — and free — mobile-phone software made by competitor Google.
In the past nine months, Microsoft has gone after a handful of companies that make Android phones and tablets.
It has either sued or persuaded the companies to pay it license fees for some technologies found in certain Android features. Microsoft contends it has patents on those technologies.
Being Bill’s fan press (Seattle Times), almost nothing is done there to chastise Microsoft. This particular reporter, being Microsoft-focused, has vested interests, too. So watch out for Microsoft’s attempts to shape the news. As we explained a couple of weeks ago, Microsoft grooms journalists before announcements of such extortion so that they improperly cover the news, spreading the twisted versions of the story and linking to a press release from Microsoft. This is not journalism, it is churnalism. People must challenge poor reporting in order to discourage Microsoft from this whole racketeering operation. This is not a case of “licensing deal”, it is extortion, it is probably a clear violation of the RICO Act, but nobody bothers reinforcing the law, especially when real reporting gets overshadowed by Microsoft’s PR machine.
Timothy Lee, an unusually good journalist and blogger, does a good job explaining what Microsoft does here:
This story sheds light on the recent string of stories about Microsoft demanding royalty payments from various companies that produce smart phones built on Google’s Android operating system. Intuitively, this doesn’t make much sense. Most people would say that Google has been more innovative than Microsoft in recent years—especially in the mobile phone market—so why is Microsoft the one collecting royalties?
The reason is that Microsoft has more patents than Google. A lot more. The patent office has awarded Google about 700 patents in its 13-year lifetime. Microsoft has received 700 patents in the last four months. Microsoft’s total portfolio is around 18,000 patents, and most of those were granted within the last decade.
Even if you think Microsoft is more innovative than Google, the engineers in Redmond obviously haven’t been 25 times as innovative as those in Mountain View. So why the huge discrepancy?
Getting software patents takes a lot of work, but it’s not primarily engineering effort. The complexity of software and low standards for patent eligibility mean that software engineers produce potentially patentable ideas all the time. But most engineers don’t think of these relatively trivial ideas as “inventions” worthy of a patent. What’s needed to get tens of thousands of patents is a re-education campaign to train engineers to write down every trivial idea that pops into their heads, and a large and disciplined legal bureaucracy to turn all those ideas into patent applications.
[...]
The result is a transfer of wealth from young, growing, innovative companies like Google to mature, bureaucratic companies like Microsoft and IBM—precisely the opposite of the effect the patent system is supposed to have.
This author used to write for Ars technica which nowadays does a lot of Microsoft PR. One of its pro-Microsoft writers, Peter, is in our IRC channels now, promoting MPEG-LA and Microsoft talking points. It’s very selfish and not objective at all, so we no longer cite that site as much as we used to. In general, people who harbour the continued practice/high pace of software patents tax on innovation can either face the truth in a polite debate or simply assumed to be too zealous about monopolisation. Upon closer inspection it usually turns out to be the latter. To Microsoft, software patents are generally a wonderful thing at this stage.
So then, a question for people who think that software patents are out of control: what should the rule be? No patents at all on software or business processes? Probably not. But if patents aren’t flatly banned on business processes, is there some kind of rule that would raise the bar in a reasonable way on just how novel something has to be to deserve a patent? I hear a lot of complaints about software and business process patents, and I’m sympathetic to them. But exactly what kind of reform would improve things?
This site says that the patent system is broken and the audience reading this site is vast. We are definitely getting the message out there and increasing pressure on those who can change the status quo. Ryan Kim asks, “Can patent licensing fees derail the Android express?” Microsoft and Apple would love to believe it and at this stage Google should just work towards abolishing software patents or reporting Microsoft’s racketeering.
According to Microsoft, Google’s Android OS is infringing on many of its patents and hence those manufacturers who use Android for their devices owe royalties to Microsoft. But the intriguing fact is that, instead of suing Google itself for infringing on its patents, Microsoft is finding it easy to sue or threaten smaller firms which don’t have the financial muscle to fight a legal battle with the Redmond troll giant. Following is the list of companies who are already paying royalties or being sued by Microsoft for using Android.
Techrights has a list of companies to avoid for paying Microsoft for Linux and/or Android. Microsoft’s co-founder Paul Allen is also among those looking to tax Android and Groklaw has this update on the case from Interval the patent troll.
We must not forget what Apple is doing to Android, either. Not only Microsoft is attacking; in some way it is aligning with Apple:
While Apple (Nasdaq: AAPL) may have lost its claim to the phrase “Appstore” in court, it’s not giving up its other creations without a fight…
The company recently issued a warning to Samsung, claiming that the smartphone manufacturer was basically just selling an iPhone copycat.
In the lawsuit, Apple alleges that Samsung not only mirrored the iPhone’s form factor with the Galaxy S, but also that some of the user interface elements infringed on its software patents.
As if that wasn’t enough, Apple also demanded that the U.S. court order Samsung to take the device off the market and pay for damages and lost profits.
Going back to Microsoft, its former CTO who had become the world’s largest patent troll with Microsoft funding, was passing patents around, sometimes targetting Android in this way. One example of this is Lodsys and Novell is said to have fought back. “Novell has become the eighth outfit to ask a Judge to tell patent troll Lodsys to go forth and multiply,” says FUDZilla. “Novell is one of the ten companies Lodsys already sued in February and had asked for a bit of time before it filed its answer.
“Yesterday Novell not only denied Lodsys’s claims, it brought counterclaims, requesting declaratory judgment of invalidity (and non-infringement) of Lodsys’s two core patents. These patents are the same ones that Lodsys has been using to squeeze money out of Apple developers.”
Pamela Jones from Groklaw has returned to the site to give her assessment as well:
I thought you guys would want to know an intriguing detail in the Lodsys against the World litigations. Novell has filed its answer [PDF] to Lodsys in the Lodsys v. Brother et al case in Eastern Texas — a patent infringement case, same patents, but not against apps developers — and it’s the mighty Sterling Brennan of Workman Nydegger listed on the team representing Novell. Lodsys is in trouble now, methinks. Brennan was also prominently on the team that won for Novell against SCO in the jury trial, if you recall. I thought he was stupendous.
Novell asserts four counterclaims regarding the two patents Lodsys asserts against Novell, asking for a declaratory judgment of invalidity and noninfringement. And its affirmative defenses include failure to mitigate damages. That makes me smile, because Lodsys is in what business, exactly, leading to what damages? And that’s Novell’s point, which it makes explicit in another affirmative defense: “Lodsys’s Complaint, and each and every claim for relief therein, is barred because Lodsys has not suffered any damages.”
it is encouraging to see Novell fighting in court because it has the SCO and Microsoft cases to get on with. Sadly, however, Novell gave a lot of its patent ammunition to Microsoft and Apple (through CPTN). Where all these cartels leave GNU/Linux is a discomforting situation where the laws and practices are simply designed to be discriminatory. The same goes for reporting in the English-speaking press, which is too conformist and cowardly. Debian has meanwhile released this “Community Distribution Patent Policy FAQ” (with help from the Software Freedom Law Center). It says:
This document presents information about patents and patent liability useful for developers working on community distributions of Free and Open Source Software (FOSS). By community distributions, we mean collections of free software packages maintained and distributed by organizations composed of volunteers, where neither the organization nor the volunteers seek to make a profit from the activity. Such community-based distributions may sell as well as give away their work product, possibly on CDs or USB storage media or by paid-for downloads as well as by gratis distribution.
This document has been prepared by lawyers at the Software Freedom Law Center (SFLC) at the request of the Debian project, and may be helpful to similar community FOSS distributions. Its statements about legal matters are accurate as of the date of composition regarding US law, and may be applicable to other legal systems. But this document does not constitute legal advice. It has not been based on analysis of any particular factual situation, and any lawyer providing an opinion on the questions presented below would need to ascertain the particular facts and circumstances that might vary this information in a particular setting. You should not rely upon this document to make decisions affecting your project’s legal rights or responsibilities in a real-life situation without consulting SFLC or other lawyers.
Patents are the #1 problem GNU/Linux is having, even if the news keeps going on about FUD like “hard to use” and “too many versions”. █
Posted in Apple, Videos at 3:34 am by Dr. Roy Schestowitz
Summary: Apple has turned from somewhat of an underdog nearing bankruptcy into an attack dog and master of mass hypnosis. I explain my concerns about Apple in this ramble.
Summary: News about software patents that affect Free software and Android developers in addition to the increased backlash from the public and some people inside government
TECHRIGHTS is pleased to see the opposition to software patents growing. More people are made aware of the problems and they also speak out about these problems, sometimes passionately. Sooner or later we might all win this fight for sanity. It’s definitely achievable if the population is on the right side and those in power (the monopolists, oligarchs, or whatever we may wish to call them) will perform an analysis and realise that the backlash from the public outweighs the benefits (protectionism) they get from software patents. It would not be a simple matter of altruism as that alone is never enough to make power-greedy people become more civilised and considerate.
Enemies of Google, the world’s largest open source company, are acquiring software patents after patents through direct or proxy acquisitions. Earlier it was Novell’s patents and now its about Nortel’s patents. The companies which are acquiring these patents are not only known monopolists or abusers but have also been seen lately to discourage innovation and kill competition by using patents as threats.
One common player in these two acquisitions is Microsoft, a company which earlier tried to hide behind a consortium to acquire Novell’s patents.
Microsoft has signed 5(+-) deals in a week with small Linux players over Android/Google Chrome. The details of the deals were not disclosed so we don’t even know which patents Microsoft is using to threaten small companies with lawsuits forcing them to sigh such deals.
What is the guarantee that Microsoft or Apple will not use the patents that they acquired through these acquisitions to block innovation and kill competition in the market? Patents were meant to protect the inventor, but softrware patents are nothing more than a way to kill competition.
According to a report today by The Canadian Press, the auction may come under government scrutiny. Industry Minister Christian Paradis has reportedly asked his department to examine how the Investment Canada Act could apply to the auction. If the auction us found to be reviewable under the act, Paradis could potentially block the sale if it’s found to not be a “net benefit” to Canada.
Last year the big news was that Attachmate was buying Novell, but that Novell’s patent portfolio was being sold separately to a little known buyer named CPTN Holdings LLC. It was known that Microsoft was one of the companies behind CPTN, but then it came out that CPTN was not just a single company, it was a consortium, and more importantly, it was a consortium of competitors. Included in the CPTN fold were Microsoft, Apple, EMC and Oracle. Their common enemy? Google.
But Google was not the only entity concerned about this alliance of the largest companies in the information technology sector, almost all of which compete with each other on some level. The Free Software Foundation and Open Source Initiative filed complaints with competition authorities in the U.S. and Germany. In the end German and U.S. competition authorities extracted changes in the transfer, ownership, and licensing of the Novell patents to assure a level playing field that allowed room for free and open source software.
So where are they now that Nortel’s patents cast doubt on fair competition? This is a lot worse than CTPN, but as we demonstrated before, the federal system is inherently corruptible and tilted in favour of the USPTO (which is a sibling of sorts)
As the Australian press puts it this week, it is a lot worse, and to quote verbatim:
New legislation shows how much sway banks have over Congress, writes Andrew Ross Sorkin.
WALL Street often tries to play down its influence in Washington. As the US Congress pushed through financial regulations that seemed to get watered down last year, Wall Street’s chief executives tried to suggest, somewhat surprisingly, that their highly paid lobbyists did not have much sway.
If there is still any question about how much power Wall Street actually has in Washington, here is some fresh evidence worth examining.
In a piece of legislation recently passed by the House of Representatives and the Senate to revamp patent law, a tiny provision was inserted at the last minute called section 18. The provision has only one purpose: to allow the banking industry to skirt paying for certain important patents involving ”business methods”.
Here is a report of interest about the position Google is in. Google should really spend that famous “Pi Billion Dollars” on abolishing sofwtare patents, not acquiring some. But this is how Bloomberg puts it:
Google Inc. (GOOG)’s loss in bidding for the $4.5 billion portfolio of Nortel Networks Corp. patents last week means the Internet-search company will be looking to buy other inventions to build a bulwark against lawsuits targeting its Android system, patent brokers said.
“There are a lot of phenomenal portfolios for sale,” said Dean Becker, chief executive officer of ICAP Patent Brokerage in Palm Beach, Florida, the world’s largest patent seller. “Every operating company is in the market because of the expense, distraction and the potential financial risk of patent litigation.”
Google ought to just quit this conformism and do what is right for the population as a whole — that is — ending software patents. We urged Google to do this many times before and we shall continue to do so.
Meanwhile, Microsoft goes to companies that are partners (like Samsung and HTC) for a tax on Android and the Linux sites are finally starting to wake up [1, 2] and cover such shocking news that changes the whole way software is made and sold. Tim and I talked about this in last night’s TechBytesepisode. See the show notes from Tim.
It is mostly Apple that is going to lose from Android’s growth, but Microsoft is ahead of Apple when it comes to extortion although they increasingly collaborate in their patent attacks on Linux. The Linux-hostile and pro-Microsoft lobbyist is doing what he can to spin the news. Yes, he is a lobbyist, not an analyst (he also told me that he has had 4 clients this year but refused to name them). “Thumps [sic] up, Apple,” writes the lobbyist, “for buying the Nortel patents. Thumbs down, Google, for not doing so.”
Wait, what?!
Well, coming from the same lobbyist who reposts many other Google-hostile articles and tweets, even some from Rob Enderle and other Microsoft boosters (also celebrating patent extortion against Android) this week, this oughtn’t be too shocking. He also found friends like Miguel de Icaza and one can call him a liar for painting Google as the “bad” party for being the victim of Apple’s patents acquisitions (if anyone is bad here, it’s Apple). This is part of a pattern we explained here before — even when Google is victimised, it is still the “bad” party in the eyes of Microsoft Florian.
One has to be very dishonest to carry on with this spin. I spent a lot of time yesterday and the day before that challenging him in Twitter. The more he speaks, the uglier his activity seems. He probably enjoys the attention, but nevertheless, lobbyists like him need to be exposed, just like Zuck; otherwise, their posturing (e.g. as an ‘analyst’ or ‘activist’, even though he has no qualifications in this area) might fool some reporters who are being mass-mailed.
Last month we showed Florian pushing Lodsys’ agenda by urging developers to pay the patent troll. He turned out to be wrong when Apple stepped in. Well, he tells them to give up — the same defeatism on which he was wrong before. How can anyone takes him seriously? Just because he is mass-mailing people with publications and blogs does not mean they should just publish it and that others should take him seriously.
Another day and three new declaratory judgment actions against Lodsys with respect to the four patents it has been asserting. While one of the three new actions is in the Northern District of Illinois, where several of the other declaratory judgment actions have been filed, two of them are in new venues – one in Arizona and one in the Southern District of California. This changing of venues is important. While Lodsys may seek to consolidate the cases in the Northern District of Illinois for the sake of efficiency (and saving Lodsys attorney’s fees), Lodsys will likely have to defend in each of the other jurisdictions where a declaratory judgment action is filed, thus increasing the cost of defense as local counsel is retained in each case.
I always advise software startups to file patents to protect their “secret sauce” from competitors, and to increase their valuation. The good news is that a patent can scare off or at least delay competitors, and as a “rule of thumb” every patent can add up to $1M to your startup valuation for investors, or for M&A exits (merger and acquisition).
The bad news is that patent trolls can squeeze the lifeblood out of innocent and unsuspecting entrepreneurs, as exemplified by the current mess around Lodsys patent No. 7222078. This patent holding company is charging infringement and demanding royalties from every app developer for the iPhone and Android, for a feature most agree has been in apps for many years.
Yes, the software patent process is a mess. I say this with conviction even after I survived the process, and have a software patent pending. Consider this list of commonly recognized software patent flaws, as summarized from my research, Paul Graham’s “Are Software Patents Evil?” essay, and the most recent “Enough is Enough” article by VC Fred Wilson, sparked by the Lodsys case
AP speaks of a story we have mentioned for a while about automobiles becoming victims of software patent litigation too, raising the cost of vehicles. Here is another take on it (less formal):
According to AP, the lawsuit centres on patents involving software and electronic components that are used in features to make phone calls, play music and access navigation tools with vocal commands.
As we noted a while ago, the developer behind Winamp made his stance clear on this quite recently (his take became popular this week for whatever reason). The opposition to software patents grows, thanks in part to Lodsys and the patent it got from Microsoft’s former CTO. We need to keep fighting the enabler of monopoly abusers, not just the monopoly abusers themselves. █
Summary: Microsoft, Apple and various allies are playing a dangerous game with software patents and those who lose the most are members of the public
A couple of days ago we alluded to the sale of Nortel’s many patents and yesterday we saw it being finalised. Apple and Microsoft founded a parasite cartel to allegedly attack Android with. This helped show that no matter how passionately companies tell us that their patents are defensive and harmless, there is no legal guarantee that those same patents will one day be used offensively, as we saw in the case of Oracle and Sun (a legal attack on Android/Linux using patents on Java). The Nortel news is no longer so new, but the impact of the sale is discussed quite a lot in pro-free software sites, e.g. in relation to the prospects of those patents being used against Android. Now that Microsoft is a blatant patent aggressor against Android, the last thing Microsoft should have is more patents. To quote one person’s perspective:
Is it time for Android makers and Google to form a wider consortium to rebuff Microsoft’s attacks on small Android player?
US Congress, please fix your software patent mess before it kills the spirit of innovation.
Too late. It has already killed innovation and we covered examples of good, innovative products that died due to software patents [1, 2, 3]. The so-called ‘consortium’ which got Nortel’s patents is led by Microsoft and Apple (both are also in CPTN) and the rest is just relish. They essentially stood up against a Google bid which would have helped defend Android from some extortion (coming from both Microsoft and Apple).
While many believe software patents are a tax by lawyers on engineers, they still exist. But rather than being used to advance a company’s technology, patents today are used to bludgeon competition. This is why Microsoft and Apple paid billions to strip patents from Nortel’s carcass: new arrows in their “beat Google” quiver. Goal according to many? Use patents to pound the fast-growing Android. Since Apple et al paid $4.5 billion (yes, billion), let’s look at what people had to say.
That’s a good article. A lot of the other coverage was about economics and not about the real issues, which include patent aggression and malicious patent monopolies such as this one from Microsoft which the SFLC warns about:
A patent application published by the USPTO last Thursday reveals that Microsoft has been researching, since before December 2009, how to redirect VoIP calls to intercept devices and law enforcement agents. The method disclosed by the patent application is devious—subverting routing protocols so that packets sent by any person tagged by a monitoring request will be routed through a recording agent. The application discloses “gaming systems, instant messaging protocols that transmit audio, Skype and Skype-like applications, meeting software, video conferencing software, and the like” as technologies that can use this method. In other words, Microsoft has reason to believe that their interception method can be applied to the newly acquired Skype (recently deployed in Congress), Xbox 360, and the video conferencing features in Office 365.
Those who are collectively harmed in this case are the customers. They are harmed by patents in many ways, including the artificially leveraged price they have to pay for products they buy, ranging from small things like embedded devices to large things such as vehicles. Here is the second article in a while where we see even automobile companies affected by software patents.
What needs to be done about patents in general is a reassessment of their impact. Politicians are constantly being bombarded by propaganda from friends, partners, sympathisers, lawyers, and lobbyists of very rich people — those with so many patents that they can sue almost any rival at will.
“Software patents, for example, have already turned almost every programmer into an unintended infringer, some might even say a “patent pirate” (or counterfeiter).”A lot has been said and written about the fact that by criminalising a lot of activities in society (e.g. drinking, singing “happy birthday” without a copyright licence, etc.) we let people fall into a system which classifies them as villains but selectively enforces the rules. With or without prosecution, many people become ripe for litigation or imprisonment and patents generally make it worse. Software patents, for example, have already turned almost every programmer into an unintended infringer, some might even say a “patent pirate” (or counterfeiter). The “Intellectual Property” crowd is trying to make applied ideas seem like “theft”. This basically means that we are all at the mercy of “software gods” like IBM and Microsoft, always hoping not to be the victim of litigation. Even if we are innocent (or the patents invalid), the burden of legal costs is overwhelming enough to have the defendant disengage by withdrawing a program, paying “protection money”, or simply not developing along certain lines in the first place. Where it leaves society as a whole — not just the most passionate developers — is a situation where certain “rights lords” bully and mistreat the industry, all for the benefits of their ego and their financial gain. Innovation suffers a lot and programming becomes an applied practice preserved only for the higher class. Artificial limitations are almost always a bad idea.
When Novell signed the deal with Microsoft in 2006 it virtually joined the same cartel of patent holders, choosing to exclude — however conveniently — anyone who had not subscribed to that same cartel (Red Hat for example). In order to dismantle those cartels we need to at least avoid their products and convince others to do the same. The reason why some people call it impractical is the scale of those in question (naturally, one must be big to have interest in these cartels), but it is hardly a valid line of reasoning because any erosion counts, even if it is done little by little until the incentive derived from patents is outweighed by the loss of business. It took over 4 years for Novell to collapse after its patent deal with Microsoft and all those boycotts. █
Summary: News about software patents that affect Free software and Android developers in addition to the increased backlash from the public and some people inside government
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