05.15.10
Posted in America, Apple, Courtroom, GNU/Linux, Law, Microsoft, Patents at 9:11 am by Dr. Roy Schestowitz
Summary: How the International Trade Commission (ITC) is adding to harm already caused by the USPTO
ON many occasions in the past we criticised the ITC for incentivising embargoes. Apple and Microsoft both misuse this power.
Law.com has this new report and Florian labels it an “article on how the US International Trade Commission supports patent trolls”
Patent Litigation Weekly: ITC Rolls Out the Welcome Mat for ‘Trolls’”
[...]
The International Trade Commission was created in 1916 to protect U.S.-based companies that made and sold goods within the country’s borders. In recent years, however, the agency’s definition of what qualifies as “domestic industry” has expanded to the point that small patent-holding companies with just a handful of employees (Saxon Innovations, St. Clair Intellectual Property Consultants) and even individual inventors have been allowed to proceed with ITC litigation.
Congress helped expand the ranks of who could seek remedies at the ITC in 1988 when it amended the “domestic industry” requirement to include “licensing” as qualification. Patent-holding companies have relied on that change ever since to justify their arguments that the taxpayer-funded ITC should ban imports of certain products on their behalf. Of course, in 1988, the patent litigation landscape was very different, and patent-holding companies—aka “non-practicing entities,” or “patent trolls”—in the modern sense simply didn’t exist.
It is curious that a US agency is called “International Trade Commission”. There are other examples like that, but they are beyond the scope of this post although these too employ sanctions/blackmail. See what the International Intellectual Property Alliance (IIPA) does to Free software for example. It’s a recent case.
“The ITC is a mechanism of colonisation and it assumes that the United States deserves the power to restrict trade beyond its borders.”Given the harm ITC can cause to innovation, more countries need to voice dissent. The ITC is a mechanism of colonisation and it assumes that the United States deserves the power to restrict trade beyond its borders. It’s hardly conceivable that huge populations like Brazil or India would impose similar restrictions using their hypothetical newly-minted agencies, which would in turn operate beyond their borders.
The ITC not only serves US interests; it also serves the interests of aggressors like Apple and Microsoft or parasites like Acacia, whose case against Linux we recently covered in:
According to Groklaw, some of the site’s contributors played a role in defeating Acacia, which has former Microsoft executives amongst its staff.
First, a call went out on Groklaw for prior art. When news of this litigation first broke in 2007, and I asked if any of you knew of any prior art, one of the first comments mentioned the Amiga. I kid you not. Another almost immediately mentioned still owning an Amiga or two. In 2009, Red Hat officially asked the world for prior art, and again someone here mentioned the Amiga. So you guys knew before the lawyers did, which of course you would. It’s your area of expertise. That’s what I get from it. And that I should have made sure they were reading Groklaw in 2007. Next time.
Better still, you want to help. When Novell put out a statement about the jury’s ruling, it said that the open source community will always fight for its software. And that is true. It did, it still does, and it always will.
Isn’t it ironic that Novell says this (rather than Red Hat, for example)? It is Novell which is harming the Free software community, parts of which are fighting against Novell/Microsoft. That’s the type of shameless PR we wrote about earlier today (Novell routinely uses the SCO case in the same way, essentially for PR purposes). █
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Posted in Apple, Free/Libre Software, Marketing, Microsoft at 5:43 am by Dr. Roy Schestowitz
Summary: John Sullivan shows how/why Apple is being dishonest about its relationship with “Open Source”; a glimpse at how perception management at Apple and Microsoft actually works
APPLE is not a friend of Open Source. Apple has exploited Open Source a great deal (so has Microsoft), but it’s not the same as befriending it. Apple is suing Android/Linux and threatening Theora (links a the bottom), to name just two recent examples.
John Sullivan (FSF) accuses Apple of saying “things that aren’t true” (i.e. lying). He names one example:
This is one, from http://www.apple.com/opensource:
As the first major computer company to make Open Source development a key part of its ongoing software strategy, Apple remains committed to the Open Source development model.
Not only is the overall statement false, but so is each component.
Apple and honesty do not go hand in hand. It is a company of fake hype which relies heavily both on grassroots and on fake grassroots (i.e. AstroTurfing). Microsoft’s own AstroTurfing campaigns are greater in terms of scale (e.g. number of AstroTurfers) and severity, so they just happen to get a lot more attention and scrutiny.
A moment ago we found out that Microsoft’s AstroTurfer which it gives schwag to in exchange for his trolling (under multiple fake names) in Free software and GNU/Linux blogs is still receiving schwag. “My MVP Award Kit arrived today, gosh its gorgeous! 
Got a bit choked up,” said Andre Da Costa, whose relationship with Microsoft we have covered in:
Andre Da Costa is just one AstroTurfer among very many, so we merely use him as an example. There are probably thousands like him.
“Nice,” says OpenUniverse, “I remember, although I forgot how they bribe people with laptops.” We gave many more examples when the Vista 7 AstroTurf began. OpenUniverse also asked, “out of curiosity, how do you prove it’s the same guy and not two or three?” Well, Andre Da Costa has already admitted this when proof was presented to him (posing as “Mr. Dee” and “Lucy”).
Apple, for example, has Daniel Eran Dilger, who is also attacking Android/Linux/WebOS as long as it suits Apple’s agenda and they, in turn, give him ‘special access’ to the company, by his very own confession.
Microsoft and Apple fan sites are often built by people who are compensated for their effort by the companies they glorify. This corrupts trust. █
Apple on Theora:
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05.14.10
Posted in Apple, Europe, GNU/Linux, Google, Law, Microsoft, Patents at 2:53 pm by Dr. Roy Schestowitz
Original photo by Matt Buchanan; edited by Techrights
Summary: A look at how the Western press covers HTC’s response to Apple’s attack on the Linux-based Android; new cracks in patent systems worldwide
THE patent system disappoints most parties which are affected by it (but not all parties are created equal). This post takes a look at new examples.
Taiwan
The US press sensationalises HTC’s response to Apple and makes it look like HTC is attacking rather than defending. Items that are liked in the West (notably hypePads, hypePhones, and hypePods) are being used to evoke emotion. We are talking about headlines like:
There are many more examples like that. In this particular case, HTC is not the bad guy; Apple attacked Linux/Android and even Microsoft seems to have extorted it very, very recently.
Some headlines put it in better perspective (there are hundreds of headlines). How about “HTC files lawsuit against Apple, calls for injunction” or even the clarification that it’s a counter-attack and thus really defensive?
Katonda.com, which is a very good Web site, says that “HTC Takes Revenge; Hits Apple” and adds:
Bruce Perens has written in detail about the problems of software patents, “Patents, originally created to stimulate innovation, may now be having the opposite effect, at least in the software industry. Plagued by an exponential growth in software patents, many of which are not valid, software vendors and developers must navigate a potential minefield to avoid patent infringement and future lawsuits. Coupled with strategies to exploit this confusion over patents, especially in standards setting organizations, it appears that software advancement will become stifled unless legal action is taken to resolve the situation…”
He further wrote … “Patent royalties tend to create discrimination against small-to-medium-sized businesses developing any form of software, and especially against Open Source developers.
The largest businesses in an industry generally have patent cross-licenses with their peers, and thus they may ignore each other’s patents while smaller businesses have no choice but to license those patents if they use them. As a result, there is a “tax” upon technology that small businesses must pay while the largest businesses are exempt.”
Software patents have become weapons for companies to fight with each other. This not only wastes valuable resources but also time of courts. Many activists and experts have been raising questions about the legality of software patents.
Many countries including India do no allow software patents.
The United States, Europe, and Japan are trying to change India's laws so as to retard progress in India. Indians should explain to their peers why they need to reject so-called ‘IP’ for their advantage and long-term prosperity. Indian officials are likely to be incentivised (nice word for “bribed”) to serve foreign interests rather than the local population. We saw that before and gave examples. Microsoft is among the culprits.
United States
With the exception of cases like I4i vs Microsoft, we dislike almost everything about the USPTO’s practices. It merely grants monopolies, mostly to large US-based companies, in order to exclude competitors from the market. How is that beneficial to progress, assuming competition drives innovation?
The following new article is perhaps a repetition of old news. Either way, it ought to show why it is also in Microsoft’s interest to lobby against software patents.
Toronto-based i4i said yesterday that the U.S. Patent and Trademark Office has confirmed the validity of its software patent after Microsoft had asked that it be reviewed.
Throughout the case, Microsoft was accused and found guilty of trial misconduct. A Microsoft lawyer said some months ago that Microsoft “routinely produces and/or condones deficient investigations, covers up alleged misconduct, mischaracterizes evidence, refuses to preserve or provide pertinent facts and data, protects the perpetrators and retaliates against victims.”
To clarify, Microsoft has many other patent cases where it is the defendant, but given that Microsoft has many software patents which it uses to bully rivals, this hardly makes Microsoft a victim of this system.
One area where the USPTO is trying to improve is the requirement of a written description as mentioned quite recently. Here is a patents-oriented Web site covering the subject:
USPTO Director David Kappos recently commented on the March 22, 2010 Federal Circuit en banc decision Ariad Pharmaceuticals v. Eli Lilly and concluded that the written description requirement remains alive and well and is an essential “backstop” against overclaiming. In the case, the Federal Circuit held that Section 112 of the Patent Act has a written description requirement that is separate and apart from the enablement requirement.
We will probably hear more about it in coming days.
Europe
Over in Europe, the major news at the moment is the EBoA decision which we covered and interpreted in [1, 2]. Here is what sites that Google classifies as “news” had to say (some are sites for/by patent lawyers, which makes them biased and unlikely to qualify as “objective”):
i. European Patent Office rules on software
The European Patent Office (EPO) has ended speculation about the extent to which software can be patented under the European Patent Convention with a decision handed down yesterday from its Enlarged Board of Appeal.
ii. Europe clarifies its position on intellectual property
Yesterday, the Enlarged Board of Appeal of the European Patent Office (EPO) handed down its long-awaited ‘opinion’ on the extent to which software can be patented under the European Patent Convention.
iii. European Patent Office silent on software patent question
No change: That’s the result of an 18-month long appeals process that the president of the European Patent Office hoped would clarify the rules on whether software may be patented.
In October 2008, EPO President Alison Brimelow referred four questions on the patentability of software to the EPO’s Enlarged Board of Appeal, its highest appeals court, on the grounds that a number of patent cases had reached “different decisions.”
From pro-patents Web sites (maximalists) we have:
i. Reactions to the EPO computer program patent decision roll in
ii. Patenting Computer-Implemented-Inventions (CIIs) in the EPO
All in all, the EBoA’s involvement was not at all satisfying, to put politely. The issues that existed ultimately remain. What will European SMBs (the majority) have to say? █
“They [EPO examiners] claim that the organisation is decentralising and focusing on granting as many patents as possible to gain financially from fees generated.” —Expatica, European Patent Office staff on strike
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Posted in Antitrust, Apple, Debian, Europe, GNU/Linux, Google, OIN, Patents at 3:16 am by Dr. Roy Schestowitz
Summary: Teams of embedded Debian users/developers may want a shield from software patents; Europe does nothing to stop software patenting; patent lawyers and the patents they crave prove harmful to development of “best” mobile phones
Benjamin Henrion (FFII) says that “EmDebian [is] considering joining the Open Invention Network,” based on this new message:
OIN is the open innovation network, a patent defence group set up in 2005 by IBM, phillips, Red Hat, Novell, NEC and Sony to create a patent pool for defending Linux.
They are now keen to have proper free-software people and projects join up, especially in the Embedded space which is shaping up for a big fight over the next few years as the incumbents realise Linux has eaten their businesses. This could easily get dirty (i.e. have incumbent vendors resort to their patent portfolios to hang on past their natural time – (in the way that SCO did, although they tried to use copyright rather than patents).
Henrion is trying to tell them that “collective patent pools and shields do not work against trolls” (with special exceptions [1, 2, 3, 4, 5, 6]).
Enlarged Board of Appeal (EBoA) Decision Loved by Patent Lawyers
Wednesday’s disappointment from the EBoA is already being covered all around Europe, especially by the legal 'industry'.
Patent attorneys seem pleased with the outcome, which lets them carry on doing what they did before, including the patenting of software using known loopholes.
To be honest, the decision was pretty much expected: the European Patent Office (EPO) has been taking a fairly consistent approach to computer-implemented inventions and has a growing body of learning materials on the subject.
Another ‘IP’ attorney says that “Enlarged Board of Appeal confirms approach to controversial software patents.” More from patent lawyers:
As many in the ‘FOSS’/anti-patent world would undoubtedly say, perhaps it is now time for the legislator to take over. However, I would have very serious doubts about whether it will be possible to come to any sort of agreement among the member states of either the EU or the EPC that would stand any chance of resolving the issue once and for all.
[...]
6. T 424/03, Microsoft does deviate from a view expressed in T 1173/97, IBM, concerning whether a claim to a program on a computer-readable medium necessarily avoids exclusion from patentability under Article 52(2) EPC. However this is a legitimate development of the case law and there is no divergence which would make the referral of this point to the Enlarged Board of Appeal by the President admissible.
Henrion has just uploaded this English version of the video depicting the European Parliament as it rejects the Software Patent Directive (also available in French/original). Here is an Ogg Theora version of this historical video.
It would be nice to have another such high-profile decision annulling all patents on software. In the United States, In Re Bilski will resume very shortly.
Phones a Patent Mess
“Complex Smartphones Are the Latest Patent Battleground,” exclaims Business Week. It seems like nothing but lawsuits is what patents brought to this lucrative section of the industry (where Linux grows fastest and Microsoft diminishes).
The patent wars are raging in the mobile device market, and they could result in rising costs for handset makers and higher gadget prices for wireless carriers and consumers. So far this year, Apple and HTC—two of the most innovative smartphone makers—have become embroiled in more patent-related litigation than in all of 2007, and they are on track to beat their own 2008 and 2009 records, according to Bloomberg data.
Wired Magazine has the following new article:
Investigation: Apple vs Nokia vs Google vs HTC vs RIM
[...]
The struggle that’s broken out between the tech giants has a certain irony; after all, the prizes they’re disputing — patents — were invented to accelerate and encourage invention, not hinder it. The concept is fairly straightforward: a patent is granted if an invention meets a number of requirements, the most essential being “novelty” and “usefulness”. Once granted, a patent typically gives the inventor a limited monopoly of a minimum of 20 years in which he alone can market the invention or license others to take up his protected work.
[...]
In their 2008 book Patent Failure, Bessen and fellow Boston University law professor Michael Meurer show that, since the late-90s, litigation costs for publicly traded companies (except in the case of pharmaceuticals) have consistently outweighed the profits that companies derived from patents. They show that in 1999 alone, $9.3 billion (£6bn) were made in profits from patents globally. Litigation costs alone, however, reached $16 billion (£10.5bn) for the US. In the last decade, this situation has deteriorated considerably: in 1999, there were 2,318 patent litigation lawsuits filed in the US. By 2008, that number had risen to 2,896.
Yesterday we mentioned the HTC vs Apple case. The New York Times has attempted to get a response from Apple but failed.
An Apple spokeswoman declined to comment.
Why didn’t HTC join the OIN and retaliate against Microsoft and Apple this way? Instead, it sold out to Microsoft and harmed the whole of Android in the process.
HTC is using just 5 patents. Had it joined the OIN, it would possibly have hundreds of infringing examples for a more effective artillery in this M.A.D. situation (TechDirt says that a “Patent Nuclear Response [Was] Launched” because it’s the best analogy).
According to the press release, HTC believes Apple infringes upon five of their patents. As to what they are, we don’t quite know. More on this as it develops.
“HTC files patent complaint against Apple, asks for ban on iPhone, iPad, and iPod,” says Engadget. That’s the ITC loophole which often gets abused.
Apple has other problems because of Adobe and invocation of “antitrust”.
Adobe has launched its latest salvo in an ongoing dispute with Apple.
The co-founders of Adobe have published an open letter in which they say that Apple threatens to “undermine the next chapter of the web”.
Actually, it is Adobe which undermines the next chapter of the Web. The Web is about web standards, not proprietary plugins. More companies also need to support Theora, which both Apple and Adobe are a threat to (see the posts below). █
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05.13.10
Posted in Apple at 2:54 pm by Dr. Roy Schestowitz
From the hype! hype! hype! dept.
Summary: Apple is said to be likely to be sending out thugs once again in order to catch hypePhone hype poopers; the HypePad has technical problems that Apple acknowledges
• Apple Has Lost 3 iPhones. Is It Losing Control, Too?
Apple has lost not one, but three prototype iPhones in the past year. That’s a perplexing development for a company that is famously tight with security.
A leaked fourth-generation iPhone popped up in Vietnam this week, with a detailed video and teardown photos that show the ins and outs of the hardware. That video follows an iPhone lost in March, and put on display by Gizmodo in April. And there may be a third iPhone prototype out there somewhere — the one whose disappearance reportedly led a Chinese worker to commit suicide in 2009.
[...]
Whatever the case may be, Apple is likely tracking down the people who ended up with the latest prototype to determine where it was sold, and ultimately, who sold it.
• Apple promises fanbois iPad WiFi fix
Apple has promised an iPad software fix for fanbois complaining of WiFi problems on the Jobsian handheld.
That also means the company has actually acknowledged the problems exist, but it says that only a few fanbois are affected.
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Posted in Apple, Europe, ISO, Microsoft, Novell, Red Hat, Standard at 7:17 am by Dr. Roy Schestowitz
Summary: Europe’s policy-making process is serving the hands of multinationals or monopolies with vested interests in lock-in and reduced competition; new patent lawsuits against Apple
EXTENSIVE lobbying from Microsoft, its cronies, and European allies seems to be paying off.
The EBoA has not been discussed here for a while (I too made a submission to it), but it was an opportunity to squash ambiguity regarding software patents in Europe.
Here is the official response [PDF]. It is about 100 pages in length and there is also this summary:
Today the Enlarged Board of Appeal of the EPO handed down its opinion on referral G 3/08, taking the opportunity to set out and confirm the approach of the EPO regarding the patentability of computer programs under the European Patent Convention (EPC).
The opinion relates to four questions referred to the Enlarged Board in October 2008 by the President of the EPO concerning points of law of fundamental importance for the Office’s patenting practice in this field.
The Enlarged Board analysed in detail the development of relevant case law, and found that there was a divergence between two decisions of Technical Boards of Appeal. However, recognising that the “case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified”, the Enlarged Board found that this constituted a legitimate development rather than a conflict of case law.
In the absence of conflicting Board of Appeal decisions, the Enlarged Board concluded that the legal requirements for a referral were not met. Nevertheless, the Board affirmed the right of the President of the EPO to “make full use of the discretion granted by Article 112(1)(b) EPC” in making a referral, and provided further guidance on how these requirements for such a referral should be interpreted.
The president of the FFII, Benjamin Henrion, says that the “EPO can continue to grant numerous software patents as it is doing for more than a decade” and Florian (from another push against software patents in Europe) says:
To answer your Twitter question to Benjamin, it’s not the end of the story. It just means the EBoA didn’t determine a significant difference in case law. I haven’t read the detailed ruling yet but the EBoA certainly doesn’t have the authority to overrule national court decisions. That’s for sure and doesn’t have to be verified by reading the EBoA’s statement.
BTW, I’ve participated very actively in today’s slashdot discussion related to Benjamin’s submission on the SUEPO letter. Tried to provide additional information and clarifications where people needed help.
To be honest, Florian has moved away from some dubious stances we saw before and more people — inside the FFII included — start to view him as trustworthy. He did disclose his interests to us, privately.
Regarding this Slashdot post which we mentioned the other day, Red Hat’s Wildeboer says: “Evil #swpat through the backdoor. EU parliament upset.”
“EPO can continue to grant numerous software patents as it is doing for more than a decade”
–Benjamin Henrion, FFIIBenjamin also alerts us about this document [PDF] from Bruno van Pottelsberghe which is titled “Europe Should Stop Taxing Innovation”. The title is deceiving because the document is actually calling for the back door that may include software patents. The summary says: “The European Union failed to achieve its Lisbon agenda target of spending three percent of GDP on research and development, and so, in the EU2020 strategy, has given itself another decade to meet this goal. Meanwhile, the EU has been leapfrogged by China in terms of business R&D spend. One key element to stimulate innovation and ultimately drive European growth would be to create the long-awaited single EU patent. Today’s fragmented European patent system is poor value for money and overly complex, not least because national patent systems still have the last word over all European patents on their territory. After nearly 50 years of failure to create the EU patent, language issues and the design of a centralised patent litigation court remain unresolved. The recent EU Council deal on an ‘enhanced’ European patent system is potentially a step forward, though many problems remain unresolved.”
The aspects they don’t cover actually include increase of damages and scope (good for lawyers). Here is what the solicitors-targeted crowd from IAM have to say about Pottelsberghe:
What is absolutely clear to me is that a lot of people have a lot invested in the current system and want to see it changed as little as possible. National patent offices currently control the EPO, for example, and make a lot of money from it. They would still get substantial amounts of cash under van Pottlelsberghe’s proposals, but their influence would wane and they would no longer grant national patents. Then there is the legal profession. Just a couple of lines from the paper make it abundantly clear why so many patent attorneys and lawyers in Europe (not all, it is important to point out) are opposed to reform.
This is funny coming from lawyers. They too are interested in the same thing because it gives them revenue at the expense of those who suffer in this system.
Former MEP David Hammerstein, who provided valuable information about what Microsoft did to the EU Commission [1, 2, 3], has just said that Kroes is falling for Microsoft’s lobbying. “Open standards [are] out of EU Digital Agenda for ambiguous open architecture,” he writes, “Kroes back tracks on binding openness. for procurement and EIF” (there is no further information or links).
Only moments ago Glyn Moody wrote about a leak that says more.
European Commission Betrays Open Standards
Just over a month ago I wrote about a leaked version of the imminent Digital Agenda for Europe. I noted that the text had some eminently sensible recommendations about implementing open standards, but that probably for precisely that reason, was under attack by enemies of openness, who wanted the references to open standards watered down or removed.
Judging by the latest leak [.pdf] obtained by the French site PC Inpact, those forces have prevailed: what seems to be the final version of the Digital Agenda for Europe is an utter travesty of the original intent.
For example, the draft version [.doc] dealing with interoperability was headed “Open Standards and Interoperability”; this has now become just “Interoperability and standards”.
[...]
In short, this latest version of the Digital Agenda for Europe is an utter disgrace, and shows how beholden the European Commission remains to “significant market players”. There are no benefits for European citizens here: the Commission has abandoned them for who knows what reason, and ensured that millions of Euros will flow out of their pockets – and Europe – for costly software licences at a time when the European economy can ill afford such unnecessary expenses.
This disgraceful evisceration of the earlier sensible draft shows yet again why we need full transparency at the European Commission. We need to know who met with whom, and what was said. Until we do, these kinds of last-minutes stitch-ups will continue to occur, and will continue to add further blots to the Commission’s already besmirched record in this regard.
For some information about Microsoft’s involvement, see:
- European Open Source Software Workgroup a Total Scam: Hijacked and Subverted by Microsoft et al
- Microsoft’s AstroTurfing, Twitter, Waggener Edstrom, and Jonathan Zuck
- Does the European Commission Harbour a Destruction of Free/Open Source Software Workgroup?
- The Illusion of Transparency at the European Parliament/Commission (on Microsoft)
- 2 Months and No Disclosure from the European Parliament
- After 3 Months, Europe Lets Microsoft-Influenced EU Panel be Seen
- Formal Complaint Against European Commission for Harbouring Microsoft Lobbyists
- ‘European’ Software Strategy Published, Written by Lobbyists and Multinationals
- Microsoft Uses Inside Influence to Grab Control, Redefine “Open Source”
- With Friends Like These, Who Needs Microsoft?
Regarding this “Public consultation on the review of the European Standardisation System”, Glyn Moody suggests telling/asking them whether it’s “time to replace ISO?” (we have a fairly new Wiki page about ISO’s internal corruption, but it focuses on OOXML and not on the MPEG cartel, for example).
Nokia, one of Europe’s biggest lobbyists for software patents and an enemy of Ogg Theora, is currently suing Apple some more and so do other new claimants like SoftView.
Nokia is not the only company taking Apple to court over infringement of its patents. The latest mobile technology company to make that move is SoftView, a small startup based in Washington.
AT&T is also involved:
SoftView is not a patent troll, unlike Acacia whose defeat against Red Hat (and Novell) is still being covered by Rob Tiller. We also wrote about the subject in:
Apple is also said to have been sued by HTC (we will get to it later on) after Apple sued HTC, but Florian disagrees with the claim. He writes:
HTC patent counterstrike against Apple appears weak; Google still on the sidelines
HTC made this announcement today:
http://www.htc.com/us/press/htc-sues-apple-for-patent-infringement/15
“HTC SUES APPLE FOR PATENT INFRINGEMENT”
The word “sues” in that headline appears to be a somewhat misleading overstatement of what’s actually happening. The press release only says that HTC lodged “a complaint with the United States International Trade Commission (ITC) to halt the importation and sale of the iPhone, iPad and iPod in the United States.” By way of contrast, Apple’s March 2 announcement (http://www.apple.com/pr/library/2010/03/02patents.html ) had said that Apple “filed concurrently with the U.S. International Trade Commission (ITC) and in U.S. District Court in Delaware.” So what’s missing from HTC’s announcement is a lawsuit in the traditional sense of the word, meaning a lawsuit that would be filed with a court. HTC appears to be less determined than Apple and much less sure of having a strong case because otherwise it would, like Apple, take concurrent action at both levels, or if it had to choose between the two, HTC would take Apple to a court of law. Only filing a complaint in hopes of a governmental agency doing most of the work looks weak.
Also, HTC asserts five patents while Apple asserted 20. HTC had to choose its five bullets out of a rather small arsenal while Apple could pick its 20 out of an arsenal amounting to thousands of patents, which makes it much more likely, in purely statistical terms, that Apple’s selection of patents poses a threat to HTC than vice versa.
Maybe HTC hopes that its announcement could build some kind of pressure on Apple via its customers and shareholders.
It’s unfortunate that the dispute between Apple and HTC now becomes a sue-me-sue-you game between closed source and open source, with Apple most probably having the upper hand and HTC just trying to create the appearance of a retaliatory measure. I have serious doubts that HTC’s apparently half-hearted counterstrike will scare Apple. HTC’s light warfare is probably no match for Apple’s heavy artillery. Just comparing the two different press releases that announced legal action, and knowing about the size of the patent portfolios of the two combatants, this is in all likelihood a very unbalanced battle.
Google:
There’s still no indication of Google [whose Android open-source project is the reason for which Apple sued HTC in the first place] entering the fray and trying to bail out HTC and, if necessary, other vendors who build Android-based phones. When HTC and other vendors decided to create Android-based products, they might have thought that Google would help them out if any patent issues came up. I’m wondering whether Google can really stay on the sidelines of this forever, not only with a view to Android but also its other open source projects — existing and future ones.
More about that shortly. It is relevant to Linux. █
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Posted in Apple, Europe, Law, Microsoft at 4:25 am by Dr. Roy Schestowitz
Summary: Microsoft’s software licences may lack a legal basis and Apple is tickled for breaking the law as a sacred, secret and specially-blessed hypePhone gets out of Apple’s hands again
SEVERAL years ago, an analysis was published in The Register which contended that Microsoft’s EULA is not enforceable in Britain. Microsoft claims no liability [1, 2, 3, 4] and also forbids benchmarks (which Phoronix produces a lot of these days). A reader has just sent us this new article from The Register. It says that the “High Court rules software liability clause not ‘reasonable’” and that “The IT industry feared that the result would make it harder to make claims for software, but the Court said that EDS’s fraudulent misrepresentation was down to the conduct of one employee, not the whole firm. Experts said that this made it less likely that IT suppliers would overhaul the way they sold their systems.”
“This is a very important story,” explained our reader, “and a good tech journalist would investigate all such ‘only your money back’ agreements.” Like its close partner Samsung, Microsoft has a history of using British law (+EULA) as an instrument of abuse.
As side news, Apple’s 4th generation hypePhone has been ‘leaked’ again. [via]
Wow, Apple aren’t being too careful these days, they appear to have lost another 4th gen iPhone – this one is a 16 GB model. These images have appeared on a Vietnamese website Taoviet.vn.
Rumors are that this handset was bought in the US for $4,000 by a Vietnamese businessman, along with an iPad. What do you think? Genuine? Other rumors suggest this iPhone is fitted with the A4 processor, same as the iPad.
Will Apple break the law again (or have the police break the law) by bullying the person in possession of this phone, just as it did to Gizmodo? (details in the links below) █
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05.11.10
Posted in Apple, DRM, Free/Libre Software, GNU/Linux, Microsoft at 6:27 am by Dr. Roy Schestowitz
Summary: Richard Stallman recommends reduced exposure to Hollywood’s so-called ‘premium content’, which increasingly excludes or punishes users of Free software like GNU/Linux
WE HAVE already written to explain how the copyright cartel controls the current government (as it did predecessors) and gone through the trouble of explaining why Hollywood is close to Apple and to Microsoft. Hollywood uses them to police so-called ‘consumers’ of so-called ‘content’. This is part of the reason that we cover copyright issues on a daily basis, not just software; those subjects are inseparable because of the parallels and the correlations between software and information.
BoingBoing argues that the “FCC hands Hollywood the keys to your PC, home theater and future”:
The FCC has given Hollywood permission to activate the “Selective Output Control” technologies in your set-top box. These are hidden flags that allow the MPAA to deactivate parts of your home theater depending on what you’re watching. And it sucks. As Dan Gillmor notes, “Fans of old TV science fiction will remember the Outer Limits. Given Hollywood’s victory today at the FCC — they’ll be able to reach over the lines and disable functions on your TV — the intro to the show takes on modern relevance.”
The FCC says that they’re doing this because they believe that if they do so, the MPAA will start releasing first-run movies (the ones that are still in theaters) for TV. They say that Hollywood won’t make these movies available unless they get Selectable Output Control because SOC will stop piracy.
This is ridiculous.
“Holywood [sic] attacks your freedom,” wrote Richard Stallman about it and explained:
Dan Gillmor: FCC hands Hollywood the keys to your PC, home theater and future.
The Free World will increasingly need to reject computers designed to be controlled by Hollywood, and use computers which were not designed to restrict their users. But these are unusual computers, and that is a problem for people who want to install a free operating system on a machine that was not chosen with freedom in mind. They find that the devices in the machine won’t run without proprietary software. Often this is because Hollywood has demanded it.
This problem contributes to the popularity of nonfree GNU/Linux distros that include the nonfree drivers and firmware for those machines, distros that weaken our community by corrupting many of its members.
The Hollywood movie companies base their arguments on a false premise: that they deserve to be able to profit. Since they have attacked our freedom, what they deserve is to lose everything and cease to exist.
Think of this, next time someone suggests you pay to watch a Hollywood movie. It’s feeding your enemies. If your children are going to watch, it is bad for them too.
This is an interesting insight which encourages the use of alternative sources such as the Web Archive, Wikipedia, and news blogs. Those who want greater control typically abuse publications and alter the tools used to access information so as to disempower the audience. Apple’s hypePad takes it to new extremes. █
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