Summary: Weaponisation of European companies for the sake of artificial elevation of prices (patent taxes) a growing issue for Free/Open Source software (FOSS) and those behind it are circulating money among themselves not for betterment of products but for the crippling of FOSS contenders

THE long if not endless war waged by Microsoft against GNU/Linux is far from over. This past week, e.g. in our daily links, we gave several examples of the latest assaults by Microsoft (Android antitrust, Linux booting restrictions, lobbying against freedom-respecting policies and more), aside from the patent angle. Microsoft sure knows what it’s doing and if Microsoft succeeds, Linux-powered products will lose their broad appeal due to removed (thanks to legal threats) features and artificially-elevated prices. In this post we shall focus on the patent aspects alone, as we so typically do in order to keep things simpler.

“Microsoft sure knows what it’s doing and if Microsoft succeeds, Linux-powered products will lose their broad appeal due to removed (thanks to legal threats) features and artificially-elevated prices.”Let’s start with the Microsoft-friendly advocacy site, IAM ‘magazine’. IAM’s innuendo-filled focus on China’s patent activity as of late [1, 2] finally culminates in China’s “misuse of competition law for protectionist policies,” as if the West never ever does this (it’s certainly the norm at the USPTO and ITC). IAM wants to make China’s system (patents, courts etc.) look unfair and unjust, as it did the other day too. China is apparently very mean because there’s bias there that’s hardly unique to China. Huawei is the one major Android OEM that Microsoft never managed to blackmail using patents (it reportedly did try over the years) and IAM now says that “Huawei attracts flak from Nokia, while adversary Samsung signs major deal with the Finnish company” (good cop, bad cop). It is obviously a loaded headline and IAM does not tell readers that Nokia’s patent troll, MOSAID (now Conversant), is paying IAM. What a farce of a ‘news’ site. MOSAID (fed with Nokia patents at Microsoft’s instruction) can be viewed as somewhat of an extension of these entities and after Microsoft effectively hijacked Nokia it’s taxing Google/Android (hence Linux) in a royalty stacking fashion. This happens right now not only in the Western world but also in Asia, albeit Huawei has been one of the very few exceptions (the Chinese government, which is connected to it, seems to have protected it). “Here’s Why Nokia Is About To Get More Money Out Of Its Patents” is a new article from Fortune (writing a lot about patents so far this month) which reminds us that Microsoft essentially turned Nokia into a patent aggressor. Put another way, Microsoft made Nokia yet another one of its (many) patent trolls that are openly against Android and Linux. “I booked http://nokiaplanp.com,” wrote Benjamin Henrion, but that was “years ago, I was right.” The P stands for Patents and it happened around the time people were making jokes about Nokia’s plans under Microsoft’s mole, Elop (there were nearly a dozen such plans with a different alphabetic letter for each).

People are kindly asked to remember what Microsoft did to Nokia as revisionism about it is quite routine nowadays. Not only Nokia engages in such behaviour; Ericsson does this too and it goes as far as south Asia, e.g. India. European patent trolls come to India even if there are no software patents in India and virtually no patent trolls either, as we mentioned here before. Well, Micromax was last mentioned here a couple of months ago in relation to patent trolls, primarily Ericsson’s (the equivalent of MOSAID/Conversant to Nokia) and here is a new blog post about it:

Ericsson has been going all out to enforce its Standard Essentials Patents (SEP) against several mobile phone companies, such as Micromax, Intex and Lava, among others, who are primarily selling mobile phones in India. The outcome of these law suits will no doubt play a significant role in defining the future of licensing and enforcement of SEP in India.

The latest in these law suits is an interim judgement by The High Court of Delhi in the matter between TELEFONKTIEBOLAGET LM ERICSSON (Ericsson) and LAVA INTERNATIONAL LTD (Lava). The interim judgement is in favour of Ericsson. More importantly, the judgement deals with various aspects of licensing and enforcement of SEP.

Ericsson keeps 'hiding' behind proxies that are patent trolls in order to shake down practicing companies. It’s hardly even covert like Microsoft’s scheme. Everyone knows that Ericsson is doing this. Standard-essential patents (SEPs) are used here (Nokia has many of these too) and speaking of which, the Kat who is the most pro-software patents (based on years of posting history) wrote about the EPO's PR firm the other day, noting its take on SEP holders. “The final speaker was Mark Bezant from FTI consulting,” she wrote. “He mentioned that he is amongst the FRAND experts in the pending UK case of Unwired Planet v Samsung and Huawei [last reported by IPKat here]. He noted the two key issues in FRAND disputes: (a) the obligations placed on the SEP holders, and (b) the appropriate level of royalty rates. After reminding the audience of some of the methods discussed by Garreth Wong, he mentioned particular issues that arise in practice, such as having to rely on outdated licences or inherently complicated agreements. With respect to the incremental method of calculating royalties, he noted the difficulty in understanding the exact value a single patent has added to a standard. The most common approach, he explained, is looking at established comparable rates and matching them to the situation at hand. Mr Bezant concluded that one must establish a number of factors before assessing whether a licence is FRAND, such as the validity of the patents, the number of declared essential patents, the number of essential patents confirmed by a court, and the qualitative assessment performed by experts on the patents.”

“Remember that there are practically no workarounds for SEPs (by definition) and FRAND is not compatible with FOSS.”It’s rather curious to see Battistelli’s PR firm (at the expense of the EPO) promoting a software patents loophole and patent aggression. Then again, they also promote the UPC and pay IAM, which incidentally gets paid by patent trolls also. It is a hostile world out there and it makes life hard for FOSS proponents. Remember that there are practically no workarounds for SEPs (by definition) and FRAND is not compatible with FOSS. █

Summary: Free/Open Source software (FOSS) continues to be used as a cover for large corporations (like Google, IBM, NEC, Philips and Sony) to maintain a grip on patent pools and act as gatekeepers with software patents that they openwash (not even cross-license, as Oracle v Google serves to illustrate)

WE were never huge fans of OIN, which is why OIN’s CEO and PR people tried hard to convince us otherwise. I saw first-hand accounts where patent trolls were repelled by OIN, which didn’t quite seem to care (maybe because OIN cannot do anything at all about patent trolls, other than attempt to buy/harvest patents before they’re bought to be used offensively). OIN is basically the world’s biggest legitimiser of software patents. IBM, the main company behind OIN (recall its first head of operations, Jerry Rosenthal from IBM), is a patent bully and a notorious software patents proponent, so how can one honestly expect OIN to be part of a true solution? IBM is demonstrably part of many problems.

“IBM is demonstrably part of many problems.”According to this new article from Fortune, joining OIN makes one “a Patron of Open-Source Software” (what a ludicrous headline). To quote from the article: “It’s called the Open Invention Network, and its other members are Google, IBM, Red Hat rht , NEC nec-electronics , Philips phg , Sony sne , and SUSE (a unit of Britain’s Micro Focus). Fortune is the first to report Toyota’s startling move.

“Formed in 2005, OIN’s mission is to protect and encourage the collaborative development and use of open-source software, like the Linux operating system, which can be freely copied, altered, and distributed, and which no one person or company owns. OIN pursues a variety of strategies aimed at protecting the users and developers of such software against the threat of patent suits by proprietary software manufacturers, like Microsoft and Apple. Such suits, if successful, could deny users the freedoms that make open-source software desirable.

“That Toyota would now join the group reflects the growing importance that software is playing in cars, and the growing number of automakers who believe that open-source software is the best approach to providing many of the needed solutions for its vehicles. Open-source champions say such software is cheaper, more flexible, and of higher quality, because it benefits from the pooled resources of collaborative input.”

Toyota, a very close Microsoft partner (probably more so than any other vehicles maker), claims to have joined OIN, but what good will that do for FOSS? Nothing. Toyota is not even a software company. It’s about as relevant to FOSS as that openwashing campaign from Tesla (and later Panasonic). Total nonsense. It’s about as helpful to FOSS as RAND is and speaking of RAND (or FRAND), this new article from IP Watch speaks about FRAND in relation to Europe, where the term FRAND is typically a Trojan horse (or surrogate) for software patents in Europe.

“Toyota, a very close Microsoft partner (probably more so than any other vehicles maker), claims to have joined OIN, but what good will that do for FOSS?”Going back to OIN, it has done virtually nothing so far to protect FOSS. It’s like bogus insurance plan which does not actually work or cover anything (no matter the circumstances). Where is OIN every time Microsoft blackmails Linux/Android OEMs? Speaking of which, Professor Crouch has this new article about insurance based on patents (or copyright, trademark, and trade secret). He says that “Hammond’s insurance company USLI had refused to indemnify Hammond based in-part upon the intellectual property exclusion found in the policy that specifically excluded coverage for any “loss, cost, or expense . . . [a]rising out of any infringement of copyright, patent, trademark, trade secret or other intellectual property rights.” Agreeing, the court particularly found that the basis for TCA’s attorney fee requests stemmed from the Pennsylvania Uniform Trade Secrets Act as well as the Copyright Act – even though no intellectual property infringement claim had been asserted in the underlying case.”

Look what we have come to. With misnomers like “intellectual property”, which compare ideas to “property” and ascribe physical attributes to them (like insurance traditionally did, covering for damage caused to physical things), no wonder the media says joining OIN is becoming “a Patron of Open-Source Software” (FOSS inherently rejects the notion of patron or owner, except in the copyright assignment sense).

“Fortune is the first to report Toyota’s startling move,” its author wrote, but in reality Fortune is the media partner to peddle Toyota’s marketing/propaganda, along with OIN’s agenda. █

Summary: While the United States distances itself from patent maximalism and moves further away from software patenting, the issue is still unresolved in Europe, which traditionally rejected such patent applications upfront

SOFTWARE patents are certainly a dying breed of patents in the United States, especially after Alice. Those who deny these trends are typically lobbyists of the software patents interest groups/profiteers. This report which was authored by Charles Bieneman, says that even the Court of Appeals for the Federal Circuit (CAFC), originator of software patents in the United States, walks back on the issue and “Maintains Unpredictability of the Law of Patent-Eligibility”. To quote Bieneman: “The Federal Circuit vacated a summary judgment of invalidity under 35 U.S.C. § 101 after disagreeing with a district court that claims of U.S. Patent No. 7,604,929 were “directed to a patent-ineligible law of nature–that hepatocytes [liver cells] are capable of surviving multiple freeze-thaw cycles–and that the patented process lacks the requisite inventive concept.” Rapid Litigation Management, Ltd. V. Cellzdirect, Inc., No. 2015-1570 (Fed. Cir. July 5, 2016). Reading this case for broader lessons on Section 101 validity – as I read all cases that implement the Mayo/Alice patent-eligibility test – the main lesson to be drawn here is that outcomes under Section 101 remain highly situational. Patent-eligibility determinations, even more than other questions of patent law, frustratingly depend on the context of the litigation, specific words that may or may not be included in a patent claim, and, let’s be honest, the particular judge or judges hearing the case.”

“The courts which actually count and are not known for corruption quite unequivocally reject software patents.”At the CAFC, as noted here many times before, trial misconduct is common. It’s a corrupt process. Consider the recent BASCOM case which is still mentioned in the news this week. SCOTUS, which bypasses CAFC, continues to reject challenges to Alice, e.g. the Sequenom case — a subject which was also revisited earlier this week. The courts which actually count and are not known for corruption quite unequivocally reject software patents.

Europe, on the other hand, risks going in the very opposite direction.

According to last week’s blog post from Cambridge Wireless Blog (based in the UK), “not all software is patentable, and never has been. But this is generally true: not everything is patentable. As straightforward examples, you cannot patent a piece of art, or a book, or a theme or story for a book, say. These are regarded as “non-technical”. Likewise, you cannot patent a pure business method, again in essence because they are regarded as “non-technical” and for policy reasons. You also cannot patent “scientific theories” or “mathematical methods”, again essentially for policy reasons: no-one should be allowed to patent what is already “out there”, waiting for humans to uncover it.”

“”fluffy” software is not patentable but “hard” software is,” Benjamin Henrion noted about the premise of the above. “There is no such thing as hard software,” he added. This is perhaps where the EPO loophole comes into play. If one pretends that the software is tied or combined with a device, then suddenly the software is deemed patentable. Another loophole for software patenting in Europe has been FRAND. We wrote about this for nearly a decade. FRAND has been a vector of software patents injection into standards, even where software patents are not at all valid. “FRAND And The Clash Of Industries,” an article published earlier today, says the following:

They use open source licenses to handle the copyrights and patents, community governance to handle trademarks and other patents and public benefit entities to protect everyone from everyone else. Each participant in the collaboration works at their own expense in order to achieve a shared outcome that benefits all, including themselves. When they create an enhancement, fix a defect, participate in a design, they are not “working for free” or “donating their work” so much as they are “participating in co-development”. It’s a new way to leverage IP for greater benefit than directly monetising its scarcity.

[...]

But that’s not the case in markets where collaboration happens at the level of specifications and de jure standards rather than code and de facto standards, such as the telecommunications industry. Decades of comfort with SEPs and FRAND terms have resulted in a heavy investment in patents licensed in such a way that they create mutually-assured control. Telecommunications standards are so heavily encumbered with SEPs that patent pools and cross-licensing have become the norm. That in turn has created a barrier to newcomers that has made the telecommunications industry a cartel of giants.

That cartel of giants now sees its mesh of complex physical technologies coming to a lifecycle point where software dominates. The rise of apps and smart devices for the user and of software-defined and implemented infrastructure for operators, means that there is more and more of an incentive to move in to the computer and software technology markets. This in turn has created an impetus to adopt the working practices of that industry, which notably today means collaboration over shared implementation rather than just over mutually essential specifications. As a result, they seek to introduce open source into their business.

[...]

So will we create a new opportunity with regulations like EIF, or allow an existing industry to hobble another as the two collide? That’s the real question about FRAND terms for SEPs. Trying to force-fit FRAND into open source by mistakenly asserting it’s just a matter of compliance is sure to fail. Despite the name, FRAND is always discriminatory.

It is sad that so many years down the line, nearly a decade after Microsoft lobbied via groups like the Business Software Alliance, this subject remains unaddressed and FRAND remains a big barrier, even in Europe. There is much work to be done in Europe, even if the US gradually ends the era of software patenting. █

Summary: More patent trolling in Europe (using software patents, as usual) and another disappointing move from the European Commission which serves to reinforce software patents deep inside public services, in effect overriding Europe’s policy on patent scope due to lobbying from proprietary software giants from abroad

“Trolls at the gates,” Francisco warned the other day. “Unitary patent is coming.” Francisco happens to have warned about the EPO and UPC for quite some time now and he is not alone (we gave examples of that). The President of the FFII, Benjamin, has just said “this is what is waiting us if nobody moves their ass on the Unitary Patent.”

“As we have noted here for a number of years, Germany is undoubtedly the worst in Europe when it comes to software patenting and this latest bit of news seems to reinforce this trend.”This was said in response to Jan Wildeboer, who works for Red Hat in Germany (Europe’s capital of software patenting) after years of activism against software patents (he is spending a lot less time fighting for this cause nowadays). “Patent troll forces Flickr to deactivate mobile upload in Germany,” Wildeboer warned. As we have noted here for a number of years, Germany is undoubtedly the worst in Europe when it comes to software patenting and this latest bit of news seems to reinforce this trend. I can’t help but wonder if upload tools in my own self-hosted albums are infringing too. Recently in the United States some very small and weak entities, such as family businesses, got sued/blackmailed by a patent troll over photo albums they had online. We wrote some articles about it earlier this year.

As Benjamin put it, “as long as those Patent Courts stays in Germany, I am fine. Problem is with the Unitary Patent.” Well, some of these patent trolls have begun coming to the UK. They use software patents, too. To quote the page from Flickr, “patent litigation is a tremendous drain on the global economy, and Yahoo has been a vocal proponent for years in the United States to restore balance to patent litigation by encouraging innovation and discouraging abuse.

“Patent troll forces Flickr to deactivate mobile upload in Germany…”
      –Jan Wildeboer“Unfortunately, as of today, our Flickr users in Germany are the victims of abuse in the patent litigation system. In recent months, Yahoo and several other major US tech companies were sued in Germany by TLI Comms, a company that does not practice the patent at issue, but rather asserts it against others for financial gain — sometimes referred to as a “patent troll.” TLI Comms has accused Yahoo of infringing its European patent (EP 0814611 B1) by providing users the ability to upload photos and videos to our servers via the Flickr mobile web page or the Flickr mobile apps. TLI has asserted similar claims against a number of other major US tech companies. As of today, a German court has enjoined Yahoo from providing the upload feature of the Flickr mobile web page and mobile apps to our users in Germany.”

How long before other European nations suffer the same ‘castration’ of features? It might only be a matter of time. Bear the UPC in mind.

“European Commission kills FLOSS with FRAND patents,” Benjamin warned in a separate note after Glyn Moody, who had written articles on this subject earlier this year (we covered these), alerted followers to the fact that the “EU Commission confirms that it is abandoning open source to market forces – http://europa.eu/rapid/press-release_MEMO-16-1963_en.htm”

Benjamin thought “market forces” are better off called “dark forces” and another opposer of software patents said “the EU are creating these standards & they cannot be used in Free Software?”

Dr. Moody responded with “very; but they care more about big business that likes FRAND” (a topic often covered here for nearly a decade).

As Benjamin noted, “patents means free software becomes proprietary. That’s what the GPL said in 1991 already.”

“EU Commission confirms that it is abandoning open source to market forces…”
      –Glyn MoodyIf there is no freedom to redistribute the program, then it’s not Free software anymore. “The reference implementations can be whatever,” Benjamin noted, but “patent holders can still tax any other implementation of the standard.”

As I noted in response to the above (twice even) the EU/European Commission is a Microsoft shop that failed to move away from Microsoft and even failed to investigate Microsoft’s OOXML abuses as it had promised to do so (giving a false sense of hope to antagonists). Whose EU Commission is this and why are we still implicitly endorsing software patents, in spite of the EPC and the 2005 directive? █

Composition of [1, 2, 3, 4]

Summary: A critique of some patent injustices and the reasons why scientists are sacrificed for the benefit of revenue-maximising managers and their lawyers/lobbyists

Cory Doctorow, citing his EFF colleague, says what an Australian Commission has found regarding software patents. It’s strongly against them. It’s a subject which we covered here before [1, 2]. “The report,” Doctorow writes, “which was commissioned in part to investigation the codification of fair use in Australian copyright law, condemns virtually the whole edifice of Australian IP law. It calls for shorter copyright terms, more flexibility for copyright users, stricter criteria for granting patents, tightened rules and shorter terms for software and business-method patents, and more.”

“It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad.”The EFF’s post says they “wrote about a discredited industry report that spread misinformation about the supposed costs of Australia adopting fair use into its copyright law. That document, commissioned by media and entertainment giants, had been written in anticipation of a recommendation for the adoption of fair use by the Australian Productivity Commission, a government agency tasked with improving Australia’s capacity for production and innovation.”

Further down it says: “Restricting the availability of patents for software and business method inventions, which are an impediment to further innovation. As regards software, the Commission notes that software development cycles of around 5 years are far shorter than the 20 year term of protection granted by patents, and that other incentives for software development (among them copyright) also exist.”

It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad. Europe came to the same conclusion a very long time ago, but the EPO conveniently (for its own gain) ignores the law. There is now a new software patents loophole in the EU, as Dr. Glyn Moody showed last month. Yesterday he had more to say about that:

A couple of weeks ago, I wrote about a disturbing aspect of the European Commission’s proposed Digital Single Market: the fact that “ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms.” That’s a problem, because FRAND licensing is inherently incompatible with open source.

As well as generating a fair amount of interest here on Ars, the article seems to have provoked some discussions in the wider open source community, and inside the European Commission too. Given that interest, and the absolutely key nature of this issue, I thought it would be worth exploring it a little more deeply, not least because there have been some important developments in the last two weeks, including a way for Ars readers to help stop open source being locked out of EU standards.

First, it’s probably a good idea to summarise why FRAND, which stands for “fair, reasonable, and non-discriminatory,” is a problem for open source. Put at its simplest, licensing terms can be totally fair, quite reasonable, and absolutely non-discriminatory and yet impossible to implement in free software.

For example, a patentholder might think they are being super-kind by requiring a per-copy licence payment of just €0.001. And for traditional software, that might indeed be generous. But consider what happens with open source code, which by definition can be copied and shared freely as many times as you like. Since there is no way of knowing how many copies have been made, it’s impossible to pay even that “reasonable” €0.001 per copy. The only licensing fee that works in this context is zero—and even then, it’s not guaranteed that the licence will be compatible with free software. For example, there may be some other limitations on use, which aren’t allowed for open source.

What is needed is not just “royalty-free” licensing, but “restriction-free.”

[...]

The other case concerns the open source giant Red Hat, and how it settled a patent dispute with a company called Firestar. What is remarkable about this deal is that Red Hat not only acquired a licence for itself, it obtained it for everyone else in the open source community, upstream and downstream from Red Hat. In other words, it effectively took out a patent licence for the open source world.

Again, some have pointed to this as an example that proves that paying patent licences is perfectly compatible with open source; and once more, that’s not true. First, this solution was only possible because Firestar agreed to provide this blanket licence for the open source community: the fact that it had never been done before shows how exceptional that was. For companies that offer FRAND licensing, there is no reason at all why they would have to follow Firestar’s example.

“This is IAM doing its usual routine trying to urge companies — even in China — to pursue more and more patents/patenting obsession.”It is not too shocking that lobbyists for software patents get their way in spite of what scientists and programmers are saying. The lobbyists never grow tired and they are backed by wealthy corporations like IBM. There is now a push for new taxes in the embedded Linux space (increasingly characterised using the silly buzzword, “IoT”). “If demand for connected devices does prove durable,” IAM wrote, “then Chinese appliance makers could be big winners – and so could patent licensors. But the big Chinese players are likely not finished spending money to beef up their patent positions in the hopes of easing their royalty burdens.” This is IAM doing its usual routine trying to urge companies — even in China — to pursue more and more patents/patenting obsession. In Europe they encourage companies to pursue patents even in domains that are out of reach, e.g. software, as in the US patent system it is growingly a challenge (inevitably, they cannot just snub the courts eternally). This new article from Robert Sachs says: “On May 4, the USPTO issued a new memorandum for patent examiners, “Formulating a Subject Matter Eligibility Rejection and Evaluating the Applicant’s Response to a Subject Matter Eligibility Rejection” (“Examiner Instructions”) along with a new set of five example claims, this time in the life sciences and chemistry arts. The Examiner Instructions are a positive step forward in refining the examination process, but leave open many questions.”

A notoriously corrupt court, CAFC, is where software patents came from in the first place (several decades ago) and it has just been brought up by Patently-O in relation to the Patent Act. “The Federal Circuit created the rule of automatic assignment through agreement without any basis in the Patent Act,” Patently-O says and to quote some bits: “The core problem is that the court has ignored the Erie doctrine. Under the Supreme Court’s 1937 decision in Erie v. Tompkins, a federal court ruling on a matter of state law under its diversity jurisdiction must apply the law of the state from which the dispute arose. Which state law to apply is a matter of choice of law principles. What the federal court cannot do is create its own federal common law in lieu of the state statutory or common law. As the Court affirmed in Butner v. United States, 440 U.S. 48 (1979), the Erie doctrine applies to a court’s supplemental jurisdiction over state law claims attendant to a federal question. By creating its own federal common law of contracts, the Federal Circuit reveals a fundamental error in its understanding of the federal court system. [...] The case of conflicting patent assignments bears some similarity to the law on intangible future interests in creditor-debtor law. Both entail rights in property that has yet to come into being. The main lesson from creditor-debtor law, which is largely a matter of state law, is that many interests are implicated and therefore simple rules are not satisfactory. The Federal Circuit has arguably adopted too simple and misguided a rule in the Filmtec. The Supreme Court has confounded the error in the Stanford decision by ignoring the issue of automatic assignments. One way to correct course is by granting Shukh’s petition for certiori and restore the proper balance between federal patent law and state commercial law.”

“We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption.”This may seem like an injustice because it is. A lot of patent law in the US is completely unhinged from sanity, evidence, facts, and justice. The other day we wrote about how NASA had hoarded a lot of patents; it should not have patents at all (taxpayers pay NASA to explore space, not to acquire patent monopolies) and it gets worse when NASA gives these to private hands and sells them to trolls. Yesterday we found 31 articles about NASA’s latest patent PR, but not a single decent article which actually put claims to scrutiny and did an actual investigation [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31].

We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption. Many countries are negatively affected by this. █

Campaign promises versus actions

Summary: How public policy and guidelines are being warped by patent aggressors and super-rich opportunists rather than public/collective interest

EARLIER this year we showed how Microsoft-connected FRAND lobbying yielded discriminatory (against FOSS) policies in Europe. This is not a coincidence, it’s intentional. This is also one way to legitimise software patents through the back door.

“In some ways not much has changed since the IEEE Standard Association’s (IEEE SA) new patent policy came into effect in March last year.”
      –IAMFRAND should not be acceptable for standards, for reasons that have been covered to death around the Internet. According to a new press release, NASA makes some patents (not many) “available in the public domain,” to use its own words. As Red Hat’s Jan Wildeboer put it in Twitter, “Good! But why not all?” We wrote about this before [1, 2]. As NASA is funded by taxpayers, hoarding patents makes no sense, especially when NASA auctions these away to patent trolls who can then tax the public.

Writing about standard essential patents and FRAND, IAM ‘magazine’ has just said: “In some ways not much has changed since the IEEE Standard Association’s (IEEE SA) new patent policy came into effect in March last year. There remains a group of tech companies led by Qualcomm, Ericsson and Nokia who refuse to license their standard essential patents (SEPs) under the new rules while, on the other side, the IEEE and another, larger band of tech companies including Cisco and Intel, insist that the changes were vital in bringing clearer guidelines to licensing on fair, reasonable and non discriminatory (FRAND) grounds.”

Nokia now feeds patents into patent trolls, at Microsoft’s request. One of these patent trolls literally pays IAM — a fact that even IAM’s editor was unable to deny when I asked him. Then we have Ericsson, which brought patent trolling to Europe, and also Qualcomm, which Will Hill explained 2 days as follows:

Heh, no surprise there. Qualcomm is a big Microsoft partner, allegedly “playing nice” for the “internet of things.” Maybe their existence is as a Microsoft proxy and PRISM partner, corrupting free software like Android from the inside. I wonder if they are one of the vendors that aggressively push for non free firmware that the guy behind Core Boot complained about in 2006 or so.

As a patent victim,

http://techrights.org/2007/08/07/patent-terrorism-asia-2004/

http://techrights.org/2007/12/13/patent-life-and-death/

Attacking Nokia with patents,

http://techrights.org/2007/11/26/acacia-patent-qualcomm-nokia/

http://techrights.org/2007/11/22/naughty-patent-apple-burst-nokia/

http://techrights.org/2008/03/06/uspto-breakage-ms-oss-hijack/

As a patent perp,

http://techrights.org/2008/01/11/hddvd-qualcomm-patent/

http://techrights.org/2009/11/25/us-patent-office-problems/

http://techrights.org/2008/12/04/ms-employment-patent-hawk/

http://techrights.org/2015/04/24/google-coexisting-with-swpats/

blocking legal reform

http://techrights.org/2007/10/26/patent-news-netapp-ms-verizon/

“working with Android” receiving Palm patents,

http://techrights.org/2014/01/25/palm-qualcomm/

Lock step with Microsoft in killing Windows 7 and Windows 8 to push Windows 10,

http://techrights.org/2016/01/20/escaping-microsoft-malware/

http://techrights.org/2016/01/21/biggest-fans-upset-at-microsoft/

Part of the empire,

http://techrights.org/2015/10/20/preferential-treatment-for-microsoft/

The latter bunch, those who advocate FRAND, are also asking for something unfair, unreasonable and discriminatory because it excludes FOSS. To quote IAM: “To Cisco’s Ohana that means that the IEEE dispute is about much more than a small number, albeit significant, changes to its patent policy. “I have never believed that the furore around the IEEE policy has much to do with the policy itself but more to do with the concerns that some companies have about contagion,” he says. “Fundamentally what they’re worried about is if what has happened at IEEE spreads beyond the IEEE.”

“Notice to what degree IEEE policy is guided by multi-billion multinationals.”Notice to what degree IEEE policy is guided by multi-billion multinationals. Where are public interests in all this? Well, just like in NASA’s case, we are seeing how even at a Federal or supposedly scientific level there’s no real debate about merit of policies, only self interest of a bunch of billionaires. And that’s a problem.

The IEEE’s hostility towards FOSS isn’t a new thing. See for example the older articles below. █

• IEEE is Still Against Scientists, Protects Monopolies Instead
• IEEE Hates Software Freedom, Now Makes it More Official
• IEEE Turns Young People Into Microsoft Customers
• IEEE Celebrates Patent Monopolies (Including Software Patents) While Patent Trolls Carry on
• Microsoft Receives Printed Lies Placement From IEEE
• User Stung by OOXML, IEEE Stung by IEC

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Publicado en Europe, Free/Libre Software, GNU/Linux, Google, Microsoft, RAND 9:45 am por el Dr. Roy Schestowitz

¿Y Microsoft nos dijo que ´ama´ a Linux?

Sumario: El Cabildeo de Microsoft’s contra Android in Europe y por FRAND (esenciálmente patentes de software) el los estádares Europeos logra resultados

Las patentes de software en Europa han sido cubiertos aquí por mucho más tiempo que la EPO. Empresas como Microsoft las han venido usando para prohibir efectivamente software de código libre/ abierto (FOSS), o excluir este tipo de software de la política de contratación de acuerdo con las normas. De acuerdo con este nuevo artículo del Dr. Glyn Moody, Microsoft ha tenido éxito con esto, ya que sus grupos de presión siguen presionando por FRAND en Europa [1, 2]. Sí, además de su presión ante la Comisión Europea por muchos años contra el software libre/Android [1, 2, 3], que finalmente consiguió acción antimonopolio contra Google, “Mientrás que Microsoft está ¨adoptando¨al código abierto, la UE está excluyéndolo de la política – como Microsoft demandó originalmente “, para citar a Simon Phipps, quien a su vez cita Moody diciendo:” no es de extrañar que la Comisión estaba tratando de mantener ese detalle en particular escondido, debido a la concesión de licencias FRAND, supuestamente acrónimo de “justo, razonable y no discriminatoria “, es incompatible con el código abierto, el que por lo tanto, se encontrará excluidosde gran parte de la gran nueva estrategia de mercado único digital de la UE. Eso no es una “política de derechos de propiedad intelectual equilibrada“.

“El problema inherente con esta política es que asume erróneamente que las patentes de software tienen legitimidad en la UE”

“El problema con open source es que el estandar licensign puede ser perfectamente justo, razonable y no-discrimínatorio, pero sería sin embargo imposíble de implementar para el open source.Típicamente, el licensiamiento FRAND requiere un pago por copia, pero para el Software Libre, que puede ser compartido innumerables veces, no hay manera de llevar la cuenta en cuántas copuias hay afuera. Incluso si el pago es pequeño, todavía un requerimiénto de licensias que el open source no puede implementar.”

El problema inherente con esta política es que asume erróneamente que las patentes de software tienen legitimidad en la UE. Es una laguna o incluso una distorsión de la legislación Europea. Bueno, no es como si Microsoft trata verdaderamente de obedecer la ley de todos modos … su grupo delantero, la infáme Business Software Alliance, ha adoptado este tipo de política durante casi una década.

“Bueno, no es como si Microsoft trata verdaderamente de obedecer la ley de todos modos …”

Incidentálmente, ayerIP Katpublicó este artículoacerca de la “Patentabilidad del diseño de interface del usuario”, citando al Jurado de Apelaciónesqueparticularmente no es amigable a las patentes de software (a diferencia de la EPO, no busca máximizar ganancias al bajar la calidad de las patentes o al expándir su esfera con el tiempo en desafío a la EPC^*).
Un comentario del presidente de la FFII dijo: “Jacob dijo que” redacción técnica “es una reformulación del mismo problema. “Técnico” se convierte en el agujero negro, donde la EPO encuentra manera de evitar el espíritu de la EPC, materias en las que las exclusiones se relaciónan con lo abstracto “.
“Técnico es generalmente un término sin sentido”
Una persona respondió diciéndo: “te has molestado al leer el post? Explica como al contrario, el BoA de la EPO ha rechazado ver algo “técnico” en presentaciónes de información, excepto en tres ahora viejos casos (T 643/00, T 928/03 and T 49/04). Aparte de ello, por una cosa sé que la T 49/04 fué una decisión controversial de la EPO, y esto pueda explicar el porque, después, los Boards no continuaron en el mismo camino.”
Aquí tenemos una persona voluntáriamente ignorando la correlación entre la UPC y las patentes de software (personas de alta reputación han hablado al respecto) y ella dice “conspiración” para desacreditar a aquellos que hablan acerca de ello, matándo al mensajero como sigue:

Si “Zoobab” es el mismo Zoobab de Twitter, parece ser un activista anti-software-patentes y parece ser un fiel seguidor del blog Techrights, quienes ven cualquier cosa que se menciona incluso las patentes de software o la UPC (incluso en un contexto negativo) como evidencia de algún tipo de gran conspiración para defraudar al público europeo.
Da la casualidad de que estoy dudoso acerca de los méritos de las patentes de software o incluso de la UPC. Pero he aprendido que nada menos que totalmente de acuerdo, de todo corazón con las teorías de la conspiración loca de esos personajes es visto como una prueba más de que no hay solamente una conspiración, sino también que eres parte de ella, incluso si comparte ampliamente su recelos si bien por diferentes razones.

Lo anterior pone palabras en la boca de tanto Benjamin Henrion y la mía – palabras que nunca se pronunciaron en absoluto. A pesar del secreto que engendra sospecha **, hay una gran cantidad de información se puede acumular cavando lo suficientemente profundo. En realidad, hay un montón de pruebas que demuestran lo que ambos dijimos (no lo de arriba), la administración de la EPO mantiene la promoción por la UPC *** y las patentes de software (escribimos acerca de ello con ejemplos a principios de este año), y esto llamó la atención de otras personas anoche. “Técnica” es generalmente un término bastante sin sentido (como “innovación¨, “novedoso” y otros marrulleos). Una taza del baño es muy técnivo. Vea esta reacción a la frase “el efecto de un perfil mental particular del usuario puede ser considerado técnico” (respuesta en Español).
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^* “Cliente”, aparentemente, basado en este nuevo tweet, es una nueva palabra por “solicitante” que la EPO heredo de la mentalidad ENA de Pinocho Battistelli.

^** La EPO de nuevo (dos veces por semana) promovió a la EUIPO. Recuérden el overlap entre esos dos [1, 2, 3]].

^*** He aquí la última Promoción de la UPC por parte de la EPO (last night).

Summary: Microsoft’s lobbying against Android in Europe and for FRAND (essentially software patents) in European standards yield results

Software patents in Europe have been covered here for much longer than the EPO. Companies like Microsoft were using them to effectively ban Free/Open Source software (FOSS), or exclude such software from procurement policy as per the standards. According to this new article from Dr. Glyn Moody, Microsoft was somewhat successful with this as its lobbyists continue lobbying for FRAND in Europe [1, 2]. Yes, in addition to lobbying the European Commission for many years against FOSS/Android [1, 2, 3], eventually leading to antitrust action against Google, “Just as Microsoft is adopting open source, the EU is excluding it from policy – like Microsoft originally demanded,” to quote Simon Phipps, who in turn cites Moody who’s saying: “It’s no surprise that the Commission was trying to keep that particular detail quiet, because FRAND licensing—the acronym stands for “fair, reasonable, and non-discriminatory”—is incompatible with open source, which will therefore find itself excluded from much of the EU’s grand new Digital Single Market strategy. That’s hardly a “balanced IPR policy.”

“An inherent problem with this policy is that it wrongly assumes that patents on software have legitimacy in the EU.”“The problem for open source is that standard licensing can be perfectly fair, reasonable, and non-discriminatory, but would nonetheless be impossible for open source code to implement. Typically, FRAND licensing requires a per-copy payment, but for free software, which can be shared any number of times, there’s no way to keep tabs on just how many copies are out there. Even if the per-copy payment is tiny, it’s still a licensing requirement that open source code cannot meet.”

An inherent problem with this policy is that it wrongly assumes that patents on software have legitimacy in the EU. It’s a loophole or even a distortion of European law. Well, it’s not as though Microsoft truly tries to obey the law anyway… its front group, Business Software Alliance, has pursued this kind of policy for nearly a decade now.

“Well, it’s not as though Microsoft truly tries to obey the law anyway…”Incidentally, yesterday IP Kat published this article about “Patentability of user interface designs”, citing the Board of Appeal which isn't particularly software patents-friendly (unlike the EPO, it doesn’t just seek to maximise profit by reducing patent quality or by also expanding patent scope over time, in defiance of the EPC^*).

One comment from the FFII’s President said: “Jacob said the “Technical” wording is a restatement of the same problem. “Technical” becomes the black hole where the EPO finds it way to bypass the spirit of the EPC, where all the exclusions concerns abstract matters.”

““Technical” is generally a rather meaningless term.”One person responded by saying: “have you bothered to read the post? It explains how, on the contrary, the BoA of the EPO has refused to see anything “technical” in presentations of information, except in three now rather old cases (T 643/00, T 928/03 and T 49/04). Apart from that, I know for one thing that T 49/04 was an extremely controversial decision within the EPO, and this may explain why, afterwards, the Boards didn’t continue on the same path.”

Here we have a wilfully ignorant person who doesn’t know the correlation between the UPC and software patents (high-profile people have spoken explicitly about it) and s/he says “conspiracy” to discredit those who speak about it, shooting the messengers as follows:

If “Zoobab” is the same Zoobab as on Twitter, s/he seems to be an anti-software-patent activist and appears to be a loyal follower of the Techrights blog, who see anything that even mentions software patents or the UPC (even in a negative context) as evidence of some sort of grand conspiracy to defraud the European public.

As it happens, I’m dubious about the merits of software patents or indeed the UPC. But I’ve learned that anything less than full, wholehearted agreement with the wacky conspiracy theories of such characters is seen as yet further evidence that there’s not only a conspiracy, but also that you’re part of it, even if you broadly share their misgivings albeit for different reasons.

The above puts words in the mouth of both Benjamin Henrion and myself — words that were never at all uttered. In spite of the secrecy which breeds suspicion^**, there is a lot of information one can accumulate by digging deep enough. There is actually plenty of evidence to show what we both said (not the above), the EPO’s management keeps promoting both the UPC^*** and software patents (we wrote about it with examples earlier this year), and this got the attention of other people last night. “Technical” is generally a rather meaningless term (like “innovative”, “novel” and other such buzzwords). A toilet bowl too is technical. See this reaction to the phrase “the effect of a particular layout on the mental processes of the user could be considered… technical” (response in Spanish). █
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^* “Customer”, apparently, based on this new tweet, is a new word for “applicant” as EPO inherits the ENA mentality of Battistelli.

^** The EPO has once again (second time in a week) promoted the EUIPO. Recall the overlaps between those two [1, 2, 3]].

^*** Here is the latest UPC promotion from the EPO (last night).

Publicado en Europe, Patents, RAND at 7:29 am por el Dr. Roy Schestowitz

No es difícil imaginar quién se beneficiaría de hacer lo abstracto patentable

Sumario: La UPC también tiene un ángulo/elemento FRAND en ella y así, en muchos casos, patentes de software en Europa (impuesto sobre patentes y/o juicios por software, que es copiado y distribuído en vez de fabricado o producido)

LA gerencia de la EPO, parece esta trabajando para las grandes corporaciónes (que no son incluso Europeas)^*, tratándo de manera no democrática impulsar a la hóstil contra las PYMEs UPC, por extensión esparciéndo las patentes de software en el continente/Comunidad/naciones Europeas y más allá de ellas (la EPO es más amplia que ello) – una herramienta de colonización/dominación viniendo del otro lado del charco -. Los exáminadores de la EPO no toleran esto ya que pone en peligro la calidad de patentes y daña la credibilidad de la EPO, conjuntamente con el valor percibido de las patentes Europeas (EPs). Ya hemos presentado esto en muchos artículos, citando expertos en el campo, diciéndo que la UPC traería las patentes de software a Europa.

“Los exáminadores de la EPO no toleran esto ya que pone en peligro la calidad de patentes y daña la credibilidad de la EPO, conjuntamente con el valor percibido de las patentes Europeas (EPs).”Una materia sobre la que hemos estado escribiéndo por más de 9 años es RAND (algunas veces conocido como FRAND por un mucho más ¨justo¨ extra eúfemismo). Este nuevo artículo de la prensa India (donde el debate acerca de las patentes de software ha estado caliente reciéntemente) habla acerca de ¨FRAND¨ como sigue: “La semana pasada tuvimos un artículo en estandar patentes esenciales (“SEPs”) por Divya Rajput, y como us licensiamento en Justo, Razonable, y No-Discriminatorio (“FRAND”) términos ayuda a varias industrias para operar y server clientes. Ms. Rajput hace varios puntos intersantes, pero estos no estan basados en la realidad y reflejan inconsistencias lógicas.

“Ya hemos presentado muchos artículos, citando a expertos en el campo, diciéndo que la UPC traería patentes de software a Europa.”“Hubo un tiempo en el que servidumbre por contrato (en LatinoAmerica la tuvimos hasta mediados del siglo pasado con la venia de los Estados Unidos, y en Mexico todavía algunos reductos que sirven grandes campos de cultivo que alimentan a los vecinos del norte) fue considerada una cosa buena. Gracias a Dios no estamos viviéndo aquellos días. Hoy, es una ofensa criminal. Lo mismo es verda del licensiamiento de SEPs. Lo que fué una excelente práctica de negocios en los 90s, no es viable estrategia de negocios hoy. De los cinco originales (Motorola, Ericsson, Nokia, Alcatel-Lucent, and Nortel), ninguno permanece proveyendo y fabricándo teléfonos mobiles. En vez, todos están envueltos en licensiamiento de patentes de una forma u otra. Los grados de cross-licensing en estos dias no pueden ser usados como puntos de referencias hoy.”

Bueno, basados en este nuevo reporte de MIP, la UPC permanece siendo un Caballo de Troya para FRAND y así las patentes de software en Europa (escribimos muchos artículos acerca de esto cerca del 2008). Para citar MIP (detrás de un muro de pago): “Nuesto últmo escenario de la UPC envuelve un caso de patente esencial/estandar. Michael Carter, Nick Cunningham y David Barron consideran las opciónes de un acusado en el nuevo sistema de corte” (vean este reciénte ejemplo).

“…Es imperativo refutar esas pretensiones que vienen primariamente de los abogados de patentes, la EPO, y periodistas crédulos que imprimen cualqier cosa que les dicen esos dos grupos anteriores.”Lectores deben ser conscientes de en círculos cabilderos anti-FOSS (e.g. la Business Software Alliance o la Association for Competitive Technology) FRAND se convirtió en un refrán para patentes de software e incompatibilidad con FOSS. Ellos trltan de reducir progresivamente FOSS fuera de existencia, o simplemente hacerlo arbitráriamente sujeto a pagos (veán lo que Microsoft esta haciéndo a Linux y Android por instancia), he aqui oneroso y díficil/imposible/prohibido de redistribuir. La UPC es una cosa peligrosísima. Hay un artículo en Alemán acerca de ello] (reciéntemente publicado, traducciones serían muy apreciadas) y dados los altos (y creciéntes) niveles de desinformacion en los medios acerca de la UPC, es imperativo refutar esas pretensiones que vienen primariamente de los abogados de patentes, la EPO, y periodistas crédulos que imprimen cualqier cosa que les dicen esos dos grupos anteriores. █

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^* Es suficiente decir, que la EPO no es Europea pero un cuerpo internacional (exempto incluso de las leyes Europeas). Lo único “Europeo” acerca de ella son sus empleados. A pesar de trabajar paara un cuerpo internacional, estos empleados son también Europeos (ciudadanos de la UE), por lo tanteo deberían tener intereses Europeos que defender, a diferencia de la gerencia (DIRIGIDA POR O HECHA PARA COMPLACER INTERESES EXTRANJEROS).

Summary: The UPC also has a FRAND angle/element to it and thus, in many cases, software patents in Europe (patent tax or lawsuits over software, which is typed and copied or distributed rather than manufactured or produced)

THE EPO‘s management, seemingly working for large corporations (not even European)^*, keeps trying to undemocratically push the SMEs-hostile UPC, by extension spreading software patents in the European continent/commonwealth/nations and beyond them (the EPO is broader than that). Examiners at the EPO oughtn’t tolerate this as it jeopardises the quality of patents and damages the credibility of the EPO, along with the perceived value of European patents (EPs). We have already presented many articles, citing experts in the field, saying that UPC would bring software patents to Europe.

“Examiners at the EPO oughtn’t tolerate this as it jeopardises the quality of patents and damages the credibility of the EPO, along with the perceived value of European patents (EPs).”One subject we have been writing about for over 9 years is RAND (sometimes known as FRAND for an extra euphemism, “fair”). This new article from the Indian press (where the debate about software patents has been hot recently) speaks about “FRAND” as follows: “The past week had an article on standard essential patents (“SEPs”) by Divya Rajput, and how their licensing on Fair, Reasonable, and Non-Discriminatory (“FRAND”) terms helps several industries to operate and serve customers. Ms. Rajput makes several interesting points, but these points are not grounded in reality and reflect logical inconsistencies.

“We have already presented many articles, citing experts in the field, saying that UPC would bring software patents to Europe.”“There was a time when indentured servitude was considered to be a good thing. Thank God we are not living in those days. Today, it is a criminal offense. Same is true for licensing of SEPs. What was an excellent business practice in the 90s, is not a viable business strategy today. Out of the original five (Motorola, Ericsson, Nokia, Alcatel-Lucent, and Nortel), none remains in providing and manufacturing mobile phones. Rather, all are involved in patent licensing in some form or the other. The cross-licensing rates in those days cannot be used as a bench mark today.”

Well, based on this new report from MIP, UPC remains a Trojan horse for FRAND and thus software patents in Europe (we wrote many articles about this around 2008). To quote MIP (behind paywall): “Our latest UPC scenario looks at a case involving a standard-essential patent. Michael Carter, Nick Cunningham and David Barron consider a defendant’s options in the new court system” (see this recent example).

“…it’s imperative to rebut the claims which come primarily from patent lawyers, the EPO, and gullible journalists who just print whatever they’re told by those former two groups.”Readers should be made aware that in anti-FOSS lobbying circles (e.g. Business Software Alliance or Association for Competitive Technology) FRAND became a byword for software patents or incompatibility with FOSS. They try to phase FOSS out of existence, or simply make it arbitrarily taxable (see what Microsoft is doing to Linux and Android for instance), hence expensive and hard/impossible/verboten to redistribute. The UPC is a very dangerous thing. There is an article in German about it (just published, translations would be appreciated) and given the high (and growing) levels of misinformation in the media about the UPC, it’s imperative to rebut the claims which come primarily from patent lawyers, the EPO, and gullible journalists who just print whatever they’re told by those former two groups. █
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^* Suffice to say, the EPO is not European but an international body (exempt even from European laws). The only “European” thing about it is the staff. In spite of working for an international body, this staff is also European (EU citizens), hence should have European interests to defend, unlike the management (bossed by or made to please foreign stakeholders).

Summary: The European Union Parliament has recommended Free and Open Source Software for several goals

A January 2016 resolution by the European Union Parliament, “European Parliament resolution of 19 January 2016 on Towards a Digital Single Market Act (2015/2147(INI))“, has points relevant to the adoption and promotion of Free and Open Source Software (FOSS). Specifically, points #89, #110, and #125 mention FOSS by name. The first two mention it in the context of security and interoperability, respectively. The third, #125, calls for a general increase in its use. Here they are quoted below with emphasis in yellow added.

89. Considers that software providers should better promote the security advantages of open source software and security-related software upgrades to users; calls on the Commission to explore an EU-wide coordinated vulnerability disclosure programme, including the repair of known software vulnerabilities, as a remedy against the abuse of software vulnerabilities and security and personal data breaches;

…

110. Urges the Commission and the Council to increase the share of free and open source software and its reuse in and between public administrations as a solution to increase interoperability;

…

125. Calls on the Commission and Member States to renew their commitment to the EU 2020 strategy’s research and innovation targets as building blocks of a competitive Digital Single Market, economic growth and job creation, with a comprehensive approach to Open Science, Open innovation, Open data and knowledge transfer; considers that this should include a revised legal framework for text and data mining for scientific research purposes, the increased use of free and open source software, particularly in educational establishments and public administrations, and easier access for SMEs and start-ups to Horizon 2020 funding adapted to the short innovation cycles of the ICT sector; stresses in this respect the importance of all relevant initiatives, from public-private partnerships and innovation clusters to European technology and science parks, notably in less industrialised European regions, and accelerator programmes for start-ups and joint technology platforms, as well as the ability to license standard-essential patents effectively, within the restraints of EU competition law, under FRAND licensing terms, in order to preserve R&D and standardisation incentives and foster innovation;

It is interesting to note that #125 calls for the increased use of Free and Open Source Software to facilitate science, innovation, and knowledge transfer. The mention of “Open data and knowledge transfer” can be interpreted to mean Open Access, related to FOSS but in publishing. In regards to FOSS itself, a stumbling block is the explicit mention of FRAND-licensing for patents as included in standards, as it has traditionally been used as a means to block use of FOSS. But given the context of promoting FOSS elsewhere in the document and, especially in the same paragraph, that would include royalty-free licensing of standards as a pre-requisite for anything to be considered even remotely reasonable.

Another resolution is from this last autumn and is entitled, “Follow-up to the European Parliament resolution of 12 March 2014 on the electronic mass surveillance of EU citizens”

Item #47 states even more specifically that open source must be a mandatory criterion in procurement.

47. Welcomes the steps taken so far to strengthen Parliament’s IT security, as outlined in the action plan on EP ICT Security prepared by DG ITEC; asks for these efforts to be continued and the recommendations made in the resolution fully and swiftly carried out; calls for fresh thinking and, if necessary, legislative change in the field of procurement to enhance the IT security of the EU institutions; calls for the systematic replacement of proprietary software by auditable and verifiable open-source software in all the EU institutions, for the introduction of a mandatory ‘open-source’ selection criterion in all future ICT procurement procedures, and for efficient availability of encryption tools;

Going back even further, to 2001, there is a resolution warning of actions needed to be taken to protect e-mail privacy.

European Parliament resolution on the existence of a global system for the interception of private and commercial communications (ECHELON interception system) (2001/2098(INI))

As the Snowden revelations have shown, these measures have proven to be sound and to work in regards to protecting the content of messages. Indeed, in that resolution, it is most clearly stated that only FOSS can fulfil security requirements at all.

29. Urges the Commission and Member States to devise appropriate measures to promote, develop and manufacture European encryption technology and software and above all to support projects aimed at developing user-friendly open-source encryption software;

30. Calls on the Commission and Member States to promote software projects whose source text is made public (open-source software), as this is the only way of guaranteeing that no backdoors are built into programmes;

31. Calls on the Commission to lay down a standard for the level of security of e-mail software packages, placing those packages whose source code has not been made public in the “least reliable” category;

32. Calls on the European institutions and the public administrations of the Member States systematically to encrypt e-mails, so that ultimately encryption becomes the norm;

33. Calls on the Community institutions and the public administrations of the Member States to provide training for their staff and make their staff familiar with new encryption technologies and techniques by means of the necessary practical training and courses;

In summary, the European Union Parliament has recommended Free and Open Source Software for several goals. These goals are privacy, security, innovation, and interoperability. █

Summary: A roundup of patent news from the US and from Europe, focusing on various themes which we have been covering for many years

Unfair, Discriminatory and Unreasonable FRAND (no FRIEND)

POPULAR patent lawyers’ Web site/blog, Patently-O (usually quite subjective on the subject of software patents, although not as grossly so as IAM or Gene Quinn, whom we’ll allude to later on) has just published a piece from Prof. Contreras, who therein remarks on the now-popular subject which is RAND (or FRAND, an even more misleading euphemism because it adds the word “fair” to something which is clearly unfair, never mind unreasonable and discriminatory, definitely no FRIEND). We wrote a lot about RAND/FRAND more than three quarters of a decade ago (perhaps 18,000 articles ago), especially in relation to Europe because there were technical parliamentary debates about it, accompanied by heavy lobbying by Microsoft, very persistently in fact so as to exclude Free/Open Source software as a matter of law. A Microsoft front group is now lobbying on the FRAND front again, using a new livery, “All Things FRAND”. So watch out! This new guest post by Prof. Contreras cites a somewhat popular caselaw, involving Microsoft’s patent war on Android/Linux, fought through Motorola before the Google takeover (see our Wiki page about it).

“We wrote a lot about RAND/FRAND more than three quarters of a decade ago (perhaps 18,000 articles ago), especially in relation to Europe because there were technical parliamentary debates about it, accompanied by heavy lobbying by Microsoft, very persistently in fact so as to exclude Free/Open Source software as a matter of law.”To quote one relevant (to us) part of the piece: “Interestingly, this case represents the second appellate decision this year in which the admissibility of comparable license agreements has been challenged in RAND royalty determinations. In the prior case, Microsoft v. Motorola, 795 F.3d 1024 (9th Cir. 2015), the Ninth Circuit was more deferential to the District Court’s exclusion of potentially comparable license agreements. In Microsoft, the Circuit Court upheld the District Court’s exclusion of three arm’s length license agreements to which Motorola was a party for reasons including the fact that some agreements were entered into to settle or forestall litigation, they included patents other than the patents at issue, they included cross-licenses and they included royalty caps. It will be interesting to see how the Circuits reconcile their interpretations of this key evidentiary standard in future cases.”

Litigation/Extortion by (Patent) Proxy

Now, recall and consider the latest output from other pro-patent maximalism sites (meaning they want more feuds, hence more lawyer income). Right now it’s IAM which, without using the T word (troll), reveals that Panasonic too, not just companies like Microsoft, supports outside trolls for business objectives (Microsoft uses trolls like Intellectual Ventures and MOSAID, which has been renamed in a likely effort to dodge negative publicity). These companies use their patent portfolio in a very mischievous way, passing patents to trolls like Ericsson did. Ericsson’s troll too has changed its name after receiving a lot of negative press. Remember that Ericsson is a European company and take note of new or emergent patent trolls in Europe. This plague is spreading across the Atlantic.

“These companies use their patent portfolio in a very mischievous way, passing patents to trolls like Ericsson did.”Notice the connection of all the above companies to the EPO (we covered all of these before) and recall the special the role of one of them in discriminatory patent granting at the EPO (or closer/special contacts).

EPO is Innovative! According to Shallow ‘Placements’…

Speaking of contacts, we must wonder if this new patent lawyers’ analysis is basically some kind of media placement or presence (this new one from Managing IP also looks similar to classic puff pieces, but not exactly so). It paints the EPO as some kind of a super-advanced system where — gasp! — video conferencing is used. Welcome to the 1990s!

“It paints the EPO as some kind of a super-advanced system where — gasp! — video conferencing is used. Welcome to the 1990s!”“Many of us,” wrote the author, “are familiar with conducting business by video conference. It provides an extra option for talking to remote clients that is much less expensive and time-consuming than an in-person meeting, but can result in a better personal connection than a phone meeting.”

So basically the whole article then hails the EPO for using — gasp! — video conferencing. Wow, the innovation!

EPO Staff Not Gonna Take It Anymore

Well, it’s now increasingly clear that the EPO is desperate for positive publicity because it is widely loathed. Another EPO staff protest will take place this Thursday, as planned quite some time ago. The exact plans are now being outlined by SUEPO in their new update (top of this public page). To quote SUEPO: “The next demonstration will take place on Thursday 10 December, starting from the Pschorrhöfe building at 12h. The demonstrators will march peacefully to the local Palace of Justice.

“Isn’t it funny that the EPO’s management tries to frame staff as the issuer of threats when it’s actually the management doing so?”“With these demonstrations staff protests against the persistent attacks on its staff representatives, culminating in the suspension of and disciplinary procedures against 3 Union officials in Munich.”

Of course there will (as usual) be attempt to crush these protests by all means possible/available, even ahead of time. It’s commonly done using threats directed at organisers. Isn’t it funny that the EPO’s management tries to frame staff as the issuer of threats when it’s actually the management doing so? Well, a French politician who represents French workers abroad (that’s a lot of French patent examiners) rapidly becomes Battistelli’s Nemesis and we hope these protests will help demonstrate to more politicians that not all is well and serious reform is desperately needed.

Software Patents

Longtime readers already know that our main concern about the EPO has always been software patents in Europe. Software professionals universally reject software patents, but they’re not the ones voting on such matters if the likes of Battistelli want to meet so-called ‘production’ goals, meaning, by definition of these goals, granting patents in more domains and granting invalid/bogus patents.

“Europe’s patent system is now having far broader an issue than just patent scope.”Gene Quinn, a “blowhard” (to quote IP Troll Tracker) patent lawyer and longtime proponent of software patents, is still at it. He and I exchanged over a hundred messages in Twitter, only to find out that he never wrote any code that he can point to (he claimed he had written some but was unable to find evidence). He just doesn’t understand how software works and cannot tell the difference between data/input and program code. He is now trying to give people tips for patenting software, even after US courts repeatedly ruled against (many) such patents.

Europe’s patent system is now having far broader an issue than just patent scope. At the end — and we hope or suppose patent examiners will agree — we sorely need a patent policy that represents public opinion and maximises benefit to the public. Over-patenting leads to higher costs on everything (the ‘lawyers tax’) and can also suppress innovation and development, either by means of deterrence/fear or by over-encumbering litigation, sometimes initiated by opportunistic patent trolls (occasionally operating at the behest of larger entities seeking to annihilate rivals, as noted above). █

Summary: Software patents make an appearance in Europe again, this time in FRAND form

SOMETHING troubling has happened in the Apple vs. Samsung case, which is how Microsoft’s subversive club of Android foes (Nokia, Apple, and Microsoft plus smaller trolls for the most part) has been trying to make Android expensive, undermining its principal selling point, The patent-stacking battle, which Microsoft has been wittingly and visibly involved it (Microsoft supports Apple and Oracle of course), now reaches a phase of EU intervention:

EU moves to end smartphone patent wars in landmark ruling

The ruling will help to draw a line under long-running feuds between smartphone makers

Apple propaganda sites have been covering this case, saying that “jurors deciding the outcome of the second Apple vs Samsung trial haven’t yet returned a verdict, but their options are limited to a few possible outcomes, ranging from a fiery thermonuclear blast to a wintery new Dark Ages.”

Well, “thermonuclear” is a term borrowed from Steve Jobs himself. He strives for thermonuclear outcome. He is as apocalyptic as he is “visionary”.

Anyway, here is Richard Stallman’s response to the EU’s intervention:

The European Union is stopping Apple and Samsung from suing each other for patent infringement.

Unfortunately, its “solution” is a terrible mistake: imposing “reasonable and nondiscriminatory” terms. In practice, this means patent licenses that discriminate against free software by charging license fees per copy, which free software developers can’t possibly pay. There is nothing “reasonable” about that.

FRAND, as we have argued for years, is a Trojan horse for software patents in the EU and elsewhere. We need to reject this. Ideally, the EU should just send Apple and its “thermonuclear” ambitions somewhere far away — a place where the Sun won’t shine. Apple is the aggressor here and it is part of a broader plot to undermine Android and Linux rather than outwit or provide technical competition. █

Summary: Putting in perspective Motorola’s SEPs, which the FTC has just ruled on in the United States

Standard-essential patents, better known as SEPs, are anticompetitive and we have criticised them all along (there are 75 posts in our RAND section). But sometimes they are being used for AstroTurfing by the likes of Florian Müller, who conveniently ignores the real source of the abuse. That would be his employer Microsoft that hires him to spout out nonsense and foist that onto journalists. Android, being the leading operating system of our time (at Microsoft’s expense), is under attack from Apple and Microsoft, which now work together (publicly even) to stop Android. They are using patents. A pro-Apple site says that some “newly published patent application from Apple describes a “power management for electronic devices” system, which detects the usage patterns of a mobile phone and estimates the required energy needed to run the phone between charges.”

We have already seen the Microsoft-occupied Nokia using such patents against Android in Europe, so there is a pattern here. Based on this article and another about Motorola, the fight against Android increasingly consolidates on patents as the means, coupled with antitrust complaints (via Microsoft proxies like Nokia). Groklaw says that:

The ban on injunctions on the Motorola FRAND patents has been lifted, although there remain certain restrictions. What does it mean? It means, to me, that there have been reverberations from the ITC decision recently to grant an injunction against Apple for reverse patent hold up, rejecting its defense that Samsung was violating its FRAND obligations by asking for too much to license. That told the world that injunctions are available to FRAND patent owners. Second, I think it means that the Microsoft/Apple/FOSSpatents campaign to make the world believe it should be impossible for FRAND patent owners to seek injunctions is failing. The tide is turning. Third, this is an order based on a settlement agreement, so it doesn’t apply necessarily to anyone else but Google’s Motorola patents. But it should have an impact on litigation currently in progress.

This was also covered by Andy Updegrove, who said that the FTC “issued the Final Order in its action against Google involving that company’s assertion of certain “standards essential patents” (SEPs). Google gained control of the patents in question through its earlier acquisition of Motorola Mobility and asserted them against various mobile device vendors. Those parties cried foul, claiming that the terms that Google had demanded were inconsistent with the obligations assumed to license the SEPS on “fair, reasonable and non-discriminatory” (FRAND) terms to all implementers of the standards in question.

“It is essential to remember that Google picked up Motorola and picked some patents only after it had been repeatedly attacked by CPTN members like Oracle, Apple, Microsoft and their patent trolls.”“Google agreed to a settlement with the FTC this past January, following which the FTC released a draft settlement order for public comment. The Final Order just released includes a variety of adjustments and changes resulting from the 25 comments received during the public comment period. The 34 page Final Order can be found here and a seven page letter, sent to each commenter and explaining the changes made, is here.”

Updegrove added that “[b]ecause the FTC and European Commission regulators are urging standards setting organizations (SSOs) to take action to diminish the current wave of FRAND disputes, these final materials will be read with great interest by SSO members (and their lawyers). Along with the court decisions that continue to issue in FRAND cases, they will have a significant impact on the evolving discussion about what rules, if any, SSOs and their members will decide to enact in reaction to the requests of regulators, and to their own concerns regarding uncertainties in the marketplace. Despite the desire of the regulators to see action sooner rather than later, that process is likely to take years to fully mature.”

Complaints on a FRAND/blanket basis have merit when it comes to patent stacking by Android foes. It is essential to remember that Google picked up Motorola and picked some patents only after it had been repeatedly attacked by CPTN members like Oracle, Apple, Microsoft and their patent trolls. Don’t be misled by spin from Microsoft, Apple, and mouthpieces of theirs (like Müller). █

Summary: A little update on Apple’s and Microsoft’s patent battles against Android/Linux

Google bought a part of Motorola, essentially inheriting some lawsuits over the future of Android when it comes to patents. This means that Google now has this dispute with Microsoft and another one with Apple. “It’s been relatively quiet in the Western District of Washington over the past couple weeks,” say the FRAND boosters, “as Motorola and Microsoft move forward toward an August jury trial on Microsoft’s RAND-based breach of contract claims.”

“Apple tried embargoing Android products, instead ending up with its own products embargoed.”FRAND has become a joint Microsoft-Apple strategy for taxing Android. Apple is still suing, publicly escorted by Microsoft for support. Now it turns out that Apple’s patent chief is leaving and he may have been the person behind this whole litigation strategy. Apple was previously dealing with patents on a defensive basis, but in 2009 it turned offensive, starting with threats against Palm [1, 2, 3]. The following year it started suing. Here is a case of Apple being sued. In this case, the US “Supreme Court declines to hear Mirror Worlds’ appeal, putting to rest the long-running patent infringement case.”

More interestingly, when it comes to Apple as the aggressor, it turns out its patent chief played a major role. The aforementioned article says that he “played an increasingly high-profile role at Apple in recent years as lawsuits began to mount. Last year, he testified on Apple’s behalf in its patent infringement litigation with Samsung.”

It also says that “he warned late Apple CEO Steve Jobs and then-COO Tim Cook in 2010 that Samsung’s smartphones may infringe on the iPhone’s patents.”

According to this article about the judge in this high-profile case, there is something to be learned from public debates:

Want to know what U.S. District Judge Lucy Koh really thinks about patent litigation?

Companies demand too many do-overs; the U.S. Patent and Trademark Office behaves like no other federal agency; and the recent suggestion in a New York Times op-ed that lower court judges have the power to make so-called patent trolls pay for vexatious litigation is unfair and misleading.

Judge Posner weighed in on this [1, 2, 3, 4, 5] as he dismissed Apple’s claims, denying the embargo strategy that Apple had conceived. Watch Apple scrambling to undo what the ITC embargo against Apple would cause. As Groklaw puts it, “the ITC early in June ordered an injunction and a cease and desist order against some of Apple’s products, on a complaint from Samsung that Apple was refusing to pay anything at all for a FRAND patent of Samsung’s. The shock waves from that were heard throughout the patent universe. And now Apple is trying to block it from happening. Both Apple and Samsung have filed written submissions with the USTR, as The Essential Patent Blog reports. The President of the United States can undo that ITC injunction order based on the public interest, and Apple is asking the Office of the United States Trade Representative, as the President’s representative in such matters, to do exactly that…”

“With Apple’s patent chief out of the company, perhaps a rethink of this misguided litigation strategy is imminent.”This is funny. Apple tried embargoing Android products, instead ending up with its own products embargoed. Instant karma! And watch Apple’s workers in China “looking to reduce reliance on Apple” (but “diversifying into R&D, software patents and e-commerce”). According to this, people who actually manufacture Apple-branded devices are seeing a dip in demand for Apple, an overrated and overpriced brand. Linux/Android is the cause, hence all those patent lawsuits. With Apple’s patent chief out of the company, perhaps a rethink of this misguided litigation strategy is imminent. One can hope so. █

Summary: Microsoft publicly steps forward as part of Apple’s war on Linux/Android, making the anti-FOSS alliance more visible than before

The FRAND debate has been inadvertently dealing with whether software patents have backdoor-like legitimacy around the whole world. FRAND opposer Judge Posner [1, 2, 3, 4, 5] did the right thing, seeing perhaps how the Microsoft-Apple patents alliance uses FRAND against Google/Android. Now we see those two companies in cahoots more clearly than before: “Microsoft’s Amicus Brief in Support of Apple in Appeal of Posner Ruling – A Change in Tune on Injunctions”

Microsoft has now filed an amicus brief in support of Apple in the appeal of Judge Richard Posner’s ruling in which the judge tossed out both Apple and Motorola’s claims with prejudice, saying neither had proven damages and saying injunctive relief when there was no demonstrable harm would be against the public interest. Interestingly, Microsoft here argues in its brief that the judge didn’t rule out injunctive relief for FRAND patents.

Nice to see those duopolists so openly showing their collusion against a competitor. They are ousting their conspiracy (e.g. CPTN) to destroy Android. Will President Obama pay attention or will he only try to tackle small players? █

Summary: How Microsoft and Apple are using patents in bulk (sometimes acquired in unison, e.g. from Novell and Nortel) to artificially lower market saturation of the Android operating system or drive costs up

IN THE LAND of the USPTO patents are not about inventions but about manipulations. They help manipulate competition. Recently, as Groklaw explains, FRAND battles were stopped by Judge Richard Posner (pictured above). Pamela Jones wrote: “The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner’s ruling dismissing both parties’ claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple’s response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent a letter to this appeals court, bringing it to the court’s attention, because it supports Apple’s position and calls Motorola’s patents a trivial contribution to the standard.”

Posner a mixed bag

The seemingly progressive Posner, a judge who sternly opposes software patents [1, 2, 3, 4, 5], deserves no credit for other stances which defy human dignity and rights. Based on this report, Posner does not care about privacy. To quote: “For the most part, the op-ed makes it appear that Posner is only talking about video cameras on every street corner, every building, constantly watching our every public move. The argument in favor of such surveillance is much like the argument for videotaping police in the performance of their duty. They’re in public, where we are lawfully entitled to watch them, so no harm done.”

“The seemingly progressive Posner, a judge who sternly opposes software patents, deserves no credit for other stances which defy human dignity and rights.”Posner, however, gets it right on patents. When it comes to Blackberry appealing for Injunctions, he is shown to be in favour of free innovations, not sanctions. This is about FRAND, a growing threat to FOSS which a new paper calls broken. The title of the paper is “Fixing FRAND: A Pseudo-Pool Approach to Standards-Based Patent Licensing” and it deals not with the legitimacy of the patents themselves but with the way they are used. The growing debate over FRAND has manifested entire blogs dedicated to the subject (see the patent lawyers in Essential Patent, notably posts such as [1, 2, 3, 4, 5, 6, 7]). Worth pointing out is this post which shows Microsoft and Apple working together to harm Android using FRAND. It says: “As many commentators have noted, Judge Robart’s Microsoft-Motorola decision may provide a roadmap to courts and parties in other FRAND disputes. Not surprisingly, Apple recently brought the decision to the attention of both the Federal Circuit (in the appeal of Judge Posner’s decision to dismiss Motorola’s SEP-related claim for damages and injunctive relief) and the U.S. International Trade Commission (in Samsung’s case against Apple, in which the Commission is set to issue its Final Determination by May 31).”

“But Apple and Microsoft aren’t working together in this patent plot against Android,” Pamela Jones wrote very sarcastically. Here comes the Microsoft booster (the one who focuses on chastising Google over privacy but never Microsoft). The clever spin from the Murdoch press is cited Mike Masnick, alleging that Motorola — not Microsoft and Apple — is the bully. We saw this type of spin-doctoring from a Microsoft guy who now works for ZDNet. That was just several days ago.

Android finds support

In other news about patent attacks on Android, Jones gives this update about Linux backers helping Samsung against Apple and here is an update about Microsoft’s anti-Linux patent litigation. See this coverage from Murdoch’s Google-hostile press. As Jones put it in her response to it, “Apple was given an opportunity to license the patents and said it wouldn’t accept a rate set by a judge. So, if you are a patent holder, what do you do? When is the EU going to do something about the real problem, which is the grouping of proprietary companies against Android, using patents as the weapon? ”

“The corporate media might not call it extortion, but that’s just what it is.”In the US, Apple has been using the International Trade Commission to block Android devices along with Microsoft. As one recent article put it: “Microsoft Corporation (NASDAQ:MSFT) in particular has been taking swipes at Google Inc (NASDAQ:GOOG) through targeting handset makers that use Android – it’s built on the Linux Kernel, which supposedly infringes multiple patents owned by Microsoft. As such, companies such as HTC – which uses Android on many of its handsets – must pay Microsoft Corporation (NASDAQ:MSFT) for each handset it sells with that operating system installed.”

This is extortion. The corporate media might not call it extortion, but that’s just what it is. Call a spade by its name.

Spin-doctoring

Frank X. Shaw, the Microsoft Chief Liar from Waggener Edstrom, recently complained about anti-Microsoft bias in the media. Well, who is biased really? As Jones put it: “The company leading a smear campaign against Google would like us to say less negative things about Microsoft.”

Watch Microsoft's pal Harry McCracken spreading disinformation about Google. About that on example, Jones wrote: “That’s incorrect. The Pixel does have apps, as well as the browser.”

Microsoft has been using another liar, Mr. Sullivan, to spread lies with the goal of causing Google antitrust problems. From a response to that: “Like Sullivan I believe that Microsoft’s presence in the FairSearch coalition robs it of its credibility and legitimacy. Aside from the breath-taking hypocrisy of one of the world’s worst monopolists whining about anti-competitive behaviour, Microsoft has far too much invested in its own search business to be at all objective on the subject. Antitrust cases are about stopping monopolies from abusing their power – they are not about undercutting your direct competitor because your own product is second rate.

“The only antitrust abusers here are Apple and Microsoft. They distort the system to impede growth of a competitor.”“It is also worth remembering the original point of antitrust legislation: to shield consumers and businesses from being harmed by the actions of monopolies who controlled access to vital commodities like oil, steel and grain.”

The only antitrust abusers here are Apple and Microsoft. They distort the system to impede growth of a competitor. █

Summary: Yet another display of bias from the state in which former Microsoft executives run the government and write the policy

A few days ago we wrote about 'former' Microsoft people inside Washington state authorities enabling Microsoft to avoid billions of dollars in taxes. This is corruption through infiltration.

There is a major battle going on over the future of Android. A lot of money is at stake. Apple and Microsoft are suing Motorola (Google) and the MSBBC serves their party line, still (the BBC has been Android-hostile for years).

The Seattle courts, as biased (in favour of Microsoft) as one should expect them to be, continue to harm Android. After Microsoft had sued Motorola there was an attempt at deterrence by Motorola, but the courts don’t let it be. As CBS put it: “Judge determines Motorola is entitled to $1.8 million in royalty rates for patents used in Xbox — not the $4 billion it had sought.”

Notice the following remarks:

The Verge asks if anyone can work out why Google bought Motorola. Their argument being that they’re not having much luck in enforcing the patent portfolio against anyone so therefore that’s $12.5 billion just wasted.

Google sought to prevent the Apple/Microsoft cartel from getting Motorola’s ammunition like the cartel got Nortel’s and Novell’s. Google can also use Motorola’s portfolio for deterrence, but silly corruptible Seattle courts are one-sided. How many people in this system are former Microsoft staff?

Motorola will get 3.5¢ per Xbox; not the $4-$6 per machine it wanted.

Here is good coverage and a post about “FRAND, Uncertainty & Doubt”:

It’s been interesting to watch the latest patent litigation between Microsoft and Motorola. The judge’s opinion have been well documented (see Groklaw’s copy here and an annotated one there over at the Essential Patent blog). Now I’m not going to offer an informed legal perspective in this post and by the way, “IANAL”. What I’m expressing here are the views of someone who’s been in the I.T. industry, the field of digital standards and Free Software for over a decade.

FRAND has had until the end of the month of April 2013 no definition. What “Fair” terms, let along “Reasonable And Non Discriminatory” mean had no agreed definition. Worse, it had no definition at all. It is the first time that a U.S. judge is struggling with this matter and while it is applied to a specific case only (the use of patents in the H.264 codec claimed by Motorola to be used by Microsoft in its products), it is nonetheless interesting to see someone actually tried to evaluate them.

Here is an earlier report and some further analysis:

I’ve found some materials that I think will help us to put the order [PDF] from Judge James Robart in context, the order setting a RAND rate for Microsoft to pay Motorola. From the materials, particularly this report [PDF] from a conference on patent pools and standards bodies held in Brussels in April, 2012, I think you will see that the judge has used the wrong ruler, namely patent pools, to set a rate that is not fair to Motorola for its standards patents. And as you will see, that is the very danger that the conference highlighted, that patent pools can impede innovation, by lowering the price for newcomers to a field who wish to merely implement the standard, like Microsoft, by letting them unfairly underpay those who did the research to develop the standard, as in Motorola.

At the same time, Seattle court are pounding Motorola. Is this justice or “just us” (Seattle)? █

Summary: Negotiations over laws which can spread patent policy to more continents (other than America and to a lesser degree Australia)

We have been tracking the globalisation of the patent system for quite some time (this subject was covered here many times before) and also discussed in a high level of detail what was being done in Europe. Perhaps being a European-centric site is the outcome of yours truly being European, but in any event, the problem is global.

The USPTO, an instrument of US corporations of large size, wishes to expand its scope of monopolies not just in terms of how abstract a patent can be but also what geographical locations (scope) the patent becomes applicable in.

There is a lot of OS news from China these days, notably Microsoft bribery and a Ubuntu-based national operating system. But recently we wrote about China following the wrong path on patents and this page says that China is now talking about patents in standards, i.e. something like FRAND. To quote:

On March 7th, USITO and representatives of local and foreign trade organizations and companies attended a meeting co-organized by the Standardization Administration of China (SAC) and the China National Institute of Standardization (CNIS) to discuss comment submissions on the Regulatory Measures on National Standards Involving Patents (Measures).

Standards should involve no patents. It is as simple as that. To require patents to merely implement standards is to be anticompetitive. FRAND-type policies also tend to serve as opportunity for software patenting where such patents are not legal. There are other such loopholes, the unitary patent in Europe for instance. Glyn Moody wrote about it just the other day, complaining about lack of proper analysis of the impact on Europe.

In other words, despite all the grand talk about how wonderful the Unitary Patent would be for Europe, that’s only potentially true if most patents are issued to European companies. As the latest EPO report makes clear, it’s companies outside the EU that are increasingly being granted patents here. That means the EU has just created a powerful new rod for its own back that will allow US and Asian multinationals to gain patents more cheaply and sue local companies more easily. And given the US experience, we can be sure they will.

But those at the EPO needn’t worry: they’ll probably still get their patent inflation bonuses next year, regardless of the knock-on consequences for European businesses. Whether that will be much comfort if your company gets sued under the Unitary Patent scheme in the years to come is another matter….

The pursuit of software parents everywhere (through FRAND and other means of globalising patent tax) is definitely noteworthy. A lot of money flows in the direction of very few people and new, small companies are not permitted to compete in the market unless they can overcome patent thickets. █

Summary: Microsoft continues to distort the market by sending trolls, lawyers and politicians to impede Google’s business

Patent trolls using standards bodies to assault businesses with real products is what some people fear more than the occasional troll lawsuit. The cost of products depends heavily on innovation coming about in peaceful environments without patent tolls and filing of patents. Some companies feel like it’s fair to change the way the industry operates naturally and they fund entities that achieve this. Patent pools are one type of cartel which offers peace to members and extortion for the rest. MPEG cartel members are willing to get aggressive, too and they have just taken a shot at VP8:

In recent years, MPEG LA has been accused of inhibiting the innovation that it was designed to foster. Notably, the company’s practice of charging high licensing fees for patents that are near or past expiration has led critics to assert that the firm has placed profit above its core mission of cheap and accessible licensing of digital video patents. Technology market players have also alleged that MPEG LA has violated the terms of its original agreement with DOJ by failing to invite oversight of its licensing practices by independent experts, and neglecting to adhere to FRAND guidelines. A firm that was once a model (at least in theory) of the potential benefits from collaboration has morphed into one of the industry’s most notorious and most harmful players….

Notice the role of FRAND there. MPEG-LA is a patent troll in disguise (led by the troll Larry Horn) and it extorts WebM. Microsoft booster Peter Bright, who was spreading FUD against WebM for a while, whitewashes an extortion by Horn while Pamela Jones shows how close Horn is to Microsoft:

Cf. Mr. Horn’s involvement on behalf of Microsoft and once again against Motorola/Google in Microsoft v. Motorola in Seattle.

The news is not VP8 getting devoured but WebM getting extorted. Here is one report on the matter:

With the clearing of the patent issues that have cast a shadow over VP8′s acceptability to open standards organisations as a open, royalty-free video codec, it is likely that its next major stop is becoming an MPEG standard. According to Rob Glidden, video patent analyst, Google proposed VP8 as the codec for MPEG’s IVC in January. IVC is the name of one of the tracks that the ISO/IEC MPEG working group was exploring in its search for a royalty-free codec for web video and other uses. It had been looking at technologies where the patents were expiring.

What we see here is a law-bending move designed to derail patents-free standards. It is similar to what happened in the OOXML saga, where ISO too got used as a Trojan horse for patent-encumbered so-called standards. It is a vicious and corrupt battle where clueless politicians are often just used as tools for corporate profits and power. Not too long ago we saw Microsoft Facebook lobbying politicians to incite them against Google. Microsoft has far more lobbyists than everyone else in Europe (in the technology sector) and 17 lobbyists of Microsoft are identified in this article, lumping some of them together:

The biggest makers of Spyware are not Hackers… They are Companies like Google, Facebook, and Microsoft that make billions selling your personal likes, dislikes and opinions to an enormous glut of advertisers and social programmers. They would rather fight piracy on their collective own than have the Government regulate their blatant invasion of the public’s privacy.

Microsoft, the hypocrite, has for a long time been trying to use “privacy” against Google and it is using lawmakers to selfishly render their competition “illegal” again in Massachusetts. See this new report (the “think about the children!” strategy):

Microsoft is after Google again with a school privacy bill that could wipe out Google’s cloud-computing services for students.

Microsoft is backing a bill that targets Google’s Apps for Education, saying that these cloud-computing services are collecting data from schoolchildren for the purpose of creating better advertising or other commercial means.

“We believe that student data should not be used for commercial purposes; that cloud-service providers should be transparent in how they use student data; and that service providers should obtain clear consent for the way they use data,” said Mike Houlihan, a Microsoft spokesman. “We expect that students, parents and educators will judge any proposed legislation on its merits.”

The bill was unveiled in January, and is currently being considered by Massachusetts’s lawmakers. Microsoft has been very direct with the fact that it is behind this bill, and that Google is the target.

This is classic Microsoft, using lawmakers to help where Microsoft is losing. It is one form of corruption among several similar ones. █