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09.18.14

Web Site ‘Patent Progress’ Now Officially ‘Powered by CCIA’ (FRAND Proponent, Microsoft Front)

Posted in Patents at 7:20 am by Dr. Roy Schestowitz

Ed Black
Source: DECLAN MCCULLAGH PHOTOGRAPHY

Summary: After talking a job at CCIA, “Patent Progress” and its chief author should be treated as dubious on real patent progress

EARLIER this year and last year we warned about a site that calls itself “Patent Progress”.

The new (redesigned) “Patent Progress” now states “Powered by CCIA”, which is funny given CCIA‘s track record when it comes to patents. One of my followers in Twitter said: “Funny use of the words “Powered by” – could think of a move accurate phrase, like “A front for”…”

CCIA is a Microsoft-funded front/lobby group; it has been paid millions of dollars by Microsoft (Ed Black would know where his money comes from).

Over the years, and especially in recent years (after Microsoft payments), CCIA echoed a lot of Microsoft’s agenda and there has not been much for CCIA to say about the demise of software patents in the United States after the Supreme Court's decision. The site does, however, say a lot about trolls and this new post says: “The Supreme Court ruled in a couple of cases, Iqbal and Twombly, that a complaint has to have enough facts in it to support the legal claims. But, thanks to a Federal Circuit decision, that rule doesn’t apply in patent cases. The Federal Circuit relied on Form 18 in making its decision.”

CCIA remains a FRAND booster (hence anti-Free software) that would rather talk about trolls (except Microsoft) than about patent scope. At Dennis Crouch’s blog there is a new guest post from Professor Jorge L. Contreras, who says about FRAND: “There has been a fair amount of controversy recently over commitments that patent holders make to license patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). As I have previously written here and here, FRAND commitments generally arise when a patent holder wishes to assure the marketplace that it will not seek to block implementation of a common technology platform or product interoperability standard. Making such a public commitment encourages widespread adoption of these technologies, which is often beneficial for both the patent holder and the market. As such, it is important that these commitments be enforced.”

But what about exclusion of Free software? Contreras continues: “I am not arguing, of course, that FRAND commitments should not be enforced. I feel quite the opposite, and have argued that these promises form an important subset of a larger category of “patent pledges” that ought to be enforced for the benefit of the market. However, there are many more sound and coherent theories for enforcing patent pledges, and FRAND commitments in particular, than common law contract. These include various antitrust and competition law approaches, which have been advanced by the FTC and others, as well as my personal favorite, a modified variant of promissory estoppel that I call “market reliance”. The market reliance theory is grounded in the fact that patent pledges are promises, whether or not they fulfill the requirements of common law contract, and promises ought to be enforced. The theory overcomes the requirement that specific and actual reliance be proved in promissory estoppel cases by introducing a presumption of reliance based on the “fraud on the market” theory used in Federal securities law.”

How about getting rid of software patents altogether? That would eliminate the need for FRAND in software. Being a lawyers’ site, however (same as “Patent Progress”), don’t expect these people to be too technical or to represent the views/interests of non-lawyers.

A somewhat better site, IP Troll Tracker, seems uplifted by news about USPTO arranging an event today. As Steph put it, “here we are two-plus years later and what has the USPTO gone and done? Set up a webinar to help business owners find relief from patent litigation. It’s all right here in their flyer. And if you’ll look closely on their list of resources for people who’ve been sued, you will find a familiar link.”

If the USPTO is serious about reducing litigation, then it will raise the bar and stop issuing a patent for almost every application that comes in. Thankfully things are changing for the better as even the USPTO has begun rejecting software patents based on the now-famous SCOTUS ruling from the summer. New guidelines were issued for examiners (one of whom is the wife of the man who operates “Patent Progress”).

Remember to view “Patent Progress” as what it really is; it’s a lawyers’ site run and powered by a front group that is funded by Microsoft and mirrors some of Microsoft’s policies. Names of sites can be deceiving, misnomers even. █

Articles About the Death of Software Patents in the United States

Posted in Patents at 6:52 am by Dr. Roy Schestowitz

American cemetery

Summary: Recent coverage of software patents and their demise in their country of origin, where even proponents of software patents are giving up

THE NEWS has been largely positive when it comes to patents — positive and good in the sense that software patents are dying. Today we give a motivational summary.

Jeff John Roberts says that “After a key Supreme Court decision this summer, courts are shredding software patents and trolls”. Yes, he too mentioned the effect on patent trolls, as we highlighted in the previous post. The article speaks for itself and it starts by alluding to the pointless “reform”. Jeff John Roberts says: “Patent reform failed in Congress this year but a spec of hope has arrived in the form of a spate of court decisions in which courts are deciding that so-called inventions can’t be patented because they are old and abstract ideas.”

Here is a useful summary from Dennis Crouch, who gave a list of cases to watch:

The Supreme Court’s decisions from Alice and Mayo are beginning to really have their impact. A few examples:

Walker Digital v. Google (D. Del. September 2014) (data processing patent invalid under 101 as an abstract idea) (Judge Stark).

Genetic Tech v. LabCorp and 23AndMe (D. Del. September 2014) (method of predicting human performance based upon genetic testing invalid under 101 as a law of nature) (report and recommendation from Magistrate Judge to Judge Stark)

Ex parte Cote (P.T.A.B. August 2014) (computer method and hardware for ‘phase shifting’ design data invalid under 101)

Ex parte Jung (P.T.A.B. August 2014) (diagnostic method associated with epigenetic risk factors invalid under 101).

“Supreme Court ruling has wiped out 11 “do it on a computer” patents so far” and “balance of power is changing as courts vigorously apply Alice v. CLS Bank,” says Joe Mullin. Excellent article.

“If Alice v CLS is the game-changer some believe, software patent values may be about to collapse,” states the headline from one of the most extreme pro-software patents Web sites, IAM Magazine. So even the other side is admitting defeat. Here is one of the most vocal proponents of software patents saying: “Lemley and I share the opinion that Alice v. CLS Bank represents a significant change in the law relevant to software patents. To my surprise this truth is not understood or appreciated by many in the patent community.”

He has some other articles to that effect. The important thing is, even some of the leading proponents of software patents are unable to deny the undeniable. Here is Fox Rothschild LLP (law firm), with typos/incorrect English at the end, stating: “The USPTO is continuing to issue patents for software-related inventions that are assigned to it’s non-business-method examining units, so it’s clear that at least some software remains eligible for patenting. However, it’s also clear that new and potentially significant challenges are now in place for those who want to obtain or enforce software patents in the future.”

Timothy B. Lee. a longtime opponent of software patents, says that “Software patents are crumbling, thanks to the Supreme Court”. To quote his analysis: “The Supreme Court’s June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.

“Now a series of decisions from lower courts is starting to bring the ruling’s practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court’s decision — including six that were decided this month. Every single one of them has led to the patent being invalidated.”

Days later Lee also published the article “You can’t patent movies or music. So why are there software patents?”

To quote Lee: “As the courts increasingly flirt with excluding software from patent protection, a common argument from software patent supporters is that wholesale abolition of software patents is a crude way to deal with the system’s problems. The legal scholar John Duffy is the latest to take this line, decrying abolition as a “brute-force ‘reform’” that has proven to be “profoundly shortsighted.”

“But the reality is that everyone thinks certain kinds of innovation should be excluded from patent protection. The only disagreement is whether software should be on the list. For example, though you can copyright a specific movie or a song recording, you can’t patent the general concept of the buddy comedy or the verse-chorus-verse pop song structure. And hardly anyone wants to change that.”

An article by Mike Masnick, another vocal opponent of software patents, is titled “Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court” and “Software patents dying out in US” is another headline to keep a record of. Some of the most popular lawyers’ sites are prepared to acknowledge this.

We are very happy to see lots of articles (from high-reputation sources) about software patents dying, especially this week and earlier this month. This isn’t fantasy; it’s really happening! █

The Death of Software Patents is Already Killing Some Major Patent Trolls

Posted in Patents at 6:27 am by Dr. Roy Schestowitz

Danger

Summary: VirnetX seems to be the latest victim of the demise of software patents in the United States

IT was exceptionally pleasant to see this new article titled “And with them so go the trolls? Software patents are crumbling, thanks to the Supreme Court” (recommended article from UK Progressive).

The article correctly states: ‘The Supreme Court’s June ruling on the patentability of software — its first in 33 years — raised as many questions as it answered. One specific software patent went down in flames in the case of Alice v. CLS Bank, but the abstract reasoning of the decision didn’t provide much clarity on which other patents might be in danger.

“Now a series of decisions from lower courts is starting to bring the ruling’s practical consequences into focus. And the results have been ugly for fans of software patents. By my count there have been 11 court rulings on the patentability of software since the Supreme Court’s decision — including six that were decided this month. Every single one of them has led to the patent being invalidated.”

Indeed.

We shall cover this matter in another (later) post. There’s lots of coverage on the topic. The important point there is that since patent trolls have been so reliant on software patents the death of the latter kills or significantly weakens the former. We wrote about this for years, stressing that the goal should be to eliminate software patents, not just trolls who use them (big corporations like Microsoft and Apple use software patents offensively as well).

Yesterday in the news there was a lot of analysis about a VPN software patent. Dennis Crouch asked:

Is VPN Software Patent Eligible?

An E.D. Texas jury sided with the patentee VirnetX — finding that the four asserted patents are not-invalid and that Apple’s VPN-On-Demand and FaceTime products infringe. The jury then awarded $350 million in damages. On appeal, Apple presented a number of winning arguments that, in the end, result in only a partial victory because some of the claims remain valid and infringed. After altering claim construction of the term “secure communication link”, the jury will re-determine whether FaceTime infringes and recalculate damages.

Crouch posted this in light of the news about VirnetX, a patent trolls which has just lost and collapsed:

A top appeals court has thrown out a jury ruling that ordered Apple to pay $368 million to VirnetX, a patent-holding company that many consider a “patent troll” because it exists exclusively to enforce patents. On Tuesday, the United States Federal Circuit Court of Appeals remanded the decision back to the lower federal court in East Texas.

We wrote about VirnetX many times before and we also wrote about Vringo. Both are using software patents to shake down large companies and BusinessWeek is comparing their fates in this new article:

VirnetX Holding Corp. (VHC:US) lost almost half its market value yesterday after an appeals court threw out its $368.2 million damage award against Apple Inc. and lessened the chances of a big payday when the case returns to the trial court. Last month, Vringo Inc. (VRNG:US) plunged 72 percent after the same court tossed a $30.5 million verdict against Google Inc.

In a later post we are going to show just to what degree software patents are truly dying in the United States. This is excellent news all around. Free software is winning on many fronts. █

More Microsoft Layoffs

Posted in Microsoft at 5:52 am by Dr. Roy Schestowitz

Mouse

Summary: More Microsoft layoffs go ahead as the company is unable to compete

Microsoft’s acquisition of Minecraft (probably using shares rather than real money) is baffling a lot of people and Wired calls it a sign of “desperation”. Something must be terribly wrong if Microsoft claims to be spending billions of dollars on some lousy game while laying off a lot of existing staff.

More Microsoft layoffs are now being confirmed, according to Microsoft’s unofficial spokesperson Mary Jo Foley, who wrote:

Microsoft will continue with its planned layoffs of 18,000 with job cuts across nearly all divisions of the company with its second wave of cuts later this week.

Earlier this year when we covered the latest Microsoft layoffs we showed that it was not about Nokia; the layoffs go well beyond Nokia and these recent layoffs may be part of a bigger wave to come because Microsoft struggles in many areas of its business.

Microsoft has destroyed many jobs when it engaged in criminal activities that sank rivals; a lot of ethical jobs would be created if Microsoft declared bankruptcy. █

ODF on the Rise

Posted in OpenDocument at 5:37 am by Dr. Roy Schestowitz

Yellow folder

Summary: Milestones for OpenDocument Format (ODF) and the launch of FixMyDocuments

THE UK has moved to adopt ODF and the world at large is gradually embracing real standards. Andy Updegrove wrote about OpenForum Europe and Rob Weir wrote about ISO approval of ODF 1.2 last night:

OASIS ODF 1.2, the current version of the Open Document Format standard, was approved by ISO/IEC JTC1 National Bodies after a 3-month Publicly Available Specification (PAS) ballot. The final vote for DIS 26300 was: 17-0 for Parts 1 and 2, and 18-0 for Part 3.

More interestingly, now emerges a campaign called FixMyDocument, which Glyn Moody wrote about yesterday [1]. It is a campaign in favour of ODF and it has already got some big backing, including explicit backing from Neelie Kroes [2,3,4]. Go there now and sign the declaration. Supporting FixMyDocuments only takes about 20 seconds and it sends out an important message. █

Related/contextual items from the news:

  1. FixMyDocument and Global Legislative Openness

    Back in July, I wrote about the huge win for open standards when the UK government announced that it would be adopting ODF for sharing or collaborating on government documents. I also implored the open community to support this initiative in every way it could to ensure that it took root and maybe even spread. So I’m delighted to see that Open Forum Europe has done just that with a new site called FixMyDocument.eu. (Although I am a “fellow” of the associated Open Forum Academy, I had nothing to do with this.) Here’s how it explains the initiative:

  2. Neelie Kroes Supports ODF In Government

    Locking in one’s self to doing things M$’s way is not smart. It’s stupid, especially when we know it’s a trap M$ deliberately created to keep it’s cash cow pouring milk into M$’s pail.

  3. Open document formats campaign backed by Europe’s digital commissioner

    European government agencies should adopt open document formats in their dealings with citizens, outgoing European Commissioner for the Digital Agenda Neelie Kroes has urged.

  4. EC Commissioner Kroes supports ODF campaign

    European Commissioner and Vice President for the Digital Agenda Neelie Kroes supports the FixMyDocuments campaign that is urging Europe’s public administrations to make better use of open document formats. The campaigners aim to get public administrations to publish their documents in open formats that can be read and manipulated by anyone, without imposing the use of software from any particular vendor. The campaigners are pushing the authorities to use the Open Document Format (ODF).

09.17.14

Links 17/9/2014: CoreOS, ChromeOS, and systemd

Posted in News Roundup at 5:33 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

Leftovers

  • Science

    • Taking a Health Hazard Home

      A new study of a small group of workers at industrial hog farms in North Carolina has found that they continued to carry antibiotic-resistant bacteria over several days, raising new questions for public health officials struggling to contain the spread of such pathogens.

  • Security

  • Privacy

    • Revealed: identity of Fifi the stunning wartime spy

      National Archives reveals identity of Britain’s Second World War special agent ‘Fifi’, the beautiful blonde employed to tempt spies from her own side into giving up their secrets

    • More Yahoo vs. The NSA: Government Tried To Deny Standing, Filed Supporting Documents Yahoo Never Got To See

      That’s the normal declassification schedule, which at this point would still be nearly 18 years away. Fortunately, Ed Snowden’s leaks have led to an accelerated schedule for many documents related to the NSA’s surveillance programs, as well as fewer judges being sympathetic to FOIA stonewalling and exemption abuse.

      We’ve talked several times about how the government makes it nearly impossible to sue it for abusing civil liberties with its classified surveillance programs. It routinely claims that complainants have no standing, ignoring the fact that leaked documents have given us many details on what the NSA does and doesn’t collect. But in Yahoo’s case, it went against its own favorite lawsuit-dismissal ploy.

  • Civil Rights

    • WI Election Officials and Advocates Scrambling After Voter ID Reinstated

      Wisconsin election officials and advocates are being forced to make an “extraordinary effort” to adjust to voter ID restrictions that were just reinstated by a federal appellate court. Thousands of absentee ballots have already been sent to voters, and the majority of Department of Motor Vehicle service centers that issue IDs are only open only two days per week.

    • Proposed Anti-Terror Law in France Would Erode Civil Liberties

      A proposed anti-terrorism law in France has freedom of expression advocates concerned. The bill, as our friends at La Quadrature du Net frame it, “institutes a permanent state of emergency on the Internet,” providing for harsher penalties for incitement or “glorification” of terrorism conducted online. Furthermore, the bill (in Article 9) allows for “the possibility for the administrative authority to require Internet service providers to block access to sites inciting or apologizing for terrorism” without distinguishing criteria or an authority to conduct the blocking.

  • Internet/Net Neutrality

    • The Public Submits a Record Number of Comments on Net Neutrality

      Apparently, people care about preserving a free and open Internet. Earlier this month, I reported on how a consortium of technology companies, many of which depend on speedy and dependable access to their websites, launched a very public protest against controversial proposed changes to net neutrality regulations. The tech companies involved are calling themselves Team Internet. They are concerned that broadband service providers are developing business models that create slow lanes and fast lanes on the Internet, and that the FCC will provide its blessing for doing so.

  • Intellectual Monopolies

    • ISDS: The devil in the trade deal

      A common provision allowing foreign investors to sue host governments has become a ticking time bomb inside trade agreements like the soon to be signed Trans Pacific Partnership. Some countries are now refusing to agree to the provision and are questioning its legal legitimacy. Jess Hill investigates.

    • Copyrights

      • Pirate Bay Swede ‘mistreated’ in jail

        The brother of Pirate Bay co-founder Peter Sunde has questioned the conditions of his brother’s Swedish jail, slamming both the institution and the guards.

      • Search Engines Can Diminish Online Piracy, Research Finds

        New research from Carnegie Mellon University shows that search engine results directly influence people’s decision to pirate movies, or buy them legally. According to the researchers, their findings show how search engines may play a vital role in the fight against online piracy.

Italy is Cracking Down on Microsoft’s Monopoly Abuse While Gradually Moving to GNU/Linux

Posted in Europe, GNU/Linux at 4:19 am by Dr. Roy Schestowitz

Italy's flag

Summary: Italy is not only moving to Free/Open Source software but also to GNU/Linux while at the same time barring Microsoft from forcibly tying Windows to new PCs

“Last year,” says Pogson, “I wrote about Udine using FLOSS in their infrastructure. Well, it’s in the news again.”

There were several reports recently about Turin following the footsteps of Munich and the main report surprisingly came from the CBS-owned ZDNet, albeit from a guest writer.

Well, guest writers in ZDNet (people from Italy) now tell the story of Italy moving to GNU/Linux in the public sector. It is not exactly news. Here is another one that says: “The City of Udine is moving from Windows for OpenOffice – and may soon ditch Microsoft at an operating system level too.”

That means GNU/Linux!

And if that’s not enough, Italy is now barring Microsoft from imposing the inclusion of Microsoft Windows (NSA-infested malware) in computer sales. As the FSFE reported some days ago: “Italy’s High Court has struck a blow to the practice of forcing non-free software on buyers of PCs and laptops. According to La Repubblica, the court ruled on Thursday that a laptop buyer was entitled to receive a refund for the price of the Microsoft Windows license on his computer.

“The judges sharply criticised the practice of selling PCs only together with a non-free operating system as “a commercial policy of forced distribution”. The court slammed this practice as “monopolistic in tendency”. It also highlighted that the practice of bundling means that end users are forced into using additional non-free applications due to compatibility and interoperability issues, whether they wanted these programs or not.”

Pogson added that: “When I approached the Canadian Competition Bureau on the matter, they parroted that I had no standing, not being in competition with M$. Shame on them. Who is in competition with M$ when M$ has eliminated the market? They should do their job and protect consumers and businesses from an unfair tax on goods and services in Canada. What’s your government doing to protect your freedom of choice in operating systems?”

That’s a fair point. Notice how Microsoft is using its abuses to eliminate reports about its abuses. We saw that in areas other than operating systems.

It sure looks like Germany and Italy and rapidly moving away from Windows. Perhaps all those explosive revelations about NSA espionage (especially in Germany) will accelerate the migrations. To deny bundling of Microsoft Windows with PCs is to basically protect many citizens from being malicious spied on by foreign governments. █

OpenSUSE’s ‘Assurances’ Are Classic MBA School Hogwash

Posted in Novell, OpenSUSE at 4:01 am by Dr. Roy Schestowitz

Pigs

Summary: OpenSUSE is not part of any commitment, except for SUSE’s; the impact of the Novell/SUSE acquisition casts uncertainty on the project’s future

YESTERDAY we quickly commented on the news that Micro Focus, a very strong British partner of Microsoft, is taking over SUSE and Novell. The British press put it like that:

Attachmate once earned the ire of the open source community for taking on Novell and then putting 882 patents in its Linux portfolio up for sale to a consortium backed by Microsoft.

Microsoft’s strategy remains the same. It is using patents to attack Linux and it is determined destroy, co-opt, assimilate, acquire, destroy, etc. Microsoft can only continue to ‘sell’ licences (for Windows, SUSE, etc.) if competition is gone and this is the reason Microsoft keeps making SUSE its own. SUSE is basically “Microsoft Linux”, which is why Microsoft keeps advertising it as the only ‘true’ GNU/Linux.

Swapnil Bhartiya, an OpenSUSE sympathiser, correctly says:

The merger will once again ruffle some features at SUSE and openSUSE which have been under continuous financial instability.

Bhartiya also covered the message sent to the mailing list of OpenSUSE (documented by LWN). It states:

Dear openSUSE Community,

As you might be aware, SUSE’s parent entity, the Attachmate Group has
entered into an agreement to merge with Micro Focus, a UK-based
enterprise software company. As the primary sponsor of the openSUSE
Project, SUSE’s President and General Manager, Nils Brauckmann has
contacted the openSUSE Board to share the following key points

”
* Business as Usual: There are no changes planned for the SUSE
business structure and leadership. There is no need for any action by
the openSUSE Project as a result of this announcement.

* Commitment to Open Source: SUSE remains passionately committed to
innovation through Open Source. This has always been the foundation of
our business and that will continue as we grow and innovate in new
areas.

* Commitment to openSUSE: SUSE is also fully committed to being a
sponsor and supporter of an open, highly independent and dynamic
openSUSE community and project. We are proud of openSUSE and greatly
value the collaborative relationship between SUSE and the openSUSE
community.

The combination of the Attachmate Group and Micro Focus creates a
larger, global enterprise software entity, operating at a greater
global scale. This provides an even stronger foundation for the
continued investment in SUSE and our continued innovation through Open
Source.”

The openSUSE Board would like to thank Nils and SUSE for this
reassuring statement. The Board is enthusiastic about the benefits of
the merger may bring to SUSE and ultimately also to our openSUSE
Project.

If anyone has any questions, there will be an opportunity to raise
them at tomorrow (Wednesdays) regular openSUSE Project Meeting at
15:00 UTC in #opensuse-project on the Freenode IRC network.

Regards,

The openSUSE Board

Notice how Brauckmann does not say anything at all about a commitment from Micro Focus to SUSE and OpenSUSE. He speaks of a SUSE commitment to OpenSUSE. That’s it. This is a classic non-denying denial, where what one neglects to say actually says quite a lot.

Michael Larabel’s interpretation is that “Richard Brown relayed a message on the behalf of SUSE’s President and General Manager, Nils Brauckmann, that basically everything is alive and well.”

That’s MBA speak. As it was put by Susan Linton: “The Attachmate Group, announced a merger with Micro Focus leaving openSUSE users nervous.”

This nervousness is why Brauckmann, by proxy, relayed some face-saving talking points. The acquisition seems imminent:

Micro Focus buying Novell, Suse Linux owner for $1.2 billion

[...]

Micro Focus expects the deal to close by November.

Our assessment is that changes are afoot. SUSE is now at the mercy of a strong ally of Microsoft, which is likely to keep SUSE or run SUSE only in a way that appeases Microsoft’s interests. █

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