The infamous patent ambush from Rambus [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] is leading the way to some new developments. First of all, the recent ruling is being appealed.
Rambus appealed the FTC’s ruling and the US Court of Appeals for the District of Columbia Circuit ruled against the FTC in April.
The U.S. Federal Trade Commission has asked the U.S. Supreme Court to intervene in a case in which the agency accused memory-maker Rambus of anticompetitive behavior in deceiving a standards-setting body.
The U.S. Court of Appeals for the District of Columbia Circuit in April threw out the FTC’s case against Rambus, in which the agency accused the company of convincing industry groups to declare a standard for the memory used in PCs, servers, printers and cameras without admitting that it owned the patents to those technologies. The FTC Monday asked the Supreme Court to overturn that appellate decision.
Reform in Progress
Also related to the FTC is the following report about an upcoming hearing which may change the way patents get treated.
The US Federal Trade Commission has announced the first of a possible series of public hearings to explore the evolving market for intellectual property (IP). The hearings will be held beginning on December 5, 2008, in Washington, DC. “The patent system has experienced significant change since the FTC released its first IP Report in October 2003, and more changes are under consideration. The courts and patentees are exploring the full implications of Supreme Court and Federal Circuit decisions on injunctive relief, patentability, and licensing issues. Congress has considered sweeping legislative patent reform, and new debates on the appropriate methods for calculating infringement damages have engaged the patent community. New business models for buying, selling and licensing patents have emerged and evolved since 2003. In addition, there is new learning regarding the operation of the patent system and its contribution to innovation and competition.”
Halligan’s patent application claims a “programmed computer method” that operates to identify trade secret information. (Claim 119). In essence, the computer program has the common law rules of trade secrets hardcoded, and those rules are applied to determine whether particular information is a “trade secret.” Applying the machine-or-transformation test of Bilski, the Board of Patent Appeals and Interferences (BPAI) rejected Halligan’s claims as lacking patentable subject matter under 35 USC § 101.
Under Bilski, “[a] claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” To avoid preemption the Federal Circuit emphasized that “the use of a specific machine or transformation of an article must impose meaningful limits on the claim’s scope to impart patent-eligibility;” that “the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity;” and that the transformation “must be central to the purpose of the claimed process.”
Intellectual property is an increasingly important part of our economy, and computer code in particular is presenting IP laws a serious challenge. Is code functional or expressive? Should it be covered by a patent or a copyright? What rights do we consumers have when we purchase a piece of computer software? Intellectual Property and Open Source: A Practical Guide to Protecting Code answers these questions, at least as well as any questions can be answered in this notoriously wishy-washy field of law.
Hardware Miscellany
Like many large companies, Nintendo got sued recently and the following new video tells one side of the story.
Although there are few official press releases available, it seems that numerous well-known chip manufacturers are arguing about patents apparently involving tungsten metallisation processes.
When it comes to hardware, it’s easier to impose extreme measures like an embargo [1, 2]. It’s actually physical products that are taken to task, not mere knowledge that can be passed around over the wire, even across continents.
Patent Trolls
Amid tremendous pressures in an already-volatile and embattled industry, the patent trolls assault undeterred. Groklaw reckons they want a piece of the bailout money, i.e. taxpayers’ expenses.
In the suit, LML alleges that the defendants infringe U.S. Patent No. RE40220. LML is seeking damages, injunctive and other relief for the alleged infringement of these patents.
RPX, which we mentioned earlier today, continues to receive coverage. The Wall Street Journal beat everyone to it (marginally), including Larry from ZDNet. It’s being described as “defense” against patent trolls although it operates in similar ways to patent trolls.
Thus far, RPX has acquired more than $40 million in patent rights and will hit $100 million in its first year. The company, founded in March, counts John Amster, a former Intellectual Venures and Ocean Tomo executive, and Geoffrey Barker, founder of Cobalt, as co-CEOs.
They arrive from a patent troll [1, 2] and probably create yet another.
The biggest troll buster, Rick Frenkel, is still under attack by the very same vindictive trolls whom he was fighting.
Before departing, I took some time to study up on some of my most-followed cases there. As regular readers know, former Patent Troll Tracker blogger Rick Frenkel was sued by two East Texas patent lawyers after his identity was revealed.
Not much has changed in these lawsuits. The parties in Ward v. Cisco are still fighting over venue, and in Albritton v. Cisco they’re fighting discovery battles, but since I checked up on them anyhow I’ll take a minute to update both cases.
For background, see our notes about the most vicious troll, Ray Niro [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. He attacked his legitimate critic [1, 2, 3], whom we recently mentioned in [1, 2, 3, 4]. What an ugly and brutal corner of the industry this must be. it used to be about development, not racketeering and gavels. █
“Software patents are a huge potential threat to the ability of people to work together on open source. Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat.”
Xconomy received a report last week that the Oslo, Norway-based FAST Search division of Microsoft, which has a 180-person outpost in Needham, MA, and a smaller office in New York, had laid off 25 people in its U.S. offices.
As pointed out in the comments here, there is more of this going on, but Microsoft keeps quiet despite its obligations to the investors.
It should not be surprising that over 10 times per day Boycott Novell welcomes a visitor searching for “Microsoft layoffs” (exact search phrase). People are curious, so they actively look for answers. They deserve answers. █
Apple’s attempt to quash an effort to help the latest iPods and iPhones work with non-Apple software such as the Linux operating system is out of line, the Electronic Frontier Foundation said Tuesday.
[...]
Because iTunes does not run on Linux, the iPodhash project is important to the Linux community, Odio said.
Founded in 2004, Bluwiki is a side project for Odio, an Internet entrepreneur who said he supports the iPodhash project even though he’s not involved with it.
A lesser-visible item in the news is the banning of Apple ads that are misleading.
Apple’s latest iPhone advert has been condemned by the ASA for giving the impression the phone could download and install applications quickly and easily, forcing the firm to pull the ad.
We wrote about Apple and marketing on Monday. The company relies a lot on perceived value and it is not rare for Apple to become hostile [7-27].
It’s sincerely hoped that this post does not anger readers who are using Mac OS, but let it be understood that Apple is not exactly a friend of Free software (in the GPL sense), which is the main reason for Apple’s rejection of Linux in favour of BSDs. █
Apple has been named in a patent infringement lawsuit by EMG Technology who alleges that the iPhone infringes on a patent that enables the device to browse the Web.
[...]
An attorney for EMG, Stanley Gibson said U.S. Patent No. 7,441,196 is one of five patents for navigating the Internet on mobile devices and Internet Protocol Television. (IPTV)
EMG Technology is a company that holds the patents of Elliot Gottfurcht, the real estate developer, as well as Marlo Longstreet and Grant Gottfurcht. The company claims that the iPhone infringes on patent 7, 441, 196- a patent that was approved only last month, after a filing process that began on March 13, 2006.
The name of the patent is “Apparatus and method of manipulating a region on a wireless device screen for viewing, zooming and scrolling internet content.” It was filed on March 13, 2006.
Apple Inc is the target of a lawsuit that claims a technology the iPhone uses to surf the Web infringes on a patent filed by Los Angeles real estate developer Elliot Gottfurcht and two co-inventors.
The lawsuit was filed by EMG Technology LLC on Monday in the U.S. District Court in Tyler, Texas. EMG was founded by Gottfurcht, is based in Los Angeles with an office in Tyler, and has just one employee.
Apple has been involved in similar suits, including one filed by Minerva in January that claimed infringement of a patent that described a “mobile entertainment and communication device in a palm-held size housing.” A Florida company in 2007 claimed that the iPhone used its patented touch-screen technology, in another case that was presented in the Tyler court.
A new lawsuit charges Apple with violating certain patents regarding the iPhone’s Safari Mobile web browser, and the way a user can pinch, zoom, rotate and view web pages. As the Supreme Court tightens its patent policy, this one might be a little trickier to defend.
I cannot claim to be a developer, but I have been watching the whole iPhone application development issues with interest. As of today’s news, it appears that the iPhone development process is like this:
1. Ask Apple for permission to make an application.
2. Sign a non-disclosure agreement.
3. Invest time and money into an iPhone application.
4. Ask Apple for permission to sell or give away your application.
5. If Apple says YES: start making money and hope Apple does not change their minds. If Apple says NO: shut up and deal with it. If you say anything, Apple can sue you, further raising the wasted investment money.
Today I finally got a reply from Apple about the status of Podcaster.| Apple Rep says: Since Podcaster assists in the distribution of podcasts, it duplicates the functionality of the Podcast section of iTunes.
That’s right folks, it duplicates the functionality of the desktop version of iTunes.
Developers have already voiced their concern over Apple’s unwritten rules of what can and cannot be sold through the App Store, but the situation has become even more dire with this most recent round of rejections. It’s prompted some, such as Fraser Speirs, developer of iPhone Flickr browser Exposure, to say that they’ll cease developing for the platform until Apple clarifies the rules.
Apple’s digital rights management lock on its iPod device and iTunes software is illegal, the Consumer Ombudsman in Norway has ruled. The blow follows the news that Germany and France are joining Norway’s action against Apple.
Apple is a mega corporation that nearly smashed the reputation of two individuals with bogus claims of fraud. It didn’t matter that they weren’t the ones pulling the trigger because they were pulling all the strings.
Apple has a history of using lawyers against bloggers. There was the now infamous Think Secret lawsuit, which may have had merit. But they also engage in clearly superfluous, bullying tactics as well.
[...]
The offending download page is here (the software has now been removed). Blogger Paul O?Brien simply linked to this download page and included a screenshot of the user interface and also received a cease & desist letter from Apple’s lawyers.
Now a student named Noah Witherspoon that created an iPhone Tetris knock-off called simply “Tris,” has been threatened with legal action by The Tetris Company. In what he refers to as “petty bullying,” the company had Apple contact Witherspoon and had him pull the game from the iTunes App Store. Apple even told him that they’d take action themselves if he didn’t comply.
Psystar, the company that sells open systems capable of running Mac OS X, plans to fight back against the copyright infringement lawsuit Apple has filed against it.
The Miami-based firm said during a press conference this afternoon it plans to challenge Apple’s long-standing licensing ban on running the Mac operating system on non-Apple branded devices.
Apple stated that though the iPhone supported open standards, Java and Flash were not open-source and required a plug-in to make them work, even using a desktop computer.
For those of you who do not remember – or do not care to remember – OpenClip was supposed to be an open framework for implementing the Cocoa NSPasteboard functionality to the iPhone. While I’m thinking that if Apple wanted to implement copy/paste into the iPhone they would have done it already or will do it soon, OpenClip was a noble effort to work around the limitations of OS X on the iPhone.
Linux. This is the only platform that is not a prison. You are really free with Linux. People are congregating at will, building creative new structures. Yeah – maybe it isn’t as pretty as the luxury hotel prison that is Apple, but at least we are free. In the end it isn’t prison walls that win in technology. CompuServe and AOL were beaten by the internet. Centrally controlled mainframes were killed by the PC. Over time the best technology comes from innovation in unexpected places and while we are occasionally wooed by the pretty sounds of “You’ve Got Mail” or the stunning design of a new iPhone; we have all seen this movie before and know how it ends.
APPLE MESSIAH Steve Jobs has been a bit sick lately but according to US gossip reports it could be a lot worse than anyone thought.
The sultan of smug has been seen parking his motor in a disabled carparks in Palo-Alto much to the horror of Apple fans who believe him to be capable of healing the sick with his beautiful entertainment toys.
Apple has fired a cease and desist order against the developers behind the open-source Hymn Project.
Hymn develops software that strips Apple’s FairPlay digital rights management (DRM) technology from user’s iTunes purchases, allowing music fans to play their music on devices other than those from Apple.
the application because it breaches their SDK license, serving up content that “…in Apple’s reasonable judgment may be found objectionable”. The problem is that this restriction only applies to applications. Dodgy movies, episodes of South Park or even The Breakfast Club are perfectly acceptable iTunes content.
What if tomorrow you went to Best Buy or Walmart or Sam Goody and purchased a CD? What if, before you left the store, the salesman told you that although the CD was in all other respects a standard CD, that you could only play it if you owned a Pioneer or Sony stereo? Would that make any sense? Would it make you a bit hesitant about buying music from that store again?
Well, if you purchase music or videos from the iTunes Store,
[...]
With content from the iTunes Store, however, users may find themselves a bit stuck if they ever want to make the switch to a more open computing platform, such as Linux. Because none of the DRM-restricted content from the iTunes Store will play on Linux. And it’s all because that’s how Apple wants it, to be honest, and not because of any technical limitation.
There is a cost for not being a good Open Source citizen and that cost is loss of goodwill in the community. That loss is more expensive in the long run than Apple realizes.
In the speech predicting how Apple would expand its market share, Jobs showed a slide with Safari dominating almost a quarter of the market–a market shared only with a single other browser, Internet Explorer.
Lilly says he doesn’t believe that this was an omission or simplification, but instead an indication that Jobs is hoping to steal people who use Firefox and other smaller browsers in order to run a “duopoly” with Redmond.
A researcher who went public last month with the first iPhone vulnerability says Apple’s updating of the open-source components it uses in Mac OS X is inexcusable and negligent.
In an interview with eWeek, Woz said that there are always people who want things to be free and the open-source movement starts with those sort of people.
According to the Wall Street Journal Cisco Systems and IBM have already signed up.
RPX is funded by Kleiner Perkins Caufield & Byers and Charles Rivers Ventures. Its two chief executives, John Amster and Geoffrey Barker, previously served as vice presidents of Intellectual Ventures, another company in the business of purchasing patents.
It involves getting a bunch of tech companies to pay up, so that this new company, RPX Corp., can buy up a bunch of patents “for defensive purposes only.” The company insists it won’t sue anyone with these patents. But, of course, the whole thing makes you wonder. For the companies that buy into RPX’s deal (or IV’s for that matter), they end up spending a bunch of money for a rather weak form of insurance that protects them in the very rare case where they might be able to use a patent in either firm’s portfolio to maybe, possibly protect itself against an infringement lawsuit.
NPEs typically troll the patent office, news reports, and company product lines in hopes of finding infringements to patents in its library. Once a product is targeted, the NPE sends a letter to the product’s maker, threatening to sue the supposedly infringing company unless it pays a license fee or settles out of court.
RPX’s model borrows a little from Intellectual Ventures (where CEO John Amster hails from), but with a twist. Amster used to be in charge of patent acquisitions at Intellectual Ventures, which buys up billions of dollars worth of patents and then gets companies to license the entire portfolio. If companies decide not to play ball, the threat of massive patenet litigation hangs in the air.
According to a statement about patent reform on its Web site, Cisco states: “The patent litigation system today is unbalanced and patent speculators are exploiting the system’s unfairness to coerce high settlements from productive companies.
If you take a look at the RPX website you will see that as of today they have over 150 patents and more than 60 applications in their defensive portfolio and they have spent $40 million. This does not seem by any stretch of the imagination to be a worthwhile investment. It would seem that RPX has spent $40 million on 210 assets, or over $190,000 per asset.
How does that help small businesses and inventors? There is a big discussion about this in Slashdot. █
Microsoft’s (and Intel’s) gaming of the market will put Steve Ballmer on the pew some time before Christmas. He will attempt to defend himself after the collusion with Intel — a company that in its own right commits a lot of business crimes, with convictions under its belt too.
So far, Ballmer has employed the Sergeant Schultz “I know nothink” defence.
Attorneys for the litigants want to find out what Ballmer didn’t know and when he didn’t know it. Of particular interest is what Ballmer and Intel honcho Paul Otellini discussed in a phone call back in January 2006, when Intel was chomping at the bit to get Microsoft to change its labeling requirements.
[...]
Like OJ, Microsoft might yet win the case — despite what the evidence suggests. When you can afford to hire Wolfram & Hart as your attorneys, you can fend off anything but the apocalypse. But in the minds of anyone who’s read those emails, they’ve already lost. And ultimately that’s the bigger battle.
Moving Backwards Fast
Whether capable of Vista or not, not many PC users are likely (nor willing) to use Windows Vista. Here is the latest example among many rants that have been written since Vista was RTM-ed 2 years ago.
People who only understand English should refer to a quick presentation in a press review: «Umberto Eco has long believed that technology is regressing and progress is looping back on itself. Microsoft has added the latest fuel to this theory and now PC-consumer Eco wants to abandon his problem-ridden Windows Vista and revert to good old XP. A move that comes at a price, he discovers: “Downgrading is the chance to treat your own computer to some old programmes. And pay for the pleasure. Before this wonderful neologism was invented online, under the noun ‘downgrade’ in your average Italian-English dictionary, you would also find downfall, decline or reduced version, whereas the verb was followed by retreat, reduce and devalue. In other words we are being offered to invest not insubstantial amount of times and money in devaluing and reducing something for which we have already paid a not insubstantial sum. This would sound fantastical were it not true.”»
For readers’ amusement, one of our casual IRC participants pointed out the following old clip.
The case stems from an incident in 2004 when a PC in Amero’s class, later found to be infected with smut-serving malware, displayed pornographic images to her seventh-grade students. The incident at Kelly Middle School in Norwich, Connecticut in October 2004 led to charges against the then pregnant substitute teacher.
Equally disturbing is people’s ability to excuse themselves from crime (e.g. possession of child pornography) using “malware” as a reason. How can law enforcement be restored when so many computers are under the control of merciless botmasters?
Networks may turn into a disarray of liability and many people are therefore treated as guilty before proven innocent. This also explains ISP-adopted discrimination against peer-shared data, banning of security research tools, imposition of DRM as a requirement from hardware and some software, tiering and so on.
X B0rks 360
Windows is not the only Microsoft product that suffers from poor quality assurance. As pointed out before, XBox360 provides an example of almost-criminal negligence that may have already led to deaths.
Over a year after publicly acknowledging this problem, Microsoft’s gaming console continues to suffer from severe production problems and here is a new story of one person whose XBox360 has seen five returns (and counting).
Unlucky INQ reader on 5th Xbox 360
Unfortunately, his local store had no 360s left upon this incident, and he had to take a train to another store to get his fifth Xbox 360, since the console was released.
Simon now states his fifth console has some odd start-up problems where he has to reset his console several times before it works.
This is a tale of woe, familiar to many Xbox 360 owners, yet the majority of his problems aren’t even the standard bug-bear – the RROD issue. We feel your pain.
Why doesn’t Linux aim to offer a stable kernel-level API? There has been debate about it in the past, but Welte explains that the current system has been kept so that “if there’s a technical reason to change the ABI, we can do so.”
I just marked the Vi input mode (”V.I.M.”? ) for the Kate kpart as done in the feature plan for KDE 4.2. It feels a bit weird to mark it as done, though, as there are tonnes of things I want to implement after KDE 4.2.
“At linux.conf.au 2008 in Melbourne, about 150 XO laptops were handed out to open source developers, so there’s been a lot of cool development work being done by Australians given that we’ve had some availability in the community”, he said.
Zurich, Switzerland-based Neuronics has released an open-source embedded Linux version of its “Katana” robot.” The Katana Robotic Arm runs Linux with Xenomai hard real time extensions on a Freescale MPC5200-based control board, and is aimed at industry, production, and research applications, says the company.
CaptiveWorks has announced a Linux IP set-top box (STB) and digital video broadcast receiver that offers FTA satellite HD video reception, and media center features. The CW-4000HD Linux Media Center is based on Gentoo Linux and other open source projects, says the company.
Is it really so hard to allow open discussion on such a topic? If BT believes that it’s reasonable to use the technology, then why not explain why clearly, responding to the critics? The only reason to erase these discussions is if BT knows that what’s it’s doing is highly questionable, and BT would rather not have to explain itself.
The worst thing about DRM? The things it makes people do. Take the iPodhash project, a group of coders dedicated to reverse-engineering Apple’s database files on the iPod classic and iPod touch. Doing so allows for third-party utilities to access information on the iPod, which is particularly useful for those who want to use their iPods on Linux, since there’s no version of iTunes available for that platform.
) for the Kate kpart as done in the feature plan for KDE 4.2. It feels a bit weird to mark it as done, though, as there are tonnes of things I want to implement after KDE 4.2.
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