The patent litigation system is getting rusty, must go away

Summary: Opposition to software patents appears to be on the rise and Microsoft's lawsuits against Linux distributors (whom Microsoft just cannot compete with) contribute to this opposition; Google and Red Hat are encouraged to abolish software patents altogether, not adapt to them

"I’m trying to think of another business,where breaking the law is a necessary part of the business model," explains this person whose article "Start-ups in the maze of software patents" sheds light on the real benefactors of the patent system:

Have you ever thought about patenting a pop up note, an online poll, a leaderboard in an online game, or a system where you open apps by clicking icons? I have some bad news for you – it’s impossible. Not because the claim is stupid, it’s just that all of those things are already patented (take a look here, here, here, or here).

And it’s all fun and factoids, until one day you find yourself in the role of a software start-up, looking down the long black tunnel of software patenting, leading from Happy Town to Reality Check Station in Breakdown City.

Alexandra Weber Morales argues that the Supreme Court should care about software patents. Really, it's about time something is done about it. Having addressed the Bilski case, there seems to be not enough precedence to block similar patents from being granted and it's "iculous software patents," as Slashdot calls them, that turn into "a developer's Nemesis".

Things are not quite as the propaganda puts it -- propaganda which typically comes from patent lawyers and lobbyists (working for large aggressors). Those who can benefit from software patents require a lot of patents, otherwise they can easily be defeated in court; everything infringes on everyone else's monopolies and even Red Hat saw the need the get some patents, for what it claims to be defensive purposes. Sean Michael Kerner discusses a subject mostly brought up by Microsoft boosters who are openly hostile and very combative against Red Hat; he reassesses Red Hat's relationship with software patents. We touched this subject before [1, 2, 3, 4, 5], concluding that Red Hat must change its attitude.

Red Hat played a role in the patent fight in Europe back in the days. It even funded Microsoft Florian, who recently defected to clients on the other side on the face of it. To recall some of the things which happened back in the days, one blogger writes:

For years, the free software movement rallied European citizens and small and medium businesses to reject a very bad directive on patentability of ‘computer implemented inventions’ (in other words, software) that would have damaged society in the long run. We managed to coordinate a strategy between different organizations, like FFII and FSFE. The movement succeeded in building a vast coalition of supporters against the directive, across the political spectrum. We isolated European giants SAP and Nokia, left alone to support a directive that appeared to be written by US-based multinationals.

The FFII has also just responded to Microsoft's latest attack on Linux -- an attack which is of course using software patents. "We predicted years ago that Microsoft would go after Linux challengers with software patents", the FFII's president, Benjamin Henrion, is quoted as arguing and to quote the entire thing (from E-mail).

Patent wars on - Microsoft sues Android retailers ===========================================================

Berlin, May 25rd 2011 -- This week Microsoft sued the retailers Barnes&Noble, Foxconn and Inventec for distributing devices using the Android platform. The Android is a Linux derivate from Google. It is the most recent lawsuit in a battle of dominance on the tablet and smartphone market.

“"We predicted years ago that Microsoft would go after Linux challengers with software patents”
      --Benjamin Henrion"What a desperate sales argument to sue retailers which use a competing platform. It's 'Take our platform or get sued'. Patent war is on. I am inspired by products like Openmoko and Android, not libel and lawsuits.", finds FFII vice president Rene Mages.

"We predicted years ago that Microsoft would go after Linux challengers with software patents", explains FFII president Benjamin Henrion. "It shows how patents stifle innovation".

The FFII has a track record of making contructive proposals for reforming the patent system to eliminate software patent threats for developers.

=========================================================== Patents ===========================================================

U.S. Patent 5,778,372 "Remote retrieval and display management of electronic document with incorporated images" U.S. Patent 6,339,780 "Loading status in a hypermedia browser having a limited available display area" U.S. Patent 5,889,522 "System provided child window controls" U.S. Patent 6,891,551 "Selection handles in editing electronic documents" U.S. Patent 6,957,233 "Method and apparatus for capturing and rendering annotations for non-modifiable electronic content"

=========================================================== Links ===========================================================

Microsoft press release http://www.microsoft.com/presspass/press/2011/mar11/03-21corpnewspr.mspx

Complaint for patent infringement http://www.geekwire.com/wp-content/uploads/2011/03/msvbandn.pdf

Stop Software Patents in the EU petition http://www.stopsoftwarepatents.eu

Permanent link to this press release: http://press.ffii.org/Press%20releases/Patent%20wars%20on%20-%20Microsoft%20sues%20Android%20retailers

=========================================================== Contact ===========================================================

FFII Office Berlin Malmöer Str. 6 D-10439 Berlin Fon: +49-30-41722597 Fax Service: +49-721-509663769 office at ffii.org

Benjamin Henrion FFII Brussels +32-484-56 61 09 (mobile) bhenrion at ffii.org (French/English)

=========================================================== About FFII ===========================================================

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

Microsoft's lawsuits are actually a sign of failure according to some people's views:

It’s pretty clear that Microsoft, a many-time failure at mass-market tablets has decided that if they can’t beat Apple and Android at popular tablets, they’ll sue them instead. That’s my only explanation for Microsoft suing Barnes & Noble, Foxconn, and Inventec over their Android e-readers.

Vista Phony 7 is still grappling with copy and paste, so Microsoft realises it simply cannot compete by making new products. More Microsoft partners are getting fed up too. Expensify's CEO explains 'Why We Won't Hire .NET Developers' and "Phone maker publicly says ‘No’ to WP7", as we noted earlier this month.

The Consumerist says: "Microsoft says Barnes & Noble isn't licensing the concepts that others, such as Amazon and HTC, pay Microsoft to use." It's just extortion. As noted here before, it's easy to debunk Microsoft's contention and as Tim noted before, it just shows how Microsoft really feels about "open source" and competition in general, namely:

Again I find myself making the observation that Microsoft’s future appears rather more in the courtroom than actual products on shelves. A rather sad state of affairs? Is Microsoft the dog that sits under the table in the hope that someone will take pity and throw it a scrap of food? I’ll let you decide.

Rob Pegoraro writes (about Microsoft and also Apple): "Throwing out ill-founded software patents is the solution. Until that happens, Microsoft may collect some extra royalty fees from companies like Amazon and HTC that find it easier to settle than to slug things out in court. But the company certainly won't be earning any respect for this move."

"Robocast Sues Apple For Infringing Its ‘Automated Browsing’ Patent," says another headline about another patent, "which is, of course, utterly trivial," says Glyn Moody.

Apple is on the receiving end of yet another patent infringement lawsuit. A company called Robocast alleges that Apple has willfully incorporated its patented automated browsing technology in a number of products, including iTunes, Apple TV and Front Row, without licensing their ‘invention’.

Robocast, which was founded by Damon Torres, who claims to have pioneered the use of automated web browsing in the nineties, has earlier sued Microsoft on similar grounds.

The court documents offer a fascinating read – as far as I’m concerned – so I’ve embedded them below.

In other news, from CNET, "U.S. backs I4i in patent case against Microsoft" (showing that Microsoft does not respect software patents, either, wilfully infringing some). Microsoft is trying to portray Google as some kind of firm that disrespects so-called 'intellectual property'. Aoife White writes about Google's latest patent-promoting move and "Google gets patent for its doodles" says another CNET headline:

And yet I still found myself sensing a momentary twitch of the single gray hair between my eyebrows when I heard that Google had been awarded a patent for its doodles.

Sometimes Google seems to be fighting against software patents, just like Red Hat. But at the same time both companies show no true commitment to such a goal, as we repeatedly showed before. Microsoft has just paid Nortel $7.5 million for IPv4 addresses, whereas Google considered buying Nortel's patents. "Google hasn't said what that means. But it appears to involve calling on the services of Quinn Emanuel Urquhart & Sullivan's Charles Verhoeven to help fend off the complaints," states this new article, adding context later:

Verhoeven, who helped Google win several patent trials last year, has appeared on behalf of HTC Corp. or Motorola Inc. in four of the five Android-related suits filed at the International Trade Commission and in more than a half-dozen suits in federal court.

One of the most closely watched is Apple's ITC claim against HTC, which is set for trial next month. Verhoeven and his firm joined the defense in August.

Neither Verhoeven nor his clients will confirm or comment on the arrangements under which he's appeared on their behalf. "A lot of people like Charlie," said Michelle Lee, who heads patent litigation at Google. She referred further questions to Google's press office, which declined to comment.

Rather than concentrate on making products and hiring engineers Google is now wasting effort on lawyers and patents. Who does this benefit? But more importantly, it sometimes seems like there is internal tension between the lawyers and the engineers in companies like Red Hat and Google (the lawyers justify their existence by harbouring patents). This ought to be resolved. ⬆