Bonum Certa Men Certa

Why Google Will Invalidate Linux-Hostile Patents

Crosswalk



Summary: Explanations given to clarify that Linux is not under siege and that OIN helps deter Microsoft, leaving it using patent trolls and proxies for the attempted taxation of GNU/Linux

Microsoft feeding patent trolls with "anti-Linux patents" (not our own term but a term that was widely used at the time) is not a conspiracy theory, thanks in part to proof obtained by the OIN and the Linux Foundation [1, 2, 3, 4, 5, 6]. As we showed before, the patent troll-led MPEG-LA is batting for Microsoft's and Apple's benefit, directly aiming at Google as well (there is reactive defence from Google). Google's GNU/Linux servers, the free codec, the free Web browser, and Android are some of the lucrative targets these days. It is a subject which we tackled repeatedly over the past week [1, 2, 3], more latterly because of Microsoft Florian and his FUD about a patent ruling which will most probably be overruled.



Here are some interesting details about the source of the lawsuit:

Can't let it pass without comment: A mystery-company called Bedrock Computer Technologies sues Google in the Eastern District of Texas for infringing on a patent. And that patent names Linux! It's also going after Yahoo, MySpace, Amazon, PayPal, Match.com, and AOL (What??? Does AOL use Linux?).

You can just about throw a dart and hit a tech blog reblogging the story today, but I like Steven J. Vaughan-Nichols & Paula Rooney's take on it the best: "Idiotic Anti-Linux & Google Patent Decision" says it all.

It's almost a parody of a patent troll case. "Bedrock Computer Technologies" has a website, and what's on that home page? A showcase of technologies for sale by them? A shopping-cart section where you can actually buy something from them? Nope, just an Art-Deco logo straight out of Atlas Shrugged, linking to an email drop - I take it whomever's job it is to read the mail from that drop is having a jolly time hosing it out today. Bedrock is a patent troll, and they don't give a thin damn who knows it.


Given the geography of the case and given the depth of Google's pocket, this is more noise than signal. This will go away. It is a timely lesson, however, regarding the ridiculousness of software patents and it can rekindle this important debate.

Well, guess what? Even Microsoft boosters acknowledge that it's not as serious as Microsoft Florian tried putting it and Groklaw has this productive suggestion and constructive response which seeks to eliminate software patents as a whole. It is the only real solution. From the introductory summary:

This article provides a detailed factual explanation of why software is mathematics, complete with the references in mathematical and computer science literature. It also includes a detailed factual explanation of why mathematics is speech, complete once again with references. My hope is that it will help patent lawyers and judges handling patent litigation understand these fundamental truths, so they can apply that technical knowledge to their field of skill.

Case law on software patents is built on a number of beliefs about how computers and software work. But as you will see, when you compare the technical facts presented in this article and in the authoritative works referenced, with expressions in case law on how computers and software work, you will find they are often in complete opposition. I believe this is a foundational problem that has contributed to invalid patents issuing.

If you are a computer professional, I hope you pay attention to another aspect of the article, on how the lawyers and judges understand software. This is critical to understanding their point of view. After reading case after case on the topic, I have concluded that the legal view of software relies on beliefs that are in contradiction with known principles of computing. Computer professionals explain their profession based on an understanding that is, on its face, the opposite of a few things the legal profession believes to be established and well understood facts. Moreover, the law is complex and subtle. Computer professionals don't understand it any better oftentimes than patent lawyers understand software, and so they can make statements that make no legal sense.

I believe that coming to a clear and fact-based definition of what an algorithm is can help both sides to communicate more effectively. So let's do that as well.


Brian Proffitt says that there is "no reason to worry about Linux" because this patent verdict can be overturned quite soon. To quote his column:

I was on the road in Boston late last week, and thus was unable to easily write something up on the April 15 jury finding in the case of Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al.

That's the catchy name for the patent infringement lawsuit launched in 2009 by Tyler, Texas-based Bedrock against Softlayer and CitiWare Technology Solutions, LLC, two Texas-based software companies, and a few firms that are decidedly not from Texas: Google Inc., Yahoo! Inc., MySpace Inc., Amazon.com Inc., PayPal Inc., Match.com, Inc., AOL LLC and CME Group Inc. The suit alleges that a patent that Bedrock owns, US 5,893,120, is infringed by the defendants in the suit, because such a method is employed by the Linux operating system and as major users of Linux, the defendants are liable for damages.

Back on April 15, after a five-day jury trial, the Federal jury in Tyler, Texas indeed found in favor of Bedrock and specified that Google owed the company a huge, staggering amount of $5 million in damages. (Yes, that was sarcasm.)

Patent law followers will note the location of the trial venue. The United States District Court Eastern District of Texas is well-known as a favored district for patent infringement suits. It is no coincidence, surely, that Bedrock's founder David Garrod opted to start his company, which exists only as a holder of patents like 5,893,120, in such a patent-friendly location.


Proffitt's former colleague, Sean Michael Kerner, reminds us of the role played by the OIN, which has no built-in immunisation against patent trolls (e.g. those whom Microsoft feeds), unlike large companies that wage patent wars under different rules. To quote Sean:

Patents remain a source of risk for the open source ecosystem, though the Open Invention Network (OIN) is doing its' part to help reduce the risk.

The OIN launched back in 2005 as a group tasked with acquiring patents and then licensing them back to the open source community on a royalty-free basis.

OIN has continued to grow over the years, and for the first quarter of 2011, the group grew by over 70 new licensees including HP, Facebook and Juniper Networks.


Since those who bemoan Linux (and constantly spread patent FUD about it) also smear the OIN, surely there is something about the OIN which worries Microsoft; it acts as a deterrent. For example, Microsoft is not suing OIN members for patent violations, assuming they join early enough, unlike TomTom. The monopolist can use patent trolls to file these lawsuits however. Microsoft is, after all, the genesis of the world's biggest patent troll. It cannot deny this fact.

"In a world where there are $500 million dollar patent infringement lawsuits imposed on OS companies (although this is not completely settled yet), how would somebody like Red Hat compete when 6 months ago they only had $80-$90 million in cash? At that point they could not even afford to settle a fraction of a single judgment without devastating their shareholders. I suspect Microsoft may have 50 or more of these lawsuits in the queue. All of them are not asking for hundreds of millions, but most would be large enough to ruin anything but the largest companies. Red Hat did recently raise several hundred million which certainly gives them more staying power. Ultimately, I do not think any company except a few of the largest companies can offer any reasonable insulation to their customers from these types of judgments. You would need a market cap of more than a couple billion to just survive in the OS space."

--SCO's Strategic Consultant Mike Anderer

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