Software patents

Microsoft v. Barnes & Noble: Trivial patents lawsuit?

• Groklaw – Barnes & Noble Exposes Microsoft’s “Trivial” Patents and Strategy Against Android ~pj Updated
  

  Barnes & Noble has done the world a tremendous favor, by pulling aside the curtain and revealing Microsoft’s patent campaign tactics against Android in lurid detail.

  It reveals the assertion of “trivial” and “invalid” patents against Barnes & Noble and some shocking details about an “oppressive” license agreement that would have controlled hardware and software design features that Microsoft presented, thus limiting to what degree Barnes & Noble could offer upgrades and improved features to its customers if it had signed it, features it says none of Microsoft’s patents cover. Microsoft worked so hard to keep it all secret, and I think you’ll see why. It’s ugly behind that curtain.

• Barnes & Noble’s 29-page slide deck calls B.S. on Microsoft’s Android patent campaign – GeekWire
  

  A 29-page slide deck — made public this week in Microsoft’s patent lawsuit against Barnes & Noble — outlines, in great detail, the bookseller’s objections to the software company’s campaign to collect patent licensing fees from Android device …

Patents in the multimedia realm have always been an issue; recently with the battle for HTML5 video codecs between H264, backed by Apple and Microsoft, against Theora and WebM backed by Google, Opera, Mozilla and others. A lot of media and PR from proprietary companies tried to discredit Free Software technologies by means of patent infringement threats. This article about the Xiph.org foundation shows what legal strategy can be pursued; and how much this draws back innovation.

• Xiph.org’s “Monty” on codecs and patents [LWN.net]

  One way to combat that is to document why the patents don’t apply. Basically, Xiph did enough research to show why the Qualcomm patents don’t apply to Opus and it is planning to release that information. It is a dangerous strategy at some level because it gives away some of the defense strategy, he said, but Xiph has to try something. By publishing the results of the research, Xiph will be “giving away detailed knowledge of the patents” and may be called to testify if those patents ever do get litigated, but it should counter the belief that the Qualcomm patents cover Opus.

  […] regardless of how Qualcomm responds, Xiph has something concrete (i.e. the research) for the money that it has spent, which is not really the case when taking the declaratory judgement route.

  New codecs:
  […] Finishing the Opus rollout and “responding to patent claims” have been higher on the list, but they will get to it eventually.

Software and copyrightability

• Android’s Bionic Problem Is Not “Bogus”: Why Judge Alsup Got It Right And Linus Torvalds Got It Wrong

  In September, federal judge William Alsup denied Google’s request for a ruling that the Java application programming interfaces (“APIs”) were, categorically, not protected under copyright law[...] Judge Alsup ruled that each of the disputed files must be analyzed individually to determine whether it is protected by copyright. He also ruled that even if the individual files are ultimately determined not to be copyrightable, the selection and arrangement of those unprotected elements may nevertheless show creativity that is entitled to copyright protection. [...]

  That analysis leads me to the conclusion that Google’s approach doesn’t work. But if it does work, if the guardians of the Linux kernel and the GPL believe that it is acceptable to use an automated process to “clean” GPL’d headers or code so that you can re-distribute them under a non-copyleft license

• Groklaw – Oracle v. Google – How to Proceed on the Copyright Issue II
  

  Oracle is not claiming that the code that implements the APIs infringes. See 9/15/11 Tr. at 51 (“We are not claiming that this code is not an—that this code is not an independent implementation.”). Instead, it appears to be claiming that Google’s code is an infringing derivative work of Oracle’s specifications because the Android source code implements the APIs described by those specifications.

IT news of legal interest

A newcomer in the very competitive “App Store” landscape.

Undeniably the most surprising news this week is Microsoft’s contribution (licensed as GPLv3) to Samba, free software for workgroups and a direct competitor to Microsoft Windows Server (Active Directory, print services, network storage, etc.). Note that this is not part of Microsoft’s agreement resulting from the EU case.

• Microsoft contributes open-source code to Samba | ZDNet
  

  “As Chris Hertel of the Samba Team wrote, “A few years back, a patch submission from coders at Microsoft would have been amazing to the point of unthinkable, but the battles are mostly over and times have changed. We still disagree on some things such as the role of software patents in preventing the creation of innovative software; but Microsoft is now at the forefront of efforts to build a stronger community and improve interoperability in the SMB world.”

  “[Jeremy Allison] continued, “Now if they’d only stop threatening OSS over patents, and just tried to make money with it the same way everyone else does by building it into products (they’re nearly there I think), I think we could finally bury the hatchet .””

• An update on UEFI secure boot
  

  “The worst-case scenario — a flood of “restricted boot” systems hitting the market that are incapable of booting Linux or anything other than signed Windows 8 — does seem unlikely. But we’re a long way from Garrett’s proposal as well. Users interested in complete control of their systems will need to keep an eye on this process, and make sure that OEMs are aware that having the ability to disable secure boot is not enough. In order to truly control your system, you must have a way to install your own trusted keys as well.”

Anti-trust and patents

• EU Commission probes Samsung, Apple over patents | Reuters

  The first part of the article recaps the EU Commission’s declaration, in some context.

  “EU regulators are investigating whether Samsung Electronics Co Ltd and Apple Inc may have breached EU antitrust laws with patent infringement claims in their global legal battle over the lucrative smartphone and tablet market.

  “The two technology companies are embroiled in more than 20 legal disputes in 10 countries.”

Procurement

• Cabinet Office (UK) – Open Source Procurement Toolkit

  “The Government ICT Strategy states that “Where appropriate, Government will procure open source solutions.”

  “To support this, Action 3 of the Strategy says that “To create a level playing field for the use of innovative ICT solutions, the Government will publish a toolkit for procurers on best practice for evaluating the use of open source solutions.”

  “The purpose of this toolkit is to ensure that there is a level playing field for open source and proprietary software and that some of the myths associated with open source are dispelled. It is intended for those who need to consider, evaluate or procure open source solutions as well as anyone just wanting to know more about open source.”

Patents: UK & US

• UK Patent Case Lowers Bar on Utility (Industrial Application) – Patent Law Blog

  “This decision focuses on EPC and UK version of the utility doctrine — the requirement that a patentable invention be “susceptible of industrial application”. In a unanimous decision, the court determined that US utility doctrine creates an unduly high bar of patentability. Thus, rather than requiring proof of specific, credible, and substantial utility at the time of filing, the UK court agreed that HGS’s genetic sequence coding for Neutrokine-α was patentable even though there was no known use of the protein at the time the patent application was filing.”

• Promoting Innovation and Competitive Markets through Quality Patents | The White House
  

  “We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions.”

• Groklaw – Changing the Software Patent Landscape in the U.S. – What won’t work
  

  “Why not start a petition aimed at Congress, […] and why not aim for enough signatures to really get their attention. Say, a million. That would be a critical mass they would ignore at their peril. Apart from Congress, the single best hope for narrowing the scope of or eliminating software patents in the U.S. will have to come through the court system, ala Bilski. But it will take just the right case at just the right time, and it will require a tremendous amount of fortitude on the part of the Supreme Court justices who could face wiping away billions of dollars of book value from corporate balance sheets in one fell swoop. If you want to understand a bit more about the arguments that can be made along these lines, read the amicus brief filed by Red Hat in the case.

  “And let’s not let the Administration off the hook altogether. The Justice Department is responsible for enforcing U.S. antitrust (competition) law

Court cases: Spain

• Spanish Firm Wins Tablet Case Against Apple

  “A small Spanish company has won a legal case against Apple Inc. and will now be able to sell a tablet computer that the U.S. technology giant had claimed infringes on the iPad patent.

  “The case, which represents a rare defeat in Apple’s globe-spanning campaign to protect its leadership in the lucrative tablet market from alleged iPad copycats, was launched a year ago when Apple obtained an injunction from a local court to ban imports of the NT-K tablet computer into Spain. […]

  “But in a recent ruling, a Spanish court removed the injunction, arguing that there are no legal grounds to stop the sale of the NT-K, according to court documents.

  “Nuevas Tecnologias said it plans to file a lawsuit asking for compensation from Apple for the losses incurred. Apple didn’t immediately respond to a request for comment.”

Free Software and patents: Microsoft licensing of Android

Summary: With its tenths patent license agreement related to Android, Microsoft now claims to have covered more than half Android devices. 

• Microsoft’s New Patent Agreement with Compal: A New Milestone for Our Android Licensing Program

  “Today, Microsoft  announced its tenth license agreement providing coverage under our  patent portfolio for Android mobile phones and tablets. Today’s  agreement is with Compal, one of the world’s largest Original Design  Manufacturers, or ODMs. Compal is based in Taiwan, where it produces  smartphones and tablet computers for third parties, and has revenue of  roughly $28 billion per year.

  Today’s announcement marks Microsoft’s ninth Android agreement in the  last four months. More important, today’s announcement means that  companies accounting for more than half of all Android devices have now  entered into patent license agreements with Microsoft.”

• Microsoft collects license fees on 50% of Android devices, tells Google to “wake up”

  “After signing patent licensing  agreements with 10 Android vendors, Microsoft claims that it now  collects licensing fees for more than half of all Android devices.

  Across all types of  computing systems, Microsoft has entered into 1,133 agreements to  license its patents to other companies. Regarding Android specifically,  Microsoft has sued vendors that haven’t paid up, including Motorola,  whose mobile division is in the process of being purchased by Google.

  You are probably wondering which Microsoft patents have allowed  Microsoft to sign up all these vendors to license deals. While all the  details of licensing agreements aren’t made public, Microsoft’s  Android-related patents have been revealed in lawsuits. Examples include  patents related to “implementing both long and short file names in the  same file system,” a monitoring system that determines when to erase  memory from flash memory devices, and patents related to managing  contact databases and meeting requests.”

“SecureBoot,” UEFI and non-Microsoft operating systems

Summary: With the announce of Windows 8 requiring UEFI (the successor of BIOS), Microsoft have raised concerns about the probability that non-Windows operating systems will be impossible or unreasonalby difficult to install. However, at this stage, it is difficult to really know what will be required of OEMs.

• UEFI secure booting (part 2)

  “What does this mean for the end user? Microsoft claim that the customer  is in control of their PC. That’s true, if by “customer” they mean  “hardware manufacturer”. The end user is not guaranteed the ability to  install extra signing keys in order to securely boot the operating  system of their choice. The end user is not guaranteed the ability to  disable this functionality. The end user is not guaranteed that their  system will include the signing keys that would be required for them to  swap their graphics card for one from another vendor, or replace their  network card and still be able to netboot, or install a newer SATA  controller and have it recognise their hard drive in the firmware. The  end user is no longer in control of their PC. […]

  The final  irony? If the user has no control over the installed keys, the user has  no way to indicate that they don’t trust Microsoft products. They can  prevent their system booting malware. They can prevent their system  booting Red Hat, Ubuntu, FreeBSD, OS X or any other operating system.  But they can’t prevent their system from running Windows 8.

  Microsoft’s  rebuttal is entirely factually accurate. But it’s also misleading. The  truth is that Microsoft’s move removes control from the end user and  places it in the hands of Microsoft and the hardware vendors. The truth  is that it makes it more difficult to run anything other than Windows.  The truth is that UEFI secure boot is a valuable and worthwhile feature  that Microsoft are misusing to gain tighter control over the market. And  the truth is that Microsoft haven’t even attempted to argue otherwise.”

• The Linux Foundation has issued a white paper on the subject with Canonical.

  • http://www.linuxfoundation.org/publications/making-uefi-secure-boot-work-with-open-platforms
  • http://blog.canonical.com/2011/10/28/white-paper-secure-boot-impact-on-linux/

IT Legal news of interest

• How To Respond To A Cease & Desist Letter | Intellectual Property Watch

  This article mostly focuses on patents in the US, and some strategic advice may differ in other jurisdictions, such as in the EU.

  “US companies are generally  known to be much more litigious than non-US companies. Thus, if you are a  non-US company looking to enter the US market, it is prudent to  understand the nuances of responding to a cease and desist letter. While  cease and [...]  

  First, if you have a  legitimate reason for why you do not infringe the patent, consider  filing a Declaratory Judgment of non-infringement. This brings the  matter into court, but allows you to pick a more desirable venue. In the  alternative, if you wait for the US patent owner to sue you for  infringement, you may wind up in a less convenient location. This option  may be less desirable if you want to avoid litigation at all costs, but  it may be a good option to resolve the matter if the issue is  negatively affecting your business.”

• Apple Must Prove iPad Patent Is Valid In Samsung Suit

  “Apple must prove that their iPad patents are valid in the US Federal Court case against Samsung. […]

  Specifically, the “court  believes that the iPad patent is invalid”. That minor statement has  shifted the burden of this case away from Samsung and back to Apple. If  they are not able to prove to the satisfaction of the court that they do  indeed have a valid patent for the iPad, it could undermine their  entire case against Samsung.”

• Righthaven hit with largest fine yet: $119,488

  “Federal judges have not taken kindly to Righthaven’s “sue your way to success” business model. […]

  Nevada’s homegrown  copyright troll, Righthaven, started life with a plan to save the  newspaper business through infringement lawsuits—but nearly staggering  incompetence has left the company on the receiving end of fine after  fine from federal judges. Today, Righthaven was hit with a new fine for  $116,718 in legal fees and $2,770 in costs.”

• Legalis.net  | JURISPRUDENCES  | Cour d’appel de Paris Pole 5, chambre 12 Arrêt du 26 septembre 2011

  A  Court of appeal in Paris had to judge about a case on DRMs (Digital  Restriction Management). This case is specifically about a company  selling “linkers”  for video-games consoles (Nintendo DS and Nintendo Lite) that are aimed  at circumventing “technical measures of protection” (DRMs in 2006  French law DADVSI) in most cases (thus aiding copyright infringement).

  “Considérant  qu’il  apparaît ainsi, que le délit de commercialisation de moyens de  nature à  porter atteinte à une mesure technique de protection d’une  œuvre est  établi en tous ses éléments à l’égard de Messieurs G. M., R.  L.et Z. et  de Madame J., dans les termes de la prévention, ces derniers  ayant une  parfaite connaissance que les linkers qu’ils vendaient  étaient  essentiellement destinés à permettre la lecture de copies non  autorisées  de jeux Nintendo, sur les consoles Nintendo DS et Lite, peut  important  qu’ils n’en soient pas les fabricants ; que de même ces  derniers  professionnels dans le domaine des produits informatiques ne  pouvaient  ignorer que les linkers étaient munis d’un dispositif  frauduleux  permettant de casser les codes mis en place par la société  Nintendo et  ainsi de contourner les mesures de protection ;”

  “Considérant  dès lors que les prévenus, en fournissant à leurs clients le  moyen de  commettre une contrefaçon, savaient au moment de leur  livraison que les  utilisateurs allaient en faire un usage frauduleux  dans la grande  majorité des cas ;”

Legal misc

• The IPKat: Past historic 1: how patents for invention came from Venice to England… 

  “The English Patent as a  Reward for Invention: the Importation of an Idea”, was first published  in 1983 in the Journal of Legal History, but the version which appears  here is a reprint which was published the same year in the European  Intellectual Property Review. Its thesis is that the Venetian Patent Law  of 1474 — which is so often and so irrelevantly cited in so many  articles which have crossed his desk over the years — was probably the  inspiration for the petition of Jacobus Acontius to Queen Elizabeth for  protection for his own invention.”

• Is your online game gold real? | Virtual Navigator 

  An interesting article about property and “online property”– questions raised by games such as World of Warcraft or Second Life, etc.

  “Finally, this debate has  been going on for a while because no one has definitively answered the  questions we have raised.  To be blunt, no one has really tried all that  hard, mostly because the law is pretty well tilted toward the creators  of the virtual worlds and social games that most virtual items appear  in.  It’s all in the contracts you read and agree to before signing up.   Which is why I think there needs to be a better system in place to  encourage and enable people to read the standard form contracts that we  see on everything these days.  We, as Americans, have gotten so used to  these annoying windows full of text that stand between us and the cool  service just beyond that we forget that they almost completely replace  the laws and protections we ordinarily expect to prevail.  I think it’s  an important debate and just because I point out questions that don’t  have good answers doesn’t mean that they shouldn’t have been asked in  the first place.”