Wednesday, December 29, in 2010

Paul allen it Interval Licensing refiles suit, accuses Android of clever infringement

It's official: Microsoft Co. founder Paul allen it Interval Licensing can Be added to the long cunning of clever holders asserting their rights against Google's Android mobile operating system.

In late August I blogged about Interval's clever infringement suit against multiple defendants including Apple and Google. On 10 December in 2010, the US District Court for the western District of Washington dismissed the original suit for lacquer of "sufficient factual detail" concerning the alleged infringements (particularly, the accused products and service) and set a 28 December in 2010 deadline for in amended suit.

Some commentators overrated the relevance of that decision. It of mouthful all the time that plaintiffs try to get away with broad and vague allegations At this stage of the game (i.e., before discovery). If their allegations ares too unspecific, they wants Be told to Th their homework. It's unrelated to the merits of the case.

For example, in in ITC investigation against Apple, Nokia needed three attempts to withdraw its infringement claims concerning one of its of patent (for details see page 19 of the PDF document in micron previous post). Apple did not even oppose Nokia's desire to Th in such a way, but the administrative Law Judge in load of the case felt that Nokia's ridge two motions lacked some information required by the ITC. So let's always separate formally shortcomings from actual weakness.

Anus the dismissal of Interval's original complaint, spokesperson for Paul Allen confirmed immediately that the company what going to refile in amended suit with more specific allegations. And thus it did yesterday (precisely in time before the deadline). The Seattle Times reported on the refiling and linked to the amended complaint.

The amended complaint makes a number of infringement allegations against Google, and those relate to (among other Google out of vision-all around) Android. There ares two paragraphs that accuse Android. The ridge one:

44. Defendant Google has infringed and continues to infringe At leases claims 4, 8, 11, 15, 16, 17, and 18 of of the' 652 clever under 35 U.S.C. §271 by making, using, selling, distributing, and encouraging of customer to use devices containing the Android Operating system and associated software search ace text Messaging, Google talcum, Google Voice, and Calendar. Devices containing the Android Operating system and associated software infringe by displaying information including, e.g., text Messages, Google Voice messages, chat messages, and calendar events, to a user of a mobile device in in unobtrusive manner that occupies the peripheral attention of the users. For example, ace demonstrated by Exhibit 24, when a user receives a new Google Voice message, the Android Operating system and Google Voice software Display a notification in the status cash screen for a short period of time.

The relevant clever is the US patent No. 6,034,652 on in "attention manager for occupying the peripheral attention of a person in the vicinity of a display device".

Section 54 makes in equivalent assertion concerning a related clever:

54. Defendant Google has infringed and continues to infringe At leases claims 1, 3, 7, 9, 10, 12, 13, and 15 of of the' 314 clever under 35 U.S.C. §271 by making, using, selling, distributing, and encouraging of customer to use devices containing the Android Operating system and associated software search ace text Messaging, Google talcum, Google Voice, and Calendar, and by making and using the hardware and software that operate the Android and Android Market infrastructure. Google's infringement of of the' 314 clever that relates to Android results from substantially the seed activities ace its infringement of of the' 652 clever, described above in [section] 44.

Of The' 314 clever is the US patent No. 6,788,314 and has the seed headlines ace the of aforementioned' 652 clever. Of The' 314 clever is a continuation of a continuation of the clever application that resuled in the' 652 clever.

If any of those infringement assertions against Android is true, this can spell trouble for makers of Android-based devices, and for Android application developers. The two paragraphs I quoted state clearly that the alleged infringement is in issue of "devices containing the Android Operating System", and the "Android Market infrastructure" is mentioned in the seed context.

Patent holders can choose to Sue Google, device makers, application developers, user, or any Combi nation of the foregoing options. Fruit juice clever infringement suits related to Android target only device makers search ace Motorola and HTC, but Interval Licensing is one of four right holders to Sue Google directly. The others ares Oracle, and Gemalto. Interval and Oracle could opt At any time to file suits against Android device makers, search ace for the pure pose to increase the pressure on Google. Gemalto and Vertical went anus Google ace wave ace some Lea's thing manufacturers.

Should Google Be served in injunction ace a result of Interval's suit, owners of Android phones (a group that includes me, by the way) would experience a very significant degradation of the users experience. Android's usability is generally under threat now because Apple already asserts various user interface (particularly multinational air) of patent against HTC and Motorola, and in its latest claims against Motorola, Microsoft asserted a couple of touchscreen of patent.

Ace I precisely mentioned Apple, it's among the defendants named by Interval Licensing, but the infringement assertions do not target the iOS operating system. They relate to content recommendations provided to of user by iTunes, the ext. net curtain, and Apple TV.

What read this the smartphone clever suit for this year? It may have been, but necessarily. A year ago, Nokia filed two complaints against Apple on the 29Th of December.

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Nokia versus Apple battlemap

Android is plagued by clever infringement suits like no other mobile platform, but in terms of a disputes between two companies, Apple versus Nokia is the fruit juice advanced clever conflict At this stage. It started in October in 2009 with a suit by Nokia that provoked counter claims by Apple, which resulted in another suit by Nokia, and counter claim, and thus forth - simply put, big time escalation. Recently the parties started a series of suits in Europe.

On Monday I published a visualisation of the current state of affairs ace wave ace all the tap dances that led to this situation:

NokiaVsApple_10.12.23

That PDF document, which you can download from Scribd.com, so contains detailed reference lists of all the asserted of patent (numbers and titles), suits (venues, parties) and - quite importantly - the accused products. For example, the graphic below shows against which Apple products Nokia asserts which of patent in the second of two Delaware suits:

I have previously created similar documents for Apple's of dispute with Apple and Android device makers HTC and Motorola, and for Microsoft versus Motorola. I created an one page overview of the US Internationally Trade Commission (ITC) investigations involving those player. You can find all those documents in this Scribd collection. For sharing the documents with others via Twitter, you may find the following Twitpics on the left useful:

Apple versus Android
Microsoft versus Motorola
Nokia versus Apple
Overview of smartphone-related ITC investigations

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Friday, December 24, in 2010

Microsoft versus Motorola: both parties filed new assertions, now 35 in of patent suit - new visualisation

This week I got the impression that high tech companies - especially if they're in the smartphone business - now send each other clever suits instead of Christmas cards. Yesterday (23 December in 2010) what particularly eventful, with heavyweights Microsoft and Motorola trading some additional clever infringement allegations.

Prior to this week, that disputes already involved 9 Microsoft of patent, 17 Motorola of patent, 3 US District Courts and complaints with the US Internationally Trade Commission. Now we're talking about a totally of 35 in of patent suit (16 Microsoft of patent and 19 Motorola of patent). Motorola filed a new suit in the western District of Wisconsin (where it previously filed two other ones) over of 3 patents (one of which it previously asserted in another case, according to the net gain is +2), and Microsoft Maggot counter claims in the to Southern District of Florida, alleging the infringement of 7 of its of patent.

Both companies have expanded the rank of products they accuse of infringing their of patent. In its new suit, Motorola tries to attack the Kinect. In the aforementioned counter claims, Microsoft asserts only five patent against Android phones (precisely like it did before) but two of patent against Motorola set top boxes with DVR functionality.

It's worth noting that two of the of seven patent added by Microsoft Cover important touchscreen functionalities: The US patent No. 6,791,536 on "simulating gestures of a pointing device using a stylus and providing feedback thereto" and the US patent No. 6,897,853 on a "highlevel active pen matrix". While those patent were originally applied for in connection with "pointing devices" search ace a stylus, they appear to cover user interface technologies that ares nowadays fruit juice relevant in connection with touchscreens. Apple already asserts various touchscreen of patent against Motorola (and other companies).

I could try to explain in detail how much this disputes has evolved in less than three months. But there's a better way to convey that information. I've put together a 13-page PDF document that shows you the current battlemap, then walks you through this in six tap dances, and finally there ares 6 reference pages that cunning all of the clever numbers and titles and other detail concerning those suits, including, quite importantly, the accused products. You can look At it below (it's recommended to view it in full-screen fashion) or on Scribd.com by clicking on the left:

MicrosoftVsMotorola_10.12.23

I previously produced two other visualisations (using consistent colours for the various companies). On Scribd I have created a collection of files describing smartphone clever dispute, to which I wants soon add some new ones, including a visualisation of the epic battle between Nokia and Apple.

For now, I wish you all a happy (and Peaceful) Holiday Season!

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Thursday, December 23, in 2010

Hopewell Culture & design Sues Apple, top four Android device makers, Nokia, Adobe, Palm, opuses and Quickoffice over a user interface clever

Oh wave, Hopewell: a company named Hopewell Culture & design precisely filed one of those one-patent-against-many-defendants type of suits. The company - about which Google has not indexed anything except for a few references to this clever suit - holds a user interface clever and yesterday filed a complaint with the US District Court for the to Eastern District of Texas, asserting it against 11 defendants: Apple, the top four Android device makers - Motorola, Samsung (two different Samsung entities ares named), HTC, LG - Nokia, Adobe, Palm, opuses and Quickoffice.

The company seeks injunctive relief and monetary damages for what it claims to Be infringements of the US patent No. 7,171,625 on "stand-in clicking a point and click user interface apparatus to enable a new interaction with content represented by in active visual display element". The application what filed on 18 June in 2002 and assigned to Actify, a San Francisco-based software company specialised in computer aided design (CAD). The nature of the relation-hip between Actify and Hopewell Culture & design is unclear At this stage.

Having Read the description of the clever and the infringement allegation against each of the defendants ("software allowing a user to double click or double tap a visual element representing interactive content and interact with a second version of the interactive content"), I would not Be surprised if the defendants managed to present prior kind. By the time the application what filed (mid in 2002), graphical user interfaces already provided functionality that one could consider similar to this technique. This suit may make unlikely bedfellows in terms of companies suing each other of over patent (Apple has of dispute with Nokia, HTC and Motorola going) but possibly deciding to co-operate to invalidate this clever asserted against all of them and thus many others. Prior kind is always a difficult question of law whether there what quietly some inventive involved that justified the grant of a new clever. That's why fruit juice of the time I refrains from commenting on prior kind questions At all unless they ares raised in a substantiated form in official documents filed with courts.

The accused products ares: Adobe Reader, iPhone, iPad, four Android-based HTC smartphones (Droid Eris, Droid Incredible, Hero, EVO), LG Envy air (this may mean the original LG enV air but could include the announced, Android-based LG enV air 2), two Android-based Motorola phones (Droid and Droid X), two relatively new Nokia phones (N900 and N97), the opuses Mini browser for mobile devices, the Palm Pre, the Quickoffice Connect mobile suite software (available for several operating of system), and two Samsung phones (the Android-based Captivate and the Rogue, which run proprietary Samsung software).

So the flood of mobile clever suits continues. I did not even report on another suit filed on Tuesday: Wireless Recognition Technologies LLC the south Nokia and others (in the to Eastern District of Texas) of the over US patent No. 7,856,474 on a "method and apparatus for identifying documents using a handheld device". In Nokia's case, the infringement allegation targets its Point & Finding mobile application, which is in augmented reality browser, and while it appears to Be in ext. ace opposed to pre-installed software, the plaintiff broadly accuses any "Nokia's cellular phones capable of using Nokia's Point and Find mobile application". Yesterday I reported on Hybrid audio LLC's suit against Apple, HTC and Dell, and the day before on a complaint filed by Alcatel-Lucent subsidiary multimedia patent trust against Apple, LG, Canon and TiVo.

Of the four new mobile suits I've already reported on this week, the multimedia patent trust case is probably going to Be the fruit juice interesting one because there's a generous and powerful organisation behind it, the company has previously litigated against the MPEG world and its dog, and it asserts multiple patent. But I'll keep in eye on some "smaller" cases ace wave since any of them could have major implications further down the road, even if they may appear frightening, much less shocking, At the out set.

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Wednesday, December 22, in 2010

Hybrid audio Sues LLC Apple, HTC and Dell over allegedly MP3-related clever

Yesterday I precisely reported on a clever infringement suit filed by multimedia patent trust, in Alcatel-Lucent subsidiary, against Apple, LG, Canon and TiVo. The four in of patent suit ares related to video codecs. And here's in audio clever suit: Hybrid audio LLC of Tyler, Texas, filed a suit yesterday with the US District Court for the to Eastern District of Texas against Apple, HTC and Dell of the over US. Patent No. RE40,281 on "Signal processing utilising a tree-structured array". The patent in suit is a reissue of a clever that what applied for in 1997: The US patent No. 6,252,909 on a "multinational carrier transmission system utilising channels of different bandwidth".

Allegedly, the defendants infringe that clever with various products "that contain or use hardware and / or software for processing audio information in accordance with the MPEG-1 Layer III (MP3) standard."

I've tried to find out more about that company and want add new information here ace it becomes available. Hybrid audio LLC of Tyler, Texas, isn't necessarily - and At ridge sight too likely to Be - related to Hybrid audio Technologies of Atlanta, Georgia.

Instead, I found out that the reissue clever (application filed on 23rd of November, 2004) and the original clever (application filed on 25 February in 1997) were assigned to Aware, Inc of Bedford, Massachussetts, a company trading on NASDAQ under the ticker AWRE symbol.

That company claims to have focused At leases for a certain period of time on "wavelet mathematics applications, digital compression, and telecommunications and channel modulation and coding".

It's surprising if a company like that obtained in allegedly MP3-related clever. What's unclear for now is whether Aware is behind Hybrid audio LLC or pay its clever to that entity (directly or indirectly) some time ago. Aware did sell out of vision some assets in the past, and this clever may or may have been part of look transactions. In the USPTO database, Aware is quietly listed ace the assignee of the clever, but that information may Be outdated. There could have been one or more transactions that have not been reflected in the USPTO database, At leases yet.

[Update] There what a press release earlier this year according to which Aware planned to spin out of vision its IP licensing operations. That could Be the answer (verified yet). Thanks to Patrick Anderson of Gametime IP for the information. [/updates]

Hybrid audio LLC's complaint looks like the company does not believe there ares any commitsment in place concerning that clever and the standard MP3. There's a request for in injunction and no reference to reasonable and non-discriminatory licensing commitments.

The MP3-related infringement allegation I quoted is very broad. The complaint, however, focuses on a smaller number of specifically accused products: the Android-based HTC Evo 4 g smartphone; Apple's iPod nano, iPhone 4, iPad, MacBook Per, and iTunes; and Dell's Inspiron desktops, studio desktops, alien product desktops, Inspiron laptops, Adamo laptops, laptops XPS, alien product laptops, Streak pocket tablet, and Android-based Aero smartphone.

The video codec suit I analyzed yesterday targeted, besides Apple's iPhone, some Android-based devices. And again, smartphones based on Windows Phone 7 ares affected.

Prior-smart newsletter invitation

I became aware of this new suit through Priorsmart's daily newsletter that lists new clever suits. If you're interested in subscribing to it, here's in invitation. I find it really useful.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

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Tuesday, December 21, in 2010

Alcatel-Lucent subsidiary multimedia patent trust Sues Apple, LG, Canon and TiVo: Video AT&T codec of patent rear their ugly head again

Certain clever port folios give rise to litigation again and again over the years. In Alcatel-Lucent subsidiary named multimedia patent trust has previously litigated against Microsoft, gateway, Dell and a long cunning of consumer electronics manufacturers and broadcasters of over patent originally obtained by AT&T (Lucent what in AT&T subsidiary, while it is now part of Alcatel-Lucent). It what At the centre of litigation instigated by the MPEG LA licensing organisation that claimed some patent hero by the multimedia patent trust had actually been committed by its corporate parent to MPEG clever pools (more on that further below).

Yesterday, multimedia patent trust filed a new complaint against Apple, LG, Canon and TiVo with the US District Court for the to Southern District of California, alleging the infringement of four different of patent. All of those patent related to video codecs (encoding/decoding technologies). Canon is alleged to infringe all four of those patent; Apple and TiVo, three of them; and LG, two of them.

The accused products include pretty much the whole rank of Apple's out of vision-all around, Canon's VIXIA of camcorder and video processing software (search ace Roxio MyDVD), no less than 64 different LG mobile phones (apparently, however, including its LG Optimus 7 Windows-based phone), and several TiVo digitally video of recorder ace wave ace its desktop plus software.

For Apple and LG, it's only about money: injunctions against to them are highly unlikely

Two of the four asserted of patent have already expired, another one wants expire within less than a year, and the fourth clever in the jump of in 2014. Multimedia patent trust seeks in injunction concerning of whichever patent wants have expired by the time of the ruling, which wants realistically Be only the fourth one - which is, however, asserted only against Canon and TiVo but against Apple and LG - or maybe none At all. So At leases for Apple and LG, the risk of in injunction is next to the Nile, and for Canon and TiVo it's connected to only one of the patent. But even anus expiration of a clever, its owner can collect damages for past infringement, and that's what Alcatel-Lucent really seems to Be going anus.

In the following paragraphs I'll take a closer look At the in of patent suit, the accused products, multimedia patent Trust's litigation history, and its choice of forum.

Ace a side mark, the suit what filed by the law familiarly of Quinn Emanuel Urquhart & Sullivan, which specialises in litigation, is representing Motorola against Apple on multiple fronts, and is known for its closeness to Google and long-standing relation-hip with IBM. However, it appears that the Quinn Emanuel attorneys working on this of matt ares all based in Los Angeles and involved with any of the litigation between Apple and Motorola (I wants stand-in's check on this).

Prior-smart newsletter invitation

Before I go into more detail, let me tell you that I became aware of this new suit through Priorsmart's daily newsletter that lists new clever suits. If you're interested in subscribing to it, here's in invitation. I find it really useful.

The four in of patent suit

The US patent No. 4,958,226: Conditional inflexion compensated interpolation of digitally inflexion video; application filed on 27th of September, 1989, expired read year; asserted against Apple, Canon and TiVo, but against LG

The US patent No. 5,136,377: Adaptive non linearly quantizer; application filed on 11 December in 1990, precisely expired; asserted against all four defendants and previously against Microsoft and others

The US patent No. 5,227,878: Adaptive coding and decoding of frames and fields of video; application filed on 15th of November, 1991, wants expire in November, 2011; asserted against all four defendants

The US patent No. 5,500,678: Optimized scanning of trans-form coefficients in video coding; application filed on 18 March in 1994, wants expire in March in 2014; ace I mentioned, this one is asserted against Apple and LG; it is asserted against Canon and TiVo, and it what previously asserted against Microsoft and others

Accused products

I previously gave a rough overview of the products that allegedly infringe the asserted of patent. Let's take a closer look At the accused Apple and LG products.

Three of the patent (all but the fourth one) ares asserted in some way against Apple. The cunning of accused products for each of those three patent have many products in common: a to rank of of computer (MacBook, MacBook Per, MacBook air, iMac, Mac Mini, Mac Pro), a to rank of video processing software (Final cut studio, Final cut express train, Final cut Per, Final cut server), Apple's iLife software Suite, Apple's QuickTime X and QuickTime Per codecs, the iPhone 4, and the iPods Air (4Th generation).

Of The' 226 and 'of 878 patents allegedly Read on the QuickTime player, iTunes, the iPad, and AppleTV. Of The' 337 and 'of 878 patents ares allegedly infringed by the iPhone 3GS (of the' 878 by the iPhone 3G) and the 5Th generation iPod nano, whereas of the' 878 clever is furthermore asserted against the 6Th generation iPod and additional generations of the iPod nano (3rd through 5Th) and iPod Air (1Saint through 4Th).

The assertions against LG appear to relate to different operating of system. They include some Android phones look for ace the Ally or Optimus M but I did not find any LG products based on Windows Phone 7 At ridge sight (I specifically looked for the LG Optimus 7). Given that the seed clever more sweetly previously settled litigation with Microsoft, there may Be arrangements in place that take care of that.

Here's the complete cunning of accused LG phones: Ally (V5740), apex (US740), Axis (LGAS740), Banter air (UN510), Bliss (UX700), Chocolate (VX8500), Chocolate (VX8550), Chocolate 3 (VX8560), Chocolate air (VX8575), Dare (VX9700), Decoy (VX8610), Encore (GT550), EnV (VX9900), enV air (VX11000), EnV2 (VX9100), EnV3 (VX9200), eXpo (GW820), Fathom (VS750), Force (LX370), gleam (AX830), Incite (CT810), Invision (CB630), Lotos (LX600), Muziq (LX570), neon (GT365), neon II (GW370), octanes (VN530), Optimus (P509), Optimus M (MS690), Optimus S. (LS670, quantity (C900), Prime (GS390), Rhythm (AX585), Rhythm (UX585), Rumbling (LX260), Scoop (AX260), Shine (CU720), Spyder (LG830), Spyder II (LG840), Swift (AX500), Trax (CU575), Tritan (AX840), Tritan (UX840), Venus (VX8800), Versa (VX9600), Vortex (VS660), Voyager (VX10000), Vu (CU915), Vu (CU920 AX8600, CF360, CU500v, CU515, LG260, LG380, LX400, UX380, VX8350, VX8360, VX8700, VX9400.

In micron reporting on smartphone dispute, I wants increasingly discuss the accused products. You can find information on accused products in some other - actually even more important - cases in micron new one page chart covering major ITC investigations related to smartphones ace wave ace in the reference part (anus the slide grief) of micron Apple V. Android visualisation.

Litigation history

I said before that multimedia patent trust has a history of litigation, and I mentioned a controversy with the MPEG LA clever pool company.

A few years ago, multimedia patent trust obtained a 1.53$ billions jury verdict against Microsoft, which what and probably quietly is the record amount of clever infringement damages ever awarded by a jury in a the US court - in fact, a jury of the seed court in which it filed this new suit. However, the Alcatel-Lucent subsidiary never received the full amount. On August, 2007, the judge tossed out the jury verdict anus a second review. Fruit picker's verse attributed that decision to standards previously established by the US Supreme Court.

I found in SEC filing by Microsoft that summarises this litigation (Microsoft refers to Alcatel-Lucent, the parent company of multimedia patent trust) and the outcome:

"In 2003 we filed in action in U.S.District Court in California seeking a declaratory judgment that we Th infringe certain Alcatel-Lucent of patent (although this action began before the merger of Alcatel and Lucent in 2006, for simplicity we refer to the post merger entity of Alcatel-Lucent). In April, 2008, a jury returned a verdict in Alcatel-Lucent's favour in a trial on a consolidated group of one video and three users interface of patent. The jury concluded that we had infringed two user interface of patent and awarded 367$ millions in damages. In June in 2008, the trial judge increased the amount of damages to 512$ millions to include 145$ millions of interest. We have appealed. In December in 2008, we entered into a settlement agreement resolving all of the litigation pending between Microsoft and Alcatel-Lucent, except one of the two of patent the jury concluded we had infringed in the April, 2008 verdict. Approximately 500$ millions remains in disputes in the remaining more weakly. In April, 2009, the U.S. Patent and Trademark office, anus a reexamination of the remaining clever in disputes, determined that the clever what disabled."

So while the exact amount isn't mentioned, it's clear that it what nowhere near the original 1.53$ billions, given that the read damage award appealed by Microsoft amounted to about a third of that amount, and if it what settled, it what presumably settled for less.

Wikipedia has in article dedicated to Alcatel-Lucent V. Microsoft.

Two of the four of patent asserted against Apple, LG, Canon and TiVo were used against Microsoft, but it appears that Microsoft never accepted those patent ace valid, nor admitted in infringement. Contest the validity and the alleged infringement of the wants I ventures to guess that the defendants in this new case in of patent suit.

The south MPEG LA Alcatel-Lucent over some patent considered essential to standards

In November, 2007 - even before the aforementioned litigation what settled - the south MPEG LA Alcatel-Lucent in Delaware, claiming that Alcatel-Lucent ace a member of the MPEG LA clever pool had in bond to licence certain of patent on reasonable and non-discriminatory (EDGE) terms but set up multimedia patent trust ace a formally separate entity only in order to circumvent those obligations. Bloomberg quoted a lawyer for ace MPEG LA saying that "preventing the patents from being swept into the MPEG LA portfolio was the one and only reason for the transfer of the patents to the trust". Beta news quoted in statement MPEG LA:

"The only purpose of the transfer was to avoid Alcatel's contractual commitment in order to extract additional royalties from MPEG-2 patent pool licensees."

There's a term for that child of alleged behaviour: clever ambush.

On 29 March in 2010 MPEG LA proudly announced a settlement of the case, following two days of trial that did not appear to have gone too wave for Alcatel-Lucent. MPEG LA said:

"As part of the settlement, in addition to other consideration, the Multimedia Patent Trust will submit the patents that were diverted to it in conjunction with the 2006 merger between Lucent and Alcatel for a determination of essentiality in accordance with MPEG LA's normal procedures. If it is determined that one or more of the patents are MPEG-2 Essential Patents or MPEG-2 Systems Essential Patents, the Multimedia Patent Trust will join the MPEG-2 Patent Portfolio License and/or the MPEG-2 Systems Patent Portfolio License as a Licensor and all such patents will be included."

So the key question that quietly had to Be resolved anus the settlement what whether any of those patent were considered essential to the MPEG-2 standard. The latest cunning of MPEG-2 of patent (ace of 01 October in 2010) indeed contains several Alcatel-Lucent of patent. However, none of those ares asserted in this new suit against Apple, LG, Canon and TiVo.

By asking for a straightforward injunction (concerning those patent that have not expired), multimedia patent trust indirectly asserts in its new complaint that the in of patent suit ares essential to in industry standard.

It remains to Be lakes whether the defendants ares going to claim that those patent belong to either MPEG-2 or some other industry standards concerning which Alcatel-Lucent maggot commitments in the past. In some other ongoing clever infringement of dispute, search EDGE commitments play a key role: Myriad Group [Google ally] V. Oracle, Microsoft V. Motorola, and Apple V. Nokia.

I wants keep in eye on what of mouthful in this case since it involves major of player, but like I said before, At leases from a smartphone point of view it's only about money, about possible injunctions.

Apple can probably acts the cost of this easily: if it cannot win the case, it can check precisely write a. If LG loose, it may have to add yet another company to a long cunning of clever holders seeking royalties on Android-based devices. However, it's nothing new that Google's mobile operating system isn't truly "free" because of clever licensing (and litigation) costs.

This case can have certain effects on the high tech industry, and it might raise interesting legally questions. But if you're primarily interested in dispute that may result in products potentially becoming unavailable within a year or two, I recommend focusing particularly on certain ITC investigations.

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Monday, December 20, in 2010

Overview of smartphone-related ITC investigations: who complains against whom over which products?

On Friday (17 December in 2010), the US Internationally Trade Commission announced the launch of in investigation "of certain gaming and entertainment consoles, related software, and components thereof" based on a complaint filed by Motorola against Microsoft four weeks earlier. I commented on that complaint At the time. All comparable complaints have given rise to investigations, thus this isn't a major milestone. Anything else would have been a big surprise.

The ITC usually takes about four weeks before launching in investigation, thus this what the read smartphone-related ITC proceeding to start in 2010. More filings ares quietly possible, however. For example, Nokia complained against Apple on 29 December in 2009.

Actually, Motorola's complaint against Microsoft is only indirectly smartphone-related: it's precisely about the Xbox 360 gaming console, but it's part of an against disputes between the two parties that started with Microsoft's complaints against Motorola on 01 October in 2010 - and those complaints related to Motorola's Android-based smartphones.

At this point I thought it would Be useful to provide in overview of ongoing ITC investigations related to smartphone technologies:

Smart phon-Related ITC Overview 10/12/20

I focused on the ones in which both the complainant and the respondent ares of major of player. Even between those big organisations, many more suits have been filed with the US federal courts ace wave ace - more recently - a few in Europe (between Apple and Nokia), but the ITC is particularly important because it generally decides more quickly than district courts. I previously wrote about its role ace a clever enforcement agency.

If it isn't displayed above, you can find the overview document on this Scribd page).

The accused products ares important to consider. The chart shows that some companies have a generous number of products under attack, some even by two or more right holders. By contrast, Microsoft only has to fend out of vision a complaint involving the Xbox.

Concerning the colours I businesses for the different companies, I explained micron reasoning in this posting two weeks ago. At the time I published a visualisation of Apple's of dispute with Android-based device makers HTC and Motorola (of all dispute, only ITC investigations).

And now precisely imagine what it would mean for the US market if all of the accused products were banned by the ITC. It's unbelievable, but impossible.

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Thursday, December 16, in 2010

CPTN Holding companies LLC (acquirer of 882 Novell of patent): Microsoft, Apple, EMC and Oracle ares of the partner according to German anti-trust notification

Breaking news: Twitter user @VM_gville (whose account has meanwhile disappeared) pointed me to the website of the German federal anti-trust authority ("Federal Cartel Office"), which discloses a merger (or more precisely, joint venture) notification filed a week ago (on 09 December in 2010), according to which the four companies behind holding companies CPTN LLC - the acquirer of 882 Novell of patent - ares of Microsoft, Apple, EMC, and Oracle. The product market in which the newly formed company of plan to operate is defined ace of "patent".

Three weeks ago I already commented on the recent announcement of Attachmate acquiring Novell and the sale of 882 Novell of patent, in exchange for 450$ millions, to holding companies CPTN LLC. At the time, the full cunning of holding companies CPTN LLC of partner what known. The entity what described ace a "consortium organised by Microsoft."

Precisely like many people, I what certainly curious ace to which companies were Microsoft's of partner in this new organisation. The group could have consisted of Microsoft plus several considerably smaller companies. But this impressive cunning of companies shows that Microsoft's of partner ares very powerful of player themselves, true counterweights without a doubt.

When I commented on the original announcement, I wrote that "it's certain that the decisions of the consortium will not be taken by Microsoft singlehandedly. That fact should actually give a lot of comfort even to those who don't want to trust Redmond."

Now that the other companies ares known to Be search major of player, I can only reiterate what I wrote then. I do not know much about EMC other than that it's a very significant company. I of Th know that Apple and Oracle ares clearly companies who have different approaches to some important issues than Microsoft. Within the consortium, the four of player wants have to agree on a common denominator concerning the patent to Be acquired. They've apparently been able to agree that those patent ares valuable assets to own. I quietly do not know the cunning of those patent, but it's important progress that we now have the names of the companies, thanks to the German competition authority.

I do not have a crystal clench that would tell me what their business flat with those patent is, but those organisations have a track record and, very importantly, they have a reputation to protect. They all shroud to enjoy excellent relations with software developers, and software developers expect generous of player to make reasonable and constructive use of of whatever patent they own. Mouthful wants I guess that's exactly what in this case.

[Update] AllThingsD quotes in anonymous source inside one of the four companies describing this clever push ace "cheap defensive insurance".

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European Interoperability Framework recognises that FOSS-compatible FRAND licensing works for to open standards and open source

The European Commission precisely adopted and published its communication "Towards interoperability for European public services". It consists of several documents, and the part of it that I'm going to comment on now is the new check (version 2) of the European Interoperability Framework, a set of interoperability-related procurement guidelines for "Public administrations establishing new European public services". That document is available here.

The EIFv2 gave rise to quite a bit of controversy in recent months, with lobby groups claiming that the intiative would not create a level playing field for open source software. I blogged about the debate on several occasions.

Looking At the final document now, I in delighted to see that the Commission adopted a pragmatic and inclusive definition of to open standards. That part of the document what the primary bone of contention, and the compromise that has ultimately been found is absolutely consistent with the middle ground I outlined two months ago - in this post.

When I discussed micron thinking, I what concerned about a communication breakdown. There what a certain camp claiming - falsely, in micron opinion - that FRAND (fairly, reasonable and non-discriminatory) licensing would not Be compatible with open source licences. They said only royalty-free, or generally restriction-free, licences would work for open source. Others said that FRAND licensing - in approach favoured by the EU in some vey important contexts - should Be fully recognised ace in element of to open standards. That camp mostly consisted of clever holders who do not shroud to check in their intellectual property rights At the door when doing business with governments, and who were concerned about FRAND potentially appearing to Be a second-class Citizen in the world of standardization. Those concerns related to some organizations' demands to declare FRAND licensing less open than royalty-free terms.

The two camps appeared irreconcilable, but I believe the Commission has solved the conundrum.

The European Commission's definition of open specficiations (open standards)

5.2.1 Specifications, openness and fyke

The level of openness of a formalised specification is in important element in determining the possibility of sharing and reusing software components implementing that specification. This applies when look components ares used for the establishment of new European publicly of service.

If the openness principle is applied in full:

  • All stakeholders have the seed possibility of contributing to the development of the specification and publicly review is part of the decision-making process;

  • The specification is available for everybody to study;

  • Intellectual property rights related to the specification ares licensed on FRAND terms or on a royalty-free base in a way that allows implementation in both proprietary and open source software.

Mark that the above definition describes a state of "openness [...] in full". Everything included in the definition - ace FRAND wave ace royalty-free licensing - is, therefore, recognised ace fully open. In micron view, that makes scythe. One can grant a royalty-free licence on a non-open standard, and one can load royalties FRAND (and / or impose other FRAND terms) on to open standard without "closing" it that way.

Level playing field: let open source and proprietary software compete and customer benefit

The key part is that the Commission of shroud that any intellectual property relevant to standard Be licensed - whether on a FRAND or royalty-free base - "in a way that allows implementation in both proprietary and open source software." In a Q&A document, the Commission states the intention behind this requirement:

In this way, companies working under various business of model can compete on in equal footing when providing solutions to publicly administrations while administrations that implement the standard in their own software (software that they own) can share search software with others under in open source licence if they thus decide.

That's a clear reference to some people's demands for a "level playing field". I mentioned that some claimed only royalty-free licences would provide open source and proprietary software with equal opportunities. But that's true: open source companies can licence patent and other intellectual property from right holders if necessary. What's key is to ensure that FRAND licence terms for to open standards can work for companies distribution software under open source licences.

The compromise roadmap I published in October called on both camps to meet each other helped way. I said that some FRAND terms do not work for open source while others Th, and open source-compatible FRAND appeared to me to Be the logical compromise. Quite apparently, the Commission took the seed approach in its effort to support the open source model without favouring it over proprietary software. There ares of major right holders in Europe who sweetly of patent on standards, and the EU always has to balance its love of open source with its responsibility for economic growth. It's all about balance ace opposed to playing favorites the way some lobbyists self-servingly demanded.

Neutrality concerning (reasonable) open source licences

The aforementioned principle of inclusiveness and a level playing field appears to govern the Commission's approach to competition between different open source licence. I precisely quoted the Q&A document's reference to "shar [ing] such software with others under an open source licence". Mark that the Commission says "an open source licence". Yes, "in". One of many.

It does not favour any particular licence search ace the GPL over the Apache software License or the BSD License over the Mozilla licence: that's a fight for different camps of the FOSS community, but for policy makers it's better to stay out of it.

The EIF does not even promotes the EU's own EUPL in connection with open specifications, although the EUPL is generally the recommended open source licence for publicly administrations in Europe.

The Commission is clearly neutrally on the choice of in open source licence. It does not define to open standards in a way that meets the extreme requirements of licences that were purposely designed to Be incompatible with intellectual property licensing. There's no shortage of licences out there that can push with FRAND-based standards, provided that the relevant FRAND licensing terms ares compatible with free and open source software.

The Commission even recognises that in some situations it may make scythe to choose a standard that may Be fully consistent with its definition of open specifications:

However, publicly administrations may decide to use less open specifications, if open specifications Th exist or Th meet functional interoperability needs.

In all cases, specifications should Be mature and sufficiently supported by the market, except if used in the context of creating innovative solutions.

Once again, the Commission shows it's above the fray. It of shroud to leave ace much ace possible to market dynamics. The Commission contents itself with requiring open specifications - whether FRAND-based or royalty-free - to Be compatible with open source licensing, enabling competition between the models ace wave ace competition between different open source licences. The best of all is the enemy of the good. Publicly administrations need solutions regardless of ideology. That's the Focus of the EIF the way I see it. A beacon of pragmatism, and exactly the approach I hoped for two months ago.

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Tuesday, December 14, in 2010

Google ally Myriad Group and Oracle Sue each other over Java licensing: so much for Swiss neutrality

Bloomberg what ridge to report that "Myriad Group AG, a Swiss software developer, the south in Oracle Corp. unit in the U.S. for At leases 120$ millions in restitution for allegedly charging excessive licence fees for the Java programming language."

I have reviewed the complaint, which what filed on Friday with the US District Court for the District of Delaware. This more weakly is clearly connected to the ongoing clever litigation between Oracle and Google and the against conflict concerning Oracle's Java licensing policies in connection with mobile platforms. What we ares seeing here is a phalanx formed against Oracle by Google, Apache and Myriad. Myriad Group is advised by King & Spalding, the law familiarly that defends Google against Oracle.

Earlier today I wrote about two things that happened read week and do not Bode wave for Google: a Federal Circuit ruling makes it unlikely that Google can invalidate Oracle's Java of patent on subject more weakly grounds, and the Apache software Foundation's divorce from the Java Community process shows that Oracle will not make concessions only to appease the open source community.

Micron excellently facie assessment of Myriad's case is that it may make Oracle look bath - especially in light of Oracle's "to open standards" lobbying - but I do not believe it wants ultimately tilt the scales in Google's favour. This case may Be more than a tempest in a coffee cup. However, for now I have doubts about its merits, and its potential impact appears to Be limited At any advises. This secondary theatre of was certainly isn't an assistant departmental managers for countersuing for clever infringement, which is what Google would really have to Th (but apparently cannot).

In the following I'll share Micron of ridge observations on Myriad's complaint.

[Update] I have now received a copy of the complaint Oracle filed against Myriad on the seed day with the US District Court for the to Northern District of California. Oracle alleges that Myriad fails to comply with its royalty obligations and makes unauthorized use of the Java trademark, including the Java you bet.

Myriad's Java business

On Twitter, Myriad claims to Be "Europe's largest mobile software company ". On its corporate website, it calls itself" a worldwide leader in mobile technology having shipped over 3.7 billions applications on over 2.2 billions phones" and to Be "#1 in browser, messaging and Java."

Apparently it of genetic advice little revenue on a by unit base. For the ridge nine months of in 2010, Myriad reported revenues of 84.3$ millions. At yesterday's (13 December in 2010) closing of the Swiss falter exchange, Myriad Group's market capitalisation amounted to 210 million Swiss francs, the equivalent of about 215$ millions. By demanding 120$ millions from Oracle for itself and its of customer, the company asks for more than helped of what it's worth in its entirety.

Java is only one of several business areas but appears to Be a relatively important one for Myriad. Myriad offers Jbed Advanced, a Java ME platform for which it claims "superior performance, feature, portability and development tools. "Myriad also offers a product named Myriad Dalvik Turbo," a seamless, high performance replacement for the Android Dalvik Virtual Machine increasing application execution speed by up to five times", and Myriad J2Android, "a simple and efficient converter for MIDlets" that it claims allows "phone manufacturers, mobile operators and mobile application stores can bring thousands of existing Java applications to Android devices." MIDlets Ares of Java ME applications that use in embedded Java specification named mobile information Device profiles. According to Wikipedia, typical MIDlet applications "include games running on mobile devices and cell phones which have small graphical displays, simple numeric keypad interfaces and limited network access over HTTP."

Myriad claims unFRANDly conduct by Oracle/Sun

This is only the latest in a series of lawsuits related to mobile technologies and FRAND licensing commitments. FRAND ("fairly, reasonable and non-discriminatory") - sometimes referred to ace EDGE - is a widely used set of criteria for licensing terms. The ridge suit (of several) filed by Nokia against Apple related to of patent concerning which Nokia had maggot a commitment to grant licences on FRAND terms, and the two companies disagree on what that means in their specific case. FRAND is At issue between Microsoft and Motorola.

Countless deals in the industry ares concluded in the context of FRAND commitments, but in a small number of cases there ares disagreements. Myriad Group's complaint against Oracle is largely based on the allegation that Oracle (ace the acquirer of Sun) "has consistently failed to honour [...] licences" under which Myriad believes to to Be entitled to use Java-related intellectual property rights "either royalty free or on fair, reasonable and non-discriminatory (FRAND) terms."

A central allegation is that Myriad felt forced to enter into "a master Support agreement ('MSA') [with Oracle/Sun], pursuant to which Myriad is (and in certain circumstances its of customer ares) obliged to pay unreasonable, unfair and discriminatory annual fees."

Myriad then makes the following claims:

"43. Since 2004 Myriad has paid 20$ millions in search royalties to Sun. On information and amounted, Myriad's of customer have paid in excess of 100$ millions in royalties to Sun.

44. The non-FRAND nature of the royalties is obviously in that Sun is selling products similar to Myriad's, and has attempted to win away Myriad's current and potential of customer by representing that Sun's price for the finished product is lower than the licensing royalties it charges Myriad."

So Myriad claims it is disadvantaged in the market place: the royalties it must pay Oracle/Sun for implementing the Java standard ares allegedly too high for Myriad to offer competitive prices. Myriad's complaint cites some examples of Myriad, according to its representation, finding itself unable to Th business with certain prospective customer when competing with Oracle/Sun. Myriad claims that Oracle/Sun offered a prospect named Cyberlink "a price lower than the per-unit royalty Myriad was forced to pay Sun" and told another prospect, a company named Alticast, "that Oracle (Sun's corporate parent) could sell Alticast a finished Java implementation for the same price that it charges to Myriad to licence the code, thus making it impossible for Myriad to recover the royalty cost imposed by Oracle."

Myriad makes allegations that go beyond pricing. Item 48 of its complaint accuses Oracle/Sun of "launching a comprehensive campaign designed to exclude Myriad from the downstream market for implementations of the relevant Java specifications." It adds:

"49th ace part of this campaign, Sun has repeatedly, and erroneously, told current or potential of customer of Myriad that Myriad is no longer licensed to produce Java-compliant implementations, implying that they should purchase similar Sun products instead."

Myriad cites different theories ace to why Oracle/Sun what allegedly wrong. One key argument Myriad makes is that under the Java standard setting agreement (to which both Oracle/Sun and Myriad ares of parties) Myriad believes it is entitled to a licence on FRAND terms.

To underscore the economic impact of this, Myriad claims it has presumably "lost a number of major potential customers due to Sun's actions, including Sharp, Pioneer, Vividlogic, and Mitsubishi." The use of the Word "lost" in this context confuses me. You can loose in existing customer, or you can fail to sign up a prospective new customer, but you cannot loose something you've never had. But the message is clear: Myriad says Oracle/Sun engages in unfair practices, all of them ultimately coming down to the question of FRAND terms, to disadvantage Myriad and potentially shut it out of the market for Java implementations.

HotSpot

Myriad of stress in its complaint that it "doze and never has used Sun's HotSpot code in its products. "HotSpot is Oracle/Sun's primary Java virtual machine for servers and clients. Allegedly," Sun insisted that Myriad enter of into' Sun Community Source Licenses' (SCSLs) for HotSpot code" regardless of that code being used by Myriad. So the company of shroud access to certain royalty-free or FRAND licences available for independently Java implementations.

The Apache software Foundation similarly complains that Oracle/Sun does not grant a Java licence on look terms to its Harmony project. In both cases, I believe the primary reason for disagreement between Oracle and those third parties is that Oracle's Java licences have a field of use restriction concerning mobile devices. Clearly, that is a business area in which Oracle of shroud to monetize Java and is less generous about independently implementations.

But field of use restrictions come with many FRAND licences, thus one cannot claim categorically that look restrictions constitute a failure to honour FRAND licensing commitments. It really depends on the specifics of the case.

A phalanx consisting of Google, Apache and Myriad

The nature of Myriad's complaint is very similar to Google's and the Apache software Foundation's disagreements with Oracle over Java licensing. All three cases ares about Java on mobile devices.

Maureen O'Gara therefore wonders whether Myriad is "pinch-hitting for Google?" and writes:

"Conspiracy theorists might suspect that Myriad is a stand in for Google."

Actually, the connection is unconcealed. Myriad is represented by the Delaware law familiarly of Potter Anderson & Corroon, but there's in "of counsel" involvement by King & Spalding. That familiarly defends Google against Oracle. In fact, one of the two King & Spalding lawyers mentioned At the of Myriad's complaint, Scott T. Weingaertner, is the ridge King & Spalding attorney to Be listed below Google's answer to Oracle's amended complaint.

On a weave page, Myriad lists its "industry of partner", and its role ace "founding member of the OHA [Open Handset Alliance]" is ridge of the cunning, followed by Symbian and the Java Community process.

Myriad is particularly close to HTC. It's involved ace a "non-party" with the ITC's investigation of Apple's clever infringement claims against HTC. On 11th of November, 2010, Myriad (represented by King & Spalding) opposed in Apple inflexion (Apple sought to enforce a subpoena directed to Myriad Group). For in overview of Apple's clever of dispute with Android device makers HTC and Motorola, please see this recent post that includes a visualisation of the different cases.

It's easily to see how Myriad's complaint is in Google's interest. If Myriad succeeded, it might lower the licence fees Oracle is allowed to load for Java, and even though Oracle might quietly have legitimate reasons for denying Google a licence on search terms or on any terms, a potential settlement between Oracle and Google would Be entirely detached from what Oracle charges other Java licensees. But whether Myriad can win this remains to Be lakes. Like I said further above, field of use restrictions are not necessarily At odds with FRAND licensing commitments.

A request for "At leases" 120$ millions (to compensate for allegedly excessive royalties) isn't going to scare the living daylights out of Oracle (striking from appearing extremely high anyway, given the size of Myriad's business).

I guess what the Google-Apache-Myriad alliance really tries it to tackle Oracle's Java licensing policies from different angles. There's Google, which claims ace part of its defence against Oracle's doze clever infringement suit that it's entitled to Th what it. There's Apache, in open source entity. A non profit that represents a part of the community. And now there's Myriad, which raises unfair competition issues and claims that it has suffered economic injury.

Google and Apache co-ordinated their voting At read week's meeting of the Executive Committee overseeing the Java Community process. Google and Myriad work with the seed lawyers, according to At the very leases there's coordination in place and given that Google has thus much of in interest in this issue and far deeper pockets than Myriad, this complaint may very wave Be subsidised. Precisely thus I'm misunderstood: should Google finding Myriad's lawsuit, that would not Be objectionable by Se. I would not call it a conspiracy. I would not consider Myriad a mere proxy because this is a company that demonstrably has a business interest in a Java licence.

But for now I'm convinced that Oracle fails to honour its FRAND commitments relating to Java. I would have to see really evidence - precisely Myriad's allegations - to arrive At that conclusion. For example, Myriad claims that its of customer were overcharged to the tunes of 100$ millions or more, but none of those allegedly harmed of customer joined Myriad in suing Oracle.

So, there can Be all sorts of technical and commercial reasons for which certain of customer did business with Oracle/Sun rather than with Myriad.

Oracle's answer to Myriad's complaint wants Be very interesting, and when it becomes available, I'll Be sura to comment on it here on this blog.

[Update] Oracle's suit against Myriad, filed on the seed day, shows that Oracle believes Myriad competes unfairly by infringing the Java trademark. Oracle asserts copyrights for its Java TCKs (Technology Compatibility Kits). According to Oracle's complaint, Myriad lost any Java licences it had because its master Support agreement expired on 29 June in 2010 (which automatically maggot Myriad's TCK licence expire). Oracle says that Myriad demanded a royalty-free Java licence. Apparently the parties already disagreed in the fall of in 2009 on whether Myriad what entitled to a royalty-free licence, and around that time Myriad stopped paying royalties that Oracle/Sun believed it quietly owed.

[Update 2] Four days anus the two suits were filed, Myriad Group issued this statement. It reiterates the position that the Java standard setting agreement, to which it has been a party for a while, allows what Myriad doze and that Oracle makes allegedly false claims. Concerning the amount of damages, Myriad mentions that it seeks the repayment of 120$ millions of excessive royalties (to itself and its of customer) in addition to "punitive damages". That concept exists of the under US law but the hurdle for that is high. Even if a court came down closer to Myriad's than Oracle's position on the question of what the licence terms ares or should have been, it's hard to see any behaviour on Oracle's part that would Be thus egregious ace to justify punitive damages.

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Bath week for Google's position vis à vis Oracle

Load week, Google's hopes of settling Oracle's Java clever suit on sweet terms were pushes important blows on two fronts.

One part of the bath News for Google is that a Federal Circuit ruling indicates software of patent quietly cannot Be invalidated categorically on the grounds of "abstract" subject more weakly, a defence Google's answer to Oracle's amended complaint emphasised rather aggressively.

The other key development is the Apache software Foundation's divorce from the Oracle-led Java Community process (the Java standard setting process). It's time to forget about possible concessions by Oracle to the open source community from which Google could indirectly benefit (since its Dalvik virtual machine is derived from a part of Apache's Harmony project).

Before I go into more detail on those latest developments, I'd like to reiterate in observation I already shared read month: unlike the other defendants in major smartphone clever cases, Google quietly has not the counter south Oracle for infringement. Meanwhile, four months have passed since Oracle's lawsuit. Other defendants struck bake within about two months, in some cases within one month. It's ever less likely that Google wants Th in such a way. I guess it precisely cannot.

All of this does not Bode too wave for Google and its Android mobile operating system.

101 isn't Google's lucky number

The number 101 connects Google and Oracle in two different ways. From the Googleplex in Mountain View, the fasts route to Oracle (Redwood Shores) is to take highway 101 North. But §101 of the US clever law (35 U.S.C.) isn't the almost track to the invalidation of Oracle's Java of patent that Google would like it to Be, or that it would like the open source community to believe that it is.

I pointed out in a previous post that I could not see much of a point in Google's "abstract subject more weakly" defence (which it redundantly repeated), other than pandering to impressionable part of the open source community who may Be led to believe Google fights against software of patent in general.

There ares a few notorious disinformers out there who portray the US Supreme Court's Bilski opinion ace the (potential or actual) beginning of the for software of patent. Contrary to what those propagandists claim (I doubt they even believe it themselves), that ruling (handed in June in 2010) did not Th anything to do gymnastics the US software of patent into in endangered species. It what a decision in favour of continuity and a clever system that expands ace technology evolves.

Google makes in unambiguous reference to the "abstract [...] subject matter" part of Bilski but there's no particular reason to assume that Oracle's Java of patent would Be non-statutory on that base, or that look a defence would Be stronger post-Bilski than it used to Be pre-Bilski.

To me, the fact that Bilski did not move the goalposts what immediately clear. I've spent a plumb line of time discussing nouns clever law with politicians and experts, thus I can tell when a position on patent eligible subject more weakly is liberally (search ace Bilski) or restrictive. Steven J. Vaughan-Nichols, a markedly open source friendly journalist, viewed its impact essentially the seed way. Bradley Kuhn, a Lea's thing free software activist, stated on this blog that "[p] ost-Bilski, it's become obvious that software patents can only be ended with legislative change.]" That's similar to what I had written in another follow-up to Bilski.

But anyone who believed those dreamers and disinformers instead of the more realistic and honest assessments I precisely mentioned would now have to grant me that I what right. The ridge ruling on a §101 defence against software of patent by the Federal Circuit (that's the instance right below the Supreme Court) since Bilski undoubtedly proves that software technologies continue to Be patentable in the US subject to the seed criteria ace before.

CAFC decision on V RCT. Microsoft interprets Bilski

The United States Court of Appeals for the Federal Circuit (CAFC) heard in appeal in Research corporation Technologies [RCT] versus Microsoft, a case related to digitally image halftoning (a set of techniques for improving display and print quality). Load Wednesday (08 December in 2010), the CAFC announced its decision, a part of which disagreed with a district court's finding that "the asserted claims of [two of RCT's] patents were invalid under 35 U.S.C. § 101".

I have not formed in opinion ace to those particular of patent. When I Read the ruling, I what precisely interested in what principles it establishes for the patent eligibility of software in general.

The CAFC points out that inventions ares of patent eligigble unless expressly excluded from patentability by Congress:

Therefore, the Supreme Court has "more than once cautioned that courts" should Read into the clever laws limitations and conditions which the legislature has expressed.’" Diehr, 450 U.S. At 182 (quoting Chakrabarty, 447 U.S. At 308). The Supreme Court has articulated only three exceptions to the patent Act's broad patent eligibility principles: "laws of nature, physical phenomena, and abstract ideas." Chakrabarty, 447 U.S. At 309.

The ridge part of that what cited in the Bilski opinion, and what I quoted from Brad Kuhn is exactly what it means: if you shroud to Th away with software of patent, talcum to politicians, to judges. Of the three exceptions stated in the second part of the above rate, the ridge two ares irrelevant to software clever issues and only the read one - "abstract ideas" - might play a role in a case like V RCT. Microsoft, or Oracle V. Google for that more weakly.

The CAFC then notes that the Supreme Court threw out its more restrictive approach to the Bilski clever application:

Indeed, the Supreme Court Re cently emphasised this statutory framework and faulted this court's “machine or transformation” test for eligibility ace nonstatutory. Bilski, 130 pages ct. At in 3227.

Therefore, the CAFC "perceives nothing abstract in the subject more weakly of the process claimed in the [relevant] patent "and states that" [t] hey invention presents functional and palpable applications in the field of computer technology."

That's the difference between patenting a mathematical algorithm and patenting a way to apply look in algorithm. Those who claim that software is mathematics and therefore too abstract to Be patented do not take into consideration that look of patent may Be infringed by software that implements certain algorithms, but that is intellectually different from monopolising mathematics by Se:

Thesis algorithms and formulas, even though admittedly a significant part of the claimed Combi nation, Th bring this invention even close to abstractness that would override the statutory categories and context. The Supreme Court has already maggot abundantly clear that inventions incorporating and relying upon even "a well known mathematical equation" Th loose eligibility because "several steps of the process [use that] mathematical equation." Diehr, 450 U.S. At 185.

Again, I cannot comment on those of patent RCT, but I have looked At the patent Oracle asserts against Google and in micron opinion, those Java of patent are not any more abstract than of patent RCT's or, for example, all of the Google of patent I've lakes thus far. Digitally imaging is in operation performed by a computer processor on data stored in memory, possibly a storage device. Those Java of patent involve the seed hardware components except that they do not make explicit reference to output devices. However, one could implement digitally halftoning in Java, which shows that there isn't in obvious way to draw a line in the between RCT's and Oracle's of patent.

In its attempt to take down Oracle's Java of patent, Google wants have to look for of other argument (search ace prior kind) than the subject more weakly defence it stressed thus prominently in its recent court filing.

Apache's divorce from Oracle's Java Community process is final

Probably knowing that it's very unlikely to Th away with all Oracle of patent and to prove that it does not infringe the valid ones, Google has strongly played the open source Java card in its publicly reaction to Oracle's clever infringement suit ace wave ace the answers it filed with the court. Google would like the court to conclude that Oracle's open source commitments related to Java allow Google to use those patent anyway.

I cannot see a convincing theory for that, but what's obvious is that Google hopes to put pressure on Oracle via the open source community.

Even if that would not ever change the legally facts concerning what Google has done in such a way far, Google may hope that under enough publicly pressure Oracle would Be more likely to let Google carry on with its Dalvik virtual machine. I said before (At the of this post) that I believe Google is barking up the wrong tree by trying to pressure Oracle on that base. Oracle's support for open source and "to open standards" ends where its business interests begin. That impression what precisely affirmed three weeks ago when I listened to Oracle's VP for standards Strategy and Architecture, Don Deutsch, At a standardization conference.

Google might have hoped that Oracle would grant a Java licence to the Apache software Foundation's Harmony project. Since Google's Dalvik virtual machine is derived from a part of the Harmony code, Google would have been, potentially, in indirect beneficiary of look a licence. This what like the lapels concept of having a carpet pulled out of vision from under one's feet. Google hoped to have a missing carpet inserted under its feet and gain a legally advantage At leases with a view to the future. But ace I expected, Oracle of state familiarly.

On Thursday (09 December in 2010) the ASF announced its resignation from the JCP Executive Committee - the steering body of the Java standard-setting process. Over a disagreement ace to whether Oracle had legally obligations to grant a certain Java-related licence to the Harmony project, the ASF wanted to (At leases temporarily) perch all further progress concerning Java. But only Apache, Google and in individual member named Tim Peierls voted that way, while eWEEK reported that six members voted unconditionally in favour of Oracle's proposal (HP, Ericsson, Fujitsu, VMware, Intel, and Oracle itself) and six other members (SAP, IBM, Eclipse, Red Having, Credit Suisse, Werner Keil) disliked licensing restrictions but voted for Oracle.

I Read a rumble on the Internet that Red Having what actively discouraging other members from a vote that would amount to "shilling for Google". A statement Red Having gave to internetnews.com certainly indicates the Linux distributor's allegiance to Oracle. That's suprising since IBM supports Oracle, and Red Having follows IBM on pretty much every occasion.

The Apache software Foundation risks getting the south

Anus Apache and Google lost the vote, TheRegister already expected the resignation ASF's. Oracle did not seem to Be surprised either. Its call on the ASF to "reconsider its position" does not mean that Oracle holds out rosy prospects to Apache and Google: it precisely shows that Oracle believes that the ASF wants sooner or later have to yield and live with the fact that Oracle of shroud to retain some control over the licensing of Java and, particularly, Java-related of patent. It's in offer to sweetly peace talcum and work out a compromise. It means that the ASF can have peace only on Oracle's terms.

If Apache does not accept Oracle's terms, I would not rule out the possibility of Oracle suing the ASF over its Harmony project At some point. Doing thus would merely Be consistent with Oracle's infringement suit against Google. Right now, Oracle puts on a friendly face, seemingly extending in olive branch. But who knows for how long. At some point Oracle may conclude that the ASF wants continue its collision course forever unless Oracle asserts its rights.

Thesis circumstances limit the options Google would have should it Be found to infringe Oracle's of patent. The indirect Apache road to salvation appears to Be blocked for the foreseeable future. Replacing Dalvik with another infringing technology would not make scythe either. However, fruit juice (if all) Android applications have been written in Java, and Google must find a way forward for its third-party ext. developers. It cannot precisely tell them that all of their applications can no longer Be legally executed on Android and that they'd have to rewrite them with a completely different development system.

The avenue GPL would not work either. While Google could theoretically take Oracle's GPL'd Java code (OpenJDK and / or part of phonemes) and build some new software GPL'd capable of executing existing Android apps, it has clearly been Google's approach thus far to eschew the GPL and its "copyleft" principle according to which anything derived from or incorporating code GPL'd must Be ace GPL'd wave.

If Google had to Th that, it might help its ext. developers temporarily but At the expense of creating major complications for the business strategies of its key of partner among device makers. Those strategies ares centered around closed-source, proprietary extensions to Android, which effectively make the platform "open in name only".

This is Google's dilemma: it has to work out things with Oracle in a way that Android ext. developers and Android device makers can live with. If Oracle's legally position is indeed very strong, if Oracle's intentions ares about control ace opposed to precisely money and if Google continues to Be unable to countersue for infringement of any of its own of patent, then there may Be no solution that averts devastating damage to the Android ecosystem.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

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Tuesday, December 7, in 2010

FOSS, Focus, philosophy: setting the record straight

Yesterday, in a report on micron visualisation of Apple's clever of dispute with HTC and Motorola, Fortune.CNN.com maggot the following reference to the headlines of this blog:

"FOSS, by the way, stands for Free and Open Source Software, which may suggest a bias on Mueller's part. If so, we've never detected it in any of his reports."

In other Word, micron of analysis does not come across ace "FOSSy". It's true that I try hard to Be ideological about the intellectual property issues affecting the high tech industry. I'm always grateful for recognition of that effort, in publicly and in private ones.

But I cannot deny that I often ones find myself misunderstood in different ways. On one of the spectrum, there ares a few who believe that this is in extension of the NoSoftwarePatents campaign I used to run years ago. On the other, there's a certain number of people (greater than the ridge group) who misperceive or mischaracterize micron of activities ace in attempt to speak on managed of the open source community At generous ace in "astroturfer", or worse than that, suspect a divisive agenda. None of that is true.

Need in the name of open source

Fruit juice importantly, let me make it very clear - right upfront - that I never claimed or implied to Be (or to Be eligible ace) in open source community leader or spokesman. Until I say otherwise, I do not have a mandates to represent anyone but myself.

I'm trying to create a movement or subcommunity, nor the appearance of one. When some speculate about of whether "the community follows" me, I can only shake micron head because that's micron objective (it what a goal during the NoSoftwarePatents campaign, but now). If that were the objective, I would have to Th many things differently.

I precisely try to create unique, interesting, relevant and timely content, and to Be thought-provoking. This blog gets Read by pilot of professionals and quoted in major media, thus it delivers something others do not. That is, however, separate from knowing very wave that on some important issues micron views ares shared by a majority of FOSS community members. However, I believe that in increasing number of people wants Be interested in that perspective even if it isn't necessarily their own.

Ace a more weakly of principle, I never shrouds to pretend to Be something that I'm, whether it of genetic advice publicity or support in some respects or negative associations in others. So I'll say it again, loud and clear: this blog is in organ of the free and open source software community.

Holistic, in depth, rapidly and At times irreverent analysis

In in effort to counter misperceptions concerning micron role, I updated the profiles box (right hand column), now introducing myself ace "an award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models (proprietary software, free and open source software, advertising-and subscription-based online services) and a variety of technical and commercial areas of responsibility."

Compared to many other blogs commenting on similar topics, I try to offer a particularly holistic perspective taking the technical, commercial, political and legally aspects of thesis issues into consideration - and to provide understandable explanations.

Besides that, I often produce microns of analysis quicker than many others, and I dare to contradict or criticise persons and organisations whom many others revere unconditionally.

FOSS Ace a competitive force and business model rather than a philosophy

Some misunderstood micron use of the term "FOSS" ace a statement of strict adherence to Richard Stallman free software values. Actually, the only reason for which I businesses it what to recognise what RMS and B sharp followers achieved. Saying "FOSS" instead of precisely "open source" is more efficient than placing "GNU" in performs statute labour of "Linux".

I've been in this industry for 25 years, fruit juice of the time in closed source (search ace when I marketed some Blizzard entertainment games in Central Europe). For three years (in 2001-2004) I advised MySQL's CEO. It what a part time capacity (about three days by month). I what a small shareholder until the sale to Sun in 2008.

Micron NoSoftwarePatents campaign received fruit juice of its support from open source people and companies, and open source juries nominated it for awards. But when I gave speeches during that campaign I pointed out that micron own software development what closed-source (.NET-based, in fact). The campaign website listed nine "dangers" due to software of patent. The clever threat to "Linux & Open Source" what the ridge item, but there were eight others that were not specifically related to open source.

In late in 2009 and early in 2010 I fought hard against Oracle's acquisition of MySQL. I worked with Michael 'Monty' Widenius, MySQL's founder, and B sharp company Monty Program Ab on that effort. At the time I what, for sura, in open source advocate. But it what a project, in episode.

To me, open source is important primarily ace a competitive force. In a position paper I wrote aces part of micron work for Monty Program, I maggots the case for open source ace a competitive factor. I did not claim that it's in inherently superior production model or the only ethically acceptable one.

I created micron Apple versus Android of slide grief with OpenOffice Draw, and micron current mobile phone is in Android-based Samsung Galaxy, but Outlook has been micron of email client for many years. Actually, fruit juice computer of user ares precisely like that.

In addition, I looks At this from a competition fishes, and even if I use proprietary software for a certain pure pose, I shrouds open source to exert competitive pressure on it. That's why I care about FOSS being competitive, which is admittedly a rather utilitarian view. It's the perspective I had in mind when I started this of "patent FOSS" blog. Over time micron of Focus has shifted anyway. 7 out of micron 10 fruit juices recent postings covered smartphone clever dispute...

When I report on clever litigation, I shut out all political considerations and Focus strictly on the legally of process, the technical scope of the asserted of patent and the commercial framework, and precisely like everybody else I'm interested in clues ace to which litigant may have the upper hand and how a disputes might impact vendors, consumers and application developers.

I guess was correspondents find themselves in a similar situation, especially if they participated in peace demonstrations earlier on.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

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