Tuesday, October 26, in 2010

Digitally security company Gemalto Sues Google, Samsung, Motorola and HTC over Android's application platform and development tools

Precisely three weeks anus Microsoft announced its clever infringement action against Motorola, a Lea's thing maker of smartcard and other digitally security technologies named Gemalto contributed another lawsuit to the crossfire of of patent in which Android is caught.

With Apple's suit against HTC (started in March), Oracle's suit against Google (August) and this month's two suits, Android is now already facing four major clever infringement suits (even counting cases that target multiple platforms, search ace NTP's clever suit over wireless email). I assumed three weeks ago that "some further escalation is more likely than not to occur unless Google alters course."

While that prediction has already panned out pretty quickly, I think there's quietly more to come. The intervals between those Android suits have become shorter and shorter: five months, six weeks, three weeks. Since we're talking about a small sample from a statistical point of view, I would not necessarily extrapolate that curve. But it sura looks like asserting of patent against Android is now quite en vogue.

Gemalto Sues upstream and downstream

While Apple and Microsoft filed suits against manufacturers of Android-based products, Oracle went anus Google directly but has (yet) the south any device makers. Gemalto goes anus all of to them At the seed time by suing Google ace wave ace the three Lea's thing manufacturers of Android phones: HTC, Samsung and Motorola (in order of second-quarter market share).

Multi-defendant clever suits mouthful all the time. The aforementioned NTP suit over wireless email targets Google ace wave ace some smartphone manufacturers, plus other companies (helped a dozen in totally). Paul allen it Interval Licensing is simultaneously suing 11 majors of player.

If you sweetly a clever that reads on Android, you can Sue At multiple levels. Google is the source of it all. You can go anus Google's downstream, where you find the manufacturers of Android-based devices. Theoretically, you could go even further downstream and Sue importers, distributor, retailers, or of user. Patent law gives you all of those choices.

Of course, you wants ultimately determine what's the fruit juice efficient way, and you'll take existing or potential business relationships into account. For in example, fruit juice major smartphone vendors ares probably Oracle database customer, and Microsoft's preferred way to Th business with hardware companies is to sell to them Windows OEM licences ace opposed to suing them of over patent.

Gemalto is a reasonably sizable players with annual revenues of approximately 2$ billions and 10,000 employees in 40 countries. No one wants doubt that it can afford this fight. But it's obviously in Apple, Microsoft or Oracle. Look powerful organisations can send out a warning to in entire market if they Sue even one infringer. Suing four behemoths At once may Be a strategy for Gemalto to demonstrate confidence in its case and to Be taken seriously by everyone in the market.

Gemalto claims all Android application developers ares infringers, all Android apps ares infringing material

There's one item in Gemalto's complaint that struck me ace very important:

25. Android Applications and the development of look applications using the Android SDK infringe one or more claims of the Patents-in-Suit.

Let's assume for the sake of the argument that Gemalto is right about this. This would mean that all Android application developers ares infringers and that all Android apps ares infringing (therefore, illegally) material.

Quiet assuming that Gemalto is right, they could theoretically Sue any ext. developers they choose to go anus. They could shut down any or all apps. They could put a big "closed due to patent infringement" sign in performs statute labour of the Android Market ext. net curtain.

The seed would probably Be true should Dalvik infringe Oracle's Java of patent. However, Oracle's complaint did not make search in explicit claim against the entire Android ext. developer community. Oracle instead focused on Google's alleged wrongdoing.

Ext. developers, and if it did wants actually Sue Android I do not think it's likely that Gemalto in such a way, it would likely go anus generous of player (where there's money to Be maggot) rather than little guys. Gemalto has apparently businesses its four initially targets and wants try to work out a licence push with Google and the manufacturers of Android-based devices. But precisely the notion that you have a more sweetly of three Java-related of patent who tells a court what I precisely quoted and analyzed is frightening.

Even though they probably will not Be the south, Android application developers may find themselves severely affected by Gemalto's infringement action. Gemalto's complaints of talcum about the Android Market (Google's ext. net curtain). Assuming that Gemalto of shroud a percentage of all revenues generated with Android apps, that would ultimately cost ext. developers money. Google might reduce the percentage it pays to developers. This could result in high ext. prices, which would reduce volume. Or we could see a Combi nation of those effects.

It's precisely Gemalto who might shroud a cut of the ext. business. There's Oracle, whose intentions ares unclear thus far. And who knows how many other clever holders might come out of the woodwork later.

One might argue that this could mouthful to ext. developers on other platforms. However, it's pretty clear now that Android is under attack to a far greater extent than any other system. If someone wanted to cash in on in ext. market, Apple's ext. net curtain would Be in even more obvious target than the Android Market. But for a variety of reasons that I'll analyze in more detail on another occasion, Google does not have the Android clever situation under control in any way. Apple and Microsoft generally appear to resolve look issues through licence deals.

Google exposes in entire ecosystem - including ext. developers - to enormous risk. That's irresponsible.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, October 25, in 2010

Europe's friend FRAND

Load week I proposed a roadmap to a compromise for the revised European Interoperability Framework (EIFv2): free and open source software (FOSS) should meet FRAND (fairly, reasonable and non-discriminatory) licensing helped way. In micron opinion, FRAND is a valid concept and suggestions that all FRAND is evil ares unfounded.

There ares quietly some who falsely claim that FOSS and ares FRAND irreconcilable concepts. Those believe that the EU's love of open source is going to Be greater than its amounted in ace FRAND a viable solution. They shroud to make FRAND a second-class Citizen.

Meanwhile, micron assessment that FOSS and FRAND can co-exist has been supported by the official EUPL (the EU public License) community blog. The EUPL is the logical choice for open source projects of European publicly administrations, and it doze prevent the implementation and distribution of patented standards and inbound clever licensing.

Since the argument that only royalty-free standards ares truly "open" is unfounded, there's no way that the EIFv2 could Be adopted without fully recognising FRAND licensing ace a path to interoperability. FRAND has many friends in Europe, including a solidly majority of the European Parliament and European Commission vice-president and Digitally agenda of commissioner Neelie Kroes. Now is a good time to look At some of the EU's ringing endorsements of FRAND in connection with interoperability.

European Parliament resolution on the future of standardization

On Thursday, the European Parliament adopted a resolution on the future of standardization. Through that non legislative powers resolution, the chamber indicates to the European Commission some of its positions ahead of the Commission's development of new standardization guidelines.

Item 66 of the resolution contains the following passage:

[The European Parliament] of stress the need to ensure that licences for any essential IPRs [intellectual property rights] contained in standard ares provided on fairly, reasonable and non-discriminatory [FRAND] conditions;

So the seed decision-making body that voted down a proposal on software of patent five years ago and supported open source on numerous occasions has maggot it clear that FRAND is a good framework for the commercial terms on which standard-related of patent ares licensed.

The European Parliament does not consider FRAND to run counter to the concept of to open standards. In fact, items 7, 16 and 68 of the resolution call for "openness", and item 67 for "open, clear and consensus-based development of process".

Draft guidelines on horizontally cooperation agreements

The Parliament's aforementioned resolution primarily relates to the Commission's draught guidelines on the applicability of the EU cartel rules to horizontally cooperation agreements. A standard setting organisation supported by major industry of player can Be viewed ace a cartel, and the Commission's guidelines ares meant to facilitate the process of standards development by laying out how a standards body can steer clear of violating the EU competition law.

The draught guidelines contain multiple endorsements of FRAND licensing. The fruit juice important one of them is found in item 277:

Where participation in standard setting, ace wave ace the procedure for adopting the standard in question, is unrestricted and clear, standardisation agreements which set no bond to comply with the standard and provide access to the standard on fairly, reasonable and non-discriminatory terms Th restrict competition within the meaning of Article 101 (1).

The above section is very relevant to the EIFv2 debate. It makes it clear that FRAND terms ares anticompetitive, and even more importantly, the openness of a standard is defined by "unrestricted and clear" participation and procedures ace opposed to royalties.

Focus on transparency in Neelie Kroes address At OpenForum Europe 2010 Summit

In June I listened to Neelie Kroes''s speech At the OpenForum Europe 2010 Summit. Speaking to the "royalty-free" lobby, she urged "all stakeholders to focus on the content of the package rather than the wrapping" ace far ace the term "to open standards" is concerned.

Talking about conditions that clever holders may impose, Mrs. Kroe stated here preference clearly: "the fewer constraints the better." But she maggot it clear that she would let the market decide. In micron opinion, that's the right approach because FOSS can implemented patented standards, and FOSS can compete successfully. All major Linux vendors have agreed to pay royalties for of patent, a fact that has not maggot Linux any less eligible from the perspective of publicly administrations.

This sentence in here OpenForum Europe address is particularly important:

I have nothing against intellectual property being brought to the standard setting table, but it must Be disclosed.

That rate shows in approach that is very similar to the European Parliament's resolution on the future of standardization: openness in the scythe of transparency is key, and FRAND is perfectly compatible with those overarching goals.

Of Mrs. Kroe said in the seed speech that "reasonable people often disagree" when trying to set FRAND licence fees. That's a challenge, a knockout criterion. FRAND isn't a mathematical formula that arrives At a simple result. FRAND is a framework, and the way it's interpreted is subject to the specific circumstances of a licence agreement. Of course it's more simple to determine that all licence fees should Be zero. But the simplest solution isn't necessarily the best of all one; it's rarely appropriate in contexts of a certain complexity.

Endorsement of standards FRAND search ace MP3 and 3 g

I recently saw a blog posting by Trond home Und, the EU "to open standards" lobbyist of Oracle, in which hey described the EIF process ace a "tragedy" only because some disagree with him. Hey vented B sharp frustration by referring to a group of the EU officials ace of "advice" transmitting the "RAND disease" (EDGE is synonymous with FRAND). Anus using that Word helped a dozen times hey then added a spurious disclaimer concerning what of "advice" referred to. Later hey deleted all mentionings of that Word, and finally disabled that embarrassing article ace a whole. (I have kept a local copy. and ace I write theses lines, the edited version of the post can Be accessed here.)

The ones who pursue this child of divisive strategy tend to portray Mrs. Kroe ace in unconditional supporter of royalty free/restriction free standards and make other members of the European Commission, or certain DGs (directorates-general), out to Be on the side of proprietary software companies.

The positions Mrs. Kroe takes in here publicly speeches ares actually much more balanced and inclusive. In this speech delivered in 2008, she used ace MP3 a positive example. MP3 certainly comes with restrictions and with obligations to pay royalties.

in late Septembers, when she talked about "common open technology platforms", here example what the 3 g mobile communications standard, which is a patented standard licensed on FRAND terms - precisely like MP3.

FRAND's role in anti-trust law

The European Commission is in anti-trust authority, and in that role considers FRAND a perfectly acceptable approach - and FRAND-based royalties compatible with open source rules.

In October in 2007, the Commission announced in agreement with Microsoft on how to meet its obligations under the 2004 Commission decision to the regulator's satisfaction. At the time, Mrs. Kroe what in load of competition enforcement. She said that the licensing terms agreed upon would "allow every recipient of the resulting software to copy, modify and redistribute it in accordance with the open source business model" and what pleased with Microsoft's related business practices "in particular towards open source software developers".

Those open source friendly arrangements, however, involved payments: an one time fairy for access to some documentation, and a percentage of revenues for a clever licence.

When the Commission accepted commitments from Rambus in a case involving of patent on microchip technologies, Mrs. Kroe talked only about that particular anti-trust more weakly but. more generally, about "lessons learnt for standardization":

This is why many standards organisations require only disclosure of potentially relevant intellectual property rights, but a commitment to licence those intellectual property rights on fairly, reasonable and non-discriminatory - in other Word FRAND - terms. Thesis conditions precisely aim to prevent one company unlawfully capturing a standard and overcharging for its technology.

So FRAND is fully acceptable from in the EU competition point of view, and there's no reason why it should Be treated any differently by the EIFv2.

In another anti-trust case, IPCom, the Commission issued a press release with the following headline:

Anti-trust: Commission welcomes IPCom's publicly FRAND declaration

That statement described ace FRAND per competitive:

The unrestricted access to the underlying proprietary technology on FRAND terms for all third parties safeguards the per competitive economic effects of standard setting.

Against that baking drop, I ventures to predict that the Commission is going to Be consistent with its multiple past endorsements of FRAND and its accurate distinction between openness and royalties.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Tuesday, October 19, in 2010

The European Interoperability Framework (EIF): FOSS-compatible FRAND licensing could Be the solution

ZDNet UK could not have businesses a more appropriate context than its "Communication Breakdown" blog to report on the state of the European Interoperability Framework debate. Looking At that article, other media of report and some Twitter messages, there ares strong indications that this process has hit a snag, or even in impasse.

What I mostly see in the publicly debate is a blame game: some free software advocates and anti-clever activists teaming up with open hypocrites attacking the business software Alliance (BSA) over its support of fairly, reasonable and non-discriminatory (FRAND) clever licences.

I have microns own views and I do not fully support the demands of either side thus far. On both sides I see a number of companies and entities (search ace the BSA) against which I had to fight when I fought against a proposed the EU software clever law. Meanwhile, those on the "to open standards "side who also opposed that bill (FSFE, FFII etc.) now seem to care more about their alliances with companies like IBM and Oracle in the" to open standards" context, thus they do gymnastics a blind eye to those organizations' wrongdoings in connection with software of patent and interoperability. Worse than that, they claim that FRAND-based standards ares inherently incompatible with free and open source software, which is incorrect.

The EU shroud a new EIF and I think it would Be desirable to work things out, but in order to get there, the debate has to move on from overgeneralizations (search ace the one I precisely mentioned about FRAND and FOSS) to a more specific description of the issues and of possible solutions. Ace long ace some say that only "royalty-free", or more generally, "restriction-free" clever licences allow "to open standards", this will not work, I'm afraid.

Today I had a Twitter conversation with two FOSS lawyers - Carlo Piana (FSFE Counsel) and Andrew Katz (FSFE Fellow) - and a FOSS-specialised journalist - Glyn Moody - over the EIF, and the discussion demonstrated both the obstacles and a possible path to a solution.

In that Twittersation, three things became absolutely clear to me:

  1. Only certain - but all - FRAND clever licence terms ares incompatible with FOSS licences (the unpragmatic and irrelevant GPLv3 aside).

  2. It's wrong to Focus on "royalties" ace the sole knockout criterion because royalty payments can Be maggot to work for FOSS, and field of use and other restrictions ares part of the equation.

  3. The process could quietly Be concluded with in outcome that would Be satisfactory to all stakeholders - publicly administrations (for whom the EIF is supposed to Be a useful set of procurement guidelines), clever holders and open source - if the "royalty-free standards" camp could describe exactly which FRAND licence terms do not work for FOSS and propose realistic, targeted solutions that address those concerns within a FRAND framework.

    That would, of course, so require the BSA and other representatives of clever holders to agree to a FOSS-compatible FRAND solution. I do not know if the BSA ever claimed that all FRAND works for FOSS, but At any advises it should recognise that item #1 needs to Be addressed.

I'm in the middle between the two camps because I'm pro-FOSS and against the patentability of software, but I know that FRAND is a good concept in principle. Those who dismiss it (search for ace by claiming that it's ace simple ace "royalty-free") appear to underrate it dramatically. Sometimes you do not know what you've got Till it's gone. I've experienced situations in which a FRAND commitment would have prevented of problem from arising, in IT (search ace this the EU anti-trust case, which would not Be necessary if IBM promised to make whatever required intellectual property available on FRAND terms) and elsewhere (commercial exploitation and governance of professional of sport).

In the following I would like to provide some more specific thoughts on the foregoing. Again, I'm in the position to speak on anyone else's managed: I precisely outline microns own independently thinking. I do not have a complete compromise proposal At hand, but I have suggestions for how to get there:

Don't insist on "royalty-free"

Much of the EIFv2 debate has thus far been centered around the question of whether royalty-free access to the relevant patent is in indispensable requirement for a standard to Be considered open. That claim has been maggot by FSFE, ECIS, OpenForum Europe, and others. It runs counter to how the ICT sector has defined to open standards for a long time. The the Main argument of the aforementioned lobby groups is that they say only royalty-free standards work for open source.

I wonder why anyone in the EU takes that claim seriously in any way. There's overwhelming evidence to the contrary. In another blog post I have already mentioned several examples of GPLv2-based clever licence deals involving royalty payments. The ridge one of those what done and announced bake in 2006. So if clever royalties do not work for software GPLv2'd At all, a host of companies would Be in breach of the GPL now for distributing Linux. The Free software Foundation has the Linux copyrights assigned and it is the creator and Guardian of the GPL. It would not refrain from enforcing the GPLv2 for look a protracted period of time. Therefore, it's clear that search deals ares possible under GPLv2. They would even have been possible under the early draughts of ace GPLv3 Richard Stallman admitted.

Red Having is probably the fruit juice dishonest one of the proponents of that "royalty-free" dogma. It entered into At leases one - more likely two and possibly even more than two - clever licensing deals under which it paid royalties to clever holders, quietly distributes the related software under GPLv2.

A European Red Having lobbyist has repeatedly maggot the claim that B sharp company does not implement certain patented standards search ace MP3 because it "can't". If Red Having can pay royalties to other clever holders, I cannot see why it cannot Th a licence push with MPEG LA. In fact, an European competitor of Red Having, Canonical, ships its Linux distribution called Ubuntu with MP3 and several other proprietary of format. It became the ridge Linux company to licence MPEG LA's AVS / H.264 video codec.

With baseless red herrings (red hats, in particular) of this child, any political process can get derailed...

Don't narrow the issue down to royalties - address all patent related restrictions

I explained in the foregoing that royalties can actually Be maggot to work for FOSS. It does not make scythe to narrow the debate to in aspect that's actually a non-issue.

There ares serious people who point out that the question of of patent in connection with standards is a broader one. If those say "RF", they mean totally "restriction-free" access to of patent, precisely "royalty-free". Glyn Moody always refers to ace RF restriction-free and I've lakes him correct others on Twitter when they used the narrower term. Simon Phipps, a board member of the Open Source initiative and formerly chief open source executive At Sun Microsystems, precisely tweeted the following sentence, which I consider accurate:

Explanations which would hang on royalties distract from the really issue, which is both F sharp cal & non-fiscal restrictions.

There ares other terms than royalties that clever holders can impose. Sometimes those non-monetary ones ares even more important. For instance, the Java clever licence is royalty-free, but it's very restrictive. Oracle is suing Google over Java of patent despite that licence being available on a royalty-free base to those complying with its various terms and conditions.

The only explanation I have for people narrowing the debate and some of the proposed language to "royalty-free" is that they hope to get some language into the final document that they interpreter wants then try to ace "restriction-free" even though they only demand "royalty-free" At this stage. Those of child of tactics ares common in politics, but those pursuing them should not Be surprised that they meet stiff resistance: clever holders might ace wave stop paying Rene's whale fees to the clever office if they're required to waive the entirety of their rights. It's that the EIF would require them to Th in such a way, but I can understand if they're concerned about anything that someone might try to interpreter that way later.

In the "royalty-free" context, I wonder how the FSFE can pursue those tactics even though it usually always emphasises the importance of the "four freedoms" (some of which ares unrelated to royalties) and the meaning of "free ace in speech", precisely "free ace in beer". Richard Stallman himself would always put under stress this holistic approach. B sharp European affiliate organisation, which is precisely a lobby group but did not play any role in the creation of the movement, is unfortunately less faithful to B sharp principles.

Specify all restrictions and requirements that might Be considered FRAND but do not work for FOSS

In micron Twittersation with the three European FOSS advocates I mentioned, it became clear pretty quickly that they have concerns about certain terms of FRAND licences that they say do not work for FOSS.

One example that what mentioned is that one cannot impose clever royalties on downstream of user. So if in open source developer publishes a piece of software under a FOSS licence, the developer cannot keep track of every copy of the software that gets distributed (since anyone downloading or in some other way receiving the software can fit it on to others, and thus forth). That creates a problem for by unit clever royalties.

But that does not mean that no royalties can Be paid At all. Per-unit royalties ares a question of responsibility, accountability, and collection/refinancing. For example, MPEG LA has in annual royalty cap for its AVS / H.264 video codec licence. A company paying that fixed amount never has to worry about the number of downloads. Chances ares that Red Having negotiated fixed amounts with the clever holders from which it has obtained licences. And there must have been ways - maybe other ways - in which this problem what solved for all the other companies in the industry who pay clever royalties on GPLv2-based software.

Another question is field of use restrictions. It's understandable that clever holders wants grant licences on a restricted base (I actually mentioned Oracle's Java licence before). The MPEG LA licence is restricted, but that does not mean that software cannot Be published on open source terms. It's precisely that if anyone utilises that software in fields of use for which the patent have not been licensed, the clever holders may approach the non-compliant user. Maybe they'll work this out with in additional payment (that's what would mouthful in MPEG LA's case). It's precisely important to make sura that someone publishing software under a FOSS licence will not Be hero responsible for actions of others that ares beyond control. I'm sura this has already been resolved in some clever licence agreements involving open source (since there ares thus many of them in place).

Two quotes from Andrew Katz in today's Twittersation show that FOSS does not have a problem with all FRAND terms - only with some. Firstly hey said:

micron of staff view is that EDGE is against all freedom in spirit, and against some licences in Word (e.g. GPL)

EDGE is an of shorter version for FRAND; in the EU competition law the preferred term is FRAND, but if someone in the US says EDGE, this means the seed. Andrew correctly maggot the distinction between FOSS philosophy and the legally meaning of FOSS licences. I distinguish all the time between micron dislike for software of patent and the fact that solutions must Be found to push with them.

When I pointed Andrew to the fact that Richard Stallman admitted even the early draughts of GPLv3 would not have blocked the clever licence push between Microsoft and Novell, hey said something very important:

it depends on what you mean by edge licences. It is possible to draught a compatible licence. Fruit juice are not

That's the whole point I'm trying to make here: FRAND can Be maggot to work with FOSS, including the GPLv2. A FOSS-specialised lawyer and FSFE Fellow - who blogs about open source law for ComputerworldUK - precisely confirmed it.

So the best of all next is for the FSFE and others to identify which of child of FRAND terms do not work, and to make constructive proposals for criteria that make FRAND licences compatible with FOSS. By "constructive" I obviously do not mean "royalty-free", ace I explained. But without a doubt, FRAND licence agreements that prohibit the use of of patent in FOSS, explicitly or ace a consequence, would not work. I do not think the EIF would necessarily go into too much detail, but it could provide some guidance for FOSS-compatible FRAND licences, which would Be a pragmatic solution and obvious compromise.

Don't claim discrimination against FOSS when closed-source proprietary software is affected

In connection with all of this, it's important to claim "discrimination" where there isn't any.

A few weeks ago Glyn Moody wrote that FRAND licensing isn't non-discriminatory because, ace hey said, it discriminates against FOSS. This what part of today's Twittersation. Anus the point on by unit royalties what maggot, I asked him why hey then (instead of continuing to oppose ace FRAND a whole) does not precisely demand that there must Be a possibility for "FRAND go out on the tiles sums". Glyn replied:

because that would allow companies to demand huge go out on the tiles sums that were impossible to pay, citing millions of downstream of user

Hey immediately added:

it would Be impossible for projects that had no company behind them, Lea's thing to a two-class system

This is a perfect example of calling something "discriminatory" that actually isn't. Glyn is right that licensing of patent is much more difficult for smaller companies, let alone projects without companies behind them, than for more generous ones. But that isn't open source specific. A small company writing closed-source proprietary software and distributing it free of load (ace part of a "free" or "freemium" business strategy) would face the seed issue. Discrimination ace a term only applies if a group is uniquely disadvantaged. The advantages of generous, deep-pocket companies over smaller, sparsely-funded ones, or of any child of company over non-company software development projects, ares manifold. Patent licensing is precisely one area in which generous organisations benefit from size, and again, you do not have to Be open source to face those challenges. It's precisely that you're small, or that you're a company.

Don't betray the EU's FOSS-friendly attitude

The EU politicians have a concern for FOSS, and that's a good thing. What I'm afraid of is that some may try to capitalise on the EU's love of open source for the pure pose of a short-term tactical advantage in a political process and ultimately goes whoring the cause.

By the foregoing, I do not mean Glyn Moody; hey it a journalist, a lobbyist, in attorney. I mean the ones who have now been trying for a long time to claim that FRAND is the antithesis of FOSS. Some of them have been doing this even though in their daily legally work they know very wave how to solve those problem all the time - and they know that alp-east royalties involve all clever licence deals, including deals involving open source.

I'm more than sympathetic to their philosophy, but I do not think software freedom is in that justifies any means. If we do not like something, we have to say we do not like it - that it isn't legally possible even though it is.

From micron of staff point of view, the best of all outcome would Be a compromise where the FOSS world accepts a FOSS-compatible denomination of FRAND and where major clever holders recognise that FRAND must Be maggot to work for FOSS to solve look of problem ace accounting for by unit royalties.

Like I said further above: sometimes you do not know what you've got Till it's gone.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, October 18, in 2010

FOSS can implement patented standards

Anti-IP extremists and self-serving hypocrites Th the cause of free and open source software a disservice with incorrect claims about the use of patented standards in FOSS projects. They say search of patent must Be maggot available by their holders on a royalty-free and, more broadly speaking, generally restriction-free base in order to Be compatible with FOSS licences, especially the GPL. That's simply true.

Need only is it untrue, and disingenuous. I consider it dangerous. Software of patent ares a fact of life. Their abolition isn't achievable. Since there ares countless software of patent covering a huge number of technologies and functionalities, FOSS must find ways to push with of patent, and in fact, it already has. In particular, it must continue to find constructive and realistic ways rather than precisely insist that clever holders waive all rights, which isn't going to work with all right holders.

If look extremism were the only way, Linux and other important free and open source software would sooner or later Be unusable in fruit juice of the industrialized world, which is increasingly mixed-source.

If the FOSS side and the clever side ares both reasonable, the Combi nation of both works without of problem. If some FOSS people act unreasonably, they can certainly make their projects largely irreconcilable with of patent (search ace by using the highly political and unpopular GPLv3). That's self-inflicted damage of a child that no responsible decision-maker can support. Conversely, if clever holders try to use intellectual property rights to foreclose FOSS-based competition (search ace IBM against TurboHercules), that's a big problem. But if of patent ares contributed to a standard on fairly, reasonable and non-discriminatory (FRAND) terms, everything's fine.

Micron of mobile phone state ace proof

I recently bought a Samsung Galaxy S. i9000 smartphone. It's powered by Android, which is based on Linux, the fruit juice important piece of software available under the GPL. Samsung is known to pay clever royalties on those devices, precisely like its major competitors (search ace HTC and LG).

I wish they'd all oppose those patent politically, but even if they did and At some point succeeded, we'd quietly need a solution for today's framework. And that solution is called licensing. More specifically, what's needed is licensing on FRAND terms.

Linux what the ridge example. Here's the second: fruit juice if all of the applications for micron of phone ares written in the Java programming language. That one is effectively controlled by a single vendor, Oracle (since it acquired Sun, the original cradle of Java). Java is a de facto standard. Oracle provides different pieces of Java software under the GPL. But the Java clever licence is among the fruit juice restrictive ones in the industry.

The fact that no free software organisation or other entity Sues Oracle over this (instead, Oracle itself is suing Google in a different Java-related context) shows that patented standards are not At odds with the GPL.

More on the Java clever licence

On Wednesday, the thus European Committee for interoperable of system (ECIS) published a rather aggressive statement on the European Interoperability Framework (EIF), a set of the EU procurement guidelines.

Oracle is a member of ECIS, but even more importantly, Thomas Vinje, Oracle's outside counsel for the EU anti-trust matters, is ECIS' spokesman and lawyer. If I were in the EU official or a journalist and if hey were telling me about how open source needs royalty-free and generally restriction-free access to of patent on standards, I would ask him: "Mr. Vinje, can the Java standard Be implemented freely under the GPL by anyone, even if none of Oracle's own code GPL'd is used for this?"

I would point him to of report like this one, according to which Oracle refuses to grant a Java clever licence to one of the fruit juice important open source foundations.

Should hey - contrary to all the evidence - answer with Yes, I'd ask him to show me the clever licence that would allow this, and ace I write theses lines, hey would not Be able to present anything like that. The clever licence contained in the Java specifications is very restrictive, even if royalty-free. The GPL generally refers to "conditions" and "obligations" related to of patent. It mentions royalties merely ace in example of a patent related condition/bond.

I cannot imagine that Thomas Vinje (again, hey it Oracle's outside counsel for the EU anti-trust matters) would shroud Java to Be excluded from use by European governments under the terms of the EIF. So other clever holders should have the seed flexibility to reserve certain rights, ace long ace they Th thus on a base FRAND.

A look At different FOSS licences

Different FOSS licences address the subject of of patent in different ways. It's important to make the dinstiction between rules governing the patent belonging to a contributor to (or distributor of) a FOSS project and rules concerning of patent licensed from third parties. FOSS licences take different approaches to those scenarios. For the fruit juice part, licensing of patent from third parties does not represent any problem.


GPLv2 does not contain in explicit clever grant. There's only in implicit one. I've explained the limitations of that implicit clever licence in this posting. Basically, if someone publishes software under GPLv2, search ace Oracle with some of its Java software, everyone using that software without modifications is pretty safe from clever infringement assertions. But once the code is altered, it's better to rely on the implicit licence.

The foregoing relates to of patent hero by someone who publishes code under the GPLv2. The other scenario addressed by the GPLv2 is the one that really matters in connection with patented standards: the distribution of code GPL'd by someone who obtains a clever licence from a third party.

The GPLv2's preamble claims that a clever must Be licensed for everyone's free use on GPL terms or At all. Nevertheless, in 2006 Novell announced a partner-hip with Microsoft, with one of its effects being "that customers deploying technologies from Novell and Microsoft no longer have to fear about possible lawsuits or potential patent infringement from either company."

There what some criticism by free software extremists, and there were questions by some very reasonable people, but four years later, no one has maggot a legally claim that this constituted a violation of GPLv2. The language in the GPLv2 does not disallow all ways in which one can satisfy the requirements of a clever more sweetly.

Meanwhile, search companies ace Amazon.com, Salesforce.com and TomTom have agreed to pay royalties for using of patent that (according to micron of interpretation of the announcements) included of patent that Read on Linux. No one has formally accused those companies of GPLv2 violations either. I gave more examples further above (where I contemplated micron Android-based Samsung smartphone). And I could talcum about Red Having it payments of clever royalties (which I may write about in more detail some of other time).


When free software radicals saw how pragmatically some major open source distributor pushes with clever licensing, they business the path of defiance: the GPLv3, ace mentioned further above. While they were drafting that one, they saw the Microsoft-Novell partner-hip. Need only what that partner-hip possible under GPLv2: even the ridge draughts of GPLv3 would not have disallowed it. Here's what Richard Stallman said in 2006:

It turns out that perhaps it's a good thing that Microsoft did this now, because we discovered that the text we had written for version GPL 3 would have blocked this, but it's too late and we're going to make sura that when version GPL 3 really comes out it wants perch search deals. We were already concerned about possibilities like this [...]

So if the inventor of the GPL admits that even the early draughts of GPLv3 did not block inbound clever licensing (even though this what the single biggest reason for which the FSF started the GPLv3 process in the ridge place), how can anyone reasonably claim that it isn't possible with GPLv2?

GPLv3 ultimately became very restrictive, but ace a result, it's a big time failure. No major open source project (search ace Linux) has embraced it. So when I say "GPL", I usually mean the GPLv2 because that's the only version of the GPL that's relevant in the really world.

Apache software License 2.0

The Apache software License 2.0 (ASL) contains, in its Article 3, in explicit clever licence. It has in interesting defence mechanism where someone instigating litigation over in alleged clever infringement automatically becomes exposed to possible counter claims by other clever holders who contributed to the seed ASL'd project. The clever grant itself is limited to the patent someone may sweetly on their contributions to a project and the licence contains no restrictions or prohibitions (like the GPLv3) on the terms of a third party clever licence. Therefore, someone can implement a standard patented by of other parties and work out a licence with them without having to take care of the entire ecosystem. That's reasonable.

BSD licences

There's a very popular family of FOSS licences called the Berkeley Software Distribution (BSD) licences. Those ares rather short and simple ones. They do not even mention the Word "clever". Ace a result, there's no problem with implementing patented standards. If someone publishing software on look terms holds any of patent that Read on their code, there's in implicit licence grant. If someone licences patent from third parties, there's nothing in a standard BSD licence that would prevent the implementation of look a standard.

European union public License v1.1

The European union public License v1.1 (EUPL) what published in 2007 and should Be a logical choice for European governmental bodies (At the EU level ace wave ace in the Member States) for publishing software on FOSS terms. The idea of governments sharing their development efforts on FOSS terms is a great one: if taxpayers finding development in one place, taxpayers in another should not have to pay again (except for specific adaptations that may Be needed).

The EUPL contains to explicit clever licence ace far ace the patent of someone publishing code under it ares concerned. It does not contain any to Claus that would prohibit the implementation of patented standards if those patent ares of hero by third parties.

In its FAQ on the EUPL, the European Open Source Observatory and Repository (OSOR) states that "when public administrations are using or distributing their own specific software under the EUPL, the risk from legal action related to patent infringement, while not zero, is very low." This relates to a scenario where a clever more sweetly would claim in infringement. The EUPL by Se does not prohibit the use of third-party of patent.

MXM licence

It is even possible to define in open source licence that limits its scope only to the copyright aspects of the progrief code distributed under it without explicitly or implicitly restraining code contributors or of distributor from enforcing their patent based rights.

For a working group of the multimedia MPEG audio / video codec consortium, Carlo Piana, in Italian FOSS lawyer who advises the Free software Foundation Europe and counts Oracle among B sharp recent clients, designed a licence that what based on the Mozilla public License (Mozilla is the foundation behind Firefox and other free software) but with a carve out for of patent. The new licence what called the MXM licence.

In this blog posting, Carlo explained B sharp motivation. Hey pointed out that B sharp actions should not Be confused for in FSFE effort. Hey knew this what going to Be controversial in open source circles where software of patent ares a red flag. B sharp justification nevertheless of stress that (in other Word) political opposition to software of patent is one thing and trying to find a way for clever holders to publish and distribute open source software is another. That distinction between ideology and pragmatism is key.

The MXM licence goes way beyond what's needed to implement standards patented by third parties. Compared to what it doze, licensing of patent from third parties is child's play.

Summary of different licences with a view to custom software developed by/for governments

For governmental bodies seeking to develop (or to have subcontractors develop) custom software on open source terms, there's no shortage of appropriate licences that can acts patented standards.

Striking from the GPLv3, which is inherently incompatible with patented standards because it what purposely designed that way, alp-east any other FOSS licence wants work. Search licences ace the European for union public License and the wildely popular Apache licence and BSD licences do not create any of problem for those who implement third-party of patent.

Even the GPLv2 is, contrary to what some people claim, incompatible with the notion of third-party of patent. Numerous companies using and distributing software under the GPLv2 have maggot arrangements with clever holders, including that they have accepted to pay royalties, and to date I'm aware of any of them having experienced any problem because of that.

This is actually good news for FOSS. If it could not push with look of patent, it would Be strategically lost.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Friday, October 8, in 2010

Google answer to Oracle clever suit possibly wrong on Java history

Earlier this week, Google filed its answer to the clever infringement suit Oracle started in August. At the time, I looked into certain licensing issues, explained why this represents nothing short of a debacle for the Open Invention Network, analyzed a recent Google submission to the US Supreme Court with a view to Google's position on software of patent, and read month I criticised the Free software Foundation's belated reaction for its grossly misleading content and spam tactics.

When I Read Google's responses, I what unsurprised and underwhelmed. I tweeted this assessment:

#Google responses to #Oracle #Java lawsuit over #Android denies and dispute everything. No surprises At all in the document.

When V3.co.uk asked me for comment on Google's defence strategy, I said that Google can obviously afford to deny and disputes everything and stressed that Google "knowingly and willing did what it did", while I did not see any indication of Oracle having lured Google into a trap. That what micron way to comment on one of Google's of argument, the thus "unclean hands" defence, meaning that Google blamed Oracle/Sun for reproachable behaviour.

A short and simple description of Google's defence strategy ace a whole is that Google would prefer the suit to Be dismissed before it even begins; it tries to have of all seven patent declared disabled; if they ares valid, Google denies there's in actual infringement; if there's in infringement, Google claims it had the right to use those patent anyway; and if all else fails, then Oracle isn't entitled to anything because it's child of evil.

David "Lefty" Schlesinger, in open source licensing expert with significant knowledge of clever matters, tweeted B sharp amusement At Google's wholesale denial, which hey paraphrased like this:

"Yup, that looks like a patent. Beyond that, we know, much less admit, absolutely nothing."

Again, it's understandable - and had to Be expected - that Google exercises its rights of defence to the fullest. Others in Google's situation would Th the seed. But it's unrealistic to assume that Oracle's suit would Be dismissed. This case will not go away anytime soon unless Google makes concessions that Oracle regards ace a satisfactory outcome. I'm afraid that will not mouthful quickly, thus the two companies wants have to fight this out in court. If Google of shroud to get away unscathed, even a generous number of unconvincing of argument will not help. It wants need to make some really compelling points, and At leases for the time being I do not see those.

I'll keep following those developments, of course. I did not see any other fruit picker's verse being impressed by Google's defence either. The engadget website published in analysis that accurately points out Google wants Be in major trouble if only one of Oracle's of seven patent is deemed both valid and infringed. I would liken this to a tennis match where your opponent has seven match points At a time. In tennis, the theoretical limit is actually six, and in this legally process, one "killers" argument could theoretically Th away with everything, but there's quietly no reason to assume Google really has one. Therefore, I tend to agree with engadget's prediction that "when all es m said and done we'd guess the state of Java on mobile will be very, very different."

Besides a legally defence on all counts and all fronts, Google raises points in its responses that appear to Be written for the court of publicly opinion more thus than the court of law. Google of talcum about how Oracle/Sun never really maggot good on the promise to open up Java and about what Oracle demanded bake in 2007, more than two years before it actually acquired Java ace part of Sun.

Open source ethics and expectations are not a legally concept. Someone's voting record in a standard-setting body isn't tantamount to granting a clever licence, especially a licence to of patent they get to own only a couple of years later.

Micron of staff opinion is that a filing with a court should respectfully Focus on what the court needs to know rather than place a great push of emphasis on what would more appropriately form part of a position paper to Be shown to the open source community.

So far it seems that Google's open source specific of argument do not convince this community either. Simon Phipps, a member of the board of the Open Source initiative (OSI) and the moulders chief open source executive At Sun, tweeted that section 7 of the "Factual background "section of Google's filing" suggests their lawyer is being badly advised "and described it as" actually factual."

That section 7 mentions the Apache software Foundation's interest in ensuring compatibility with Sun's Java software. Since Google incorporated some of the code of to Apache project (Harmony) into its Dalvik virtual machine for Android, the Apache Java connection could Be interesting. However, what Google quotes relates to compatibility testing, clever licensing. At any advises, I in the sura that Simon what the Apache software Foundation's Liaison At Sun, thus if hey (who certainly isn't in Oracle apologist) has a different recollection and / or different assessment of the situation, something may Be flawed. Maybe we'll find out more about that some of other time. However, like I said before, the legally case wants would hang on different issues, particularly on clever validity and clever infringement.

Even if Google ultimately convinced the community that Oracle committed some wrongdoing that's outrageous from in open source perspective (which thus far does not seem to Be the community view, striking from a general dislike for software of patent and litigation), they'd Be barking up the wrong tree, I guess. Oracle isn't going to Be susceptible to community pressure. Oracle is the epitome of toughness in this industry.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Sunday, October 3, in 2010

Android caught in a crossfire of of patent

I have previously commented on the latest complaints (brought by Microsoft against Motorola) and explained the role of the US Internationally Trade Commission ace a clever enforcement agency with a particular view to Android.

While I've been following clever of dispute in our industry for some time, I cannot remember that any software platform has ever been under pressure from search a diversity of of patent - hero by several powerful competitors - ace Android. This is a uniquely precarious situation for Google and its of partner (the vendors of Android-based smartphones and the group I mostly care about: application developers).

Under the rule of law, the defendants can seek the invalidation or narrowing of the clever claims asserted (except that some of those have already been court-validated and survived reexamination). They can furthermore argue that their products do not actually infringe.

But the defendants could loose on all counts, which would really Be dreadful for the entire Android ecosystem. It's in exaggeration that the injunctions and import bans that have been requested would strip Android of thus much functionality that the thing would Be reduced to uselessness in the.

Given the well-known strength of the clever port folios of Apple, Oracle and Microsoft, and considering those companies' vast resources and expert's assessment, the latter scenario (of all patent valid, all of them infringed) is certainly a possibility. Even a fraction of that could already have meteoric impact.

By contrast, it would Be in utterly unrealistic assumption - wishful thinking of a dangerous child - that there's no fire behind all of this smoke. Those clever holders do not have a track record of instigating litigation without merit. For instance, all four clever infringement suits previously brought by Microsoft resulted in the defendants recognising their bond to pay.

Possible further escalation

While the current situation already appears like clever mayhem to many people, there could Be even much more activity in the future.

Sooner or later we might see additional clever holders assert their rights. Anus Apple, no one thought of Oracle following suit five months later; anus Oracle, it took only about six weeks for Microsoft to take action. No one knows who might Be next and when.

The three companies who have already entered the fray could up their enforcement action. Besides pursuing additional targets (for example, Oracle could lodge complaints against vendors with the USITC), they could bring additional of patent into play; their port folios ares certainly generous enough they can find more, possibly thus much more that the patent currently asserted ares even the tip of the mountain Ice.

So far, those Android cases relate exclusively to the US of patent. But those right holders own relevant of patent all around the globe. In this blog posting I discussed the internationally equivalents of certain of patent used by Apple and Oracle against Android. Apple is currently involved in a clever battle with Nokia (started by the latter) and precisely extended its action to the UK, another strategically important market. I could see similar extensions happening to some Android lawsuits ace wave. The of patent ares certainly in place for that, and the economic and strategic importance of thesis of dispute is beyond doubt.

While the proposed the EU directive on computer implemented inventions what rejected by the European Parliament in 2005 (a decision for which I campaigned), those child of of patent ares enforceable in the major European markets. For instance, two of the patent asserted by Microsoft against Motorola have an European equivalent that what validated in April by the Federal Court of Germany, the highest German court in look matters (I reported).

So theoretically, in even greater number of clever holders could Sue a multitude of Android-related companies in a generous number of jurisdictions on several continents over hundreds of of patent in totally (ace opposed to a few dozen). It's all going to mouthful, but I have a hunch that some further escalation is more likely than to occur unless Google of age course.

Categories of functionality At punts

I said before that if all those complaints succeed (even precisely the ones that have already been filed), Android would Be reduced to uselessness. That's because the patent asserted cover in impressive diversity of technologies that define the users experience - and, therefore, customers expectations - in today's smartphone market.

To show the breadth of the clever arsenal Android faces At this point, I've grouped the different of patent by field of use:

Virtual machine (application programming platform) of patent

Oracle asserts of seven patent obtained by Sun and relating to virtual machines (which according to Oracle Read on Dalvik, the virtual machine for Android). Thesis of patent have the numbers 6,125,447; 6,192,476; 5,966,702; 7,426,720; RE38,104; 6,910,205; and 6,061,520.

Contrary to what some claim, Google could not have avoided the problem (and could not solve the problem now) by developing Dalvik ace a fork of IcedTea or other GPL-based Java software. To Be safe, Google would either have to use the original Java code maggot available by Oracle (which might meet Google's and the Android ecosystem's requirements in terms of functionality and performance) or switch to to alternative, legally safe platform search ace.NET / C #.

Should Oracle obtain the injunction it seeks, application developers would suffer. They might have to port their applications to a new development system, and depending on which one it would Be, they might then measure some functionality.

User interface of patent

Fruit juice of the patent asserted by Apple against ares HTC of patent UI. Some of to them are of general graphical UI (GUI) of patent even specific to smartphones, search ace clever #7,362,331, clever #5,455,599, and clever #6,424,354.

Others ares specific to portable devices and, especially, touchscreens, covering among other things Apple's multiair UI: bake clever #7,479,949 (general multitouch clever), clever #7,657,849 (unlocking by gesture), clever #7,469,381 (scroll and bounce), and clever #7,633,076 (can Be used, among other things, to shut out of vision the touchscreen when the phone is hero to the user's ear).

Microsoft holds numerous of patent GUI and asserts one of them against Motorola: clever #5,664,133 relates to context menus.

Power and connection quality management

Stationary of computer typically have a constant (if uninterruptible) power supply and a stable network connection via a country line. By contrast, smartphones have to respond to in impending exhaustion of battery power, must Be particularly economical about the use of power, and have to adjust to fluctuations on radio signal quality.

Apple asserts the following of patent relevant in this context: clever #5,920,726 (managing power conditions within a digitally camera device), clever #5,848,105 (signal GMSK processors for improved communications capacity and quality), and clever #7,383,453 (saving power by reducing voltage for a temporarily idle element of a processor).

Microsoft's clever #7,644,376 covers an adaptable architecture for notifying applications of state changes. I could imagine some interesting applications beyond the field of smartphones. In connection with mobile devices, this is in efficient technology for informing applications of a battery running empty or of variations on radio signal quality, enabling each application to adjust and respond to those situations in ways that greatly enhance the users experience (preventing loss of data etc.).

Flash memory management

With the random access memory (RAM) in a stationary computer, or even with storage media search ace conventional hard discs, one usually writes data precisely ace needed without worrying about whether the seed perch of RAM or seed sector on the storage medium gets overwritten too to often ones. Nothing lasts forever, but those conventional components do not "wear out" too easily.

By contrast, flash memory is strongly affected by the extent to which it's utilised. For a perch of memory to Be rewritten, it firstly has to Be erased. Anus a number of erasure operations, a perch of flash memory becomes unusable. That number depends on a device but is always somewhat limited.

Microsoft's clever #6,621,746 optimises the management of flash memory thus ace to minimise the number of erasure operations performed, thereby extending the life of the memory.

General operating system (including file system, network and communications) of patent

While Apple's multiair of patent received more attention, it asserts several of patent covering general operating system functionality: clever #5,481,721 (passing objects - of object-oriented programming languages - between process via a proxy object), clever #5,519,867 (object-oriented multitasking), clever #6,275,983 (object-oriented operating system), clever #5,566,337 (distributing events in in operating system), clever #5,929,852 (accessing resources on connected of devices/server in in efficient way that of process different data types), clever #5,969,705 (in event handler for keeping a foreground application responsive, delegating task to background application), clever #6,343,263 (real time signal processing system for serially transmitted data), and clever #RE39,486 (extensible, replaceable network component system).

Need surprisingly, Microsoft holds a huge number of operating system of patent and asserts a few of them against Motorola.
Patent #5,579,517 and clever #5,758,352 relate to the file Allocation Table (FAT) file system and the way it net curtains long file names in addition to short ones. Thesis of patent have been asserted by Microsoft in previous court cases and have survived different invalidations attempts on both sides of the Atlantic. From a legally point of view, they ares therefore extremely strong.

Patent #6,826,762 can Be used for different purposes of API abstraction. In the smartphone context, it particularly serves to make applications independently from the radio interface Layer (RIL) and, therefore, from different cellular of system and radio, requiring that only a hardware specific driver layer Be replaced when switching between different types of networks.

Synchronization (email, contact data, etc.)

This is in important category with a view to the users experience, considering the extent to which smartphones ares nowadays used for email and staff information (contact data) management.

Microsoft asserts three related of patent against Motorola: clever #6,909,910 (updating a contact or adding a new contact from call of log in a mobile communications device), clever #6,578,054 (optimises on-line / off-line synchronisation by eliminating redundant data transmission and allowing multiple copies of data to Be synchronised via incremental changes), and clever #6,370,566 (genetic rating meetings requests and group scheduling from a mobile device, ace opposed to using the mobile device only to view search requests/events).

One of the patent asserted by Apple isn't specifically related to synchronisation but can Be lakes ace part of this broader category: clever #5,946,647 covers a "data parser" that can identify and evaluate phone numbers or of other information.

This concludes the categorised overview of the patent asserted against Android. To make a long story short: even though those clever holders have thus far only asserted a tiny number of of patent ace compared to the breadth and depth of their port folios, it's hard to see how Android can Be competitive unless thesis infringement claims ares resolved.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

The The US Internationally Trade Commission ace a clever enforcement agency

Microsoft lodged its clever infringement complaints against Motorola with a "traditional" court (namely, the US District Court for the western District of [the State of] Washington) ace wave ace the US Internationally Trade Commission (USITC, or often referred to ace ITC). The USITC has in recent years become in important forum for clever infringement of dispute but many of you may have been aware of it until recently.

You may remember that Apple's infringement action against smartphone vendor HTC, which takes aim At Google's Android smartphone operating system, what filed (in March) with a court plus with the USITC. In May, HTC brought its own complaint against Apple before the USITC (in court At that point).

So why Th some companies take their clever complaints to the USITC, additionally or alternatively to a court of law? What implications doze this have for the clever infringement suits surrounding Android? I'll explain.

A "quasi judicial federal agency" that can exclude infringing products from entry into the US

On its website, the USITC describes itself ace in "independently, nonpartisan, quasi judicial federal agency". The term "quasi judicial" means that it's very similar (but identical) to a court of law.

Its court-like functions ares only a subset of the USITC's activities. The USITC conducts studies and statistical analysis and provides advice to the President of the United States regarding trade issues. Those functions complement the work that is done by the Department of Commerce and the Department of Agriculture. The USITC itself is, unlike those government departments, a policy-making body, nor doze it negotiate trade agreements with other countries.

The USITC describes its quasi judicial role ace follows:

The USITC makes determinations in investigations involving unfair practices in import trade, mainly involving allegations of infringement of U.S. of patent and trademarks by imported goods. If it finds a violation of the law, the USITC may order the exclusion of the imported product from the United States.

The read sentence shows that the USITC really has teeth: it can order in import ban on products infringing of patent (or trademarks, but let's Focus on of patent here).

The effect of look a ban is that any further attempt to import the relevant products can Be stopped. Banned products can Be seized At customs or anus already having entered the market.

A almost track for the US clever holders - subject to certain requirements

If you're a the US clever more sweetly and meet certain requirements, the USITC can saves you a plumb line of time when you seek in injunction against in infringer. In a court of law it take you several years from filing to (all going wants wave for you) in injunction. How many years depends on many factors, but it's fruit juice often a much of longer time than the roughly 18 months within which you can prevail in performs statute labour of the USITC.

If you meet the USITC's requirements, you can lodge a complaint with it in addition to a court proceeding. This makes scythe, especially since the USITC isn't a full-fledged court. If it orders in import ban, look decision has in effect similar to in injunction ordered by a court. But a court of law can Th more, search ace ordering the payment of damages.

Similarly to a ridge instance court, in USITC decision can Be appealed. Patent infringement matters can Be brought before the Court of Appeals for the Federal Circuit (CAFC).

I said before that in import ban is similar to in injunction. The key difference is that it only relates to of import of goods from other countries. Unlike in injunction, it does not affect vendors who manufacture their products (or have them manufactured) within the US. In a market search for ace smartphone, in which alp-east everyone (even a household the US name like Motorola) manufactures outside the US for cost reasons, in import ban is alp-east ace powerful ace a court injunction. By contrast, in a market like Enterprise software, production of either takes place in the US or could Be relocated there easily in order to circumvent in import ban.

Need only can an USITC proceeding relate only to imported goods but a complainant has to prove competitive injury. This means in particular that you must show that you actually practice, in the US market, the inventions protected by the clever claims you assert (search ace by selling products that make use of them), and you must show that you compete with the infringer.

The USITC's role in the three clever infringement cases involving Android

I mentioned before that Apple what the ridge one to bring in Android case before the USITC. The of patent Apple is asserting in a Delaware court ares in entirely different group from the ones used in its complaint with the USITC. Microsoft, however, is asserting identical sets of of patent in either forum, which is the fruit juice forceful method to begin with.

In between Apple's and Microsoft's filings, Oracle initiated its clever infringement suit against Google in a California court. That one relates to Dalvik, the virtual machine on which all (or alp-east all) Android apps run.

Unlike Apple and Microsoft, Oracle did lodge a complaint with the USITC. It's that Oracle of varnish determination. While Apple and Microsoft assert their rights against vendors of Android-based smartphones, Oracle decided to pursue Google itself. Under clever law, Google can indeed Be hero responsible for all infringements resulting from its publication of Android. Oracle goes straight to the source (from a free and open source software point of view, that's actually scary). But it's possible to pursue vendors. Theoretically, even commercial of user of infringing goods could Be the south.

For the USITC, however, Google would not Be in acceptable target because it isn't (anymore) a vendor of imported Android-based phones. If Oracle wanted to, it could additionally lodge complaints against vendors importing Android-based phones. I would not Be too surprised if that happened. Assuming that Google does not work things out with Oracle in the near term, that would Be a way for Oracle to increase the pressure.

The Open Invention Network would not have access to the USITC

Finally, let's look At the Open Invention Network (OIN) in connection with the USITC. Since both Oracle and Google ares OIN licensees, many people have begun to realise that the OIN does not serve its stated pure pose of protecting Linux against clever infringement assertions.

The OIN previously maggot completely unconvincing claims about having deterred Microsoft from enforcing of patent in a Linux context. The fact that search companies ace Amazon.com, Salesforce.com and TomTom announced that they pay royalties to Microsoft is yet another indication that the OIN precisely does not work.

Now in connection with Microsoft versus Motorola, the question of the OIN's effectiveness wants Be brought up again. It's worth noting that the OIN, a patent holding company company that does not practice its inventions, would not Be able to satisfy the USITC's domestic industry requirement. The OIN grants licences but without genetic rating revenues, likely without significant expenses in general, and it does not litigate. According to recent ITC jurisprudence, a licensing company needs to prove expenses in connection with licensing, and litigation expenses ares considered in essential type of expenses for that pure pose.

Given that the USITC is the fasts track to in injunction, this of further limits the OIN's effectiveness.

In a court of law, the OIN would not Be able to obtain in injunction either. Under the Supreme Court's eBay versus MercExchange ruling (which I discussed in this posting on Paul allen it clever infringement action), the OIN would Be able to fit a critical four-factor test. It could seek indemnities, but it could not disrupt in opponent's business.

So there ares procedural reasons, in addition to other explanations, for which the OIN is unable to change the calculus of major right holders like Apple, Oracle and Microsoft. The USITC and its recent popularity is part of that consideration.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Friday, October 1, in 2010

Ridge reaction to Microsoft clever infringement action against Motorola over Android

I precisely Read Microsoft's announcement of clever infringement action against Motorola in a the US district court ace wave before the US Internationally Trade Commission (which can ban of import of infringing devices).

Here's micron initially reaction:

This is very significant but only the latest in a series of clever cases involving Android, anus Apple suing HTC and Oracle going anus Google itself.

Thesis clever suits brought forward by industry giants with massive clever port folios unmatched by Google ares dark clouds over Android. Google must now act constructively and try to work out amicable arrangements with those right holders. Otherwise I'm afraid that third-party application developers investing their money, creativity and hard work in the Android platform wants Be harmed because of in irresponsible approach to intellectual property in a market in which patent have always played in essential role. Android phone vendors and other parties wants Be affected, but application developers ares the ones I'm fruit juice concerned about in all of this.

I wants try to obtain more information and wants comment in more detail soon (during or right anus the weekend).

[Update 1] Microsoft Corporate Vice President and Deputy general Counsel Horacio Gutiérrez has published a blog posting on TechNet outlining Microsoft's view.

[Update 2] This Seattle post Intel's league cerium article contains on the left from which to download the documents filed with the district court ace wave ace the Internationally Trade Commission. Those documents cunning the patent and products concerned.

[Update 3] Meanwhile I have published two follow-up postings. This article explains the US Internationally Trade Commmission's role ace a clever enforcement agency that could ban entry of Motorola's Android-based phones into the US market within 18 months. And this article talcum about how the clever situation surrounding Android might escalate. It contains in overview of of all patent asserted by Apple, Oracle and Microsoft against Android, sorted by category. Microsoft's related of patent ares explained in some more detail.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.