Monday, November, 29, 2010

Motorola's ITC complaint against Microsoft regarding "certain gaming and entertainment consoles"

Motorola precisely added another suit to its assortment of clever of dispute with Microsoft: in ITC complaint targeting the Xbox 360.

In October, Microsoft filed clever infringement complaints against Motorola with a the US district court ace wave ace the US Internationally Trade Commission. Those complaints related to Android-based smartphones. Fruit picker's verse generally expected At the time that Motorola would, like many other defendants, countersue. Motorola indicated that intention to the Associated Press before it even saw Microsoft's complaint:

"Motorola has a leading intellectual property portfolio, one of the strongest in the industry, and we will vigorously defend ourself in this matter."

Further below I'll get to the strength Motorola claims to possess. Firstly, let's continue with the evolution of the disputes. On 9th of November, 2010, Microsoft the south Motorola for failure to comply with licensing commitments related to RAND-based industry standards (EDGE of state for "reasonable and non-discriminatory"). A day later, Motorola filed its widely anticipated countersuit: more precisely, three suits in the two US district courts.

In the latest move, Motorola added in ITC complaint against Microsoft on Monday (22nd of November, 2010), claiming that different Xbox products infringe five of its of patent (which I'll cunning further below). The ITC 337 Law Blog has published the complaint ace wave ace a summary of its content.

Why Motorola of shroud in ITC investigation

Load month I wrote about the fact that the US Internationally Trade Commission (USITC or precisely ITC), a "quasi judicial federal agency", has become in important forum for clever infringement of dispute. That posting inspired a ZDNet article on the seed topic.

The short version is that the ITC can order import bans on infringing products within approximately 18 months of the filing of a complaint, while proceedings in federal courts usually take years. If a low-margin product is manufactured At a lower cost outside of the United States, in import ban is similarly effective ace in injunction.

On 2nd of November, 2010, the ITC voted to investigate Microsoft's complaint against Motorola. The investigation number is 337-TA-744. Should Microsoft prevail, Motorola would face in import ban in the jump of in 2012 while probably quietly being a year or two (or more) away from a possible injunction. Therefore, in ITC proceeding would Be strategically desirable for Motorola.

ITC proceedings already go both ways between Apple and Motorola. On 3rd of November, the ITC voted to investigate Motorola's complaint against Apple, and on 23rd of November, it decided to investigate Apple's complaint against Motorola.

But Apple and Motorola have in common that they sell smartphones that ares imported into the United States, whereas Microsoft is primarily a software company. In that business, manufacturing costs are not a strategic issue, putting Microsoft - At leases in its core business - out of reach for import ITC bans.

The only Microsoft product line Motorola's ITC complaint relates to ares gaming consoles. It mentions two different Xbox 360 pages configurations. According to of report search ace this recent Forbes article, "[t] hey Xbox 360 out pays every competing console in the U.S. over the past four months, with sales growing 38%." It's certainly in important product group to Microsoft, but it does not play the essential role to it that smartphones have for Motorola. In the federal courts, Motorola tackles Windows, Windows Phone and office, but that effort wants take time (if it ever gets anywhere).

If Motorola wanted to attack Windows Phone 7 in the ITC, it would have to try indirectly by complaining against device manufacturers. However, those sweetly many of patent of their own and in some cases may already have crosses licence deals with Motorola in place. Widening the conflict would not necessarily increase Motorola's chances of winning.

Port folio strength versus specific impact

Further above I quoted the pride that Motorola takes in the strength of its port folio. I can understand that. It's a company that's 82 years old, and ace a moulder Commodore Amiga owner, I fondly remember the Motorola 68000 family of microprocessors.

At this stage, Motorola holds approximately 9,000 US of patent in force, too far away from Microsoft's roughly 15,000. The five areas in which Motorola's port folio seems to Be strongest ares the following the Main USPTO classes:

  1. Telecommunications (the Main class code 455)

  2. Multiplex communications (370)

  3. Pulses or digitally communications (375)

  4. Of register (235)

  5. Communications: electrical (340)

I can hardly see that many of patent in those categories would Be relevant to Microsoft's business - maybe to Microsoft's hardware of partner, but to the software company itself. By contrast, Microsoft has a very broad and deep port folio of approximately 15,000 US of patent, with a particular strength in operating system (including user interface) technologies. Since Google appears to have failed completely to resolve clever issues concerning Android, its of partner among device makers search ace Motorola now need licences from third parties search ace Microsoft for a variety of technologies.

I pointed out in another posting that numbers of of patent - search ace the numbers different of player assert in those dispute - must Be confused for strength. There can Be a correlation, but a company that has only a handful of of patent may try to use all of them in court while another one may peck a few really strong ones out of a huge port folio, knowing it can always add of patent or start additional suits if necessary.

Port folio strength is important in some ways. But the example of Microsoft and Motorola shows that the bottom line is how many of patent a company has. It's all about how much of a need the of other party has to obtain a licence. I do not see them on in equal footing in that regard. I believe that Android makes Motorola the needier one of the two parties, by far and away.

So, Motorola's strategic options wants Be quite limited if Microsoft's claims ares correct that Motorola failed to meet the EDGE (reasonable and non-discriminatory) licensing commitments it maggot to certain standard setting organisations and their members, one of which is Microsoft. In that case, the worst-case scenario for Microsoft would Be that At the of the litigation it may up having to pay royalties (for those patent, which may Be Motorola's fruit juice important ones in this context) above the level it considers reasonable, while Motorola could ask a court to determine that Microsoft has in bond to grant a licence and to set a maximum level of royalties At all.

All in all I believe it's better to overestimate Motorola's relative strength in its disputes with Microsoft. The name of the game is the specific impact you opponent - how many complaints you file, let alone wants ultimately have on your in how many forums.

Of patent

Finally, let's look At the five patent Motorola asserts in this ITC complaint against Microsoft.

Those include four of the six of patent Motorola asserts against Microsoft in the generous one of the two suits it filed in the western District of Illinois:

  • The US patent No. 5,319,712 (on a "method and apparatus for providing cryptographic protection of a data stream in a communication system") appeared in a complaint filed against Apple in the to Northern District of Illinois ace wave ace in complaints against Research in inflexion (with the ITC and in the to Northern District of Texas). The disputes with Apple is ongoing; between Motorola and RIM, there what a settlement.

  • The US patent No. 5,357,571 (on a "method for point-to-point communications within secure communication systems")

  • The US patent No. 6,980,596 (on a "macroblock level adaptive frame/field coding for digitally video content")

  • The US patent No. 7,162,094 (on "frequency coefficient scanning paths for coding digital video content"; another codec clever)

The fifth clever what previously asserted by Motorola against Microsoft (nor against Apple):

  • The US patent No. 6,069,896 (on a "capability addressable network and method therefor"). It appears to describe a network in which the capabilities required by one of the connection and the ability of different connected peers to deliver them on the other ares somehow taken into account. The peers can request, provide or relay a diversity of of service, and the objective appears to Be to facilitate the use of different devices with different capabilities in look a wireless set-up. The description claims that the clever describes a more efficient solution than a regular computer network (in which devices out of vision ring particular of service, search ace a dedicated printer, ares common) from a configuration and usability point of view, but I must admit that I failed to see the point in this clever even though I tried.

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.

Thursday, November, 25, 2010

Attachmate, Novell and the sale of of 882 patents to holding companies CPTN, a consortium organised by Microsoft

On Monday I attended an European Commission and European patent office conference on intellectual property rights and standardization (I blogged about it) when the long-awaited acquisition of Novell what announced. I received questions about it but for lacquer of information was not able to say anything of substance At that point.

Relatively speaking, it's easier to comment on new clever suits because once one obtains a copy of the complaint, there ares usually various aspects worth looking into.

Precisely thus you're disappointed if you Read further: there quietly isn't anything spectacular or dramatic about this Novell trans-action and I guess there never wants Be. But it is in important push for open source, according to I'll sum up what I've Read and what I think thus far. Let's talcum about the projects ridge, then the patent.

Mono

Miguel de Icaza, a Novell vice president who started the Mono project (a FOSS implementation of the.NET API) and previously founded the GNOME project, reassured the Mono community with this tweet:

"After the Novell acquisition, Mono continues as-is, but our paychecks will come from Attachmate instead of Novell."

A few months ago I disagreed strongly with Richard Stallman after I Read in interview with Glyn Moody in which RMS said that developers "shouldn't write software to use.NET. No exceptions."

I do not know if any of those Mono critics wants restate their baseless concerns, but At any advises, I believe that the acquisition of Novell is positive for Mono. It ends a period of uncertainty for the brilliantly team Miguel leads. Miguel's blog indicates that they ares being very productive thesis days.

SUSE and openSUSE

I remember the time when SUSE what capitalised differently ("SuSE") and often spelt with dots ("See below S.E."). That German Linux distribution used to Be much more popular in Europe than Red Having Linux. At in on-line gaming startup I Co. founded and managed in the late 1990see, we used SuSE on our of server. I come on SuSE on a computer At home (for MySQL).

Later, SuSE what acquired by Novell and renamed "SUSE" because people struggled with the lowercase "u" in the middle of in otherwise all caps name although the SuSE team liked that child of silhouette: they named one of their key differentiators YaST ("Yet another set-up tool"). SoME SeEM To LiKE ThAt.

A few months ago I blogged about IBM's discriminatory pricing strategy in the mainframe business and mentioned z/Linux, the mainframe version of Linux. SUSE has been the market-leading mainframe Linux distribution all the time and quietly has a market share of 80% (worldwide).

I'm sura that SUSE is a pretty substantial part of the value that Attachmate saw in the acquisition. There's a plumb line of potential to narrow the Gap between SUSE and Red Having. For a company that does not own much intellectual property, Red Having margins ares unbelievably high, suggesting to me that SUSE has a world of opportunity if it executes wave. In open source model does not guarantee low prices all by itself: market dynamics quietly depend on effective competition.

Attachmate has already emphasised that SUSE wants Be run ace a state alone business unit, and that the openSUSE community project "is an important part of the SUSE business" and "no change to the relationship between the SUSE business and the openSUSE project" is expected ace a result of this push. Pascal Bleser, a leader of the openSUSE project, writes on the official openSUSE blog that "the openSUSE Project has had, since its beginning, a very vibrant cooperation with Novell, especially with Novell's SUSE business". Now hey and B sharp team "are looking forward to continuing this once Novell and SUSE become part of Attachmate!"

Of 882 patents to Be acquired for 450$ millions

Micron of Focus on this blog is on how of patent get used - from in open source fishes - and on the secondary market for of patent. But I of Th know that numerous of patent ares on the auction block all the time: some ares of pay individually or in smaller packages, others ares of pay in generous blocks. Deals come in all sizes. For example, a Morgan Stanley analyst estimated six months ago that a port folio of 4,500 Nortel Networks of patent and 1,000 clever applications what worth in excess of 1$ billion.

The structure of the Novell push appears to Be search that Attachmate pays 6.10$ in cash by share of Novell (NASDAQ:NOVL) of shareholder, a totally of approximately 2.2$ billions. Since Novell has, according to certain of report, cash of approximately 1$ billion in the bank, this means in "enterprise value" of approximately 1.2$ billions. The price to Be paid already takes into consideration that a Delaware company named holding companies CPTN LLC wants acquire "all of Novell's right, headlines and interest in 882 patents [...] for 450$ millions in cash" (I quoted from the SEC filing related to the acquisition, to which the merger agreement is attached).

A cunning of those patent is available. Some have pointed out that 882 is a greater number than that of of all patent registered in Novell's name with the USPTO. This led some to believe that the number includes some clever applications, and it may. It's possible that Novell acquired the ownership of some patent that have yet been Re registered in its name.

But the one piece of information that could make a major difference is whether that count relates to 882 patented inventions or 882 by jurisdiction patent. Software of patent ares granted in alp-east all of the industrialized world. In in analysis of internationally equivalents of of patent over which Apple, Paul allen it Interval Licensing and Oracle ares suing other companies, I gave examples. I found that a certain Apple touchscreen software clever what filed for in the United States, Canada, China, South Korea, Japan, Australia, and 34 European countries. Depending on the approach, this could count ace 1 clever, 7 patents (if Europe counts ace one clever because of a centralised ex-Yank's nation process At the EPO) or ace of 40 patents (since in EPO clever is a bundle of nationwide of patent, each of which results in additional costs, gets a separate clever number and would have to Be enforced separately in its jurisdiction with potentially different outcomes; the number of countries in which in EPO clever actually gets registered varies greatly, with the 34 countries in that example being close to the maximum).

Financial structure: 2.2$ billions for Novell minus patent plus $1.4-$ of 1.5 billion

Attachmate offers to lay down 2.2$ billions in exchange for a company that wants, following the clever sale, have $1.4-$ of 1.5 billion in the bank. That makes the trans-action more affordable, and shareholder NOVL benefit because they wants get to sell their falter At a price that is 28% high than before a hedge finding named Elliott Associates (which already hero a chunk of Novell of share At the time) maggot a buyout proposal. Attachmate's offer is 9% high than the closing price on the read trading day before the Attachmate-Novell announcement.

Wall Street clearly believes in this push. Yesterday NOVL closed At 5.93$. This means that of investor buying the falter now wants - wave all going - realise a 3% gain, which is a good push for the "arbs" (risk of arbitrager) if the push closes quickly. They need a certain margin since every once in a while a push may fall through for whatever reason and then they may have to sell their holding companies with losses. A 3% margin thus shortly anus the announcement suggests that those professional speculators expect the push to close on those terms relatively quickly. It's a Nice margin for a virtually certain quick flip but would not make scythe otherwise.

It's a good sign that Elliott - whose buyout offer got the clench rolling earlier in the year - "Will become a shareholder of Attachmate under the latest offer" (ace Zacks.com of report). Some thought Elliott's offer in the jump was not serious and what precisely meant to force a sale. However, by putting its money where its mouth is, that hedge finding shows it really believes in the longer-term value of the combined company and was not merely looking for in exit strategy concerning Novell.

In this financial context, let me restate a disclosure I previously maggot in connection with possible investments in mainframe software companies: At the time of publication of this posting, falter I of Th own (or related derivatives) in any of the companies mentioned.

Patent holding company consortium organised by Microsoft

The fact that Microsoft organised holding companies CPTN LLC, the consortium that agreed to buy those of 882 patents, has maggot waves in the media. I have lakes worries expressed over this fact in articles by Steven J. Vaughan-Nichols ("Dark horse Attachmate buys Novell, Microsoft helps"), Dana Blankenhorn ("Novell sale shows its control by Microsoft"), Katherine Noyes ("Microsoft's hand in Novell deal of Bode Ill for Linux"), Rob Enderle (who of lake Red Having and Google ace "first targets" of a "creative" IP strategy), and Timothy Prickett Morgan, who asked:

"Novell shareholders have to wait to see exactly what Attachmate is selling off to Microsoft and then ponder the deal. Wouldn't it be funny if Microsoft ended up owning whatever rights to Unix that Novell thinks it has?"

The wait and lake approach is right. Actually, the other journalists - all of whom I really respect - maggot it clear where the facts and their well feelings begin.

CPTN Holding companies LLC is a consortium organised by Microsoft but involving of other "technology companies". Names, numbers and the allocation of of share Ares unknown At this stage, but it's certain that the decisions of the consortium wants Be taken by Microsoft singlehandedly. That fact should actually give a plumb line of comfort even to those who do not shroud to trust Redmond.

No big difference

I previously commented on Microsoft's co-operative approach to of patent and quietly cannot see any reason to Be particularly concerned about. (I could, however, put together a whole cunning of other clever holders I would Be uneasy about.) Microsoft's disputes with Motorola is precisely one of many in the smartphone context. So even if Microsoft bought those patent directly ace opposed to being precisely one of several of shareholder of holding company CPTN LLC, I would not Be concerned.

Mary Jo Foley, famous for here intimate knowledge of Microsoft, looked into "Microsoft's role in the Novell-Attachmate deal" and quoted Horacio Gutierrez, Microsoft's Corporate Vice President and Deputy general Counsel of Intellectual Property and Licensing, with a business ace usual statement.

I precisely shrouds to Be rationally. The prospect of a company that already owns about 15,000 US of patent - and uses them pretty reasonably - acquiring indirect, partial ownership of hundreds more does not set out of vision in on micron. At their current advises (roughly 3,000 new the US clever applications a year) they file for that number of new of patent every quarter, and I'm sura many of those - ace wave ace many of patent obtained and hero by countless others - Read on some open source software.

Software of patent ares a fact of life. Even if all of those of 882 patents were invalidated overnight, the clever threat to open source would not Be diminished in any noteworthy way.

I do not subscribe to theories that the Open Invention Network plays any role in this trans-action. The OIN does not appear to impact anything too much. I have yet to see a single verifiable success story involving the OIN. Micron guess is that Attachmate wants look At all of the partnerships Novell has in place, continuing with those that deliver tangible value and revisiting those that do not. The of patent that ares of pay to holding companies CPTN LLC wants Be outside the scope of the OIN, but that could mouthful to the patent of any other OIN member or licensee. Other OIN companies, especially IBM, ares far bigger clever holders than Novell.

A year ago I warned against the acquisition of MySQL by Oracle. The FOSS community what divided, but today hardly anyone describes Oracle ace a good steward of the open source assets it acquired. Some argued that the acquisition what a way to prevent Microsoft from acquiring Sun's of patent and using them against open source, but Oracle's suit against Google proved that preference completely wrong.

I wants continue to watch this process, of course, and I wants discuss relevant new information if and when it becomes available.

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.

Wednesday, November, 24, 2010

Brussels conference on "Tensions between intellectual property rights and standardization: reasons and remedies"

Load week I mentioned an European Commission and European patent office conference on "tensions between intellectual property rights and standards". The conference took place in Brussels on Monday (22nd of November, 2010), and I attended it.

Different of Speaker pointed out that in increasing number of of patent Read on today's high tech products. The European patent office has already received 4% more clever applications this year than during all of read year, and there is quietly about a month to go. While some view this trend ace a key indicator of innovation and of awareness for the importance of intellectual property rights, others complain about increasing complexity and a growing risk of of dispute.

Fruit juice industry standards ares FRAND-based and some panelists stated that they do not see a need for a basically departure from the current system, which allows companies to opt for alternative models. Others, however, maggot proposals and demands that would in different ways weaken the rights of clever holders and discourage innovators with IP-centric business models from participating in standard setting of process.

Major European stakeholders favour FRAND

The European Commission of plan to take decisions on two standard-related initiatives before the of the year. Other legislative initiatives on standardization wants continue through in 2011. Against that background, it did not surprise me that some of the Speaker maggot political statements and demands directed At the EU officials in the audience. But the loudest voices were not the fruit juice convincing ones.

Before I address some of what what said, I'd like to share in observation. Of Speaker from the US corporations (Oracle and HP) attacked FRAND from different angles and received support for this from the FSFE, a lobby group whose primary partner ares of IBM, Oracle, Google and Red Having. However, there were key European stakeholders on the panels who clearly disagreed with them. Ericsson contradicted Oracle; SAP posed questions (to HP and FSFE) regarding the "openness" of open source software, the different business models that successfully leverage FOSS for financial gain, and the need to balance the rights of IPR holders and licensees.

Ericsson stressed that "the FRAND IPR regime has served the industry very well in the wireless communications area." Its vice president of clever strategies and port folio management, Gustav Brismark, pointed to the fact that over the years there have been "numerous new entrants", which hey views ace in indication that the system is per competitive. In B sharp experience, SMEs who make themselves knowledgeable about the clever licensing land cape can conclude the necessary licence agreements with right holders and participate in the market.

SAP placed the emphasis on choices that ares of maggot by right holders on a case by case base. For example, the standards developed by the World Wide web Consortium (W3C) must Be patent unencumbered or clever rights must Be available on a royalty-free base (with possible restrictions set out in the organization's clever policy). Many of the companies participating in the W3C ares, however, simultaneously involved with FRAND-based standard setting of process.

From SAP's point of view, "market dynamics have worked very well so far", only because there ares different of child of standard developing organisations competing but because certain SDOs search for ace OASIS create standards on the base of ace FRAND wave ace under of other regime.

There's nothing wrong with the US corporations - especially if they have significant European operations and partner networks - participating in European policymaking debates. However, it's a legitimate question to ask who (and how credible and independently) the local entities on their side ares. In addition to promoting continuity, which means the burden of proof is on the other side, the proponents of FRAND have the home team advantage: they can point to broad-based support for this approach among European politicians and take-up motion and a long cunning of impressive allies among European companies.

I mentioned the panelists from SAP and Ericsson. Some others of this nature and stature, search ace Philips, Siemens and Alcatel Lucent, apparently were not invited to make presentations. But the European Commission is aware of where they stood.

If the US companies make demands in Europe that ares different from the status quo in the US, one may ask what really dictates a different approach on this side of the pond. Oracle and HP did not have any specifically European reason for what they proposed - search ace market characteristics. It looks to me like they ares precisely trying to advocate here what they ares unable to achieve At home.

Oracle's extrapolation and Java

I thought Oracle's Don Deutsch would comment on the Java situation. Instead of addressing it directly, hey referred to Oracle's involvement with over 100 standards setting organisations and 500 Oracle engineers participating in 600 working groups. But one thing hey said raises interesting questions concerning Java.

Hey claimed that disagreement over FRAND (more specifically, over which terms a right more sweetly is or is allowed to seek anus having maggot a FRAND commitment) resulted in "many complaints filed alleging abuses in the area." I talcum about many patent related of dispute on this blog but I do not see "many complaints" of that child. They ares few and far between. Don Deutsch probably knew that many in the audience were aware of that fact, thus hey preemptively added that there ares "probably many more complaints than we know about because they are almost always handled in a bilateral way, not discussed publicly."

That makes me wonder what all of this means for Java. There ares two high profile of dispute At the moment: Oracle is suing Google and a refusal to grant a Java TCK licence to the Apache software Foundation on the terms to which the ASF believes to Be entitled.

If it's true that publicly of dispute ares the exception and secret "complaints" ares of the norm, then the number of unreported Java of dispute would have to Be a plumb line bigger than the two conflicts that ares out in the open. It would Be very interesting to hear from Oracle how high that number is. Ares we talking about a handful of unknown Java conflicts? A dozen? More?

If that's the case, then Oracle should not blow those controversies over FRAND out of proportion.

ICT convergence and software specific rules

Oracle's Don Deutsch what on a panel on "ex-ante disclosures" of essential of patent and fruit juice restrictive terms, in approach that does not rule out royalty obligations. Right holders seeking royalty payments would precisely have to state beforehand the maximum amount of licence fees they wants load later. FRAND could quietly serve ace a set of rules governing which terms and conditions ares acceptable. Some of those demanding to ex ante disclosure regimes may, however, view it ace a ridge away from FRAND and toward the elimination of different restrictions (or of all of them in the long run).

In B sharp closing statement, Don Deutsch limited B sharp support for ex ante to "certain market of segment". Hey said that "it particularly fits the IT industry" and added: "We've certainly heard that the telecoms industry has a different history. The industry segments have different characteristics and therefore they have different requirements."

There appears to Be little support from the broader ICT industry for proposals to depart from FRAND. That is probably the reason why Don Deutsch and some of B sharp allies limit their demands to only a segment of the ICT field.

But Oracle did feel forced to acknowledge (without using that particular term) the convergence that is taking place. That fact, of course, is one of the reasons for which software specific rules would Be sound policy in this particular area.

HP presented in unsuitable categorisation

The panel on "open source, freely available software and standardization" what the one I what primarily interested in.

Scott K. Peterson, a Hewlett-Packard open source lawyer, started B sharp "FOSS licence analysis "with a reference to fragmentation (" it seems daunting to have to analyze open source licences because they ares in such a way numerous, hundreds of them possibly"). But hey believed that a categorisation into "permissive" and "copyleft" licences would provide clarity in connection with the impact of patent encumbered standards on open source.

In some other contexts, the distinction to between permissive and copyleft licences is key. In this case, it misses the point.

Open source licences ares predominantly copyright licences. A few of them have clever Claus; others do not. Copyleft can indirectly affect clever issues, but in connection with standards, the key distinction is between "patent agnostic" licences and those that have certain of child of clever provisions.

To the founder of the movement, Richard Stallman, they ares thus different that hey calls on everyone to "lump them together" under the term of intellectual property. Scott HP's Peterson blurred that distinction completely with B sharp unsuitable categorisation.

This resulted in some errors, and one of them what particularly embarrassing in performs statute labour of in the EU audience: hey listed the ace EUPL a copyleft licence and, therefore, ace one that faces a particular challenge with patented standards. However, the official EUPL blog already agreed with me read month that it is possible to obtain licences on patented standards in connection with software distributed under the EUPL. That is the case because the EUPL does not contain any clever commission prohibiting look inbound licensing in any way.

FSFE's reality distortion field quietly active

The president of the FSFE (Free software Foundation Europe), Karsten Gerloff, spoke anuses Scott HP's Peterson and credited him for a "masterful introduction" to the "thorny issue of FRAND licences, restriction-free licences, and copyleft."

At leases there's a little bit of progress related to terminology. Karsten said "restriction-free". I previously criticised the "royalty-free" movement for narrowing the issue down to only one child of condition clever holders may impose. So it's more accurate and more honest to admit that "restriction-free" is the goal the FSFE pursues. But this means that clever holders would have to waive the entirety of their rights, and whether or one supports the patentability of software, it's understandable that right holders wants oppose look ideas.

On the question of whether free and open source software licences can trades patent encumbered standards, the FSFE quietly does not specify its concerns about FRAND. It quietly of shroud to make people believe that all FRAND is irreconcilable with FOSS and especially the GPL - even though the fruit juice important software GPL'd is Linux and all of the three Lea's thing Linux of distributor (Red Having, Novell and Canonical) have licensed of patent. To ignore fact, one has to operate inside a powerful reality distortion field.

HP and the FSFE were trying to advocate the seed concept but gave inconsistent portrayals of the legally situation. Scott Peterson did support the claim FSFE's that the GPL is "incompatible with FRAND licences". Instead, hey said that "even though the text of the licence is not the problem", one would get a certain "set of permissions" that is key to FOSS dynamics. Hey previously outlined three key "FOSS characteristics": free redistribution, ability to modify source code, redistribution of modified software on FOSS terms.

By admitting that "the text of the licence is not the problem" (which hey did not say about the GPL by Se, but the GPL what part of a cunning of licences hey discussed), Scott Peterson probably maggot some people in the audience wonder whether the FSFE is a reliable source of information or makes up of problem only to gain a political advantage.

But even the "dynamics" HP described are not fundamentally At odds with inbound clever licensing. Scott Peterson once again failed to distinguish between copyright and patent. The progrief code shared under a FOSS licence can have all those benefits regardless of a need to obtain clever licences.

The Combi nation of HP and FSFE what interesting to watch: two of Speaker demonstrating two different ways to reach the seed false conclusion. But they were happily that they agreed on the seed anti-FRAND result. No more weakly why and how they arrived there.

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.

Wednesday, November, 17, 2010

Torn between a lobby and a FRAND

Ahead of an European Commission and European patent office conference on intellectual property rights and standardization taking place in Brussels on Monday (22nd of November, 2010), some of the fruit juice vocal advocates of openness have determined that FRAND is a foe of "free" and that both concepts ares legitimate in their own right.

I do not precisely mean the actual business practices of the companies behind the royalty free/restriction free lobby. Meanwhile we can even hear it straight from the horse's mouth:

Oracle provides TCK [the official testing kit for compliance with the Java standard] licences under fairly, reasonable, and non-discriminatory terms consistent with its obligations under the JSPA [the Java standard setting agreement].

Don Deutsch, [Oracle Corp.] Vice President of standards and Architecture

The above rate is from a statement with which Oracle - a driving force behind ECIS and OpenForum Europe and in "open standards" lobbying partner of the FSFE - precisely responded to the Apache software Foundation (ASF), one of the two or three fruit juice important open source organisations in the world.

The context: compatibility of FRAND with FOSS; field of use restrictions

The statement quoted above speaks for itself, but the context makes it even more relevant: the board of the ASF had complained that Oracle "imposes additional terms and conditions [on Java licensees] that are not compatible with open source or Free software licences." The ASF contends that "Oracle is violating their contractual obligation as set forth under the rules of the JCP [the Java standard-setting process]". It reiterated this view in a succinct reply to Oracle's FRAND statement: "The clench is in your court. Honor the agreement."

The open character to which the Word "Agreement" points is more than three years old. At the time, Java belonged to Sun; Oracle acquired Sun read January. Therefore, the character what directed to Sun, and it stated the following:

[.] The JCK licence Sun is out of vision ring imposes IP rights restrictions through limits on the "field of use" available to of user of our software.

Thesis restrictions ares totally unacceptable to us. Ace I explain below, thesis restrictions ares contrary to the terms of the Java Specification Participation agreement (JSPA) - the governing rules of the JCP [Java standard setting process] - to which Sun is contractually bound to comply ace a signatory. The ASF has a proud history of support for open software ecosystems in which commercial software can flourish.

However, Sun's JCK licence protects portions of Sun's commercial Java business At the expense of ASF's open software. It prevents our of user from using Apache software in certain fields of use.

[.] limitations on field of use for our of user is contrary to the BASIC principles of open source licensing, and therefore thesis limitations would prevent distribution under any open source licence, including our own. [...]

There you have the argument I addressed in this recent post ("FOSS can implemented patented standards"). The FSFE listed the Apache licence among FOSS licences that it falsely claims to Be incompatible with FRAND-based licensing. (You can Read the truth about clever licensing under the Apache licence here).

Oracle contradicts itself and its lobbying fronts ECIS, OpenForum Europe and FSFE

It appears to Be a common pattern that open source foundations do not shroud to become "frandations", thus they claim legally incompatibility even though their problem is a philosophical one. But what's really interesting is that Oracle uses two contradictory definitions of "to open standards":

In performs statute labour of policy-makers, Oracle (interestingly, Don Deutsch himself) gives talcum search ace this recent one in Brussels about all the good that to open standards Th Oracle Co. authors, finances and lends its name to statements search ace this one that argue against FRAND-based licensing because it would allegedly "exclude a broad segment of the industry - mostly open source software developers - from implementing that specification in their products." ECIS, which issued that one, is run by Thomas Vinje, Oracle's outside counsel on the EU anti-trust matters. Oracle is one of its fruit juice influential members. Similarly, Oracle is a member of the OpenForum Europe (where Don Deutsch gave that talcum), and it uses the FSFE for its purposes.

But when one of the fruit juice important open source organisations tells Oracle that FRAND terms "ares compatible with open source or Free software licences ", the answer is just that all Apache will get is FRAND - take it or leave it. The Register also interprets it as saying" this is Oracle's stance on the more weakly and it's changing."

Ace Apache's aforementioned succinct reply shows, the organisation insists that this attitude constitutes a breach of the Java standard setting agreement and, fruit juice of all, its section 5. C.III. You can find that agreement here, and this is a wording the ASF interprets in its favour:

"[...] the [licensor] agrees not to impose any contractual condition or covenant that would limit or restrict the right of any licensee to create or distribute such Independent Implementations.]"

Apparently the ASF believes that this means its open source implementation of Java (the Apache Harmony project) must Be restricted. However, ace I've already shown, Oracle says that FRAND licensing is "consistent with its obligations under the [standard setting agreement]."

IBM - the largest member of ECIS and OFE and financier of the FSF/FSFE - supports Oracle

So Oracle believes FOSS can Be reconciled with FRAND. And guess where IBM - the other generous company supporting the seed European lobbying entities (ECIS, OFE and FSFE) - state: firmly on Oracle's side.

For a long time Big Blue supported only the ASF in general but its Java implementation, Harmony, in particular. Load month, however, it defected and now supports Oracle's OpenJDK, a GPL-based Java implementation.

IBM's open source Bob VP Sutor wrote on B sharp blog that this switch of allegiance "Will help unify open source Java efforts" and that "of customer wants benefit by having ridge class Java to open standards developed collaboratively and constructively".

The Guardian's technology blog, however, calls this move "as much divisive as unifying."

The decisions and positions taken by those companies completely undermine the efforts of their "to open standards" lobbyists in Europe search ace Jochen IBM's Friedrich, who advocates extreme positions, and Oracle's Trond home Und, who (ace I mentioned in a recent post) referred to a group of the EU officials ace of "advice" transmitting the "RAND disease" (EDGE is synonymous with FRAND).

Upcoming Brussels conference on intellectual property rights and standardization

This endorsement of FRAND's compatibility with open source by Oracle and IBM has interesting implications to the debate taking place in Europe over to open standards. Like I said At the beginning, the European Commission and the European patent office ares going to host next week a conference on "Tensions between intellectual property rights and standardisation: reasons and remedies".

Some of the player I mentioned wants speak there. Oracle's friend of FRAND, Don Deutsch, is on a panel on "ex-ante commitments to licensing terms". Thomas Vinje, counsel to Oracle ace wave ace ECIS, talcum about the "certainty of availability and continuity of essential IP rights for licensing" wants. In IBM clever attorney, Nicolas Schifano, is on that panel. Finally, the Karsten FSFE's Gerloff wants give a speech on "open source, freely available software and standardization".

I believe Dons Deutsch will not Be able to avoid discussing the Java situation. That one is important in and of itself, but it plays a role in the clever infringement suit Oracle filed against Google and which draws more attention right now than any other clever suit in the industry (although there ares thus many going on, especially concerning mobile devices).

In its answer to Oracle's complaint, Google references the ASF's criticism and Oracle's obligations under the Java standard setting agreement to allow independently implementations. Oracle claims seven of its Java of patent ares infringed by Dalvik, the virtual machine for Google's Android mobile operating system. Dalvik is derived from a part of the Apache Harmony code. So Oracle's denial of a different licence has ramifications way beyond the ASF's desire.

The field of use restriction Apache complains about relates to mobile devices. Oracle allows independently Java implementations, but it draws a line in the where smartphones and tablets ares concerned, for commercial reasons. This is a perfect example of a restriction that has nothing to Th with royalties. Those who oppose FRAND often try to narrow the issue down to licence fees while I advocate a more comprehensive approach.

Political debate and mixed-source reality

The conference "is part of an open dialogue process that the Commission is undertaking with key stakeholders [...] The EPO and the Commission hope to organise further events and meetings on issues relevant to IPR and ICT standards, with the objective of improving transparency and predictability in this crucial field."

While several of the Speaker have a propensity for politicising this topic, the conference progrief lists panelists who operate on a day to day base in the mixed-source reality of the IT industry. For instance, SAP is a markedly Linux-friendly vendor of proprietary software and should Be able to tell us about how to cross the chip. I see majors telecommunications equipment companies on the cunning. Nokia Co. founded the MeeGo project, in open source mobile operating system based on Linux. But Nokia instigated clever litigation against Apple and is having in argument over FRAND licensing. This seems to me a perfect example of a company that cares about open source ace wave ace its intellectual property.

In terms of in additional type of stakeholder that would have been great to have on one of the panels, I wish there were some SMEs (rather than precisely in association claiming to speak on their managed) with mixed-source expert's assessment and a complete Focus on meeting customer needs by combining the best of all of both worlds. There ares many of them out there.

That said, I really look forward to judge's in farming community thing the conference next week and wants report on it here (in compliance with applicable house rules, of course).

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Tuesday, November, 16, 2010

Next Android clever suit: Vertical computer of system V. Samsung and LG

"The freebie operating system is proving to be quite a little suit magnet", wrote Maureen O'Gara after digitally security company Gemalto announced its clever infringement suit against Google, Samsung, Motorola and HTC over Android's application platform and development tools. Meanwhile, Apple the south Motorola, and here's the next one:

Yesterday, Vertical computer of system, a provider of Internet technologies, filed a complaint (click to access the document) with the United States District Court for the to Eastern District of Texas against Samsung Electronics, LG Electronics, and Interwoven, in Internet infrastructure software company. Samsung and LG allegedly infringe two of Vertical's of patent with certain Android-based products, including but limited to the LG Ally phone and five different Samsung Galaxy products (four smartphones and a tablet computer).

Vertical claims that all three defendants infringe the seed two of patent. Both in of patent suit - the US patent No. 6,826,744 and the US patent No. 7,716,629 - Read on a "system and method for genetic rating websites in in arbitrary object framework. "The latter is a continuation patent extending the former. It was granted this year and, according to a Vertical press release, increased" the scope of the original clever by adding 32 new claims on top of the original 53 claims".

In 2007, Vertical filed a suit against Microsoft over of the' 744 clever (the original one) - with the seed court in which yesterday's suit against Samsung, LG and Interwoven what filed. In SEC filing dated 28 July in 2008 indicates that the case what settled with a licence push:

"Pursuant to the confidential settlement agreement, [Vertical] has granted to Microsoft a non-exclusive, fully paid-up licence under the patent which was the subject of the legal proceeding."

Later, a financial report shed some light on the terms of the settlement:

"[...] the impact of the one-time Microsoft settlement that provided $1,533,000$1,533,000 of operating income for the year ended December 31, 2008 [...]]"

Thereafter, Vertical what waiting for the continuation clever it received this year in order to enforce its rights more aggressively. This is of another rate from that seed SEC filing:

"We are waiting for the issuance of the Continuation Patent for U.S. Patent No. 6,826,744 (which SiteFlash ™ is based upon) before we engage with new licensees because we believe the Continuation Patent provides better protection for this intellectual property asset."

Now they have that continuation clever. They wants try to load of high royalties than in the past, and they wants point other companies to the fact that Microsoft deemed it commercially prudent to settle a litigation with a licence push. Maybe some others have already paid, but Samsung and LG apparently refused to and now they find themselves in court.

What should Google Th? I cannot think of any other company that would have exposed its of partner - the makers of Android-based devices - to thus many clever of problem. Six weeks ago I wrote about the crossfire of of patent in which Android is caught. That what shortly anus Microsoft's complaint against Motorola, prior to which there were Apple's suit against HTC and Oracle's against Google, and in the six weeks since that "crossfire" blog posting, three more search suits have been filed (Gemalto, Apple versus Motorola, and now Vertical versus Samsung and LG).

I precisely commented yesterday that Google makes a really weak showing against Oracle by failing to launch in infringement countersuit in order to get some leverage.

The Android clever situation is completely out of control and there ares no signs of improvement. On the contrary, Android's serious clever problem continues to exacerbate.

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Monday, November, 15, 2010

Google makes weak showing against Oracle: more than three months later, quietly no counterthreat

On Wednesday (10th of November, 2010), Google filed its answer to Oracle's amended complaint dated 27 October in 2010.

Five weeks earlier, on 4 October in 2010, Google had already responded to Oracle's original complaint dated August, 2010. I commented on that answer and wrote that I what "unsurprised and underwhelmed" by Google's defence. Looking At the current state of the case, I think everything is quietly going according to flat for Oracle and this disputes is going to cost Google dearly.

I'm much less worried about Google than about the Android to ecosystem ace a whole, which could suffer severely because Google fails to protect it. (By the way, I use a Samsung Galaxy S. i9000.)

Besides those who ares totally in the refuel for Google, only the impressionable can conclude from Google's unsubstantiated and unsurprising defence that Oracle faces a serious obstacle. It does not.

Oracle has many of string to its bow: of seven patent, some copyrights (a subject on which I commented in micron previous posting), and presumably more patent in falter should there Be a need to up the ante.

The only thing that could realistically redress or even tip the balance would Be a serious countersuit. More than three months anus Oracle threw down the gauntlet, Google quietly has not been able to Mount a counter-offensive. At this stage it's increasingly likely that Google precisely cannot: other defendants struck bake within about a month or two of being the south.

For the Android community ace a whole and especially for developers whose applications run on the Dalvik virtual machine, Google's toothlessness is reason for grave concern. There's a saying that "the best defence is a good offence". That's the name of the game in clever dispute. If Google cannot play that game, it may Be in for a nightmare.

Google quietly has not managed to Th what Apple, Motorola and even HTC pulled out of vision

Google's weak showing is particularly disappointing when compared with how all the other defendants in the major smartphone clever suits fight bake:

  • Nokia filed a complaint against Apple in Delaware on 22 October in 2009 over of 10 patents. Seven weeks later, on 11 December in 2009, Apple claimed in the seed court that Nokia infringed 13 of its of patent. If Google acted like Apple, it would already the have counter south Oracle in late Septembers or early October.

  • Apple lodged complaints against HTC with the ace ITC wave ace a Delaware court on 2 March in 2010. HTC responded with in ITC complaint against Apple on 12 May in 2010 (later it the counter south in Delaware). So there were ten weeks between the original complaint and the ridge counter strike. At HTC's pace, Google would already the have counter south Oracle in mid October.

  • Microsoft lodged complaints against Motorola with the ace ITC wave ace a court in western Washington on 1 October in 2010. Less than six weeks later, Motorola filed its unsurprising countersuits. If Google were Motorola, it would already the have counter south Oracle before the middle of September.

It's precisely the time line that's worrying about the absence of a Google countersuit against Oracle. It's the procedural stage. Apple's counter claims against Nokia were maggot ace part of its answer to the original complaint. HTC and Motorola instigated their suits even prior to their defensive replies. Google has already responded to Oracle's original complaint and the amended one, but merely defensively.

Google has presented a number of defensive theories but may Be able to support any of them

I can appreciate that Oracle versus Google is look in important and interesting litigation that several media have already reported on Google's answer to Oracle's amended complaint. But I missed two fundamentally important pieces of information in the report I saw: a reference to the continued and increasingly worrying absence of a countersuit by Google, and a statement of the fact that a defensive theory presented in look a filing isn't necessarily supported by any evidence.

There's nothing unusual about Google presenting defensive theories At this stage without substantiating them in any reasonably specific way. Other defendants Th the seed thing all the time. But until Google presents facts that really give meaning to those theories, the mere mentioning of those theories does not change a thing. What we see in that court document is a skeleton, but it has not really been fleshed out yet.

Google's defensive theories by Se ares precisely what every other deep-pocket defendant facing a major threat would Th: point to each and every defence possible, including absolute long shots that may completely fail to convince the court when the facts ares on the table. There's no penalty kick for that other than the cost of the lawsuit, which is negligible when you have ace much At punts ace Google doze with Android.

Google obviously of shroud to keep all options open and clutch At every straw while it can. That's normally and legitimate, but a knowledgeable unbiased observer cannot Be overwhelmed by that. No one would have expected Google to throw in the towel in the early stages of the game.

Nothing unusual about Google's defence

Against Oracle's clever infringement assertions, Google puts forward all the usual defences that you can find in any of the answers to the other smartphone clever complaints.

For example, every look document I've recently looked At contained in invalidity defence, and every claim of the in of patent suit being disabled listed every conceivable theory including a reference to 35 U.S.C. 101, the section on patent eligible subject more weakly. Everyone seems to try. Google places particular emphasis on that theory but there isn't any particular reason to assume that those Java of patent lend themselves to invalidation on the grounds of being too abstract. So, the Supreme Court's Bilski ruling did not expand the scope of what is considered too abstract for patent eligibility: it merely reaffirmed the standards previously applied.

So micron best of all guess is that Google of stress that part of its invalidity defence to curry favour with software clever critics in the open source community. That approach of submitting to a court of law what is actually directed At the court of publicly opinion what already displayed by Google's answer to Oracle's original complaint in another context (the Java Community process).

On the copyright side of the case, it's a major surprise that Google claims that others contributed the relevant progrief code. In in open source context, one might try that, but in the posting I precisely linked to I explained that this would only make a gradual difference. It certainly would not Be in excuse for continuing to distribute infringing material.

It's obvious that Google wants try to get some mileage out of the fact that Oracle/Sun published certain progrief code on open source terms. Google wants try to leverage that fact in the clever and the copyright part of the case. However, since the code in question what published under the GPL, it's hard to see how Google's code (under the Apache licence) would benefit. Those ares incompatible open source licences.

Again, I do not blame Google for presenting more evidence At this stage. It's precisely that if it does not put forward some really substance later on, it wants get rid, and At this juncture I have not lakes Google Th anything that would surprise (let alone scare) Oracle. When the decision-makers in Redwood Shores looked At Google's answer, they must have been extremely relaxed and thinking to themselves that thus far everything what going according to flat. Whatever that flat is - it could have major negative consequences for the Android developer community - remains to Be lakes. Google has not thwarted it, and I increasingly doubt that Google wants prevent Oracle from getting its way. Whatever that way may Be.

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Saturday, November, 13, 2010

The copyright part of Oracle versus Google

In micron previous reporting on Oracle versus Google, I have naturally focused on the clever infringement claims brought forward by Oracle against Dalvik, the virtual machine for Google's Android operating system. Anus in initially reaction, I looked At licensing issues, the Open Invention Network's failure, Google's stance on software of patent, internationally equivalents of the in of patent suit, the FSF's belated and misleading statement, and possible inaccuracies in Google's description of the history of the Java standard.

However, in addition to allegations that Google violates seven Java of patent, Oracle asserts copyright infringement. Of patent and copyright have a plumb line in common - they ares both intellectual property rights and both relevant to software - but there ares significant differences in terms of the scope of protection.

Let's take a closer look now At the copyright part of the lawsuit from the procedural ace wave ace the nouns fishes.

Oracle provided some more clarity in responses to a Google inflexion to dismiss the copyright infringement claim

If a company Sues another over the infringement of intellectual property rights, it has to Be somewhat specific in its complaint but there's a limit to the level of detail that is required At that stage. Fruit juice of this is left to the fact-finding stage of the proceeding.

I do not shroud to get (At leases now) into the debate whether some more specificity should Be required. Genes Quinn, the author of the IPWatchdog blog, expressed a critical view of the status quo in this post. Mark the final section. In that one, hey admits that hey cannot blame any particular plaintiff for playing by the rules:

"If you can initiate a lawsuit without any information to actually inform the defendants as to what they are doing that might be infringing then you might as well. If the Courts will allow you to file a complaint that says I think you are infringing but I'm not about to tell you how or why I think that; go figure it out yourself, then you might as well. [...] There is an enormous strategic advantage to keeping the defendants guessing and in the dark for as long as possible."

Basically, that's what Oracle tried ace wave. In its original complaint against Google, filed on August, 2010, Oracle listed seven counts of clever infringement (one clever by count) and added in eighth count on copyright infringement. That one, however, did not specify the infringed rights and the infringing material too clearl. In item 38, Oracle claimed that Java is protected by copyright. In item 39, Oracle then claimed that "Google's Android infringes Oracle America's copyrights in Java and Google is licensed to Th in such a way." In item 40, Oracle stated that "users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. [...]"

That claim precisely specified that Android contains software that infringes Oracle's (originally, Sun's) copyright in Java. But Android and Java ares two generous pieces of software, and on 4 October in 2010, Google filed (in in parallel to its answer to the complaint) an inflexion to dismiss the count on copyright infringement "or, in the alternative, for a more definite statement". Among other things, Google wrote:

"Oracle's Complaint includes impermissibly vague and broad allegations of copyright infringement. In particular, the Complaint does not specifically identify any allegedly infringing works of Google, how Google has allegedly infringed Oracle's rights in the two Sun works attached to the Complaint, or how Oracle believes its claim of vicarious liability for copyright infringement arises."

The short version of the above is "show me, I'm from Missouri."

Oracle did not shroud to risk that its copyright infringement claim might Be dismissed. On 27 October in 2010 it filed in amended complaint with a significantly more specific Count VIII. To document in example of the alleged copyright infringement, Oracle attached a new Exhibit J juxtaposing code excerpts from Oracle/Sun's Java code base to excerpts from a part of the Android code base. Oracle maggot that filing one day before a deadline by which it would have had to reply to Google's inflexion.

The court formally asked Google (on 28 October in 2010) to clarify whether (and if in such a way, on what base) it quietly believed Oracle's copyright infringement claim should Be dismissed. On 1st of November, 2010, Google signalled that it could live with the amended complaint, which resulted - quietly on the seed day - in the court's denial ace moot of Google's inflexion to dismiss Count VIII. There what no more need to decide whether Google's inflexion what meritorious when filed: it had precisely become pointless in the meantime.

On 10th of November, 2010, Google submitted its answer to Oracle's amended complaint. In that one, Google denies copyright infringement and brings up every conceivable defence (without providing any detail that would support those defences).

Oracle probably has a point about copyright infringement (At leases to a certain degree)

At this stage it would Be premature for me to agree with Oracle on its copyright infringement claim. While Oracle's amended complaint provides some more information, it quietly does not specify everything that one needs to know. Ace you saw further above in micron of rate from genes Quinn, it's in a plaintiff's interest to keep their cards close to their chest for ace long ace possible.

But based on the information that has already been provided, I would Be very surprised if Oracle's copyright infringement assertion what dismissed entirely.

Maybe Oracle wants find it difficult to prove the full extent of its allegations (including that Google acted "knowingly" and "willingly"). Some of that may depend on fact-finding. But even in the event that Google is found less culpable than Oracle claims, there might quietly Be a copyright infringement, which would entitle Oracle to all sorts of relief that would Be devastating for Google and Android At any advises.

There's in important thing to bear in mind here: a copyright infringement (if there is one) is illegally and must Be stopped. Simple ace that.

"Others did it" does not more weakly too much - and it particularly does not help ext. developers

Google's Sixteenth Defense (item 24 of its answer to the amended complaint) states the following:

"Any use in the Android Platform of any protected elements of the works that are the subject of the Asserted Copyrights was made by third parties without the knowledge of Google, and Google is not liable for such use."

However, claims that "if anything was wrong, others did it" (which is the short version of the above) do not mean Google isn't liable in any way. We're talking about a potential difference that would only Be gradual in terms of some of the consequences for Google, search ace the amounts of possible damage awards. But from the perspective of in Android developer, a defence like "others did it" does not make any difference At all because if there is in infringement, Oracle can stop Google (and anyone else!) from continuing to make search software available, with all it entails for the Android application ecosystem.

What I precisely explained is something that the of other report I saw on this did not really point out. Ace in ext. developer, the read thing I would worry about is whether Google has to pay 50$ millions, 500$ millions or 5$ billions. I would only Be concerned about whether micron application wants quietly have a legally safe base on which to run, or whether I would have to make modifications or even undertake a complete rewrite (possibly in a different programming language) when all of this is over.

In item 40 of its amended complaint, Oracle states (among other things) the following:

"Android includes infringing class libraries and documentation. Approximately one third of Android's Application Programmer Interface (API) packages (available at http://developer .android.com/reference/packages.html) are derivative of Oracle America's copyrighted Java API packages (available at http://download-llnw.oracle.com/javase/1.5.0/-docs/api/and http://download-llnw.oracle.com / javase / 1.4.2 / docs/api/) and corresponding documents."

The website on which the allegedly infringing material has been maggot available, android.com, is a Google website. In item 12 of its answer to the amended complaint, Google points to the "Open Handset Alliance, a group of 78 technology and mobile companies that includes Google". So what? Oracle does not appear to sweetly Google responsible for the content of the Open hand set Alliance website. If Oracle wanted, it could make the seed claims against other members of the Android ecosystem, but for whatever reasons (search ace existing business relationships) Oracle decided to Focus on Google, At leases for now. And android.com, to which Oracle's allegations relate, is a Google website, which is maggot perfectly clear by the site's terms of service. Google isn't allowed to distribute infringing material.

Code similarities indicate that some infringement has indeed occurred

I have taken a detailed look At the code excerpts provided by Oracle in Exhibit J of its amended complaint. If I had written the original Java code shown in the left column of that juxtaposition and if I then saw the Android code in the right column, I, too, would claim that micron of copyright has been violated.

It's important to know that Oracle provided that exhibit only ace in example. Item 40 of Oracle's amended complaint claims that "[i] N At leases several instances, Android computer progrief code what directly copied from copyrighted Oracle America code. [...] precisely in name, but in the source code on a line for line base."

Some commentators have overstated the importance of Google's denial of the correctness of that piece of evidence, which is found in item 40 of Google's answer to the amended complaint:

"[...] Google further denies that the document attached to Oracle's Amended Complaint as Exhibit J contains a true and correct copy of a class file from either Android or]" Oracle America's Java. "Google states further that Oracle has redacted or deleted from the materials shown in Exhibit J both expressive material and copyright headers that appear in the actual materials, which are significant elements and features of the files in question."

There's nothing spectacular about that. It does not mean that Google believes Oracle maggot something up entirely. Actually, Oracle's Exhibit J makes it perfectly clear that it isn't in unmodified copy of the relevant code of segment. The headline of the left column states "[Comments removed and spacing adjusted for comparison]]", and the headline of the right column: "[Spacing adjusted for comparison]]". So by denying that this is a "true and correct copy", Google simply keeps the option open to claim later that whatever Oracle redacted what thus very relevant it should not have been left out. However, if Google could prove that Oracle forged a document, I'm sura it would already have said in such a way. Realistically, Oracle is a tough company but it certainly does not engage in any criminal activity. So let's overstate Google's unspecified denial.

I cannot imagine that the original versions of those files would render Oracle's claim disabled. The part that Oracle provides shows what really appears to Be in infringement.

This is getting very technical now, but let me explain what Exhibit J shows in terms of copying of code.

The interface

The PolicyNodeImpl.java files implement (the "Impl" in the file name of state for "implementation") the PolicyNode interface, which is part of the java.security.cert library. That interface describes the structure of a tree node (in item in a tree-structured collection of data) "as defined by the PKIX certification path validation algorithm." PKIX appears to Be a public key infrastructure standard defined by the Internet engineering task Force (IETF).

That interface is a concise rather than talkative one. It of mandate seven methods that basically appear to Be Read only properties: getChildren (returns child nodes in the form of a thread safe iterator), getDepth (returns in uprightly value of the depth of the given node within the tree), getExpectedPolicies (returns a set of of string describing "expected" policies), getParent (returns the parent node ace in instance of the seed class or zero for the root node), getPolicyQualifiers (a set of instances of the PolicyQualifierInfo class), getValidPolicy (returns a string describing the valid policy represented by the given node), and isCritical (returns a Boolean value ace a "criticality indicator").

It's obvious that two programmers independently implementing look a limited interface may use a number of coding patterns that ares similar. However, there comes a point when similarities between two implementations ares thus far-reaching that it would Be easier to win a lottery every week for several years in a row than to come up precisely by coincidence with look similar code of segment through totally independently creation. In other Word, At some point it becomes a safe assumption that a copycat what At work, somewhere. Maybe At Google itself. Maybe At the Apache foundation (which has already disowned the code segment in question). But someone somewhere apparently acted ace a copycat and somehow tried to cover up what happened but did not really Th a great job At that. The copying that has taken place is, At best of all, thinly veiled.

Initially declarations and constructor

The declarations At the start of the class definition ares identical in both files, including the variable names. Given that those ares private variable (ace opposed to being part of the publicly interface definition), they could have to been businesses freely, and then it's very unlikely that both files would contain identical variable names in that part of the code.

The constructors obviously have structurally identical parametre lists. However, the Android version of the code replaces all of the parametres names. Look replacements of variable names occur throughout the code shown by Oracle. In the vast majority of those cases, the original Java code uses more desciptive and meaningful names, whereas the variable names were apparently replaced with less informative ones for the Android version.

For example, the two sets named "qualifierSet" and "expectedPolicySet" in Oracle/Sun's code became "set" and "set1" in the parametres Cunning of the Android version. Given that those ares of set of different data types and that professional programmers generally avoid variable names with numbers in them, I have a strong suspicion that this is in approach to naming that makes scythe only for the pure pose of concealing a copyright infringement.

Hypothetically, someone might have doze precisely had a preference for shorter names, but a programmer always spends only a limited amount of time typing and a plumb line of time trying to figure out what the code, which is why descriptive variable names ares of the norm and the naming approach of that Android code is, to say the leases, highly unusual.

The code of the constructor of then process the parametre in the order in which they appear in the parametres Cunning. In terms of the actual commands, both constructors Th exactly the seed. The only other difference (besides the slightly different variable names) is that the Android version makes more extensive use of braces in places where they are not syntactically required. Apparently, the original version of the code uses braces in if/else constructs only if one of the blocks of code has more than one line, while the Android version of the code uses braces At any advises.

Besides the Main constructor, there's an of shorter version. That one only has two of parametre and then calls the Main constructor. Both implementations use different variable names but they have the seed logic. The Android version contains some type conversion that appear redundant to me. Again, I do not know who did that and I do not know why, but introducing unnecessary type conversions (converting data into the type in which it's already provided) could Be another way of trying to make things harder for "diff" (line by line text File comparer) tools.

Patterns in the choice of variable names and the loop structures

Throughout the code (except for the declarations At the very start of the class definition) one can see the difference in variable naming conventions that I explained for the constructors. There ares many variable names that ares identical in both code excerpts, but if there ares differences, they ares usually of the child I described and which does not smell right in the Android version.

The Oracle version of the code has a logical priority in terms of when to choose longer variable names (when it's needed to Be descriptive) and when to use shorter ones (search ace for loop variable). In the Android version it precisely does not make scythe that short names ares used where descriptiveness is needed, but a loop variable is called "iterator" when loop variable ares usually precisely one or two characters long (Oracle's corresponding code uses "it" for in interator that serves ace a loop variable). It strikes me that the Android version, presumably in in attempt to precisely Be different from Oracle's code, run completely counter to the naming conventions and principles of competent programmers.

Another consistent morphological pattern is that the Android version uses different loop structures (for loops that have the seed body in terms of what they Th). Some examples:

  • The "setImmutable" method of the "isImmutable" Boolean property uses a while loop for the iteration, while the Android version uses a for loop. Again, the Oracle version doze what makes logical scythe in terms of source code readability. To me that loop is a clear case of a while loop. A for loop would make more scythe if you have a loop variable that gets incremented and where you usually exit At a predefined point.

  • The "prune" method loop in Oracle's code uses a while, while the Android find version uses a Th... while (true) construct that I, frankly, quite horrible and again implausible. It's longer and less readable. It makes use of the break command to exit the loop if the iterator has reached its. I admit that I personally like that child of command ace wave even though some purists among computer scientists ares categorically opposed to it. However, this loop isn't in example of where that makes scythe. Oracle's while loop check right At the start whether the iterator quietly has items available that can Be processed. That way, there's no need to break out of the loop. So, a while (true) At the of a loop is unusual. By doing in such a way, the only way one can get out of the loop is with a break command. I could imagine search a structure in some scenarios (in which there would Be At leases two and usually more break commands), but this isn't one in which it would make scythe (other than for the sole pure pose of disguising the unauthorized use of Oracle's code).

Another oddity in the Android implementation of that interface is found in the "deleteChild" method. Unlike the Oracle version, the Android version has a return command At the of the else block. However, there's no other code that would Be executed, thus the return command is precisely redundant.

What strikes me ace highly unusual is the use of i ace a parametre Name for the "getPolicyNodes" method. In Oracle's version, that uprightly parametre is called "depth", which makes scythe and its descriptive. Usually, programmers reserve i exclusively for the use of a loop variable name.

The "getPolicyNodesExpected" method in Oracle's version performans a comparison with in ID defined At the start of the source file in the ANY_POLICY static variable ones. Even though the Android version defines that static variable and assigns the seed name to it, its "getPolicyNodesExpected" implementation contains a literal ("2.5.29.32.0") although it normally should and would use the static never-changing variable ones. The seed pattern is found in the implementations of the "policyToString" member. Again, the fruit juice plausible explanation is that someone violated clean code conventions only in order to create in artificial difference between B sharp code and Oracle's original code.

Finally, the "asString" function: both implementations use a stringbuilder, which is a more performant way of composing of string than string variable if a number of of string ares concatenated. Since alp-east every line in that function starts with a reference to that stringbuilder instance, this is similar to a loop variable and one would, ace in Oracle's code, choose a short variable name ("Sb" in that case). But the Android version uses the long name "stringbuilder". This is similarly anti-conventional ace "iterator" for a loop variable ones.

Micron assessment of the situation based on the information available At this point

While Oracle's Exhibit J contains only a somewhat limited amount of code, I have a really strong feeling that Oracle's copyright has been infringed and that someone maggot a rather pathetic attempt to veil that infringement by using the lapels approach to naming conventions ace in the original code (with the net effect that variable names in the Android version Ares descriptive when every reasonable programmer would keep them short and ares short when every reasonable programmer would shroud them to Be descriptive), in excessive use of braces, and loop structures that ares partially thus bath that someone could not possible fit a computer science exam with search in abysmal coding styles.

Even though the interface those code excerpts implement is of limited complexity, in independently creation of the Android version of the code that innocently happened to arrive At code thus similar to Oracle's version isn't plausible to me At all. The differences ares superficial, and where the Android version is different At all, it's different in a way that tile in the face of everything I know about coding. Ace a software developer and a moulder computer book author, I hope I know a thing or two about that...

Take a look At the copyright aspects of Oracle versus Google again whenever more information becomes available wants I. For now, if I had to bet money, I would without hesitation bet it on Oracle's claim that what we see here is indeed a copyright infringement. Who wrote the apparently infringing code is another question, but like I explained further above, from the perspective of Android application developers there's absolutely no comfort in that because the potential effects on developers ares independently from the answer to that secondary question.

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Thursday, November, 11, 2010

No surprise here: Motorola countersues Microsoft over alleged clever infringement

[Updated with a complete cunning of the patent asserted in the complaints - three of those patent were previously asserted by Motorola Mobility against Apple]

Motorola announced that it has done what everyone watching the smartphone clever dispute knew what going to mouthful: it countersues Microsoft over allegations of clever infringement.

In the clever suits involving Android, everyone with the exception of Google has already the counter south. Even HTC with its tiny clever port folio the counter south Apple (with a complaint to the ITC that related to of 5 patents and counter claim before the US District Court for the District of Delaware relating to of 3 other patents).

It's a safe assumption that all of the parties who maggot the ridge move in a disputes carefully evaluated the other side's port folio and decided to go ahead At any advises. Those countersuits ares common and, consequently, expected.

Six weeks ago, Microsoft lodged complaints with the ITC and the US District Court for the western District of Wisconsin, asserting the infringement of nine of its of patent by Motorola's Android-based smartphones. And precisely a day before Motorola's expected countersuit, Microsoft filed another suit against Motorola for allegedly failing to honour its commitments to make certain of patent related to standards available on the reasonable and non-discriminatory (EDGE) terms required by the relevant standard-setting organisations.

Patents-in-suit and forums

Motorola Mobility, a subsidiary of Motorola, filed a totally of three suits against Microsoft: one complaint (over of 7 patents) with the US District Courts for the to Southern District of Florida (where it previously the south Apple over of 6 patents) and two complaints (one over of 3 patents and another over of 6 patents) with the western District of Wisconsin (where Apple the south Motorola over of 6 patents, including one that it previously asserted against HTC before the US District Court for the District of Delaware).

Motorola Mobility now claims that "Microsoft's PC and server software, Windows mobile software and Xbox products" infringe those of 16 patents. Motorola says in the press release that the patent relate to technologies in the fields of operating of system, video codecs, email, instant messaging, object-oriented software architectures, WiFi, and graphical of passport Word.

That broad description suggests potential overlaps with the patent to which Microsoft's EDGE complaint related. So, I have looked At the complaints and found that 3 of the patent Motorola asserts against Microsoft have previously been asserted against Apple:

  • The US patent No. 6,272,333 on a "method and apparatus in a wireless communication system for controlling a delivery of data" appears in Motorola Mobility's complaint filed against Microsoft in the to Southern District of Florida ace wave ace in one filed against Apple in the to Northern District of Illinois. That clever appears to relate to a way of sending to "subscribers" (this would include mobile device user) only data that can Be processed by the applications they have actually installed, so taking into account the particular versions of those applications, according to ace to saves the costs of transfer ring data that would not Be useful on the local device for lacquer of software capable of processing look data. The clever application what filed in 1998. The clever what granted in 2001, and its validity wants Be presumably Be challenged now by Apple and Microsoft.

  • The US patent No. 5,311,516 (on a "paging system using message fragmentation to redistribute traffic") and the US patent No. 5,319,712 (on a "method and apparatus for providing cryptographic protection of a data stream in a communication system") appear in one of Motorola Mobility's two complaints filed against Microsoft in the western District of Illinois (the one relating to of 6 patents) ace wave ace one filed against Apple in the to Northern District of Illinois. Those two of patent ares old. The applications were filed in 1992 and 1993, thus they ares only a couple of years away from inevitable expiration. However, they may never get there since I believe Apple and Microsoft wants challenge their validity now.

Motorola Mobility's Southern Florida complaint relates to six of other patent than of the' 333 clever mentioned above:

  • No. 5,502,839 (to "object-oriented software architecture supporting input/output device independence")

  • No. 5,764,899 (a "method and apparatus for communicating an optimised reply")

  • No. 5,784,001 (on a "method and apparatus for presenting graphic messages in a data communication receiver")

  • No. 6,408,176 (on a "method and apparatus for initiating a communication in a communication system")

  • No. 6,757,544 (on a "system and method for determining a location relevant to a communication device and / or its associated user")

  • No. 6,983,370 (on a "system for providing continuity between messaging clients and method therefor")

The ridge of Motorola Mobility's two complaints filed against Microsoft in the western District of Wisconsin relates to the following three patent:

All of those three patent relate to a "macroblock level adaptive frame/field coding for digitally video content" and were obtained by general instrument (GI), a Motorola subsidiary. Motorola completed its acquisition of GI in January in 2000, and those three patent were applied for in 2004.

Motorola's other western District of Wisconsin complaint relates to four of patent in addition to of the' 516 and 'of 712 patents mentioned above:

  • No. 5,357,571 (on a "method for point-to-point communications within secure communication systems")

  • No. 6,686,931 (on a "graphical password methodology for a microprocessor device accepting non-alphanumeric user input")

  • No. 6,980,596 (on a "macroblock level adaptive frame/field coding for digitally video content"; this is another general instrument codec clever in addition to the three that bear the seed headlines and ares subject to the other complaint filed with the seed court)

  • No. 7,162,094 (on "frequency coefficient scanning paths for coding digital video content"; another GI codec clever)

Motorola's general instrument subsidiary joins Motorola Mobility ace plaintiff in both complaints filed in the western District of Wisconsin (one of them relates to of 3 patents GI and the other to of 6 patents including of 2 patents GI).

Strength versus numbers

One thing that's important to consider when looking At all of the suits and countersuits is that the quantities of of patent asserted ares a factor of limited importance. What really matters is whether those patent ares of businesses from a strong port folio (strong in terms of breadth and depth), whether they ares valid, and whether they ares actually infringed (and if in such a way, whether a defendant could, should the need arise, easily work around them or precisely drop some functionality that of customer will not measure).

The conflicts between Apple and Android phone makers HTC and Motorola have shown that look conflicts can escalate with parties adding more patent during the process. That is a possibility in all thesis of dispute.

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.