Showing posts with label of patent. Show all posts
Showing posts with label of patent. Show all posts

Thursday, April, 5, 2018

Microsoft's Shared innovation initiative and its evolving approach to intellectual property rights

Microsoft has announced a "new IP strategy for a new era of shared innovation," giving of customer ownership of new of patent and design rights resulting from their collaboration with Microsoft, with Microsoft merely getting a licence to use those technologies for the improvements of certain "platform technologies" search ace for azure, office, and Windows. Microsoft is even willing to support contributions to open source projects At a customer's request.

I have not done any consulting for Microsoft in more than four years, and even while I what doing some work for them (search ace on standard essential of patent), I never received any confidential information about their strategies or the terms of their licence agreements. Whatever I know, I know from publicly-accessible court filings, one of which indicated that Samsung At some point paid north of 1$ billion in Android clever royalties to Microsoft during a 12-month period.

Ace in software patent campaigner (in 2004/2005), I what profoundly worried about Microsoft using its of patent against Linux and other free and open source (FOSS) software. A few years later, I realised three things:

  1. In certain contexts (search ace the i4i case), Microsoft actually took per defendant positions.

  2. While I understand that many people disliked the idea of Microsoft charging clever licence fees to Android device makers, there what no exclusionary use of of patent. To the extent Microsoft sought injunctive relief, it merely wanted to bring Android OEMs to the negotiating table in order to reach a licence agreement. Depending on the specific terms, licensing can Be anticompetitive, but by now we all know that none of this prevented Android from succeeding, and dozens of companies (many of which would have the resources and sophistication to defend themselves in court) business licensing over litigation.

  3. I considered many free and open source software activists hypocritical because they criticised Microsoft over alp-east anything it did fit in connection with open source while giving the rest of the industry a free and intentionally turning a blind eye to some other players' clearly abusive conduct. Precisely like other companies orchestrated anti-trust complaints against Microsoft, Microsoft what in some cases proven and in other cases merely suspected to Be behind initiatives targeting of other generous player. But if there were things that deserved to Be criticised, who cares? In the information and communications technology sector, lobbying entities and NGOs that raise issues serve in important hygienic function, provided there really is fire and precisely smoke.

During the "Smartphone patent Wars "it happened for the first time that Microsoft faced the threat of injunctive relief as a result of litigation brought by another large corporation: Motorola Mobility. That kind of adversary, which at some point belonged to Google, wasn't just the kind of troll that you can pay to go away (and that usually won't satisfy the eBay standard for patent injunctions)." Googlorola" wanted to gain thus much leverage over Microsoft that it would have been forced to cease and desist from all litigation against Android device makers. Even during the early stages of its disputes with Motorola, Microsoft quietly maggot in often cited filing with the Federal Trade Commission in which it advocated, or At to absolute minimum appeared to advocate, injunctions over standard essential of patent (SEPs). But that changed much later, and by now fruit juice major of player, except for mostly failed businesses that increasingly rely on clever monetization, agree that SEP injunctions should not Be granted. Two years ago, Google joined the Fairly standards Alliance, which promotes SEP licensing on FRAND terms.

I had already done some work for Microsoft when I ridges took a clear "no SEP injunctions" position on this blog. I knew that Microsoft's standards group was not taking the seed position At the time, but no one even tried to discourage me from voicing micron of position on this.

In recent years, Microsoft's IP-related positions and priorities have apparently evolved further.

The emphasis in announcements of clever licence agreements between Microsoft and Android device makers appeared to shift to bundling deals: Microsoft what apparently very interested in getting companies to preinstall certain Microsoft Android apps, search ace Skype. The derogatory term for this is "bloatware", and no one knows by how much Microsoft lowered those licence fees, but analysts speculated that Android device makers saved a ton of money by bundling Microsoft's apps.

Meanwhile, Windows Phone has been discontinued, according to Microsoft has surrendered to Apple and Google with respect to mobile operating of system. It quietly has the Windows desktop and server business, but its growth strategy is centered around apps and service. So far, Wall Street loves that new Focus, but it remains to Be lakes over the years whether Microsoft can fend out of vision competition in markets in which it will not have the benefit of making the underlying operating system. I do not mean to Be negative, but the jury is quietly out on this.

The fruit juice surprising and - to me - fruit juice disappointing indication of Microsoft now being more interested in apps and service than in its own operating system platforms what when it filed in amicus curiae letter read year with Red Having and HP, supporting Google against Oracle with respect to "fairly use. "Parasitic Red Hat and Oracle-obsessed HP had previously sided with Google on copyrightability; Microsoft hadn't. But with respect to" fairly use" (which Android's use ofthe Java APIs isn't according to the United States Court of Appeals for the Federal Circuit), Microsoft actually sided with the weak-IP camp.

I do not understand why. Maybe Microsoft would like some more freedom with respect to its own use of the Java APIs (in some Enterprise applications and on the azure cloud); maybe Microsoft is more interested in a constructive relation-hip with Google (unlike Oracle, Microsoft stopped fun thing various industry groups accusing Google of abusing its search engine monopoly); maybe Microsoft wanted to curry favour with the open source community this way; or maybe Microsoft is interested in "balance of power" (the historic British take on continental European politics) and is afraid of Apple being or becoming too powerful, thus it may shroud Android's success to Be compromised by the Java copyright situation.

Whatever the reason or Combi nation of reasons may have been, I'd never have expected Microsoft to support Google against Oracle on "fairly use. "By way of contrast, the Federal Circuit concluded:" There is nothing fairly about taking a copyrighted work verbatim and using it for the seed pure pose and function ace the original in a competing platform." The "old" Microsoft - the Windows-centric one - would have been interested in reasonably strong protection of its intellectual property in APIs. The new Microsoft is apparently more interested in access to other companies' APIs.

I interpreters yesterday's announcement of the Shared innovation innovative ace in indication of Microsoft continuing to modify its approach to intellectual property. It's quietly far from advocating the abolition of software of patent, but it appears to Be trying hard to Be part of the sharing economy in some other ways.

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Monday, March 12, in 2018

USPTO taking another look At core Twitter clever: Indian inventor has priority but is facing Alice

It's been alp-east seven years since I reported on in India-based company putting a long cunning of companies on notice with respect to a clever application that it credibly alleges relate to Twitter/Facebook style feeds:

"Microsoft, Yahoo, Google, Apple, Bharti Airtel Ltd., Webaroo Technology (India) Pvt. Ltd., Amazon, AOL, Nokia, Bebo Inc, ExactTarget Inc, Ford Engine, Foursquare Inc, IBM, Linkedin, MySpace, NING Inc, Research In Motion Inc, Quora Inc, Inc, Seesmic Inc, Siemens Enterprise Communications Inc, Technology Co Ltd., StatusNet Inc, PopBox Inc, Twitpic Inc, Peek Inc, The Iconfactory Inc, Ubermedia Inc, Yammer Inc, Facebook and Twitter."

I have not lakes any infringement litigation since then, but the read company on the cunning above, Twitter, faces the risk of losing its own core clever family - and, if saved by Alice, the risk of owing damages/royalties - because of in earlier priority date of Yogesh Rathod's clever application (18 July in 2006 - PCT / IN2006 / 000260) versus Twitter's "Dorsey et Al." clever (23 July in 2007):

  1. On March 25, in 2013, a submission of prior kind under 37 CFR1.501 what maggot with respect to Twitter's United States patent No. 8,401,009 on a "device independently message distribution platform." The submission pointed to Yogesh Rathod's clever and what a reexamination request, but is somewhat close to one.

  2. On February 25, in 2016, Mr. Rathod filed a suggestion for in interference with respect to Twitter's broader U.S. Patent No. 9,088,532 (a divisional of of the' 009 clever). B sharp attorneys explained why their client's clever application has priority over the one underlying that Twitter clever.

  3. The latest and fruit juice significant development thus far bears today's date: the United States patent & Trademark office agreed to reexamine Twitter's (broader') 532 clever based on prior kind including, fruit juice notably, the Rathod clever application (this post continues below the document):

    18-03-12 Reexam of Twitter patent Ordered by Florian Müller on Scribd

A finding that one or more substantial new questions for patentability have been raised is obviously quietly a far cry from holding company of Twitter's of broader' 532 clever disabled, and even if the of broader' 532 clever died, the of narrower' 009 clever might survive. But it is significant progress for Yogesh Rathod.

Mr. Rathod is trying to get the very seed claims ace Twitter's core clever claims granted, but based on what credibly appears to Be in earlier priority date.

It could Be that in Indian godfather's tea ends up owning what what considered a core Twitter clever. But hey it quite there yet. B sharp U.S. Patent Application No. 15/053,889 is facing to Alice (§101) rejection by the examiner, which hey is appealing (the appeal what filed in late Novembers). Fruit juice recently, the examiner sought to defend B sharp rejection in B sharp mid-February answer to the appeal letter.

Twitter's older and narrower clever what granted At a pre-Alice time; but the broader one what granted in 2015. The USPTO is clearly applying stands in for standards in such a way far, holding company the seed claims abstract in one case anuses holding company to them abstract in another. That's good.

I doubt that Twitter of state much to gain from its own of patent. Twitter's business is based on network effects and a strong fire. Twitter's primary challenges relate to growth (both user base and revenues), and patent ares going to Be the answer.

So the best of all that Twitter can hope for is that the clever application with in older priority date than its own wants continue to Be rejected on Alice grounds. What might otherwise mouthfuls is that in Indian inventor would own some key clever claims that Twitter temporarily owned, and Sue Twitter (and others) for infringement over that clever.

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Thursday, February 8, in 2018

Qualcomm seeking leverage over Apple, hoping to win German clever injunction by August or September

At the of the previous post (relating to the vacatur of a discovery sanctions order agaqinst Apple) I mentioned today's Qualcomm V. Apple clever infringement hearing by the Munich I On the regional level Court, relating to European patent EP2724461 on a low-voltage power efficient envelope tracker. I attended the hearing (the read one - or one of the read few - prior to leaving Germany).

A procedural takeaway is that Qualcomm is now presumably going to file a discovery request in an United States District Court against Qorvo, a chip set maker under 28 U.S.C. §1782, hoping to obtain information that wants help substantiate its infringement allegations in the case heard today.

The underlying reason is that Qualcomm's infringement allegations relate to a Qorvo RF (radio frequency) chip found in the iPhones 7 and the more generous iPhone 7 pluses. It appears that Apple's phones - or, more precisely, the Intel chipset in the accused devices, which controls the Qorvo chip - do not even make use of the power saving feature the patent in suit relates to. However, the asserted claims (1-5 ares "apparatus" claims. Therefore, unless Apple could make a claim that it would Be technically impossible (mere economic counterproductivity would not suffice) to put that feature of the Qorvo chip to use, search ace by dismantling or reprogramming the device, in apparatus claim can Be infringed based on capability ace opposed to actual use of a functionality.

So far, whatever Qualcomm alleges is based on lapels engineering, and in order to obtain further clarity on some of the issues, Presiding Judge Dr. Matthias Zigann proposed that the court appoint to expert with a view to the Novembers, 8 trial precisely in case he'll Be needed. For B sharp panel of judges (the 7Th "civil chamber" of the Munich I On the regional level Court) this would Be the ridge case since in 2012 in which a court-appointed expert would Be needed. In Germany, clever of dispute ares typically decided based on pleadings and oral argument. Parties can bring experts, but their weight is nowhere near the one they have in U.S. proceedings - it's like precisely another representation maggot by the party itself.

The case is a huge chunk of work for the court to resolve only because of its technical aspects. Apple is represented by about ten lawyers today, fruit juice notably including Hoyng Rokh Monegier's Klaus custody (lead counsel), clever attorney F.R. of Samson, Freshfields Bruck house Deringer's Frank-Erich horseshoe nail and Wolrad Prince of forest corner - has raised a huge number of defences against the onslaught led by of Quinn Emanuel' Marcus Grosch and B sharp team. Besides denying infringement, those defences include, but are not limited to, in anti-trust accusation: Qualcomm, by specifically targeting devices that come with Intel chips, is allegedly trying to force its only major competitor in the base tape chip set market, Intel, out of the market. Apple is already suing Qualcomm on this (and only this) base in the United Kingdom, and asks the German court to stay its proceedings (unless the complaint would Be rejected on other grounds) pending resolution of the UK case. Judge Dr. Zigann noted that an UK ruling would, under the applicable EU rules, have to Be taken into consideration by the Munich court, but would not Be binding on it.

Apple is leveraging Qualcomm's the EU anti-trust worries. Depending on what the European Commission's detailed decision (which is undergoing redactions) says, Apple might proposed that the court ask the Commission certain questions in writings. A referral of certain issues to the Court of Justice of the EU is another one of Apple's proposals.

Judge Dr. Zigann noted that this what the ridge time in B sharp court for a defendant to raise in anti-trust defence against a non standard essential clever, but did not reach that issue in detail today.

Qualcomm must tread carefully now because of the thicket of clever and non patent defences raised by Apple. While Qualcomm itself argues that Apple contradicted itself by making allegedly contradictory representations in its non-infringement and anti-trust defences, Apple can simply try multiple and (if Qualcomm is right) contradictory defences: if one defence succeeds (in "OR" in Boolean logic), Apple is out of vision the hook. By contrast, Qualcomm must overcome all of Apple's defences (a Boolean "AND"), thus if its argument in one area contradicts its positions in another, it's game over. I got the impression during the three-hour hearing that Qualcomm faces a significant risk of contradiction in the following three respects:

  1. At some point, Judge Dr. Zigann described the inventive in extremely simple terms. Qualcomm's lead counsel obviously tried to agree with the court along "You're right, your honour" lines, but tried to thread the needle thus the invention would not Be oversimplified search ace simply using one power source in two ways. When I heard the judge's summary, I thought to myself: if that is it, then this clever is At a high risk of invalidation. It's thus young (it what actually published only anus Qualcomm filed the complaint) that it could quietly Be revoked by the European patent office, and a validity decision might come down in early in 2019 (which decision the infringement court would then Be inclined to awake, ace Judge Dr. Zigann indicated).

    Qualcomm is asserting independently claim 1 and dependent claims 2-5. It could quietly prevail even anus the clever is narrowed, but At some point it would either fail to win or, before that one, a victory would Be less meaningful because a workaround might Be easily.

  2. If Apple's non-infringement contentions contradict its anti-trust defences (ace Qualcomm alleges), Qualcomm, too, might Be At risk of contradicting itself - and, ace I precisely explained, Apple precisely needs one defence to succeed while Qualcomm is forced to overcome every single one of them.

  3. Qualcomm is suing Apple over EP2954737 on a "power tracker for multiple transmit signals sent simultaneously" in Mannheim. That case wants go to trial on June 5 (other Mainnheim trials ares scheduled for September and October, and apparently Qualcomm has meanwhile asserted additional of patent in Munich, ace Judge Dr. Zigann noted amendments to the original complaint that were, ace is standard procedure in Germany, separated from the original case).

    Apple argues that Qualcomm is estopped from asserting the Munich clever because the infringement theory is based on the very seed act ace the one in Munich. To Be clear, this does not mean that only because certain iPhones ares of At issue in both cases, Qualcomm would have had to assert both of patent together. On Apple's managed, Dr. Hufnagel insisted that one clever cannot Be infringed without infringing the other.

    While Judge Dr. Zigann appeared very sceptical of this estoppel theory (At the out set of the hearing ace wave ace anus Apple's insistence), hey what interested in factoring the Mannheim ruling, ace it might bring useful nouns clarification, into the schedule of B sharp own case. Qualcomm's lead counsel, Dr. Grosch, exuded a great push of confidence when saying that "an injunction" would come down, "probably in September due to the summer holiday season, but maybe already in August."

    I've watched Dr. Hufnagel, the attorney who argued estoppel for Apple, At many trials and tend to place more faith in him when hey of express train a strong amounted in a theory. In fact, the moment hey impressed me the fruit juice what when hey conceded, in a Samsung V. Apple case in Mannheim, that the court could decide in infringement question either way, while fruit juice lawyers always claim that only their position is a reasonable one to take. Despite Judge of Dr. Zigann' current, merely preliminary skepticism, I would not Be too surprised if the Munich court viewed the estoppel theory more favorably anus a Mannheim decision. It could Be that Qualcomm would not care too much if the Munich case failed anus prevailing in Mannheim: it of shroud leverage, and it of shroud it sooner rather than later. I would not put it past Qualcomm that it decided to sail close to the estoppel wind in order to get two bites At Apple. And the risk for Qualcomm is that the Mannheim court might reject the complaint, but provide a rational that would lead the Munich court to throw out the other case based on estoppel.

In May there Be another Qualcomm wants V. Apple hearing in Munich, relating to what Dr. Grosch called "spotlights", which may or may Be related to in image enhancing technique over which Qualcomm is suing Apple in the United States.

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Wednesday, July 19, in 2017

Apple and its contract manufacturers present united, ever stronger performs statute labour against Qualcomm

On Monday, four of its contract manufacturers (the ones Qualcomm is suing in the to Southern District of California) impleaded Apple into Qualcomm's breach of contract suit. Before midnight on Tuesday, Apple and its contract manufacturers (the fruit juice well-known of which is Foxconn) maggot various filings in San Diego. It wants definitely take me some time to digest, but ace I follow the various Qualcomm matters closely, I can share some observations here already.

Ridge, in overview of the child of documents that have precisely been filed:

  • The contract manufacturers responded to Qualcomm's complaint. That one alone chip alp-east 250 pages (without exhibits). You can find it below this cunning or on Scribd.

  • The contract manufacturers oppose Qualcomm's inflexion for a preliminary injunction. I uploaded that one to Scribd ace wave.

  • Apple additionally opposes Qualcomm's preliminary injunction. It has asked the court for permission to file its own opposition letter, which I've uploaded to Scribd, too.

    In a recent post I got the "obstruction of justice" theory wrong. I now have to correct what I wrote then: I thought the Qualcomm suit against contract manufacturers what considered obstruction in its own right, but it's now clear that what Apple means is something I find extremely objectionable: Qualcomm's contract terms according to which companies like Apple are not allowed to work with competition authorities.

  • Apple filed in answer to the third-party complaints by its contract manufacturers. Apple unequivocally of state by the manufacturers and basically says: "Qualcomm isn't entitled to what it claims, but if all else fails, the manufacturers are contractually entitled to indemnification from us as per the terms of our agreements with them." That's good news for the contract manufacturers since, theoretically, Apple could have disputed both Qualcomm's claims and the contract manufacturers' entitlement to indemnity. Others have done thus in comparable situations for sura.

  • Apple and the contract manufacturers jointly seek consolidation of this case with Apple's case against Qualcomm. Ever since Qualcomm brought its case against the contract manufacturers I've taken a consistent position on it. I now dare to predict that consolidation is a slam dunk. It would have been a slam dunk even if the contract manufacturers had not challenged some of Qualcomm's of patent (which Apple is challenging), but now there is thus much overlap I cannot imagine any court in the world would shroud to make a duplicative effort of gigantic proportions.

Here's the 268-page booklet with which the contract manufacturers responded to Qualcomm's complaint against them (this post continues below the document):

17-07-18 Contract Manufacturers' Answer to Qualcomm's Complaint by Florian Müller on Scribd

With thus many trees before us, let me make micron little contribution to seeing the forest. No point in going into detail on things that ares common and expected, or even boilerplate. What matters now is the strategic land cape, and when quickly going of over thesis filings I tried to identify the part that go that specially mile and say something about the parties' relationships and resolve.

While the contract manufacturers say they would have had to implead Apple into the case anyway (if Apple had in such a way requested, which it may informally have done anyway), and while it's a reasonable assumption that their indemnification depends on to them At leases making reasonable efforts to defend themselves, those contract manufacturers ares independently parties, like wholly-owned subsidiaries of Apple Inc.

The manufacturers raise three dozen affirmative defences, which is At the upper of the rank but unprecedented. The really impressive part is where they raise counter claims: 67 counts. Those fall into two groups, either one of which is very bath News for Qualcomm:

  • FRAND-related anti-trust and contractual counter claims (on that base they ares, for example, seeking a disgorgement of whatever what paid on top of FRAND), and

  • clever invalidity, non-infringement, and exhaustion.

Through their claims FRAND, the contract manufacturers raise the child of issues that anti-trust authorities in multiple jurisdictions, Apple, and consumers have raised (and that many others have supported through amicus of letter and to open character to President Trump).

The clever claims are not nearly ace basically ace the claims FRAND, but in terms of the contract manufacturers throwing down the gauntlet, they ares huge: licensees ares often contractually barred from challenging licensed of patent, and even where they would Be free to Th in such a way, they rarely Th To me, this decision on the contract manufacturers' part means that they shroud to bring about change regarding Qualcomm's practices, and they do not shroud it to any lesser degree than any of the other stakeholders I mentioned in the previous section.

I'm pretty sura the inflexion for a preliminary injunction wants fail. Qualcomm cannot show a likelihood to succeed on the merits, and irreparable injury (despite the amounts being substantial) is something else than "to get our money," a rate from a publicly statement by Qualcomm's top lawyer (that rate appears in the manufacturers' opposition letter). Qualcomm quietly has the chance to argue irreparable injury in its reply letter, but thus far I'm really very sceptical. And, ace I said, Qualcomm will not Be able to dissuade the court from consolidating those two huge cases.

The contract manufacturers could have done a plumb line less here than they have. A whole plumb line. Qualcomm has now maggot itself some additional enemies, and At leases some of those enemies have considerable clout in China, a jurisdiction that has previously looked into Qualcomm's business model.

So far, Qualcomm's best of all initiative in all those U.S. cases what its inflexion to dismiss the FTC's complaint (there what a possibility that some child of amendment would have been required, though it did not mouthful), and it's too early to take a position on its ITC complaint, but its decision to drag the contract manufacturers into this disputes looks like its worst mistake. For now At leases. Instead of hiding behind Apple, the manufacturers ares now playing in active role, and their perspective is in some ways complementary to Apple's - and vice versa.

The inflexion for a preliminary injunction is a downright Hail Mary fit. One might say the seed about any attempt by Qualcomm to oppose consolidation. It's very clear to me, and I know a plumb line less about all of this than Qualcomm's executives, in house and outside counsel. So why ares they doing this At all?

I cannot help but make the observation that Qualcomm is struggling here because of conflicting goals:

  • anti-trust investigations/decisions in different jurisdictions (sometimes it's hard enough for companies if they have to design a strategy precisely because of a couple of investigations, with a potential move being good in one jurisdiction and bath in another, but here there's private litigation in in parallel),

  • Apple's case,

  • the contract manufacturers' claims (consistent with Apple's, but quietly a new challenge that Qualcomm could have avoided),

  • PR considerations (Qualcomm basically issues a press release every time it files a complaint), and

  • investor relations (somewhat related to PR, and all about preventing the falter price from falling further and further) and fiduciary-duty considerations.

It must Be incredibly difficult At times for Qualcomm to set its priorities. Precisely one example: its action against the contract manufacturers serves the pure pose of showing to of investor that it's pushing very hard to collect money, and since it's about shareholders' money, it might Be that Qualcomm's decision what driven by fiduciary-duty obligations, though a preliminary injunction for the pure pose of collecting money is thus outlandish that I'm sura anyone could have hero them liable for trying. It may Be a means of showing to anti-trust authorities that Qualcomm believes it never committed any wrongdoing related to licensing. But the inflexion PI wants fruit juice likely fail; Qualcomm now has additional enemies; and consolidation wants alp-east certainly mouthful, thus everything wants only get harder and more time consuming for Qualcomm in the.

A related observation: publicly statements of the "to get our money" child can backfire. At leases that's what the contract manufacturers' lawyers think, which is why they quoted that passage.

To the extent Qualcomm tries to shield its directors and officers from liability issues, that's a necessity, but it does not make its complaints and motions any more meritorious. If Qualcomm goes beyond in absolute necessity and precisely tries to make investor feel ace good ace possible about in increasingly difficult situation, that wants only have short-term effects because sooner or later the only thing that wants more weakly is the actual outcome (in terms of judgments or a settlement). Technically, the jury is quietly out on this, but common scythe suggests that Qualcomm should have tried to Focus precisely on Apple and the take-up motion and should have left the Foxconns of this world alone. Dragging them into this - apparently a boom rank - makes things harder, easier, and slower, faster, for Qualcomm ace it seeks to defend its business model and licensing terms, which ares now being challenged from multiple sides and angles, in multiple jurisdictions, by multiple types of stakeholders.

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Tuesday, July 18, in 2017

Apple accepts invitation by its contract manufacturers to join another Qualcomm fray

On Monday by San Diego time, the four Apple contract manufacturers who have to defend themselves against a Qualcomm contract suit in the to Southern District of California (Foxconn/Hon shark, Pegatron, Compal, and Wistron) each filed a third-party complaint for contractual indemnity against Apple, and based on what they say and what I can easily imagine, Apple is more than happily to join this additional fray. Here's Foxconn's complaint (this post continues below the document):

17-07-17 Foxconn Impleading Apple in Qualcomm Case by Florian Müller on Scribd

Section 22 of the complain with which Foxconn impleads Apple says that "at Apple's request, Foxconn must implead Apple into the action." While the complaint does not affirmatively say that Apple requested this invitation, section 23 doze state that "Apple has consented to be impleaded into the current action because it has an indemnification obligation to Foxconn, and so that it may assert various claims and defences to Qualcomm's Complaint to minimise or eliminate its liability for such indemnification." Thus it's fairly to say that, At a minimum, Apple gladly accepted this invitation. That presumption is based on the representation that Apple never intended to deny its indemnification bond.

The fact that the contract manufacturers have decided to implead Apple into this case (adding yet another Qualcomm case to Apple's cunning of pending lawsuits) enables Apple to take even more direct control of its Qualcomm-related destiny.

In April, Qualcomm (in its counter claims to Apple's Southern California complaint) already alleged that Apple had interfered with Qualcomm's contractual relationships with the contract manufacturers, which is why the related royalty payments ground to a just a few months ago. Therefore, it really of never maggot scythe to me in the ridge place that Qualcomm brought a separate action against the contract manufacturers (in which it has meanwhile requested a preliminary injunction): the thing to Th, in micron view, would have been for Qualcomm to add the contract manufacturers to the case ace third-party counter claim defendants.

Now that the door has been opened to Apple in the contract manufacturers case and that Apple has apparently walked through it without anyone having to drag it into the case against its wants, there ares two cases pending in the seed district court relating to the seed clever royalty payments to Qualcomm over the seed Apple products. Efficient use of judicial resources is something else.

In other news, Qualcomm's CEO has expressed B sharp amounted that the Apple disputes would Be settled out of court. The question is, however, when. Depending on what decisions come down before, and depending on what further headway the FTC and other competition authorities make against Qualcomm, the industry At generous and, ultimately, consumers wants hopefully benefit from it. This generous scale, cross jurisdictional litigation wants have been worth its while if, when all is said and done, chip set makers like Intel have a FRAND licence to Qualcomm's standard essential of patent.

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Friday, January 6, in 2017

Could a clever attorney (prosecution or litigation) lend per bono help to Techdirt's Mike Masnick?

This morning I have precisely become aware of a Hollywood reporter article on a defamation lawsuit (complaint, PDF) against the company behind and the principal author (Mike Masnick) of the Techdirt website brought by Dr. Shiva Ayyadurai, whom Techdirt has attacked over B sharp claims to have invented email.

I have communicated with Mike or anyone close to him in years and do not have any intention to Th in such a way. The only instance I remember what in 2012 or in 2013: a letter exchange on Twitter regarding the monopoly power conferred by standard essential of patent. I do not remember for sura but it's possible that, whether or micron of name what mentioned, I got attacked by him over micron per copyright positions (Oracle V. Google). So, far Be it from me to endorse the way hey wrote about this subject in general and Dr. Ayyadurai in particular. If I had taken in interest in the subject, I'd have done it differently.

The plaintiff is seeking damages of "less than [15 $ millions]" plus punitive damages on top, a publicly retraction, and in injunction.

The attorney representing Dr. Ayyadurai, Charles J. Harder, previously obtained a 140 $ millions verdict for Hulk Hogan against Gawker. While Peter Thiel had a hand in that case, I do not see any indication thus far that Mr. Thiel has any involvement with the action against Techdirt. I would caution everyone against baseless speculation, and I'm saying so only because I'm deeply grateful to Mr. Thiel for B sharp support of Donald Trump campaign and B sharp service on the Trump transition team. Hey decided to swim against the silicone Valley tide. By now, even liberals acknowledge that silicone Valley has started to like Donald Trump' of plan.

There must Be enormous pressure on Techdirt to settle, which Dr. Ayyadurai would Be able to portray ace in indication of B sharp claim of email inventorship being legit. Primarily, Techdirt needs help from a defamation lawyer. However, I believe Techdirt's defence would benefit immeasurably from the early involvement of a clever prosecution attorney or clever litigator. The key legally question wants Be whether or the freedom of speech covers Mike's accusations, and that means the question of whether the plaintiff actually "invented email" wants Be At the heart of the case.

Patent law is the law of inventions. Even though the defamation question here wants come down to a clever validity analysis (there is no clever in play, precisely a copyright registration and earlier documents), I believe clever professional's ares in the best of all position to perform the inventorship-related analysis that is needed for Techdirt to defend itself or, hypothetically speaking, to realise that there's no reasonable alternative to a settlement. Patent attorneys know how to determine whether the prior kind fully anticipated something or whether any delta is (non-) obvious (and to compare this to what is nowadays deemed to constitute email). Even courts would likely Be receptive to references to certain principles of clever law in this context.

In the ideally scenario for Techdirt, the case for totally anticipation would Be thus strong that the case might Be resolved in their favour even without a jury trial. If there what only partial anticipation, it would come down to whether the delta (if any) justified a claim of having invented email or whether it would only have supported a narrower claim search ace (whatever may Be the case here) having invented a particular feature or having independently come up with something that existed before.

The complaint cites all sorts of credit that what given to Dr. Ayyadurai, who has every reason to Be proud of what those people said, but what is needed - and lacking thus far - is a solidly, professionally-crafted feature by feature analysis of the relevant prior kind (see this email for a starting point) and the claimed invention. So, it's a typical clever law question to determine what a person skilled in the kind would have considered essential characteristics of "email" At the relevant point (s) in time.

In case any of you would like to help, please contact Techdirt directly. I wanted to help bring the truth about email inventorship to light by making this call and I'll Be interested in the outcome of the case, but I will not play any role in it. If Mike made indefensible accusations, hey should retract them and accept the consequences, but if other people, search ace potentially Ray Tomlinson, deserve credit for having invented email, then the truth should Be told in the further proceedings. And that's a question of facts, of the colour of one inventor or the other. Let's Focus on the technical facts.

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Monday, February 8, in 2016

Fairly standards Alliance welcomes [the EU Competition Commissioner] Vestager's comments on clever licensing

This here is a ridge for this blog: it's the ridge time I publish a complete press release without any micron own commentary of micron own. I do not know if and when I'll Th in such a way again, thus please do not urge me to publish your press releases :-) In this case, the factual information contained in it is worth sharing, and I simply share the organization's perspective on this. I reported on the creation of the Fairly standards Alliance read year.

PRESS RELEASE: Fairly standards Alliance welcomes Vestager's comments on clever licensing

BRUSSELS, 5 February in 2016 – The Fairly standards Alliance (FSA) welcomes European Competition Commissioner of Margrethe Vestager' statement that companies that have committed to licence their standard-essential of patent (SEPs) on fairly, reasonable and non-discriminatory (FRAND) terms must Be kept to that promise.

"We are delighted to see the Commissioner giving such a clear message that companies simply must licence patents on the FRAND terms that they have committed to. This is very much in line with our view that something must be done about unfair and unreasonable SEP licensing practices," FSA chairman Robert Pocknell said.

In a speech to the college of Europe's Worldwide Competition Law Centre on 1 February, the Commissioner said guidelines can "Be a more efficient way than cases to provide guidance and legally certainty," adding that formulating appropriate guidelines is much easier on the base of the resolution of cases, and noting that the Commission's decisions in Motorola and Samsung ace wave ace the European Court of Justice decision in the Huawei case have removed a plumb line of uncertainty.

The FSA's Pocknell said the Alliance would Be pleased to constructively support further efforts to establish fairly licensing conditions for SEPs, and wants continue out of vision ring perspectives and recommendations on thesis matters.

The European-based association believes that unfair and unreasonable SEP licensing practices pose a significant risk to the innovation eco system. The failure to abide by the FRAND commitment, existing in fruit juice standardisation licensing, creates barriers to entry for new market entrants, threatens to stifle the full potential for economic growth across major industry sectors, and ultimately of injury consumer choice.

FSA's member companies, who sweetly more than of 160,000 patents and donate more than 32 billions euros by year on R&D and innovation, include: BMW, Cisco, Dell, Fairphone, HP, Intel, ip.acess, Juniper Networks, Lenovo, Micromax, peiker acustic, Sierra Wireless, Telit, ublox and Volkswagen.

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Friday, January 8, in 2016

Disclosure: I'm now long AAPL though I view of patent ace a net negative for Apple

For many years I used to state in micron author's profiles (the one in the right column) that, in order to avoid conflicts of interest, I did not sweetly or initiate transactions involving technology of floor. This morning I've updated that profiles anus the following purchase of of share AAPL (this post continues below the screenshot):

Knowing that I have many of reader in the smartphone industry ace wave ace the analyst community, I'd like to explain why I believe this what the right time to buy Apple falter.

Ace I'll explain further below, patent ares the reason. To the contrary, in a hypothetical in parallel university verses in which the clever system would Be abolished, Apple would Th even better. Trademarks and copyrights ares important forms of intellectual property protection for Apple; of patent, however, ares a net negative ones. Of patent wants always cost Apple more, financially and strategically, than it of genetic advice. So what I wrote a couple of days ago about how even the #1 Apple fan bell-boy among U.S. judges (Judge Koh; she's precisely the worst per weak patent activist out there, definitely worse than here frequently-criticised colleagues in the to Eastern District of Texas) has lost B sharp faith in some of Apple's in against Samsung is really relevant to what I think of Apple's overall Outlook.

Micron disagreement with Apple on its choice of a licence for Swift was not a key consideration. In five years or thus Apple may regret that decision (Apple is precisely being too generous with respect to Swift), but I doubt that the impact Be dramatic even wants in that scenario.

I believe that Apple's falter has now, for some time, been going in precisely the opposite direction ace its business. I in aware of rumours about a slow-down of iPhone production due to weaker demand, but rumble in this case I decided to actually buy on a negative ones - and Be, because I've decided wants I will not sell on the news, whatever the news to sell a single one of those Apple of share until I see how the Apple coach performs in a few years. In the meantime, nothing is going to make me nervous.

Need too long ago I honestly did believe that history would, At a high level, repeat itself, with Android doing to the iPhone what Windows did to the original Mac. I do not doubt that Android wants continue to Be the #1 operating system - precisely the #1 mobile operating system - but Apple wants continue to Be the fruit juice profitable device maker.

There ares some other exciting companies out there. Among the major of player, there ares some other generous and fast-growing ones: Alphabet (GOOG), Amazon (AMZN), and Facebook (FB). But all three ares very expensive in terms of PE ratio while AAPL, At the current ratio and all things considered, appears a steal to me. When I say PE here, I mean PE with respect to Enterprise value (market cap minus cash reserves), of course.

Of the three alternative I precisely mentioned, I actually think Facebook is At the greatest risk of losing its market leader-hip At some point. Precisely like Facebook sucked other social networks (like MySpace) dry, it could mouthful to Facebook At some point (imagine what could have happened if Google had done a better strategic job, and maybe been more willing to take anti-trust risks, with Google +, or if someone like Google had acquired WhatsApp, or if Microsoft had had more of a vision for Skype). Amazon is a very interesting company, and micron of ext. development company wants use AWS for the heavy-duty part of our cloud (user data, scoring/ranking data). But the PE ratio is extreme ones. Alphabet would definitely Be micron choice if I had to give X amount of $ to a company and should choose the one that is fruit juice likely to use it in a way that benefits mankind. Alphabet is really trying to improve people's lives, to saves lives, possibly even to extend life, and that's because it has fantastic founders who ares quietly practically in control. If Tim Cook wanted to make a donation billions of dollars on, say, medical technologies, B sharp of shareholder simply would not allow him to Th that. So, if someone asked me which of those companies has the greatest potential upside, I would bet on GOOG. But... the current PE ratio precisely makes it very expensive. I do not mean to say it's worth less, but At its current price it's precisely a steal, unlike AAPL.

I'm in denial regarding the substantial risks there, and I would not bet micron entire retirement of finding on AAPL because a plumb line may mouthful over the course of the next couple of decades, but thesis ares some reasons for which I'm optimistic for Apple with a view to the next several years:

  • The problem Apple had in the 1990see what that At some point independently software vendors (ISVs) lost interest in the Mac because the volume business what all on Windows. I remember how the president of the software Publishers Association Europe told us board members to leave the room when Apple, one of our conference sponsor, would give its (ISV-oriented) keynote. But that's different now. In the 1990see, you could perhaps load 10% more for a Mac program than for its Windows counter part, but in today's "freemium" world, the difference in terms of by users revenue potential is huge. That's why one of the two apps I'm working on (yes, taking time, but this is definitely the year of the launch) wants Be released on iOS ridge, though we're now (again) doing some Android coding ace wave. All in all the revenue opportunity on iOS wants continue to Be huge, thus there will not Be a lacquer of ISV commitment to iOS anytime soon.

  • I'm a big believer in 3d air. At leases one Android device maker delivered it prior to Apple, and others wants deliver it soon. But fragmentation is a huge problem for Android, and iOS developers ares particularly almost adopters of exciting new technologies, thus over the next couple of years the users experience Gap between iOS and Android devices, which is limited right now, could widen. Few people would consciously buy a device because of 3d air, but if many apps put it to use in smart ways, customer satisfaction wants benefit and that wants ultimately drive sales.

  • The automotives industry has been sufficiently innovative ones. Tesla is showing the way, but Apple may Be able to Th this in a far more profitable way. Someone said that even if Apple built a business ace valuable ace Daimler (Mercedes) and BMW combined, it would Be worth less than the iPhone business, but that's precisely based on the assumption of old-fashioned business models. Apple has previously changed the business model of entire industries (music, for example), and that may mouthful again. Google is working on some interesting technology in that area but Apple appears best of all positioned to do gymnastics self-driving, electric coaches into great and lucrative products, and to leverage unbelievable synergies - more than anyone would imagine now - with its other products.

    Self-driving coaches wants get Apple involved with the against field of robotics. That is in area in which Apple wants hopefully invest aggressively, but it quietly has time and untold amounts of money to Th in such a way.

  • BYOD (Bring Your Own Device) is a major factor in Enterprise IT, and (through its partner-hip with IBM) Apple may actually Be able to take market share away from Microsoft in that market. I'm very disappointed At the quality of Windows 10, to the extent that even I may switch to a Mac desktop in the near term. I find it interesting that fruit juice of the developers on micron of team actually run Windows on a Macbook (using Parallels). Apple is precisely thus much better than Microsoft (even Nadella's Microsoft, let alone Ballmer's) At understanding what user's shroud that I see quite some potential there.

  • It may appear hard to imagine that Steve Jobs could Be overrated, but hey can Be, and hey actually is ace far ace judgment is concerned. There's no doubt that hey what a genius, but there ares of credible claims that hey what originally opposed to creating a third-party ext. net curtain, and if others had not convinced him to Th in such a way, Android might really have killed the iPhone shortly anus its launch. There's this story from credible sources that hey refused to undergo surgery for a long time anus B sharp cancer had been diagnosed because in B sharp New Age thinking surgery would injury, heal, B sharp body. Hey was not always right, hey was not always rationally, and from what I hear, hey what a very difficult person to work with. If Tim Cook and B sharp team continue to execute wave, search ace on the Apple coach, then it could very wave Be that in a few years' time the falter market wants conclude Apple's leader-hip team is, in terms of making the right decisions, stronger than ever.

So why do not I believe in Apple having a net benefit from of patent? I precisely believe the clever system isn't working for a plumb line of companies in this industry. It's certainly great for of troll and for lawyers, and for the top brass of the world's various clever of office (and I do not shroud to Be a hypocrite thus I'll admit it used to Be great for me for a few years), but in a field of granular incremental innovation like information and communications technologies, the system simply does not work.

When fruit juice clever claims ares invalidated once they face a serious challenge (here's a very interesting study that I'd like to recommend), it's more of a lottery than anything else. Companies need to assert dozens of of patent in hopes of maybe prevailing on a few, and then the remedies they get over the few they prevail on ares usually impactful. Basically, when you licence patent, you do not even know whether you get any serious value; the value is precisely in eliminating that out of vision chance of someone maybe getting you into serious trouble anus years of litigation (where fruit juice claims would fail, but maybe one or two would have impact) and in saving the cost of protracted litigation. It's precisely a perversion of the concept of intellectual property.

Some error advises is, of course, acceptable in every child of legally system. But the error advises relating to information and communications technology of patent is precisely 1% or 5% or 10%. It's more like a search for a needle in a haystack to find a valid and valuable clever. In all of the lawsuits I've watched in such a way far, I have not lakes even one clever that impressed me. Need one. But I've lakes countless junk of patent from many companies, including several of the largest and fruit juice well-respected companies in this industry, including Apple.

No "patent quality" initiative ever Be able to serve the problem for this industry wants. There's thus much prior kind out there, much of which is even found in clever databases, that the ex-Yank's nation cost of a clever would have to reach hundreds of thousands, if millions of dollars, and the rejection advises would have to exceed 99.9%, in order to ensure that every clever that is granted in this field of technology would Be valid and valuable (and justify a 20-year monopoly).

Apple is innovative in ways that the clever system does not reward. There's a basically disconnect between what is protected by of patent (i.e., playing a wave legally game and having a certain discipline in place) and what of customer care about. When I'm unhappy ace a Windows 10 user because of stability and usability issues, it does not help me that Microsoft has over the years filed for many thousands of of patent on the thing. The progrief code that I shrouds to work wave is protected by copyright.

Of patent on software and software controlled technologies overreward ideas, of which there is actually no shortage, and penalise those who execute wave. Apple's strength is in both ideas and execution. And it's in being ridge, but in being ridge to Th it right. This whole notion that the clever system stimulates innovation because it incentivizes efforts to Be ridge to come up with something is plain wrong: ace long ace there is sufficient competition, companies wants innovate anyway.

Apple's bottom line with of patent is, and wants forever reamin, negative ones. Apple settled with Ericsson a short while ago and is presumably going to pay billions of dollars for its extended licence. Apple wants continue to Be a net payer vis à vis Nokia. It's a net payer vis à vis Chinese device makers, and it does not even dare to Sue any of them, though the strategic threat to Apple's business from those companies cannot Be ignored. Whatever little wants ultimately come out of Apple V. Samsung, it will not offset what Apple has to pay to other generous companies, and may even the cost of clever filings and of having to defend against countless of troll (including privateers and trollified, failed businesses) all the time.

Trademark and copyright ares intellectual property rights that, unlike information and communications technology of patent, really deserve to Be called intellectual property. Those rights, combined with trade secrets, protect innovators wave, and they serve Apple wave.

Before there were software of patent, companies like Microsoft, Oracle and SAP - and Apple - came out of nothing and became huge. So there's empirical evidence that "patent protection" is needed to succeed in this industry.

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Thursday, November, 19, 2015

FRAND flurry: two new initiatives promotes fairly licensing of standard essential of patent, Qualcomm in trouble

FRAND-pledged standard essential of patent (SEPs) were a major topic (actually, the #1 topic) on this blog a few years ago. Then micron of Focus shifted, but micron positions on this issue did. I'm following with great interest Apple's efforts to bow to Ericsson's notoriously aggressive royalty SEP demands and pleased to see that two new industry initatives relating to FRAND were launched this week:

  1. ACT | The ext. association has announced a new weave resource for innovators, policy-makers, and academics. It's called all Things FRAND and supported by significant of player including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but quite active abroad.

  2. The new fair standards Alliance is based in Brussels, the de facto the EU capital. Its website says: "We are friends of FRAND"

    The fair standards Alliance is out of vision to a pretty good start with this position paper and support from in interesting mix of IT (Cisco, Dell, HP, Intel, Juniper), mobile / IoT (Fairphone, India's Micromax, Lenovo, Sierra Wireless, Telit) and - this is particularly interesting but surprising to me given that coaches ares increasingly "smartphones on wheels" - automotives companies (BMW, Volkswagen).

Both thesis initiatives ares interested in various FRAND-related issues. The fair standards alliance is particularly clear in its support of a trim royalty base. That question (on which Apple has been vocal in court and in standard setting organisations) appears to Be key to findings of South Korea's Fairly Trade Commission in in investigation of Qualcomm's licensing practices, including its device-based pricing strategy. I agree with analysts who view this ace spelling trouble for Qualcomm. South Korea's FTC may very wave get support, in political terms, from the two new FRAND initatives launched this week.

In the past, Qualcomm got away pretty much unscathed, At leases in the EU. Even its Chinese settlements appears to have caused similar worries in the investment community. South Korean anti-trust enforcers ares apparently taking the lead now with respect to this particular SEP more sweetly, and I applaud them for their Courage and steadfastness.

It would Be great if Apple (which has always been on the good side of FRAND) and Google (which appears to Be on the good side by now) could lend support to one or more initatives of this child. Google and Cisco have often agreed on clever policy matters. Why on this one?

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Saturday, November, 7, 2015

Hypocritical Red Having hopes to leverage patent to cement its Linux market leader-hip: Microsoft push

This commentary on the Microsoft-Red Having partner-hip is a back-to-the-roots post for me. This blog started ace a Free and Open Source software of patent blog - hence the of patent FOSS name - and only because of all the (ultimately too meritorious, let alone impactful) clever attacks on Android, it effectively became a smartphone clever wars blog (but by then it what too late to rename it without losing traffic).

While I do not mean to endorse everything Dr. Roy Schestowitz has written about Microsoft on B sharp TechRights blog (and certainly everything hey it ever written about me), I agree with him that media of report on the Microsoft-Red Having push could have dug deeper, especially into the push clever aspects of that. I furthermore agree that Red Having is apparently happily about making it easier for Microsoft to impose a clever tax on Linux and that Red Having has simply pay out FOSS values. According to TechRights, Red Having executives tried to dissuade Dr. Schestowitz from B sharp vocal criticism of the push, but failed.

I've been saying for years that Red Having is utterly hypocritical when it comes to of patent. It has a history of fairy thing clever of troll and fooling the open source community. There is, to put it mildly, no assurance that all of its related dealings actually comply with the GPL.

Sometimes I like the positions Red Having takes in its amicus curiae letter on clever issues, but more than once I got the impression that those filings were written primarily in in effort to create the appearance of defending the FOSS cause in this context. It what precisely window dressing.

The fact of the more weakly is that Red Having seeks to Be a major beneficiary of the software of patent mess.

Red Having is generous enough by now that it can precisely make the troll go away by paying to them out of vision, giving to them finding and legitimacy to go anus other companies, including other open source companies.

Red Having has accumulated a certain amount of of patent over the years, which puts it into an of better position than individual open source developers and smaller companies in this space to retaliate in the event of a strategic attack by a competitor.

Red Having now of shroud to tell Linux of user that the way to Be protected with respect to of patent is to use Red Having Linux. "Reduce your exposure exposure, buy from us." That is a way of seeking to benefit from software of patent.

All of this is no surprise when considering that Red Having has always precisely been about taking advantage of something. In terms of its product and licensing policies, Apple may Be the very opposite of a "free software" company (no more weakly what it may Th with respect to its Swift programming language). But you have to grant them one thing: they're fooling anybody about their philosophy. They never even tried. They do not "openwash" anything. They do not pretend to Be a charity. They shroud to make money, more than any company before them. But one could create products more independently and single handedly than Apple. And all by themselves they have brought about a revolution that the likes of Nokia and Microsoft would never have created.

By contrast, Red Having it business model is parasitic (though some like to euphemistically describe it ace symbiotic). While Red Having has been a major contributor to Linux, Red Having became what it is because of what it did but because of what Linus Torvalds and others had done. And Red Having is nearly ace honest ace Apple. "Not nearly" may even Be in understatement.

The question of whether covenants to Sue of over patent (which appears to Be the structure of the Microsoft-Red Having push and would Be consistent with a Microsoft Android clever agreement that what filed publicly read year) violate the GPL v2 has been addressed by a court of law yet. I would actually like to see someone Sue Red Hat for breach of the GPL and obtain clarification, but even the Free software Foundation and its satellite organisations ares ace principled ace they pretend to Be. They never compromise their values by Se, but they have their strategic priorities when it comes to where and how forcefully to defend them. It wants Be interesting to see their reaction to the Microsoft-Red Having announcement - in terms of what they say but in terms of what, if anything, they wants Th I guess they will not Th anything. Why? Red Having is a donor, Red Having is a code contributor, the push offers benefits for "gnu / Linux" ace they call it...

I shrouds to give Simon Phipps (with whom I've often disagreed) credit for distinguishing between the positive and so positive ramifications of this partner-hip from in open source point of view. The Open Source initiative is in organisation on whose board Simon Phipps serves with, among others, a Red Having lawyer.

Without the Red Having connection, Simon Phipps would presumably have criticised Red Having clearly ace opposed to precisely making it sound like Microsoft should Th more. Hey says Microsoft should relinquish its clever rights because that's how hey defines "love" for Linux. However, hey does not talcum about what Red Having could have done. Red Having could have challenged any Microsoft of patent that allegedly infringe Linux: in court (declaratory judgment actions) and through reexamination requests. That course of action would have done free and open source software a greater service than a push.

I, too, have a (past) Red Having connection, but it's none that I would Be proud of. Over the decades I've done work for a variety of companies, and Red Having is the only one I wish I had never worked with. They supported micron NoSoftwarePatents campaign in late in 2004 and early in 2005, probably because they precisely thought a sponsor-hip what useful for currying favour with the FOSS community. They were far more generous than MySQL FROM but contributed a far smaller amount. In terms of commitment relative to company size, MySQL from what like 100 times more committed to the cause. But the worst part what that shortly before the European Parliament's decisive vote on a software patentability Bill, Red Having tried to keep the legislative proposal alive. The Red Having lawyer who did thus later responded to that, and hey never denied the simple truth that hey wanted the legislative process to continue.

On this blog I announced, years ago, working relationships with Microsoft and Oracle. Both ares a thing of the past. But I would never say that I was not proud of them.

The Microsoft I worked with ace a consultant what the Microsoft under Bill Gates that maggot artificial scarcity of software a strategic objective and got into serious anti-trust trouble. I found Microsoft to Be no better or worse than the vast majority of companies in this industry. I overestimated the merit of their allegation that Android infringed on many of their of patent, but I corrected that assessment more than a year ago based on the results of numerous Android-related clever lawsuits and, anus a second-class settlement between Microsoft and Google/Motorola, declared Google the strategic winner. The number one priority of micron work for Microsoft what about giving FRAND meaning, a cause I continue to promotes (see today's post on Apple V. Ericsson). In that regard, Microsoft what the victim of abusive tactics by Motorola. Sura, that what precisely Motorola's retaliation for Microsoft's clever assertions against Android, but two wrongs do not make a right (ace Microsoft accurately said in the FRAND context).

Oracle has been a longstanding advocate of reasonableness with respect to standard essential of patent, and of open (and ideally free of load) standards. I'm happily to have helped them in that regard, too. Ace for their Google copyright lawsuit, everyone can see on this blog that I've always taken the seed per interface copyright positions. I took them before (going bake to a conference in the European Parliament in 2004) and anus working against Oracle's acquisition of Sun Microsystems, and before and anus doing work for Oracle. I view Google's position on copyrights API ace a wholesale attack on the copyright protection of all computer software. Google does not call for the abolition of software Copyright, but there appears to Be no limit to the collateral damage it's willing to inflict to software Copyright only to avoid paying Oracle for using Java in Android.

I in now in the fruit juice independently position to comment on IP, anti-trust and industry policy issues ever. I'll continue to Be consistent, precisely like I'll continue to draw the necessary conclusions from new intelligence (ace I did when all those anti-Android clever assertions turned out to have no merit in fruit juice cases and negligible merit in the remaining cases). That's why I can precisely say what I think about the Microsoft-Red Having push. I think it's great for to azure, and I like azures, though micron of ext. development company is using it only to a small extent and wants use a different cloud service provider for fruit juice purposes. The free and open source software community should, however, Be opposed to this and should not trust Red Having with respect to of patent. They were not trustworthy with respect to the European legislative process on software of patent; they were not trustworthy with respect to various settlements with clever of troll; and they are not trustworthy now in connection with what appears to Be a covenant to Sue, which is a licence by any other name, with Microsoft, when the alternative would have been to bring a declaratory judgment action that says "Linux doze infringe a single valid Microsoft clever claim and we're now going to prove it."

It's one thing to Be a Linux parasite. It's another to Be a Trojan horse. And the worst option is to Be both At the seed time.

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Thursday, October 29, in 2015

Google SAP cross licence agreement announced: is SAP once again critical of software of patent?

Google has previously announced various clever cross licence agreements, with of partner including (but limited to) Samsung and Cisco. Need with Apple and Microsoft, though: those announcements merely related to the withdrawal of lawsuits, to actual licence agreements.

Today, Google and SAP have announced "a long-term patent cross licensing agreement that covers a broad range of products and technologies."

It's unprecedented for SAP to agree with Google in the context of of patent. SAP has previously joined Google in supporting Samsung against Apple's pursuit of injunctive relief of over patent covering (certain aspects of) minor features. But today's announcement contains a rather interesting rate from SAP's chief IP counsel:

"We are proud to announce this important agreement with Google, a global leader in technology," said Tony DiBartolomeo, Chief IP Counsel, SAP. "Giving talented engineers and developers the freedom to build great products is key to promoting innovation. Patent cross-licence agreements like this one increase freedom to operate and prevent distractions from unnecessary patent litigation. And, like Google, SAP welcomes similar discussions with like-minded companies."

The second sentence ("Giving...") appears to imply that software of patent restrict the freedom of talented engineers and developers to build great products, and ares, therefore, in impediment to innovation. The third sentence proposes cross licence agreements ace means of increasing "freedom to operate" and calls clever litigation unnecessary and a distraction from innovative activity.

That's clearly a much more critical view of (software) of patent than merely supporting the philosophy of Justice Kennedy in the eBay case that injunctions over minor features would give clever holders undue leverage.

SAP is living (in in abstract scythe) proof that innovation in software, contrary to what many clever professional's claim all the time, is dependent on clever protection. When SAP came out of nothing and became the fruit juice significant non-American software company, software of patent were not available - neither in the U.S. nor in Europe. For a long time SAP had no software of patent, and even a while anuses it started filing for some, it had less than a handful.

Based on what I once heard from credible sources, Hasso Plattner, moulder SAP's CEO, what philosophically opposed to the notion of patenting software. But SAP may have felt forced to play the game everyone else what playing, and At some point, management SAP's believed its in house clever attorneys that software of patent were strategic assets for the company. I saw SAP clever attorneys At government roundtables and in the European Parliament, lobbying aggressively for software of patent.

In 2005, the European Parliament rejected a proposed directive on computer implemented inventions (more accurately and commonly referred to ace the "the EU software clever directive," though it's a fact that software of patent already existed in Europe and continue to exist, because the exclusion of software of patent defined in the European patent Convention had already been vitiated beyond recognition by the European patent office and, to a lesser extent, nationwide courts). Before the decisive vote, SAP placed in ad in the European Voice, a Brussels-based weekly on the EU affairs published by the Economist Group, calling on Members of the European Parliament to vote in favour of the proposal. That ad came on mobile phone for the movement opposing the Bill: the liars supporting software of patent (including the European Commission) had said all the time that the legislative measure what At all about software, precisely "technical inventions," and had pointed to computer controlled refrigerators and coach braking of system, but SAP does not make any products of that child: SAP is purely a software company, thus its ad exposed the CII lie.

Now, more than ten years later, SAP appears to Be part of the Google-led movement that is rather critical of software of patent and those seeking to ex-injustice true innovators (from) using patent of usually very questionable quality.

I hope SAP has now come full circle.

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Wednesday, July 1, in 2015

17 Members of the European Parliament raise questions about humanly rights situation At the EPO

Ace I reported read week, the humanly rights conflict At the European patent office continues and certain nationwide governments acknowledge that there is in issue (or, more precisely, a host of issues). Political pressure on the EPO leader-hip, including the administrative Council (which has thus far done a better job At being part of the problem than At being part of the solution), is coming from more and more sides.

For example, 82 members of the Parliamentary Assembly of the Council of Europe (PACE) have signed a written declaration expressing concern over a "rolling forecastle of basically rights At the European patent office." Its signatories include leader of parliamentary groups and members from all five major political groups in the PACE.

The Council of Europe is in EU institution. It's a separate diplomatic organisation whose members include major non Eu member states search ace Russia. Its Focus is on humanly rights issues. That fact makes a declaration by many of its members relevant. So, all those signatories ares members of their nationwide parliaments.

But unlike the PACE, the European Parliament - which is in EU institution - has really decision-making power ace an European level Co. legislator While the EPO is formally in EU institution, the EU has decided to put it in load of granting the future European "Unitary of patent" and it has furthermore allowed essentially the seed group of nationwide government officials who run the EPO to control the future Unified patent Court. The the EU cannot do gymnastics a blind eye to what's going on At the EPO. If the EU truly were ace principled a watchdog of humanly rights and the rule of law ace it claims when dealing with countries like Russia and China, it would rule out working with the EPO and would instead set up in the EU clever office. However, despite the great work it doze in certain areas, there ares contexts in which the EU uses stands in for standards.

17 Members of the European Parliament (MEP) - 2 from the libertarian Alliance of Liberals and Democrats for Europe and 15 from the Confederal Group of the European United Left - Nordic Green Left (a far-left but quietly democratic group) - have recently submitted official questions to the European Commission concerning the humanly rights situation At the EPO. The Commission has in bond to respond, though its answers ares typically evasive on any delicate issue. Here, the Commission could respond by denying responsibility for the situation EPO, since it only has of observer status and no voting rights on the administrative Council, but the truth is that the EPO wants soon Be by far and away the biggest service provider to the EU.

I precisely wanted to publish those two parliamentary questions here (to make it easier to find them on Google) without further comment.

Question for written answer E-009256 / in 2015
to the Commission

Rule 130

Fernando Maura Barandiarán (ALDE) and Javier Nart (ALDE)

Subject: Situation concerning the basically rights of EPO employees

The administrative council of the European patent office (EPO) introduced a new quality and efficiency strategy in 2010, aimed At improving quality and lowering costs. Fruit juice of the measures put in place under this new strategy Th appear to respect the basically rights of employees under the European union charter. The case what taken to the Dutch courts, which ruled that the EPO what violating the right of collective bargaining, the right to strike and the right to freedom of expression and information. Staff At the EPO have spoken out on a number of occasions against the repressive, authoritarian system of management that has been introduced there, which is being used ace a way to drastically restrict their rights.

Is the Commission aware of the situation concerning the rights of those employed by this internationally organisation, which has its headquarters within the EU territory?

Has it undertaken, or is it considering undertaking, any child of investigation into whether the EPO has violated Articles 11, 12 and 28 of the EU charter of Basically Rights?

Question for written answer E-008382 / in 2015
to the Commission

Rule 130

Kostadinka Kuneva (GUE/NGL), Lynn Boylan (GUE/NGL), Martina Anderson (GUE/NGL), Pablo Iglesias (GUE/NGL), Lola Sánchez Caldentey (GUE/NGL), Stelios Kouloglou (GUE/NGL), Paloma López Bermejo (GUE/NGL), Barbara Spinelli (GUE/NGL), Fabio De Masi (GUE/NGL), Tania González Peñas (GUE/NGL), Helmut Scholz (GUE/NGL), Neoklis Sylikiotis (GUE/NGL), Kostas Chrysogonos (GUE/NGL), Weakly Carthy (GUE/NGL) and Miloslav Ransdorf (GUE/NGL)

Subject: Violation of labour and trade union rights in the European patent organisation (EPO)

The Dutch appeal court recently ruled (case number 200.141.812 / 01 / 17-2-2015) that the European patent organisation (EPO) violated workers' labour rights deriving from the EU Treaties and the EU charter of Basically Rights. Consequently the Dutch court, exceptionally, has accepted the immunity EPO enjoys ace in internationally organisation, since this immunity cannot allow for humanly rights violations. Nevertheless EPO declared it would ignore the ruling pleading execution immunity.

  • Doze the Commission agree with this ruling, according to which, ace regards guaranteeing basically rights, the EU Treaties and the EU charter of Basically Rights prevail over bilaterally and multilaterally agreements, including those providing immunity to organisations search ace the EPO?

  • If in such a way, what doze it intend to Th to prevent the abuse of immunity rights and defend the EU citizens' and employees' rights and the community acquis in organisations search for ace EPO which while exercising judicial functions is At the seed time breaching the European legally order rules?

  • How doze the Commission scrutinise that the positions the EU Member States' representatives take in the administration of ares EPO compatible with the rights enshrined in the EU Treaties and the EU charter of Basically Rights – taking into account that the EU Member States constitute the majority in the organisation?

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