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Motorola Tells Seattle Judge Microsoft Sucker Punched Them Over RAND Patents, and It's "Reverse Hold-up" ~pj
Tuesday, July 16 2013 @ 01:10 AM EDT

Microsoft, that devilish litigation machine, now wants to win by summary judgment in the Seattle RAND patent case against Motorola on the next question to be tried, whether Motorola violated a duty of good faith as to its RAND licensing commitments. Motorola, naturally, opposes [PDF]. It wants its day in court with a jury, not just this judge, who keeps beating Motorola up. At least in Seattle courtrooms, it seems Microsoft can do no wrong.

What Motorola tells the court is something I hope everyone will read in full, because it says that the reason Motorola sent Microsoft an offer to license its RAND patents is because Microsoft *asked it* to do so, pretending all was normal between them. Then when they sent their offer and the usual opening price, instead of discussing it, Microsoft immediately sued, claiming the price was too high.

In short, Microsoft sucker punched them. Motorola calls it reverse hold up, which is what Apple was just found guilty of against Samsung at the ITC for essentially the same type of moves:

Microsoft’s conduct suggests that it was engaged in “reverse hold-up.” As explained recently by the International Trade Commission in Samsung v. Apple, “In reverse patent hold-up, an implementer utilizes declared-essential technology without compensation to the patent owner under the guise that the patent owner’s offers to license were not fair or reasonable. The patent owner is therefore forced to defend its rights through expensive litigation."
The details are eye-opening. All of this, Motorola says, came about because it chose to use Google's Android instead of Microsoft's Windows for mobiles. There will be a hearing on this July 31, so if any of you are in the Seattle area and can attend, that would be awesome.

read more (9874 words) 168 comments  View Printable Version
Most Recent Post: 07/22 06:15PM by Anonymous

How Many Patents Must Be Read to Clear All Patents Rights on Software? ~ by PolR
Monday, July 15 2013 @ 06:41 AM EDT

How Many Patents Must Be Read to Clear All Patents Rights on Software?

By PolR

There is a popular theory about the ills of the patent system that there is nothing wrong with software patents. According to this theory, all the problems are due either to bad actors called trolls or to poor quality patents. Then, as the logic goes, the patent system may be fixed by curtailing the activities of bad actors and by improving the quality of the patents.

Is that so?

read more (3088 words) 190 comments  View Printable Version
Most Recent Post: 07/23 03:34PM by Anonymous

The Future of IP Software, with Carl Hewitt
Saturday, July 13 2013 @ 02:18 PM EDT

I think you guys will want to see this extraordinarily interesting talk by Carl Hewitt on YouTube. He talks about the future of IP software -- future as in when computers start filing patent applications. "If there is no principled way to distinguish computation from human thinking" -- then what? Human thinking isn't patentable. And if the meaning is a mathematical denotation, and mathematics is also unpatentable, what happens when computers are filing thousands and thousands of patent applications on all the patentable IP in the universe?

A subtheme is that Mark Lemley, who thinks software patents are acceptable as long as we tweak the USPTO process to screen out claiming the function instead of the way to get to the goal, is suggesting a halfway measure, because the future for the US patent system is a patent quagmire, because of the future capabilities of computers to overwhelm the USPTO with patent applications, none of which should be patentable but which under the current regime would be.

read more (170 words) 151 comments  View Printable Version
Most Recent Post: 07/16 04:10PM by Anonymous

2nd Group of Professional Security Researchers File Amicus in Support of Auernheimer ~pj
Thursday, July 11 2013 @ 10:43 PM EDT

Orin Kerr now lists four amicus briefs filed in the Andrew "weev" Auernheimer case. He is one of the attorneys representing him in his appeal pro bono. We have one of the amicus briefs done as text here, the one by security researchers, and now let's look closely at a second amicus [PDF], this one filed by Peiter "Mudge" Zatko, C. "Space Rogue" Thomas, Dan Hirsch, Gabriella Coleman, and other prestigious professional security researchers in support of Auernheimer. This one is particularly valuable, in that it carefully explains how a server acts on the World Wide Web and points the finger of blame at AT&T, pointing out that it had the choice to make the page private, but it failed to do so, leaving it open and public to all comers.

They even draw pictures, so there is no chance the court can miss the point of the tech lesson. And they ask the court to overturn his conviction, because otherwise the implications of private, ex post facto law-setting by private corporations is terrible to contemplate and may be unconstitutional:

Mr. Auernheimer’s conviction on charges of violating the Computer Fraud and Abuse Act, 10 U.S.C. §1030, implies that his actions are in some material way different than those of any web user, and that beyond this, his actions violated a clearly-delineated line of authorization as required by §1030(a)(2)(C). Neither of these statements is true. The data Mr. Auernheimer helped to access was intentionally made available by AT&T to the entire Internet, and access occurred through standard protocols that are used by every Web user. Since any determination that the data was somehow nonpublic was made by a private corporation in secret, with no external signal or possibility of notice whatsoever, such a determination amounts to a private law of which no reasonable Internet user could have notice. On this basis alone, Mr. Auernheimer’s conviction must be overturned....

The United States asks this Court to endorse the use of the criminal justice system to cover up a private corporation’s failures. AT&T published private consumer data in an inappropriate fashion. Rather than take responsibility for their act, they have asked the criminal justice system to punish the researcher who uncovered their mistake. If this tactic is allowed to flourish, it will allow corporations to choose to terminate any safety oversight of their actions, and instead rely on the criminal process to serve as a cover-up for bad acts. Corporations will have no incentive to treat consumer data with adequate care in the future, since no one but the corporations themselves will be aware of any possible danger. In essence, the precedent that the respondent seeks to create is one that will make the American taxpayer subsidize the irresponsibility and misfeasance of private corporations through the courts on a scale never before seen.

With this case, this Court has an opportunity to state that it is not acceptable for private corporations to warp the criminal justice system to shield themselves from public scrutiny in their digital public accommodations, any more than it is acceptable in any physical accommodation. Mr. Auernheimer’s “crime” was to discover that a public corporation was giving anyone access to private consumer information; he discovered this by, in essence, repeatedly adding 1 to a number. The Court should not condone the metaphorical shooting of a messenger who acted for the safety and security of all. We ask that this Court overturn Mr. Auernheimer’s conviction.

The US Constitution forbids making a law after an act has been committed and thus sweeping into the arms of tha law someone who had no reason to believe the action was illegal at the time it was committed, because in fact it wasn't illegal at that time:
It is a fundamental violation of the basic concept of due process for an act to be secretly criminal; AT&T’s determination that access to documents it had made public was unauthorized, without making such a determination public in any way, amounts to the creation of a private law.

read more (6917 words) 55 comments  View Printable Version
Most Recent Post: 07/16 01:08PM by cjk fossman

Illustrious Security Researchers file amicus brief telling court: We do what Andrew Auernheimer did. ~pj
Thursday, July 11 2013 @ 12:59 PM EDT

A group of illustrious computer scientists, computer science professors, software developers, privacy researchers, professional and freelance computer security researchers, and academics have filed an amicus brief [PDF] in support of Andrew "weev" Auernheimer. They include Mozilla Foundation, Ed Felten, Matt Blaze, David L. Dill, Bruce Schneier, and Dan Kaminsky. Biographies are included in the filing for any who don't immediately recognize their names, at the very end as the attached Exhibit A.

What is their concern? Security research depends on being able to do exactly the sort of thing that Auernheimer was just sent to jail for:

Many Amici routinely scrutinize websites, software interfaces, electronic devices, and other computer systems for security and privacy shortcomings, and use information derived from such testing in their work. Researchers commonly test public, unsecured websites to discover how they collect, store, and use consumer information. These tests may include sending websites a series of similar information requests, changing a variable each time to see how the website will respond. As Defendant-Appellant Andrew Auernheimer did, researchers usually use software programs, or “scripts” to automate these changes and thereby quickly collect more data....

Amici have diverse and deep technological expertise in computer security and privacy from both an academic and practical perspective. Their work — and that of numerous other researchers and security and privacy professionals — is critical to helping protect security and privacy on the computer networks that are key for our nation and economy.

This legitimate, highly valuable research commonly employs techniques that are essentially identical to what Defendant-Appellant did in this case. Most importantly, like Auernheimer, researchers cannot always conduct testing with the approval of a computer system’s owner. Such independent research is of great value to academics, government regulators and the public even when – often especially when — conducted without permission and contrary to the website owner’s subjective wishes.

Computer security research is vital too "helping protect security and privacy on the computer networks that are key for our nation and economy." If his conviction stands, what happens to this vital research?

read more (6811 words) 210 comments  View Printable Version
Most Recent Post: 07/15 05:57PM by cjk fossman

Samsung Asks For New Trial on Apple's '381 Patent - New Evidence Has Been Discovered ~pj - Updated 4Xs
Tuesday, July 09 2013 @ 05:47 PM EDT

Samsung has just filed a motion for a new trial on liability in Apple v. Samsung with respect to Apple's '381 patent. That's the bounce back patent, which was used by Apple in the first trial in California, and the jury ruled that Samsung infringed that patent with 18 products. As you know, the two companies are currently in the pre-retrial motion stage leading up to a retrial on the question of damages only, scheduled to begin in November.

Meanwhile, the reexamination process continued at the USPTO, with Apple getting them to overrule their earlier final determination that claim 19 of the '381 patent, the claim at issue in this litigation, was not valid due to prior art. And here comes Samsung with the incredible news that it just learned on June 12th that during the most recent phase of the reexamination process at the USPTO, Apple narrowed its patent so much to get it to survive the process that Samsung's products no longer infringe (which Samsung never thought they did anyhow):

The eighteen products at issue in this motion are all products for which the jury found infringement of the '381 patent and awarded damages. The Court ordered a new trial on damages as to all of the products at issue in this motion except the Fascinate, Galaxy S 4G, Galaxy S II (AT&T), Galaxy Tab 10.1(WiFi), Mesmerize and Vibrant. Dkt. 2271. This motion is based on "newly discovered evidence" because Samsung learned from PTO records made publicly available on June 12, 2013, that Apple had successfully advocated a new claim construction of the only asserted claim – Claim 19 – and significantly narrowed its scope in connection with reexamination proceedings before the PTO to avoid having this claim rejected due to the Lira reference. Under this claim construction, the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate, Galaxy Prevail, Galaxy S 4G, Galaxy S II (AT&T), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge, Infuse 4G, Mesmerize, Nexus S 4G, Replenish and Vibrant cannot possibly infringe Claim 19 of the '381 patent.
Wow. Why would Samsung have to find this in papers filed with the USPTO instead of from Apple just telling them? In any case, Samsung argues newly discovered evidence. The Lira patent is the prior art that caused the USPTO to reject claim 19 earlier.

read more (9690 words) 393 comments  View Printable Version
Most Recent Post: 07/16 08:22PM by PJ

SCO's Response to IBM's Objections to SCO's Proposed Partial Judgment ~pj Updated
Monday, July 08 2013 @ 12:51 PM EDT

SCO has filed its response [PDF] to IBM's objections to SCO's Proposed Partial Judgment order [PDF], which SCO had improperly titled "Proposed Judgment Dismissing SCO's Claims Mooted by the Final Judgment in SCO v. Novell".

SCO says, OK, you can remove the word "moot" from the proposed order, despite stubbornly insisting it was correct wording: "Because the Novell judgment resolved the claims that SCO agrees can be dismissed, those claims no longer present a controversy and thus can be properly said to be mooted by the Novell judgment." In short, SCO doesn't know what "moot" means, but IBM taught them that the right terminology would be "decided on the merits, meaning SCO can't sue later on the same claims, and SCO says, fine, change the wording. IBM caught them in a trick, or just sloppy wording, and the parties move on. And OK, SCO agrees to change the wording about Project Monterey agreement being a joint venture, which it wasn't, and almost everything else IBM objected to SCO agrees to change. IBM is right, SCO agrees, that almost all of the claims in SCO's complaint are dead as a door nail now, because of Novell's victory over SCO regarding the ownership of copyrights, SCO concedes.

In fact, SCO's revised proposed order [PDF] is almost identical to the one IBM proposed [PDF], except for one added paragraph by SCO:

The following SCO claims remain ripe for adjudication by the Court: SCO’s Unfair Competition claim (Count VI) concerning Project Monterey, SCO’s Interference with Contract claim (Count VII), and SCO’s claim for Interference with Business Relationships (Count IX).
I doubt IBM wants that as part of the order, in that IBM is planning to contest that any of them survived the Novell judgment. That will be handled in the forthcoming IBM motion on this very topic, which SCO knows is the next step. In effect, SCO is asking for the judge to agree that these claims are still standing. SCO never quits with the tricks, but what does it mean? The SCO response reveals what SCO's plan is, as I'll show you.

Finally, SCO says it also attached a black-lined version of its proposed order showing the changes, but it is not, in fact, black-lined.

read more (4198 words) 78 comments  View Printable Version
Most Recent Post: 07/22 10:46AM by Laomedon

My Excellent $199 Chromebook Adventure ~pj
Sunday, July 07 2013 @ 10:57 PM EDT

I impulsively bought one of the $199 Acer C7 Chromebooks, specifically to find out if I could successfully put pure Linux on the Android Chrome OS laptop. I know Chromebooks run on Linux, the kernel, but I wanted KDE, which is what I normally run. I wanted both, and I thought it'd be fun. I also thought it might be an easier way to get around Microsoft's Secure Boot, which makes it hard to install a GNU/Linux environment on new laptops. Microsoft never runs out of ways to make it inconvenient to use Linux, of course.

So when I went to Best Buy, for something else, I asked if they had any Chromebooks. They were sort of hidden away, on the the far end of a display of all the Microsoft laptops. There were only two models, one a Samsung and the other an Acer C7. I chose the Acer over the Samsung Chromebook because the Acer had both wireless and Ethernet, and with the Samsung, it only had wireless, so if I wanted to use Ethernet ever, I'd have to get a USB Ethernet adapter. And I like to have both. Plus I worried some donkey would accuse me of pushing Samsung products, since we've been covering the Apple v. Samsung patents wars.

Then, once I got my new Chromebook home, I realized it only had 16 GB of storage, which I hadn't noticed in the store. Like I say, it was an impulse buy. I didn't think that'd be enough room for a dual boot. But just as I was giving up, a friend told me about crouton. Oh, my! A chroot so you don't have to dual boot but can just switch back and forth between Chrome OS and KDE or whatever you like.

The short version of my happy tale is I did it, and it works. And if I can do it, likely so can you. It was fun. I'll show you what I did, and I have some resources in case you can think of an even better way.

read more (4168 words) 162 comments  View Printable Version
Most Recent Post: 07/12 04:43PM by PJ

The Oracle Appellate Reply Brief - Correcting FOSSpatents. Yes. Again. ~ pj
Saturday, July 06 2013 @ 08:07 AM EDT

Florian Mueller of FOSSpatents has done an article about the Oracle reply brief in the appeal and cross appeal in Oracle v. Google that is so one-sided, I thought I should address it here, so you are not misled. Here's Oracle's reply brief [PDF; Text].

I've had to correct FOSSpatents before. For example, in this article in April of 2012, "Google's Unmerited Damage From Oracle v. Google -- The FOSSPatents Factor," I showed in detail that his predictions and analysis of the trial segment of this case were off-base, and unfair, and did not come true, as the jury and court rulings demonstrated clearly. I hope his hedge fund clients didn't lose their shirts relying on his analysis. For that matter, I hope they didn't make money from his flawed analysis either, now that I think about it. He calls himself an analyst. So does Rob Enderle. Enderle has stated that he takes money from clients, like Microsoft, and then he writes, independently he claims, articles that coincidentally would warm a client's heart. I would say, then, that Mueller is an analyst in that same limited sense.

Oracle is another client of Mueller's. Oracle hired him to "advise" the company, so I suppose we shouldn't be surprised that he generally mirrors the Oracle point of view in an endless stream of anti-Google articles. And if that is what you want, X marks the spot. Read whatever you enjoy.

But if what you want is an analysis that includes both sides in litigation, not to mention predictions that actually come true, I fear you will not find it there. So let's take a look at what he wrote about Oracle's brief, and I'll try to give you a better understanding of the issues in this appeal by adding some accurate information about Google's position.

read more (13735 words) 118 comments  View Printable Version
Most Recent Post: 07/18 02:43PM by Anonymous

Oracle Responds to Google's Appeal Brief - "There Is No 'De Minimis' Defense" ~pj
Friday, July 05 2013 @ 11:02 AM EDT

Oracle has filed its Reply [PDF] to Google's Appeal and Cross-Appeal Brief. Google's was in response to Oracle's opening appeal brief, so now the 3-section symphony of appellate briefs is complete. Next will come oral argument, and then a decision from the Federal Circuit Court of Appeals.

I haven't yet read it carefully, so we can do that together, and swing back by for my thoughts on it and a text version. But meanwhile, get a load of this from the table of contents:

It says there is no de minimis defense in the Ninth Circuit, only fair use. Oracle admits, in footnote 12, that it didn't argue this "throughout the proceedings below" but claims the appeals court can affirm the district court's ruling that the code in question was not de minimis "on any grounds that finds support in the record." So, a new argument raised for the first time in the appeal. That's the Boies Schiller style. Speaking of which, here's what Oracle wants:
On Oracle’s appeal, this Court should reverse the district court’s judgment and enter judgment on liability for Oracle. On Google’s cross-appeal, this Court should affirm the district court’s judgment.
In short, Oracle wants everything.

read more (16041 words) 147 comments  View Printable Version
Most Recent Post: 07/09 09:51PM by Anonymous

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