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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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  • USPTO Moves to Strongly Enforce Eligibility Limitations
  • Sunday, July 27 2014 @ 12:11 PM EDT
  • Earlier this summer, the Supreme Court decided the subject matter eligibility case of Alice Corp. v. CLS Bank Int’l, 573 U.S. ___ (2014). The main point of Alice Corp. was to find that the eligibility-limiting holding of Mayo v. Prometheus, 566 U.S. ___ (2012) applies equally to the patenting of abstract ideas. (Mayo focused on laws of nature). ...

    Thus, following Alice Corp the USPTO issued a set of guidance instructions to its examiners that follow the two step process. Although the two step approach appears straightforward....And the current White House viewpoint seems to be that information-software focused inventions are likely unpatentable under 101 unless tied to inventive technology.

    Based on information from several sources, it appears that the USPTO is now taking a more aggressive stance on subject matter eligibility and is particularly re-examining all claims for eligibility grounds prior to issuance....

    It appears that applications whose inventive features are found in software or information processing will now have a difficult time being patented.

    [PJ: Ask yourself: when the Alice Corp. case was first decided, is this outcome analysts told you to expect? : D ] - Dennis Crouch, Patently O

  • U.K. Cabinet Office Adopts ODF as Exclusive Standard for Sharable Documents
  • Friday, July 25 2014 @ 09:21 AM EDT
  • The U.K. Cabinet Office accomplished today what the Commonwealth of Massachusetts set out (unsuccessfully) to achieve ten years ago: it formally required compliance with the Open Document Format (ODF) by software to be purchased in the future across all government bodies. Compliance with any of the existing versions of OOXML, the competing document format championed by Microsoft, is neither required nor relevant. The announcement was made today by The Minister for the Cabinet Office, Francis Maude....

    The adoption of only ODF – and not also OOXML, as was urged by Microsoft - is most significant for the degree of market adoption and legitimization it will necessarily lead to. Unlike OOXML, which exists in several versions in the marketplace (and was not adopted even by Microsoft in the ISO/IEC approved “strict” form until years after its adoption by those organizations), ODF exists in more settled forms. Use of ODF-compliant software by tens of thousands of U.K. government workers will provide incentives to Microsoft to take greater pains to ensure that documents saved in ODF form will preserve their formatting with greater integrity, since many open source office suites (such as LibreOffice and OpenOffice) are available for free. - Andy Updegrove, Standards Blog

  • Presiding juror in Microsoft-Motorola trial a renowned geneticist
  • Saturday, September 07 2013 @ 10:31 AM EDT
  • Among the interesting tidbits to come out of the recently concluded Microsoft-Motorola patent trial is this fact: The presiding juror was Mary-Claire King, a University of Washington professor and a renowned geneticist who played a leading role in the identification of breast cancer genes. King, who declined to comment on the trial, led the jury that on Wednesday delivered a unanimous verdict in favor of Microsoft.

    [PJ: A "presiding juror" is a new phrase to me, as you normally see foreman or foreperson. The judge presides, not the juror. However, there's more. Note the following for context regarding Ms. King's connection to Microsoft: 1) She got her position, according to the U of Washington itself thanks to money from Bill Gates:

    "We were very excited at the opportunity to recruit Mary-Claire," says Paul Ramsey, chairman of the Department of Medicine. "We're pleased with the interactive nature of her position, with her joint appointment in the College of Arts and Sciences, where she teaches undergraduates, as well as her primary appointment in medical genetics." In the view of both Leroy Hood and Maynard Olson, enticing King to the UW can be attributed in part to the $12 million donated in 1991 by Microsoft CEO Bill Gates to launch the Department of Molecular Biotechnology. "The seed money from Bill Gates has helped attract a number of people here," says Hood. "If seed money is used effectively, the programs can pay for themselves with external grant money," says Olson. "But there's no way to get into the game without the seed money. It's a genuine success story."

    It is not the first time Microsoft has given money to the U. of Washington, as you can see here and here. Here the two are advertised as star speakers at the same Seattle science conference back in 1997. One might, therefore, question her being on this particular jury.] - Janet I. Tu, Seattle Times

  • Bruce Schneier's 5 tips: A guide to staying more secure
  • Friday, September 06 2013 @ 09:39 AM EDT
  • Now that we have enough details about how the NSA eavesdrops on the internet, including today's disclosures of the NSA's deliberate weakening of cryptographic systems, we can finally start to figure out how to protect ourselves....

    At this point, I feel I can provide some advice for keeping secure against such an adversary. - Bruce Schneier, The Guardian

  • Obama reassures Europeans over US surveillance
  • Wednesday, September 04 2013 @ 03:35 PM EDT
  • Obama said additional changes to the programs may be required because of advances in technology. He said his national security team along with an independent board is reviewing everything to strike the right balance between the government's surveillance needs and civil liberties.

    "There may be situations in which we're gathering information just because we can that doesn't help us with our national security, but does raise questions in terms of whether we're tipping over into being too intrusive with respect to the ... the interactions of other governments," Obama said. "We are consulting with the (European Union) in this process; we are consulting with other countries in this process and finding out from them what are their areas of specific concern and trying to align what we do in a way that, I think, alleviates some of the public concerns that people may have." - AP, NorthJersey.com

  • Black Budget Summary: Consolidated Cryptologic Program
  • Sunday, September 01 2013 @ 03:19 PM EDT
  • The resources devoted to signals intercepts are extraordinary. Nearly 35,000 employees are listed under a sweeping category called the Consolidated Cryptologic Program, which includes the NSA as well as the surveillance and code-breaking components of the Air Force, Army, Navy and Marines. [Cf. Wired and Bruce Schneier.]- Washington Post

  • LEAKED: German Government Warns Key Entities Not To Use Windows 8 – Links The NSA
  • Thursday, August 22 2013 @ 11:01 AM EDT
  • According to leaked internal documents from the German Federal Office for Information Security (BSI) that Die Zeit obtained, IT experts figured out that Windows 8, the touch-screen enabled, super-duper, but sales-challenged Microsoft operating system is outright dangerous for data security. It allows Microsoft to control the computer remotely through a built-in backdoor. Keys to that backdoor are likely accessible to the NSA – and in an unintended ironic twist, perhaps even to the Chinese.

    The backdoor is called “Trusted Computing,” developed and promoted by the Trusted Computing Group, founded a decade ago by the all-American tech companies AMD, Cisco, Hewlett-Packard, IBM, Intel, Microsoft, and Wave Systems. Its core element is a chip, the Trusted Platform Module (TPM), and an operating system designed for it, such as Windows 8. Trusted Computing Group has developed the specifications of how the chip and operating systems work together. - Wolf Richter, InvestmentWatch

  • The NSA Reveals That It Does 20 Million Database Queries Per Month
  • Tuesday, August 20 2013 @ 12:28 AM EDT
  • As we noted earlier today, the NSA's two key "defenses" of the thousands of abuses and violations of the law that recently came out thanks to a leaked document are that there wasn't "intent" to abuse the system (we had no idea that made illegal things legal...) and, second, that it was such a small percentage of the activity that it's really no big deal. Glenn Greenwald quickly noted that the NSA is actually saying "we collect billion of emails and calls every day, so what's a few thousand privacy violations?" hoping that everyone focuses on the second half of the sentence. But the key point is actually the first half of that sentence. In fact, as we noted in that last post, the NSA's top compliance guy actually revealed a startling fact in his attempt to push the meaningless "ratio" of violations to queries:

    "The official, John DeLong, the N.S.A. director of compliance, said that the number of mistakes by the agency was extremely low compared with its overall activities. The report showed about 100 errors by analysts in making queries of databases of already-collected communications data; by comparison, he said, the agency performs about 20 million such queries each month."

    Again, the ratio is a meaningless number. You're not declared innocent of murder because you didn't happen to murder someone every other day of your life. But, perhaps more important in this is the revelation of the 20 million queries every single month. Or, approximately 600,000 queries every day. How about 25,000 queries every hour? Or 417 queries every minute? Seven queries every single second. - TechDirt

  • FRAND licensing, chip suppliers, and interplay of patent exhaustion/defensive suspension clauses
  • Tuesday, August 20 2013 @ 12:25 AM EDT
  • As to what is addressed in Motorola’s letter, there are three particular issues: (1) the applicability of patent exhaustion; (2) the ability of Motorola to require a “defensive suspension” clause in a license with Marvell; and (3) Microsoft’s standing to allege a RAND breach based on Motorola’s course of dealing with Marvell.

    Motorola does not appear to take issue with Microsoft’s claim that Marvell’s chips “substantially embody” its 802.11-essential patents, instead arguing that the scope of a hypothetical RAND license between Motorola and Marvell might be of a different geographic or territorial scope than a license between Motorola and Microsoft — therefore, not all of Marvell’s chip sales to Microsoft would be “authorized” under a hypothetical Motorola-Marvell license, rendering patent exhaustion inapplicable. Further along those lines, Motorola argues that RAND commitments do not preclude it from including a defensive suspension provision or other restrictions that would render any Marvell sales to Microsoft as “unauthorized” (presumably, because Microsoft “fired the first shot” in the parties’ overall dispute by filing ITC and district court infringement actions). Motorola claims that these provisions are common in both RAND and non-RAND licensing, even citing a Microsoft document and asserting that Microsoft itself has acknowledged the permissibility of including these restrictions.

    Finally, Motorola argues that there is no basis for Microsoft to argue that an SEP holder’s RAND commitment entitles an implementer (Microsoft) to a license from a supplier (Marvell) via the supplier’s license agreement with the SEP holder (Motorola). Motorola claims that if Marvell believes Motorola has violated its RAND commitment to Marvell, then Marvell should have to bring that claims — and that Microsoft lacks standing to do so. - Matt Rizzolo, The Essential Patent Blog

  • David Miranda detention: a betrayal of trust and principle
  • Monday, August 19 2013 @ 10:59 PM EDT
  • The detention of Mr Miranda subverts the benefit of the doubt that liberal democracies ask for when they arm themselves against terrorism. States pass anti-terror laws that grant exceptional powers on the strict understanding that terror poses exceptional threats and that such powers will be used proportionately. The Miranda detention betrays that understanding, since it does not involve terrorism in any way. Democratic leaders have likewise claimed to recognise the legitimacy of a public debate about the proportionate nature of the state's weaponry against terrorism. This case suggests the state takes us for fools.

    Because of schedule 7's troubling history, parliament already has both a chance and a responsibility to prove otherwise. Schedule 7 should be radically tightened, so that exceptional powers are applied only in genuinely exceptional terror-related cases. Detentions should require reasonable suspicion. Confiscated materials should be returned quickly, where no charge is brought or national security involved, as fingerprints and DNA samples now are. Access to a lawyer should be allowed. If parliament rises to the occasion, perhaps some good may have come from what is otherwise a disgraceful episode of state harassment of independent journalism and free citizens. - Editorial, The Guardian

  • U.K. government thought destroying Guardian hard drives would stop Snowden stories
  • Monday, August 19 2013 @ 10:55 PM EDT
  • In a remarkable post, Guardian editor Alan Rusbridger describes how the British government raided the Guardian’s offices in order to destroy hard drives containing information provided by NSA leaker Edward Snowden. The British government had been pressuring the Guardian to return or destroy the Snowden documents. Rusbridger says he tried to explain that destroying hard drives would be pointless:

    "I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?" - Timothy B. Lee, Washington Post

  • David Miranda, schedule 7 and the danger that all reporters now face
  • Monday, August 19 2013 @ 10:55 PM EDT
  • The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: "You've had your fun. Now we want the stuff back." There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. "You've had your debate. There's no need to write any more." During one of these meetings I asked directly whether the government would move to close down the Guardian's reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government's intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK....

    And so one of the more bizarre moments in the Guardian's long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro.

    Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won't do it in London. The seizure of Miranda's laptop, phones, hard drives and camera will similarly have no effect on Greenwald's work. - Alan Rusbridger, The Guardian

  • Britons Demand Explanation After Reporter’s Partner Is Held
  • Monday, August 19 2013 @ 05:23 PM EDT
  • Demands grew on Monday for the British government to explain why it had used antiterrorism powers to detain the partner of a journalist who has written about surveillance programs based on leaks by the former National Security Agency contractor Edward J. Snowden....

    Mr. Miranda told reporters in Rio that he had been subjected to deep questioning at Heathrow. “I stayed in a room, there were six different agents, entering and leaving, who spoke with me,” he said. “They asked questions about my whole life, about everything. They took my computer, video game, cellphone, memory thumb drives — everything.”

    Mr. Greenwald said that all of the documents encrypted on the thumb drives came from the trove of materials provided by Mr. Snowden. - Charlie Savage, NYTimes

  • Four Points To Remember In Connection With The Detention of David Miranda
  • Monday, August 19 2013 @ 03:04 PM EDT
  • Others say that Greenwald was using Miranda to courier documents connected to illegal leaks, and should not be surprised that Miranda was detained. (I note that nobody seriously asserts that Miranda has any connection to terrorism; the people defending or minimizing his detention seem to be asserting that it is acceptable for British authorities to use Schedule 7 to investigate the Snowden leak.)

    I know what I think. But I am waiting a bit to write more in detail. As I analyze the competing arguments, my view will be informed by these points:

    1. Governments lie about the scope of their surveillance measures against us.

    2. Governments say that what they are doing in the war on terrorism needs to be secret, but governments have an established record of lying about their need for secrecy.

    3. When governments say that they are using their powers to fight terrorists, government are lying. Government actually use their expanded powers to pursue whatever they want, including copyright infringement and the War of Drugs. Therefore it would not surprise me in the least if a nominally anti-terrorist measure were stretched here to accommodate a leak investigation.

    4. Governments say that they are using their power to fight terrorists, as if the identity of "terrorists" is a static and principled matter. In fact, who is or isn't a terrorist is a political question resolved in the discretion of the government based on the balance of power at any given time, as I learned to my regret. - Ken White, Popehat

  • Windows 8 banned by world’s top benchmarking and overclocking site
  • Monday, August 19 2013 @ 02:35 PM EDT
  • Moving forward, HWBot simply says that it’s “impossible to verify the veracity of a system performance” under Windows 8, and thus benchmarks performed under Windows 8 will no longer be accepted. The blog post also says that all previous Windows 8-based records will be disqualified, though some comments from the moderator suggest that they’re still deciding if this is the best course of action. The moderator also says they don’t think that this flaw in the Windows 8 RTC is being actively exploited, but it’s obviously a case of better-safe-than-sorry.

    For Microsoft’s part, this issue can probably be fixed with a patch, though it might be difficult given Windows 8′s cross-platform nature. It will be interesting to see how quickly Microsoft responds, because benchmarking tools really have no recourse without an accurate RTC. Having an entire operating system outlawed from one of the world’s biggest benchmarking sites is a big deal. For now, PC enthusiasts have yet another reason to stick with Windows 7. - Sebastian Anthony, ExtremeTech

  • Detention of journalist’s partner highlights the scandal of Schedule 7
  • Monday, August 19 2013 @ 02:29 PM EDT
  • Liberty has long argued that Schedule 7 is overbroad legislation, ripe for misuse and discrimination, and currently has a case pending at the European Court of Human Rights challenging the power. The case involves a British citizen of Asian origin who was detained at Heathrow under Schedule 7 for four and a half hours in November 2010. During his detention, he was questioned about his salary, his voting habits and the trip he had been on, among other matters. Copies were taken of all his paperwork and credit cards and the police kept his mobile phone, which was only returned to him eight days later after having to pay for its return himself. He had never previously been arrested or detained by the police and was travelling entirely lawfully.

    Shami Chakrabarti, Director of Liberty, said: "David Miranda's chilling 9-hour detention was possible due to the breathtakingly broad Schedule 7 power, which requires no suspicion and is routinely abused. People are held for long periods, subject to strip searches, saliva swabbing and confiscation of property - all without access to a publicly funded lawyer. Liberty is already challenging this law in the Court of Human Rights but MPs disturbed by this latest scandal should repeal it without delay.” - Liberty press release

  • White House: US was given 'heads up' before David Miranda detained
  • Monday, August 19 2013 @ 02:16 PM EDT
  • Earnest admits that the White House was given a "heads up" over Miranda's detention yesterday. "We had an indication it was likely to occur but it's not something we requested," he says. Pressed further, he says the US was told Miranda would be detained before he arrived at Heathrow airport in London. "It probably wouldn't be a heads up if they had told us about it after the detainment," Earnest said.

    Earnest refuses to say whether Miranda was on a terror watch-list either in Britain or in the US. He would not comment on whether the US discouraged the UK from holding Miranda before his detention. [PJ: It's not the first time the law has been used this way, from this account back in February.] - The Guardian

  • Code By Voice Faster Than Keyboard
  • Monday, August 19 2013 @ 01:03 PM EDT
  • The solution was to use a Python speech extension, DragonFly, to program custom commands. OK, so far so good, but ... the commands weren't quite what you might have expected. Instead of English words for commands he used short vocalizations - you have to hear it to believe it. Now programming sounds like a conversation with R2D2. The advantage is that it is faster and the recognition is easier - it also sounds very cool and very techie.

    After a lot of practice, there are around 2000 commands, it is claimed that the system is faster than typing. So much so that it is still in use after the RSI cleared up.

    It is now time to watch the video and see what you think. It has a fairly slow, but interesting, start but if you want to cut to the action skip to about 9 minutes in. - Ian Elliot, iProgrammer

  • Tech industry slips into a surprising slump
  • Monday, August 19 2013 @ 12:38 PM EDT
  • There even have been signs that tech's dysfunction was having a wider effect. When Wal-Mart reported disappointing earnings Thursday, the company's executives pointed the finger at consumer electronics for a lack of exciting new products.

    "Our performance was pressured by soft results in both electronics and media and gaming," said William Simon, a Wal-Mart president and executive vice president, on the company's earnings call with analysts.

    [PJ: Well, I can provide a little insight for Wal-Mart, if they are interested. I went to the local Wal-Mart looking for an XO tablet from One Laptop Per Child. I had my money in hand, ready for a sale. I didn't see it. So I asked a sales person, who didn't know what it even was. So I ended up talking with four different sales guys, and not a single one knew what it was. One sent me to the toy department, and there you could buy a LeapPad, which is, to me, a junk offering compared to the XO. It costs the same, but they have it in stock, in case you want your kids to learn about computers in a closed environment. For example, they can use a kind of chat, but they can only send preselected chat messages, as opposed to composing their own. It's poetry for all that is wrong with proprietary computer products. Anyway, it turns out you can only buy an XO online, which is another way of saying they don't care if you buy one and in fact it's harder than buying a LeapPad. So I left. They lost a sale. I'll still buy one, though, just not from such a hostile seller.] - L.A. Times

  • In Emerging Markets, New Competition For Apple, Android
  • Monday, August 19 2013 @ 10:53 AM EDT
  • New competition is emerging for Apple and Android-based smartphones, with smaller players taking away some market share in developing countries, Juniper Research said in a report released on Monday.

    The new emerging players include Nokia’s Asha operating system, Linux-based Sailfish and the HTML 5 system that Juniper believes will begin to gain ground in niche markets around the world within the next five years. - Kenneth Rapoza, Forbes


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