Robert Pogson

One man, closing all the windows.

Open Handset Alliance: Who’s Paying the Tax and Who’s Not.

  • Jul 10 / 2011
  • 49
technology

Open Handset Alliance: Who’s Paying the Tax and Who’s Not.

Many manufacturers are using Android/Linux for their smart phones and tablets. Let’s see how M$’s campaign to tax Android/Linux is going.

The Open Handset Alliance has 20 members who make handsets: Acer, Alcatel, ASUS, CCI, Dell, FoxConn, Garmen, Haier, HTC, Huawei, Kyocera, Lenovo, LG, Motorola, NEC, Samsung, Sharp, Sony Ericsson, Toshiba and ZTE.

Several manufacturers using Android have entered licensing agreements with M$: Wistron, HTC, General Dynamics Itronix, Velocity Micro, and Onkyo. M$ is reported to be demanding $15 a copy for Android/Linux from Samsung and Barnes and Noble has gone to court over the issue. It is interesting that M$ has apparently secured royalty payments around $5 per copy while demanding $15. Thus it seems that some are paying M$ to go away. Others will fight.

Some Android/Linux devices cost as little as $100. It is unconscionable that M$ is demanding $15 for what might be as little as 1% of the technology in a smart phone. Considering that software patents are completely invalid in law, and that M$’s share of the smart phone market is tiny, this appears to be an anti-competitive act and not anything to do with protecting a monopoly on technology. Since almost everyone on the planet will eventually have one of these gadgets, even a tiny tax is a windfall for M$ and it will be well worth fighting M$ over this issue.

One of the technologies at issue is FAT and the OHA should immediately move to do away with FAT and provide clients for that other OS to deal with some other open standard file system.

The world is far better off to fight M$ on this issue. The manufacturers would be better off to contribute $1 per handset to take the case to the highest court. $100 million or so would go far. While they are at it they should put the screws to M$ by attacking software patents which make no sense and do not promote innovation. Software cannot be innovative on its face. Given a problem, an instruction set and some hardware, anyone can synthesize software that solves the problem. That is Computer Science 101. So, all software is obvious and fails the test of non-obviousness required by law. The proof of this in this instance is that Google developed Android without copying any of M$’s technology, because there wasn’t any technology to copy…

see Software Design

see Programming Language

see Iterative and Incremental Development

In the UK, “According to BBC, 17% of computer science students could not find work in their field 6 months after graduation which was the highest rate of the university majors surveyed”

In the USA, “Enrollment in computer-related degrees in U.S. has dropped recently due to lack of general interests in science and mathematics and also out of an apparent fear that programming will be subject to the same pressures as manufacturing and agriculture careers”

Making software is not a creative act and software patents are not stimulating innovation, it would seem. Software is a data structure and an algorithm, nothing more nor less. Once the information in the specification of those two elements is defined, the software follows and it can be created by almost any programmer skilled in the art. Thus, it fails non-obviousness. The information in the specification of the data structure and algorithm is not patentable, being merely an idea without physical embodiment. Putting software in a computer may give it physical embodiment but it is still obvious how it works when one looks at the source code.

49 Comments

  1. Contrarian

    “You won’t find many of these on retail shelves in North America ”

    You will not find ANY of these on retail shelves in North America. I don’t know for sure what you might see on the shelves in Timbuctoo, but then I don’t shop there. Perhaps you do and could take a picture.

  2. Robert Pogson

    Contrarian, sadly, wrote, “There have never been any Linux computers to exclude from retail shelves”

    Sigh. see LXer’s Pre-installed Linux/The Pre-Installed Linux Vendor Database

    Contrarian, go have a lie-down…

    If you want global OEMs producing GNU/Linux PCs, check out ASUS, Lenovo, Dell, HP, a host of white-box OEMs and then there are thin clients running GNU/Linux. There are many regional/local PC builders who put GNU/Linux on PCs custome built. You won’t find many of these on retail shelves in North America but they abound in other parts of the world where the Koolaid has not been drunk.

  3. oldman

    “My contention was not about legality but the fact that M$ arranged to exclude GNU/Linux from retail shelves.”

    The problem with this piece of history is that it is wrong. Linux in the form of offerings from Red Hat, SuSe and Caldera were available for sale on the shelves of businesses like staples from the late 90′s through the early part of the 21th century. What actually happened was that linux on the desktop never caught on, and when Red Hat discontinued their boxed version of linux in 2003 in favor of selling only to the enterprise it all boxed versions of linux effectively disappeared out of the stores.

  4. Contrarian

    I don’t think that is true at all. Microsoft employed exclusive deals to keep Navigator out of Compaq and other OEM packages and to substitute IE instead. The DOJ claimed that was a violation of antitrust, but Microsoft was found to not be violating the law in that regard.

    There have never been any Linux computers to exclude from retail shelves, so there was never any need to exclusive deal in that regard. HP and Dell, where they have offered Linux, have only done so for on-line special orders.

    I won’t say that Microsoft might not have tried to exclude them if there had been any threat, but there was no need and so there was no effort to exclude them.

  5. Contrarian

    “Irrelevant”

    You say that it is irrelevant that what they did in regard to these deals was completely legal and common practice in the industry? That seems rather un-American, #pogson.

    Also, I do not see where OEMs are “cranking out” Linx computers unless you are continuing to insist that telephones are somehow the same thing. I don’t see how you can say that, given that you do not even use them yourself.

  6. Robert Pogson

    Neither party gave up. They settled to avoid going to trial again. If there were a dismissal, M$ would not have had to make any promises.

  7. Robert Pogson

    Irrelevant. I am not a court or a lawyer. M$ excluded competition by making deals OEMs and others could not refuse. These same sorts of activities exclude GNU/Linux, but not for much longer. OEMs are finally cranking out GNU/Linux systems because most people only care about playing media files and browsing the web, something for which GNU/Linux lacks no applications.

  8. Contrarian

    “Irrelevant to my point that M$ made exclusive deals”

    I really don’t know why I am bothering with this ancient history, but I have gotten involved with reading about it. One tidbit that I found shows that Microsoft never was found to have violated any law regarding exclusive dealing, even by the Jackson court.

    The original charge arose from the Microsoft practice of paying large OEMs a bonus in terms of a Windows price discount if they only offered Internet Explorer and did not offer Netscape’s browser which was more popular at the time. But it turn out that not enough OEMs took the deal, so the limits allowed under the antitrust laws were not violated.

    In dismissing the exclusive dealing charge, Jackson found:

    “Notwithstanding the extent to which these “exclusive” distribution agreements preempted the most efficient channels for Navigator to achieve browser usage share, however, the Court concludes that Microsoft’s multiple agreements with distributors did not ultimately deprive Netscape of the ability to have access to every PC user worldwide to offer an opportunity to install Navigator.”

    http://www.gpoaccess.gov/usvms/ms-conclusions.pdf

  9. Linux Apostate

    “I use X all the time and the windowing can be completely transparent to the user.”

    Not in this case. The program simply does not do what you say it does. It really is limited to opening a separate helper application, which will appear in a separate window. Trust me, I’m a C programmer, with X/Motif experience amongst other things.

    You can probably still run this program on Linux and see it for yourself, though I wouldn’t attempt to recompile it unless you can recreate the Linux environment of 1993 (perhaps an interesting exercise in computer archaeology…?).

  10. Contrarian

    “Not essentially dismissed.”

    Well, Jackson’s order to break up Microsoft into two or more companies was dismissed, the illegal leveraging of a monopoly charge was dismissed, and the tying charge was remanded and subsequently dropped by the plaintiffs. Half of the monopoly maintenance charges were reversed and dropped and the result was Microsoft agreeing to cease the remainder and install a watchdog committee to review contracts in the future. MS also paid court costs. That was the settlement and also the final order for the non-settling plaintiffs.

    If you do not think that was very close to a dismissal, then you are not being honest.

  11. Contrarian

    “http://www.justice.gov/atr/cases/f3800/msjudgex.htm”

    You do realize that Judge Jackson’s orders were reversed or remanded and essentially dismissed after the appeals court ruled on all of that, do you not? Jackson was fired for inappropriate conduct that showed a strong bias against MS, too. Not much of an argument after that, eh?

  12. Linux Apostate

    “Read the source code for Mosaic. They were talking about forking a process to display the image which does exactly what the patent wants, displaying the image when it’s available and getting the rest of the layout done ASAP.”

    In an external viewer, yes. Not part of the HTML layout. I just verified this by following your advice and looking at the source code. (Thanks for the link.)

    Unfortunately Mosaic 2.5 really isn’t a particularly advanced browser and fork()/system() are exclusively used to start up external viewers, telnet clients, a sound recorder and (curiously enough) PGP!

    Viewers for “TIFF, audio, AIFF,
    DVI, MPEG, MIME, XWD, RGB, HDF, PostScript files” are started in “HTFWriter_free” after the object has been downloaded. The “end_command” field may specify an external viewer to be executed upon completion. The file will appear in a separate window, from a separate program. It will not be part of the layout. (There are no plugins in Mosaic 2.5.)

    Sorry, this is really not prior art.

  13. Robert Pogson

    Linux was excluded, implicitly, not by consumer demand or lack of it but by the mindset created by IBM and M$ that M$ was the only game in town:“The applications barrier to entry does not prevent non-Microsoft, Intel-compatible PC operating systems from attracting enough consumer demand and ISV support to survive. It does not even prevent vendors of those products from making a profit. The barrier does, however, prevent the products from drawing a significant percentage of consumers away from Windows.” The lack of applications prevented consumer demand but a greater effect was that retailers and OEMs cooperated with M$ against all competition. If M$ went to the lengths it did to exclude Netscape’s APIs, you can bet they went much further to prevent another OS from being on retail shelves.

    “Microsoft’s mandated removal of all OEM boot-sequence and auto-start programs for OEM licensed systems has resulted in significant and costly problems for the HP-Pavilion line of retail PC’s. Our data (as of 3/10/97) shows a 10% increase in W[indows]95 calls as a % of our total customer support calls . . . . Our registration rate has also dropped from the mid-80% range to the low 60% range…If we had a choice of another supplier, based on your actions in this area, I assure you [that you] would not be our supplier of choice.”
    This shows that M$ caused lower consumer acceptance, not demand. No one liked that the product was complex and overly difficult to use.

    Netscape was excluded, explicitly, by M$ from competing on retail shelves by M$ withholding the API for Lose ’95:
    “Despite Netscape’s persistence, Microsoft did not release the API to Netscape until late October, i.e., as Allard had warned, more than three months later. The delay in turn forced Netscape to postpone the release of its Windows 95 browser until substantially after the release of Windows 95 (and Internet Explorer) in August 1995. As a result, Netscape was excluded from most of the holiday selling season.”

    M$ also forbade Intel to develop system-level software for digital signal processing that would lessen dependence on M$:
    “In a subsequent memorandum to senior Microsoft executives, Gates reported that he had tried to convince Grove “to basically not ship NSP” and more generally to reduce the number of people working on software at Intel…
    At the same time, Microsoft pressured the major OEMs to not install NSP software on their PCs until the software ceased to expose APIs. NSP software could not find its way onto PCs without the cooperation of the OEMs, so Intel realized that it had no choice but to surrender the pace of software innovation to Microsoft.”

    M$ tried to mess with RealNetworks, and anyone who tried to get between M$ and the hardware:
    “decision-makers at Microsoft were willing to invest a large amount of cash and other resources into securing the agreement of other companies to halt software development that exhibited discernible potential to weaken the applications barrier…

    When IBM refused to abate the promotion of those of its own products that competed with Windows and Office, Microsoft punished the IBM PC Company with higher prices, a late license for Windows 95, and the withholding of technical and marketing support.”

    see US DOJ v M$

  14. Contrarian

    I don’t accept that Linux was ever excluded from retail shelves, #pogson. It wasn’t on the shelf, but not from any exclusion. Rather there is no demand, hence no supply.

    Until very recently, there was next to no availability of Macintosh on retail shelves either. Apple opened their own stores since they themselves have been unwilling to market in stores, preferring to establish their own channels.

  15. Robert Pogson

    Exclusion from retail shelves over more than a decade will do that. MacOS is on retail shelves and has a UNIX kernel. Android is on retail shelves and has a Linux kernel.

    What would the world look like if M$ was excluded from retail shelves for even five years? QED

  16. Contrarian

    “In 1995, the idea of multiple processes was novel for M$ but Old Hat for GNU/Linux or other *NIX. M$ was just getting off DOS, for pity’s sake. Oops. They were pushing Lose ’95 which ran on DOS.”

    I am sure that you realize that you are just ranting, #pogson, but even so, how do you explain the failure for such a superior solution as Linux or Unix to get off the ground over such a long period of time? Linux, by your latest figures, has some whopping 0.7% of the user’s attention and even less of the user’s computing dollar.

  17. Robert Pogson

    In 1995, the idea of multiple processes was novel for M$ but Old Hat for GNU/Linux or other *NIX. M$ was just getting off DOS, for pity’s sake. Oops. They were pushing Lose ’95 which ran on DOS.

    Read the source code for Mosaic. They were talking about forking a process to display the image which does exactly what the patent wants, displaying the image when it’s available and getting the rest of the layout done ASAP.

    Clearly two patents are too many for this forum. Apple was successfully sued in Texas for downloading playlists. M$ has sued Motorola for displaying images as they come in…

  18. Contrarian

    “People were using networks and lists long before that.”

    Doubtless they were, but the patent you are disparaging does not rely on networks and lists, it is a method patent describing an improvement in the way that large documents and image files can be displayed more conveniently and more quickly. I will agree that the MS patent is not as significant as the difference between a coal oil lantern and an electric light bulb, but very few things are that simple now days.

    When the patent was applied for, the advantage of the MS method was much more distinct and the patent was granted. Too bad that it reads on what Android might want to do for a phone app or whereever it is being asserted today. It is an adversarial system at best and I am sure that Microsoft would be among the first to vote for its removal. I think that they have paid far more in license fees to undeserving patent holders than they have managed to collect.

    I don’t think that you have a useful notion of how patents work, either. If something has existed for thousands of years, for example the notion of a lever, you can still patent its use in a device where no one thought to use leverage before you demonstrated how the device could be made more efficient by using it.

    Lastly, to collect on a patent infringement lawsuit, Microsoft does not have to prove that they were damaged in any way. They only have to show that the infringer was profiting from using the patented idea.

  19. oldman

    “That’s the problem with software patents. “Exact same functionality” cannot be defined. The courts are not programmers so cannot determine that. They call upon experts, one saying this and one saying that and it’s a toss-up.”

    Noneless Software patents stand and the people that you would sometimes characterize at “twits” run the show. The best you can hope for is to educate them to your position.

  20. Robert Pogson

    Look at the source code.

    That’s the problem with software patents. “Exact same functionality” cannot be defined. The courts are not programmers so cannot determine that. They call upon experts, one saying this and one saying that and it’s a toss-up.

  21. Contrarian

    “They were formalized in 1993 before the patent application in question.”

    Could have been a close race, #pogson. 5 years prior to 1998, MS filed for that patent. It could have been up to a year after they started using the method before they filed, too.

  22. Contrarian

    “If, as M$ claims, they are losing $millions due to the use of some feature of some software, M$ can find who is distributing the hardware or software and seek an injunction against them.”

    I believe that is sort of what they are doing. They discovered, for example, that Barnes and Nobel were profiting from unlicensed use of their IP and are seeking to obtain some license money. I don’t think they are claiming to be losing money, rather they are being deprived of just profits. They don’t make book readers or anything similar, so they cannot lose anything.

  23. Linux Apostate

    Ah, but did Mosaic prioritise the images in the currently visible portion of the document? and did it actually open additional network connections to fetch them? Because that seems to be what is patented here, not really anything to do with starting different viewers for different formats or leaving space for images in the document.

    I’m afraid it is wishful thinking to assume that Mosaic is prior art. A court would not agree unless Mosaic actually included the exact same functionality, which it most likely didn’t. Recall that Mosaic formed the basis for IE, so Microsoft would certainly have known in the required functionality was already present.

    There are some pretty silly software patents but I’m not sure this is one of them. I really hate to defend them in general, but I feel like I have to, in order to be consistent. You would not like it much if Microsoft just took some GPL source code and built it into their products, then told you that everything the GPL code did was just obvious and thus fair game to be copied. On the one hand IP law gets you all this silly patent stuff, but on the other hand it’s the legal force behind the GPL. Can you have one without the other? Well, here in Europe we do not have software patents – except that actually we do, we just call them something else. Turns out that it is too damn useful to be able to protect your inventions with IP law.

  24. Robert Pogson

    If, as M$ claims, they are losing $millions due to the use of some feature of some software, M$ can find who is distributing the hardware or software and seek an injunction against them. That is trivial with FLOSS as it is clear who contributes what.

    There is no law that everything must be patented. That something is not patented may simply mean that no one bothered or that there was no innovation. Read some findings in patent cases. The judges are grasping at straws to find reasons to rule whichever way they find. In a recent case of Apple’s playlists, a court found against Apple even though Apple proved in court that they invented the playlist… The plaintiffs had asked for $84million and were awarded $8million. Apple was fined $10K for providing proof “so late”. Of course a downloadable playlist is not patentable having been around for ages but the judge did not care about that or anything else reasonable. He just wanted the case finished.

    Playlists are obvious. Downloading anything is obvious, but somehow, the USPTO decided downloadable playlists are innovative. Go figure… I can remember doing stuff like that about 1970. We had a minicomputer in our lab connected by a “high speed” data-link to an IBM s/360 mainframe. There were headers (a playlist), and downloads, very prior art. Where would the web be without “index.html” and the list tags? They were formalized in 1993 before the patent application in question.

  25. Robert Pogson

    USPTO does a poor job of looking for prior art except in prior patents. If M$ does not tell them about the prior art, USPTO rubber-stamps the application.

    I quoted from Mosaic’s release, before the patent application by M$. In the X window system individual processes can draw their reserved portions of the screen exactly as M$ claims in its patent application. All that must be determined beforehand is the location and size of the rectangle, something the HTML may give. The prior art goes back to the 1980s on X window system. The prior art on parallel processing and prioritized processing goes back to the 1960s. I know. I was there doing IT. Other browsers had such features early on but Mosaic was the first to do it with inline images. Audio was another one done early on. The player can just jump in while the rest of the page is being drawn. No innovation here at all.

  26. Contrarian

    “Have you read some of M$’s patents?”

    Only when I am in an extremely masochistic mood due to complete frustration with life. Which is never, #pogosn. However, to answer the specifics in your post, I think that what is being patented here is the method that they outlind for recognizing the reference to an imbedded document and skipping the actual display by substituting an iconic image temporarily so that the overall page displays quickly while the actual document is downloaded in the background. So if you are looking for a more general level, you see it immediately without having to wait for all the details to download.

    I can remember when it took a long time for a page with photographs to disply and the photos came in slowly. It was most noticeable on dial up, of course, and with an issue date in 1998 for the patent you reference, it was applied for about 1993 when the time saved in rendering would have been a significant factor in the user’s experience.

    Original browsers lacked this sort of feature, so it was not so terribly obvious to anyone at the time and the USPTO didn’t dismiss it on that basis. 18 years later, it is indeed a trivial matter, but getting a royalty payment for it is just the reward for the effort back when the path was not so clear and the investment had to be made.

  27. Contrarian

    “Nonsense. M$ could seek to enjoin every distro”

    Who would the injunction apply to, #pogson, and who would pay the legal fees resulting from such a suit? Who could be put in jail for contempt of court for ignoring the injunction? There are no parties to sue unless they are deriving some beneficial use of the IP in question and so have a financial interest in the issue. I don’t think that you understand the process that is involved.

    Ballmer can say all that he wants to say about what Linux may or may not be in terms of a legitimate product. I am sure that he will take Microsoft’s side in the matter and that is not much of a cause for your complaint, it is to be expected just as you will always take the opposite side due to your nature.

    As to the rest, you say things are obvious, but they are not so obvious that a patent did not issue. You might examine your fundamental premise that all the things that happen that you oppose, such as people using Windows instead of Linux on the desktop or the USPTO issuing patents for things that are so obviously not subject to patent protection based on your analyses, are due to the unexplainable ignorance of the public or the public officials in charge of the USPTO or the courts or whatnot. It is a burden to be so clear-thinking when the rest of the world is so stupid. Or not?

    You need to ask yourself the question.

  28. Robert Pogson

    I don’t think many want not to pay M$ for work M$ has done but M$ wants people to pay for work M$ has not done, like inventing the obvious and inventing everything and inventing ideas. These things are not patentable yet M$ has paid the USPTO $billions to issue patents for them. The courts will have to rein in this nonsense sooner or later. They had a chance in re: Bilski but took the easy way out. If not, all innovation will cease because innovators will be charged more in royalties than possible profits. The number of ideas that go into Android X $15 far exceeds the price of the end-product. That does not make any sense. Software patents are nonsense. Where is the test for non-obviousness? Where is the working model? Where is the innovation?

  29. Robert Pogson

    Have you read some of M$’s patents? They are trying to profit from others’ work. M$ put nothing into Android/Linux and others did. Why should anyone pay M$ $15 for the privilege of using Android/Linux?

    A browser remotely retrieves electronic documents from a remote computer network for viewing by a user. For enhancing responsiveness, the browser initially displays an electronic document without a background image so that the electronic document is initially displayed more quickly. The browser also prioritizes downloading of embedded images of the document by their incorporation in the currently visible portion of the electronic document. Further, the browser dynamically creates additional connections for retrieving resources incorporated into the electronic document from the remote computer network.

    see 5,778,372

    These are ancient ideas, parallel processing and prioritized processing, stuff we all knew about in the 1970s when the first microprocessors came out. Patents should not be issued for mere ideas. Patents should not be issued for stuff the applicant did not invent. Patents should not be issued for stuff that is obvious to anyone of average skill.

    Here is one of the features of Mosaic from March 1995:
    “Built-in support for recognizing and handling GIF, JPEG, TIFF, audio, AIFF,
    DVI, MPEG, MIME, XWD, RGB, HDF, PostScript files and forking off
    appropriate viewers. “

    see ftp://ftp.ncsa.uiuc.edu/Mosaic/Unix/source/Mosaic-src-2.5.tar.Z

    In the X Window System, that will do exactly what M$ claims as its innovation. They are thieves.

  30. oldman

    “The only reasonable response to Microsoft’s tactics is to say that software patents should not exist and that no one should pay Microsoft off.”

    And fortunately for others who have put hard work into software patents that they should be compensated for, that will not happen.

  31. twitter

    I have a timeline of Microsoft’s software patent extortion of gnu/linux if you want details, Contrarian. In it, I quote Microsoft threats to free software companies and users. Everything is cited so you can follow the links and be sure nothing is taken out of context or misrepresented.

    If gnu/linux advocates look like they are hand waving, it is because the attack is complete bullshit. Microsoft funded a study to say free software violates Microsoft patents and ran with it for years, without ever revealing a single patent. Some details are finally coming out because Barnes and Noble did not sign a non disclosure agreement and is busy embarrassing Microsoft in court. The only reasonable response to Microsoft’s tactics is to say that software patents should not exist and that no one should pay Microsoft off.

  32. oiaohm

    Contrarian

    “provides patent cooperation between the two countries.” Yes to the point that I can apply an Australian patent against a USA company and have it done by USA law and when a USA patent is done against an Australian company have it done by Australian law. Australian law on patents is far stricter zero patent document flaws allowed and be paid for the patent.

    Australian patent law had to be lessened to let patent holder have particular rights in the free trade agreement. But the process to win a patent case here in Australia is still strict.

    Australian patent law and USA patent law is different. Its cooperation not alignment. Same with the copyright law here. I am allowed to recode regional coded items what would be a breach of the DCMA in the USA. Not a breach of Australian law.

    Basically all the agreement did was I am an Australian I cannot be done by USA law unless I am shipping the item to USA people. Like ozmodchips got caught doing.

    Other change was copyright from 50 to 70 years.

    Yes want an example of insanity. http://www.austlii.edu.au/au/cases/cth/APO/2011/28.html Note the 60 days bit at end. This is Amazon last chance to save the patent. Have anything invalid in the patent then its gone. Only one catch they have to update the USA record as well.

    “I will refuse the application.” is end of patent if that happens. Also if its not correct at the end of 60 days the amendment is not classed as happening and the patent goes void. Fix it or lose it basically.

    Basically Australian Patent law I can be a ass. Refuse to pay pull out one point. I don’t have to pay for the time the patent application is wrong. In fact the person with the patent has to pay my costs. USA court would have award against Telstra. Due to the fact sections of the patent still stood. Australian law its award against amazon because the patent document was not valid.

    In fact any Australian company that has paid for the amazon patent is due a refund. Both apply Australia and the USA patent law different. Judge was nice this time.

    Yes the 60 days to change patent application is only due to the fact the patent application was prior to the free trade agreement and a USA patent. Newer USA patents applied here in Australia will have to watch it. They might stop the same rules as normal Australian patents.

    With an Australian Patent number you don’t get the 60 days to rewrite it. Since you should know better than make false claims. This is why even after the Free Trade Agreement why Australian companies take out USA patents.

    Strict to the point claims only in Australian patents. But punishments for applying an Australian patent is normally worse. Lack of vague means person cannot claim they could not see where the patent applied to them. So triple damages is more possible.

    Most USA patents are full of that much crap when you take into account it takes 5 years + to get a ruling. When you can re challenge the admentment fresh. And you are not required to pay anything while the document is incorrect or suspected so. So 20 years not having to pay a cent on the patent is more than possible. In fact patent holder ends up paying you if their patent documents are not in order each time. Yes you do want clear cut and dried patents in Australia. Otherwise they don’t work or end up prior art before you can charge anything.

    Yes Australia you can make money fighting patents. Where in the USA you will lose money.

    Yes Telstra would have been wiser just to break 1 point get the 60 to rewrite and break that. So seeing patent by by. This kind of patent destruction cannot be done in the USA counts. Bring a suspect patent here at your own risk.

  33. Contrarian

    “M$ is always trumpeting …”

    I think that all you have here is a general hand-waving sort of claim that lacks any detail, #pogson. More specifically, Microsoft is not making any claim against Linux. There is no way to even do that. As long as there is no commercial engagement in patent infringement by an entity that can be sued, there is no one to enjoin.

    When some company such as Samsung or Motorola starts to use the infringing technology, there is the opportunity to sell a license to use it and the threat of a lawsuit if the infringer refuses to license what is being used.

    “Think free advertising for Gnu/Linux”

    Dream on! lol.

  34. Robert Pogson

    Nope. M$ is always trumpeting that its valuable property has been stolen by GNU/Linux. They could seek an injunction to end that theft if they had a case. Since most distros have the same infrastructure, M$ need only prepare one case. They don’t do that because the FUD has been somewhat effective. That is ending now and we shall see more suits.

    About 10% of PCs are getting GNU/Linux. That’s worth $hundreds of millions annually to M$, something they could stop with an injunction. Of course, if they lost their case … the floodgates of Hell would open. Think free advertising for GNU/Linux.

  35. Contrarian

    #oiaohm, perhaps you should spend more time reading about what actually exists rather than making up things to say here. Start with looking up the Patent Cooperation Treaty between the USA and Australia that provides patent cooperation between the two countries.

    “there has not been an incident of a suit against a distro of GNU/Linux being decided in a court”

    And there probably never will be one. The only reason to sue anyone over the unauthorized use of a patented method or apparatus is when that use results in a profit to the violator. That profit is what the lawsuit tries to recover and is used to establish fair license fees for future use. There are no profitable Linux distros per se, since they are free (as in beer). When a company uses one embedded, such as Android in a cell phone, then there is an opportunity to sue the OEM who is profiting from the infringement.

  36. Robert Pogson

    There is a new FAQ at Debian on the subject of patents.

    Some points:

  37. source code is not patentable as it is a description of a patent just like the public patent application
  38. there has not been an incident of a suit against a distro of GNU/Linux being decided in a court, yet
  39. “suing individual developers who do not have large revenues makes bad press for patent holders without achieving any useful outcome”
  40. The last item may be the most important. If hundreds of millions of users of Android or GNU/Linux see M$ as the enemy, M$ will lose promptly. The world will only accept slavery if the slave-master is seen as benevolent or benign. That facade would disappear if M$ attacked what consumers love directly.

  41. oiaohm

    Really it more interesting in Australia. I wish USA law would pick it up.

    1 invalid claim in a patent in Australia turns the complete patent into prior art on all its other claims. So when you have a stack of patents based on top of each other if there is a minor fault in the base patent the complete lot goes by by and becomes prior art.

    So basically ouch. If I get patented attacked in Australia its simpler to void the patent than most other countries. Reason why you don’t see many patent cases in Australia. Settle out of court fairly is most likely a very good idea.

    USA each time you void a section of a patent the patent get reassessed and that item removed if able then the patent re instated. No requirement for quality patents in the USA patent system. Australia if you patent is not quality don’t even register it here. Instead use the trade agreement to register it in the USA system. Now this is why the USA system is getting swamped. Everyone they have done a trade agreement with can directly register in their patent system and take advantage of all the suspect rules.

    Even Australian companies will fight patent cases in any other court other than Australia due to how fast patents can be destroyed here.

    Really Microsoft has been stupid. Just because they can demand 15 dollars a copy for their patents so can Motorola only problem is Motorola has more patents that apply and better quality and a forever license with nortel. So recent patent acquirement has not helped MS at all.

    End game for Microsoft could be shocking. It could end up it costs Microsoft 100 dollars per OS of theirs they sell and they get 15 dollars if the competition OS sells. Result no longer profitable for Microsoft to make an OS. Patents are a death sentence to Microsoft. So Microsoft should be anti-patents if they are sane.

    Motorola is a member of Open Invention Network. So you can see this as a test case. If Motorola wins and MS loses. More members of OIN to come after Microsoft so making matters worse.

    Patents are a minor annoyance to open source. They just slow Open source progress until they expire or a license is aquired.

    Closed source companies patents make them not viable and push them out of business and into being nothing other than a patent troll.

  42. Robert Pogson

    The law is a bit vague. When someone invents a new way of using an existing invention, that is patentable but that means every combination of bits one could put in a computer is an invention and that makes no sense, that every programme should have a copyright and a patent. What’s the point of that? Anti-competition is about the only benefit of software patents in that one can devise a programme and exclude every similar programme from the market, which is in no one’s interest except thieves. Further, since software is so cheap to create and replicate, the idea of charging per copy is ridiculous. The value of one copy of one routine is essentially zero, it’s cost of copying.

    see Behind Microsoft’s $15 Samsung Android royalty claim

    I just read the plaintiff’s claims in Motorola v M$. If The violations in Android are worth $15/copy, the violations in Exchange and current versions of that other OS are worth more than that and M$ owes Motorola $30 X hundreds of millions of copies. I like it. Motorola is also asking for treble damages and costs… That will teach M$ to throw stones in its house of glass.

  43. Robert Pogson

    Is it not strange that software has been around since the 1950s but they only got around to patenting it decades later? Does it seem to anyone that patents promoted innovation?

    Software never was patentable. Some lower courts invented software patents. They’re not in law unless you consider software a business method or process. That doesn’t work any more than running an engine at a particular RPM is an invention. Computers were an invention but the programmes that run on them are not.

  44. lpbbear

    I read through some of the so called “patents” Microsoft is using against Android this morning on a site at the “Register”. Can’t remember the addy or I would post it but then maybe “RightHaven” would attack me or Pog. (sarcasm totally intended)

    Every one of these “patents” was either totally obvious or so purposely vague that you could use the broad vagueness to describe almost any function in an operating system or software. Its pretty clear you can patent any horseshit as a software OS “invention” with the US Patent Office and then turn around and use these so called “inventions” to attack other companies just as both Microsoft and Apple are now attempting to do. This is clearly abusive and will eventually have to be stopped. All monies gathered from this blatant extortion should not only be returned in full to the affected companies but with MASSIVE interest applied and severe penalties to the slimeball companies perpetrating these abusive patent scam attacks.

    These clowns aren’t inventing ANYTHING. Just doing the obvious and claiming they own it and some moron at the patent office is simply rubber stamping this crap.

    (cue the bleating sheeple MS supporters…..)

  45. Ray

    Or we can ban them in the legislature, which is much easier since that software patents are valid since 1981.

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