Barnes and Noble’s Salvo Against M$ With The ITC

You should read what Barnes and Noble presented to the ITC. It’s a powerful and thorough expose on the pattern of abuse of competition laws by M$ including now a campaign of unfair shakedown over patents.

“Microsoft’s primary copyright argument borders on the frivolous. The company claims an absolute and unfettered right to use its intellectual property as it wishes.
… That is no more correct than the proposition that use of ones’ personal property, such as a baseball bat, cannot give rise to tort liability. As the Federal Circuit succinctly stated: ‘Intellectual property rights do not confer a privilege to violate the antitrust laws'”

It’s a great read. Find it at Groklaw and an article about the M$ v B&N case.

It’s almost as Martin Niemöller said,
“First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for me
and there was no one left to speak out for me.”

M$ has picked off one business after another signing them up to NDAs and royalty payments as if M$ owned Android/Linux. Barnes and Noble is asking the ITC to do the right thing and stomp out M$’s abuse before it’s too late. Barns and Noble apparently sees that someone has to fight back and they are not passing the buck. M$ has already cowed a bunch of OEMs who did not fight back.

Good for B&N.

What’s absolutely amazing to me is that

  • either M$ is deluded in thinking that M$ can escape the antitrust laws or
  • M$ is right and the world will stupidly allow the monopoly to continue indefinitely.

The monopoly should have been dismembered a decade ago but the court messed up. Let’s hope the ITC gets it right this time. At some point they should realize that M$ is a chronic criminal who invests $billions in figuring out new ways to mess with the competition rather than working for a living.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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28 Responses to Barnes and Noble’s Salvo Against M$ With The ITC

  1. pogson says:

    It is well documented that SUN approved of Android/Linux using Java the way it did. On that basis, Google proceeded. When Oracle bought SUN they cannot suddenly change the rules. Java is open source software and Google has a licence to use it. Java cannot be used without accessing the APIs so the APIs are covered. There’s nothing copyrightable about APIs anyway any more than phone numbers or lists of names can be copyrighted. You cannot copy the YellowPages but you can take numbers from the YP and make your own list. That’s what Google has done and it’s legal. A collection of things can be copyrighted. The things cannot. A list is not a creative work.

    Similarly a list cannot be an invention.

    So, there’s no angle of attack which succeeds for Oracle. They just damage themselves. If they win, somehow, Java goes down the drain. If they lose, everyone laughs at their pathetic attempt at a shakedown.

    Judge Alsup has already ruled that the names contained in the APIs may not be copyright protected. Without the names there is no API.

    “Google argues that “the names of the Java language API files, packages, classes, and methods are not protectable as a matter of law” (Br. 17). This order agrees. Because names and other short phrases are not subject to copyright, the names of the various items appearing in the disputed API package specifications are not protected. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524 n.7 (9th Cir. 1992) (“Sega’s security code is of such de minimis length that it is probably unprotected under the words and short phrases doctrine.”).”

    The judge did not kick out Oracle’s copyright claim because there was merit to them but that Google had done a poor job in its argument.

    ” Google argues that “[t]he API declarations are unprotectable scenes a faire or unprotectable under the merger doctrine” (Br. 14). Google, however, does not specify what it means by “API declarations.” Google applies this argument to all of “[t]he allegedly copied elements of the Java language API packages,” providing only a few examples: “the names of packages and methods and definitions” (id. at 14­16). To the extent Google directs this argument to names, it is moot in light of the above ruling. To the extent Google directs this argument to other elements of the API package specifications, it is not adequately supported.
    Google’s lack of specificity is fatal. If Google believes, for example, that a particular method declaration is a scene a faire or is the only possible way to express a given function, then Google should provide evidence and argument supporting its views as to that method declaration.
    Instead, Google argues — relying mostly on non-binding authority2 — that entire categories of elements in API specifications do not merit copyright protection. This approach ignores the possibility that some method declarations (for example) may be subject to the merger doctrine or may be scenes a faire, whereas other method declarations may be creative contributions subject to copyright protection. Google has not justified the sweeping ruling it requests.”

    Google can educate the judge on what an API is with endless examples of “Hello, World!” programmes and account for every API in Java until the judge agrees with GOOGLE. It’s just a matter of time. Likely after the judge has seen APIs proven not copyrightable one after another for a dozen, he will dispense with the labour of proving them all because there is no difference one from another. If the judge is not convinced, the jury may be. Google asked the judge to rule on the legality of Oracle’s claims. The Jury can rule on whether or not the nonexistent copyright was violated.

  2. Clarence Moon says:

    I am not a patent lawyer or any sort of lawyer for that matter, but what I get out of reading the articles about this lawsuit is that Sun Microsystems originally invented java and patented the generic idea of doing what java does in the way that java does it. Actually they got a bunch of patents on pieces of java and the way that it works. They also have raised the notion that the java engine infrastructure, namely the java. APIs taken as a whole, form a copyrightable expression of an idea.

    You can believe that their patents here are not valid and you may be correct, but the real patent attorneys and the real judge seem to think that there is a genuine matter for trial present in the case. Perhaps if you were on the jury, your opinion would have a heavier weight, but that is not going to be the case.

  3. pogson says:

    Clarence Moon wrote, “I don’t see how Google could ever program around Oracle’s claims since they have essentially patented java compatibility”

    Java compatibility is not patented and cannot be. If the court should happen to rule that Google owes Oracle anything for Java, Google could rewrite Dalvik to use some other languages. Java is not special. PASCAL comes to mind.

    Google is not going to lose this one in a big way. Android does not use Java. The developers who write apps for Android use Java. The java is translated to Dalvik’s language by a translator. Java is incidental. The language used could be anything. Dalvik could be replaced by Python or Ruby or Pascal interpreters. The reason Google chose Java as the base language is because there is a huge pool of Java-savvy developers. There’s just no way compatibility with a language can be patented. It’s a bunch of ideas/concepts, not inventions.

  4. Clarence Moon says:

    I don’t see how Google could ever program around Oracle’s claims since they have essentially patented java compatibility. They seem to be also claiming the java API framwork under copyright laws. Without java compatibility, their apps do not work on Android and that would be fatal, in my opinion.

    I think that you are correct in that Oracle will come to some sort of agreement with Google as to license fees for using Oracle patents and the amout will be determined either by settlement or by the courts. As long as there is still room to make some money from the product, there will be an agreement. What might happen, assumming that Google eventually loses, is that the Android OEMs such as Samsung, Motorola, HTC, and others will end up paying just like they pay Microsoft now.

    Microsoft never sued Google, I believe, and they just went directly to the end manufacturers who used Android.

    I think that the same will happen with Barnes and Nobel, namely that they will end up paying the same amount as paid by Amazon. I think that is the law anyway and a patent holder cannot play favorites. Since Barnes and Nobel does not make the Nook themselves, the arrangement might end up being the same as it is for Amazon’s supplier.

  5. pogson says:

    But one claim is not as valuable as a bunch. Google can programme around a few claims if need be and a few claims is obviously not worth much penalty-wise.

    The bigger issue is that of the claims asserted, most are proven bogus. What of all the $billions M$ and others have spent on bogus software patents? This is a sickness in IT.

    Further, a court can decide to punish Oracle for asserting false claims one way or another. If the court finds out that a false claim was asserted knowingly, contempt of court findings are likely. Lawyers could be punished, too. There is a prima facie case that if the USPTO issued a patent then it is valid, but common sense must also prevail. In any event, by losing patents, Oracle is losing big time because they can no longer bully anyone else with those patents. This case is far from over but I doubt Oracle will come out whole no matter what the judge decides. I think it is highly likely that the court will order Oracle to make a licensing agreement for Android/Linux under fair and reasonable terms in spite of the puffery. Clearly, the judge sees Oracle’s demands for $billions are ridiculous. It seems highly unlikely that the judge would order Google to kill Android/Linux.

    Given Ellison’s temperament, this could go on for years of appeals but it’s not having any impact on Android. The world just doesn’t care. If Android were not there GNU/Linux would be.

  6. Clarence Moon says:

    The problem with your arguement is that Oracle only needs one claim on one patent to stick and, if you read what has happened, some claims have been upheld as valid although a number have been rejected. It is like having only one fatal wound out of a dozen.

    In any case the subject was Barnes and Nobel and their suit with Microsoft. From what I can see, Amazon has effectively settled with Microsoft as well, since their Kindle supplier has a license to use whatever it is that Barnes and Nobel is fighting against. All that Barnes and Nobel is claiming is that using the patents to collect royalties is some sort of dirty pool directed at all the users of the technology that the patents are claimed to cover.

    In the Oracle case, the judge got tired of reading the pleadings, I think, and made Oracle cut down the claims to just a few that were supposed to be their best shot and told Google to do the same. I think that will happen with Barnes and Noble after starting to read the stuff that you referenced on Groklaw. I got tired after one page and those were just titles of references. Nobody is going to want to read the whole thing, particularly the judge.

  7. In a recent case where Oracle was suing Google, a bunch of patents were asserted. The majority were rejected upon review by the USPTO… Four of seven patents asserted against Google over Android had ALL claims rejected in review. This is proof that defective patent applications had previously been approved. What is happening is that applicants are not giving the USPTO a proper filing with prior art declared. When push comes to shove, defendants do the work and inform USPTO what they missed. see GROKLAW

  8. My patent applications cost less than $1K but I did all the work myself. It was a long time ago. Costs have risen.

  9. Clarence Moon says:

    It is fair to have one’s own opinion on things, but it is somewhat of a folly to think that the patent office officials, patent lawyers, and courts have all overlooked the issues that you assert. It is their profession and you have to accept that whatever they themselves agree upon as core issues are, indeed, both valid and pertinent.

    As to the costs involved in filing for a patent, I only know what the price was in the case of an associate who paid an attorney some $15,000 to simply get to a filing state. That patent has yet to be issued and I assume any action needed to defend or assert it would be substantially more costly.

  10. oldman says:

    “The law does not support software patents…”

    All of this verbiage is irrelevant Pog.

    You are not the law!

    End of Story.

  11. I have filed a patent application and it does not cost $thousands. Where it does cost a lot is when the examiner rejects it and the applicant refiles and appeals repeatedly. Some of these “software patents” have been rejected multiple times and gone through the appeals several times. I think the longest process was about ten years. Does that make any sense?

    Anything you can create in software is obvious from the start. Everyone knows that with computers you can create, find, change and present information. There is nothing new under the sun. The FFT, for instance, which lawyers considered patentable is just math cleverly done to minimize the work. Mathematicians have been doing that for thousands of years. It’s not novel. The courts have upheld repeatedly that maths cannot be patented so these trolls try to give it a new name and slip in the back door of lawyers’ ignorance.

  12. The law does not support software patents.

    A person shall be entitled to a patent unless –
    (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or”

    Programming languages are “known”. Anything consisting of statement/lines of code is known stuff. You cannot combine known stuff and say it’s novel. Anyone skilled in the art of programming can produce the stuff without reading patent publications.

    “(f) he did not himself invent the subject matter sought to be patented, or”

    M$ nor anyone else did not invent the stuff in these so-called software patents. In some cases these things were being done thousands of years earlier, just not with computers.

    ” Sec. 103. Conditions for patentability; non-obvious subject matter

    (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”

    If software is written in some standard programming language the programme will be obvious to anyone skilled in the art. That’s why the “software patent” filings never include code. The filers try to make the coverage ridiculously broad so that it covers the known universe.

    That’s the law, USC Title 35. Read it and some “software patent” filing. Tell us it makes sense to issue, respect and pay for software patents then.

  13. oldman says:

    “Your position is that patents are valid even on software and that is nonsense. ”

    My position is essentially what Clarence Moon just posted. In the end Pog, neither your interpretation nor mine has opinion has any force in law. Until the law changes, Software patents stand whether you like it or not.

  14. Clarence Moon says:

    Once it has been disclosed, a lot of things are suddenly non-obvious, but if the patent examiner has not thought of it before and no one else has used it somewhere, the decision goes to the one who first used it and filed for a patent. That is the law, like it or not.

    Usually, only companies that are involved in some business are going to come up with something new and at the same time be willing to pay the tens of thousands of dollars needed to file a patent. So the patent is granted for something that is just a natural evolution of something else.

    I am not defending that, but it is the way that things work and the way that the patent laws work. If you don’t like it, you will have to change the law and that is very hard to do.

  15. Neither does yours. The US constitution and the law on its face support my position. Your position is that patents are valid even on software and that is nonsense. Software is logical/mathematical and courts have frequently held that mathematical discoveries are not patentable.

    One of the most important softwares ever invented was the Fast Fourier Transform. It is used since the 1960s in all manner of signal processing yet it was never patented because it is unpatentable. Lawyers see things like FFT as patentable nevertheless and IBM took steps to ensure FFT was public domain by publishing it openly before any patent applications could be filed. see to see the pros and cons of patents on mathematics. Courts have held that mathematics is not patentable but lawyers see money is to be made patenting mathematics. Go figure…

  16. oldman says:

    “Software patents are invalid in US law. The courts are in error on that”

    Once again, your opinion has no standing in law.

  17. Software patents are invalid in US law. The courts are in error on that. US law requires inventions to be “non-obvious”. By definition, software patents are invalid because anyone can read the code and understand the invention. No patent filing is required. Further, the software is copyright-protectable so patents are inappropriate. No one would be given a patent on a book. Why should they be given a patent on software?

    The error the courts make is to presume that software installed in a computer somehow makes the computer an invention. It does not just as putting a book on a shelf does not make the shelf an invention.

  18. oldman says:

    “Basically its not me who is invalidly dictating terms oldman. I am dictating to stop those who are invalidly dictating terms.”

    I’m sorry, but your definition of “invalid” doesnt have any standing in law. Withoiut such standing, you get to deal with the terms of the patent holder whether you like it or not.


  19. oiaohm says:

    “Since when do you get to dictate the terms of use for someone else s property?”

    Wrong person here why should people licensing patents off patent holders be able to dictate terms to other so causing a case where multi companies can be asking for payment for the same patent.

    Basically its not me who is invalidly dictating terms oldman. I am dictating to stop those who are invalidly dictating terms.

    I have had two different companies want me to pay them for use of the exactly the same h264 patent that I had already licensed for a product.

    Yes in that case I am getting to dictated terms. Particularly when it turns out that the people asking for money was not the first owner of the patent and the first owner of the patent was the one that had given me the rights to it.

    Basically oldman how come these other guys are allowed to impersonate as the creator of other peoples inventions. The patent system stinks and need fixing.

    Yes the evil on patent on licensing.

    I have a patent. I license with it to Y that they can on license as the patent owner and they on licence to Z.

    I and Y and Z can now come to a poor company and ask for payment for the patent. This is legal. Worst all 3 are not required to up front release the patent numbers and can except payment for patent and never show the patent numbers. So a company could pay for the same patent 3 times or more. This is not fair and stinks.

    It one thing to demand payment its another to make sure the process is fair. Current patent system is not a fair playing field. Needs some very strict disclosure rules.

    Locking the terms the way I do is the only way to prevent over payment.

    About time make a device and have to deal with some of these people who goal is to rip you off 20 ways oldman you have to be watching like a hawk so you don’t get taken to the cleaners.

    Basically I don’t have an option bar to dictate back or let sell get ripped off.

  20. These fake “inventions” are not M$’s property. They are common knowledge of mankind. Things like the wheel, mathematics, a slight tweak on something else, obvious to anyone skilled in the art…
  21. In a free market I can choose to buy products that siphon my money off to M$ or not. I choose not to do that.