- IBM Responds to SCO's Motion Asking for Reconsideration ~pj 2013-05-25
- IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the
SCO v. IBM case. I have it as text for you.
IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has an proposed outline on how to proceed thereafter. Its plan differs from SCO's.
Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO's market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.
After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."
The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims:
For example, while the Novell Judgment strengthens IBM's counterclaims concerning SCO's campaign to create fear, uncertainty and doubt about IBM's products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument.IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM's Memorandum Responding to SCO's Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.
- Apple's Stupid Patents It Wants to Use Against Samsung's Galaxy S4 ~pj Updated 3Xs 2013-05-24
- The judge in Apple v. Samsung II asked the parties to narrow their claims, so they did but now Apple would like to add more claims [PDF], specifically to include the Galaxy S4. Samsung just sold 10 million S4s in less than a month, and Apple's hair must be on fire.
Would you like to know what it thinks of all you 10 million users of the new Samsung Galaxy S4 phone? It thinks you are infringing their stupid patents too, meaning, I would imagine, that if it is successful in this case, it will ask for an injunction against the phones you want and bought.
I'll show you what this stupid case is all about and what Apple thinks about you for buying the phone you want to buy and use, which Apple would like to make illegal to buy and use in the US by means of some infuriating software method patents. If you don't see why software shouldn't be patentable subject matter after watching Apple go for Samsung's throat with these patents, I give up.
Not really. My plan is to keep writing until you give up.
- Microsoft v. Motorola, Part 2, Will Be a Jury Trial, Aug. 26 ~pj 2013-05-21
- The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.
To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.
- SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj 2013-05-20
- There are now 68 public comments listed on the FTC's website on the topic of patent trolls. Patent Progress's David Balko's
article, The End-Users Strike Back, notes that a surprising number are from end users, defined as "retailers, financial services, grocery stores, advertising, hotel industries, and even oil companies [who] are coming out in droves to fight abusive patent troll tactics":
Patent trolls have started to target end-users, especially small companies, because they typically lack the expertise, experience and ability to fight questionable claims. Litigation costs can quickly mount up to $250,000 to $500,000, and reach millions if the case goes all the way through trial (not to mention appeals). End-users also have to deal with disruptions to their business from discovery requests and managing the litigation. Often companies are forced to divulge secret financial and technical information as well as divert key personnel from their work to participate in depositions and give testimony. Patent trolls, on the other hand, have few costs in pursuing a suit because they do not operate in any market. The lawsuit has no disruptive effect on the patent troll's business because it is the patent troll's business.You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don't see members listed on the site, but the Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being "masters at abusing and manipulating the patent system." The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I've long wondered about, why trolls hide who they are in litigation.
- Motorola Files Reply Brief in Appeal of Judge Posner's FRAND Decision in Apple v. Motorola-~pj 2013-05-17
- The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner's ruling dismissing both parties' claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple's response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent
a letter to this appeals court, bringing it to the court's attention, because it supports Apple's position and calls Motorola's patents a trivial contribution to the standard.
Motorola defends the value of its patents and then tells the Federal Circuit that RAND patent holders have to be able to seek injunctions against "intransigent" licensees like Apple. Otherwise, they'll take advantage, delaying by litigation any reckoning for years while benefiting from the technology without paying for it.
What exactly should happen to a company that refuses to pay and won't accept an offered rate or a court-set rate? The RAND patent holder *still* can't do a thing? No injunction? Nothing? Apple began its infringement, Motorola points out, in 2007. It's now 2013, and it still hasn't paid a dime. "Motorola should have the opportunity to seek an injunction to stop Apple's six years of ill-gotten gains from stretching into a decade or more," Motorola says.
- Happy 10th Anniversary, Dear Groklaw! Happy 10th Anniversary to Us! ~pj 2013-05-16
- We made it. A decade of Groklaw as of today. Who'd a thunk it?
When I started, I thought I'd do a little fiddling around for a couple of months to learn how to blog. But then all you guys showed up and taught me some important things that I didn't know, and vice versa I hope, and here we are, on our 10th anniversary, still going strong, together on a very different path than I originally imagined. The important moment for me was when I realized the potential we had as a group and decided to try to surf this incredible wave all of you created by contributing your skills and time. I saw we could work as a group, explain technology to the legal world so lawyers and judges could make better decisions, and explain the legal process to techies, so they could avoid troubles and also could be enabled to work effectively to defend Free and Open Source Software from cynical "Intellectual Property" attacks from the proprietary world.
And it worked! That's the amazing part. It actually worked. So far, so good.
If I take three things away from our experience, it's this:
1.) Education is never a waste,Group dynamics are awesome. Whenever there is a new need, somehow the right people show up and fill it. Whether it was meticulously demolishing SCO's claims, one by one, or doing patent prior art searching, or explaining that software is mathematics and hence unpatentable subject matter, or noticing what the real game is in the patent smartphone wars, you came through with competence, donating your knowledge, research, and skills to the group effort. And you did it entirely as volunteers, as a free gift to the world.
2.) All of us together are smarter and more powerful than any one of us alone, and
3) FUD withers in sunlight. It only works when people lack accurate information.
Groklaw was attacked with venom, of course. But here we are, ten years later, still standing.
- Hackathon Trademarked in Germany? Now What? ~pj Updated 2Xs 2013-05-14
- I am sure you saw that somebody in Germany, a company called nachtausgabe.de, has sneaked through a
trademarking of the word HACKATHON in Germany. There was no opposition, because nobody knew about it. We know now, however, so what can anyone do about it? It turns out, plenty.
It's a word that OpenBSD and Sun each came up with independently at the same time back in the '90s, for heavens sake, and it surely can't belong to any one company now that it's in the dictionary and everyone has freely used it for years now.
Anyway, as soon as I read about it, I wrote to the German equivalent of the USPTO, DPMA, the German Patent and Trademark Office, and I've learned some things that can still be done. I'll share them with you, so the community knows how to go forward if it proves necessary.
- Federal Circuit, en banc, rules in CLS Bank ~pj Updated 3Xs 2013-05-11
- OMG. CLS Bank v. Alice Corp. has been decided [PDF] by the the Federal Circuit en banc. And Patently O says the court "finds many software patents ineligible"!
As described more fully below, we would affirm the district court's judgment in its entirety and hold that the method, computer-readable medium, and corresponding system claims before us recite patent-ineligible subject matter under 35 U.S.C. § 101.1The Federal Circuit. OMG. We've worked hard for so many years to get to this point, I almost can't believe it. And I suppose it's possible it could be appealed, but this is proof of what I've always told you, that education is never a waste. Judge Rader is very upset, I gather. He has written a dissent. But he didn't prevail. And I'm sure he gave it his best effort. OMG. This is a new day.
1 While Chief Judge Rader is correct to note that no single opinion issued today commands a majority, seven of the ten members, a majority, of this en banc court have agreed that the method and computer-readable medium claims before us fail to recite patent-eligible subject matter. In addition, eight judges, a majority, have concluded that the particular method, medium, and system claims at issue in this case should rise or fall together in the § 101 analysis.
I knew you'd want to know *that* immediately. We can read and analyze it later in more detail, so stop back by. After I read it again, I'll be sure to post it and we can discuss.
I remember the first time we wrote on Groklaw that software and patents need to get a divorce. Remember? So long ago, and how everybody laughed at us. I remember that too. I am thinking about Apple and Microsoft and all the software patent bullies. Well, let's not get ahead of ourselves. I'll read it more carefully now.
- Blackberry Tells the Federal Circuit Judge Posner Got It Wrong Re No Injunctions for FRAND Patents in Apple v. Motorola ~pj 2013-05-10
- Blackberry's amicus brief [PDF] is now made public in the Apple v. Motorola appeal of Judge Richard Posner's
order which seemed to say that if you own FRAND patents, you have no right to seek an injunction under any circumstances.
But that is not how folks understood their rights back when they volunteered their patents for use in standards; it's a change in the rules midstream. And Blackberry tells the Federal Circuit exactly that. This is a change, and it isn't fair, or in the public interest. SEP owners might behave badly, but so can prospective licensees. Here's how attorney Matt Rizzolo at the Essential Patent Blog sums up the Blackberry argument:
Just as it has argued in prior submissions to agencies such as the Federal Trade Commission and the U.S. International Trade Commission, BlackBerry asserts here that a categorical rule against injunctions for FRAND-encumbered standard-essential patents is wrong - both as a matter of policy and as a matter of violating Supreme Court precedent. BlackBerry alleges that industry participants have "never understood FRAND to absolutely preclude a patent holder from seeking injunctions."The misunderstanding by one and all, if that is what it is, stems from accepting Apple's argument that a FRAND agreement is a contract, as Motorola's brief points out, but if it's a contract, then contract law should apply. Motorola never waived its right to injunctions, and since that is a right under law, it would have to have specifically waived its rights to lose them. Not even judges can just waive their hands and remove legal rights. Why, indeed, would they want to?
- Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj 2013-05-09
- Google, Red Hat, HTC, SAP America, and Rackspace have asked leave of the Federal Circuit Court of Appeals to file an amicus brief [PDF] in the Apple v. Samsung appeal. That's on the first case., the one Samsung lost but has been whittling down a bit in post-trial motions. Here's the issue they'd like to address:
Amici are all innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features. As such, an issue presented in this appeal - whether a court may enjoin the sale of innovative and technologically complex products based on the incorporation of trivial patented features without evidence that the accused features drive sales of the products - is a matter of great concern to amici.Apple opposes [PDF]:
The lead party on the brief, Google, Inc., admittedly has a direct interest in the outcome of this appeal. As the motion explains (ECF No. 55 at 4; ECF No. 60 at 4), Google is the developer of the Android operating system running on the Samsung smartphones that Apple seeks to enjoin in this case. That interest conflicts with the traditional role of an amicus as "an impartial friend of the court-not an adversary party in interest in the litigation." United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) (emphasis in original).Even if they win, they still lose, though, because there are several others seeking to file the same material, and they are not by any stretch of imagination parties in interest. Except for HTC, none of the rest of the proposed filers is even in the mobile phone marketplace.
- SCO: But waitaminnit, yer Honor ~pj 2013-05-08
- SCO, of course, is asking [PDF] the judge in U.S. District Court in Utah to reconsider his
order denying SCO's request to reopen its case against IBM.
You knew they would:
SCO submits that reconsideration is appropriate because the Bankruptcy Court overseeing SCO's bankruptcy proceedings lifted the stay of IBM's counterclaims in February 2012 and IBM agreed to the reopening of the case should that stay be lifted. The Bankruptcy Court order lifting the stay was previously submitted to the Court with SCO's Request to Submit for Decision, on June 14, 2012. (Exs. A and B.) Accordingly, SCO respectfully asks the Court to reconsider its decision and grant the Motion to Reopen the Case forthwith.They are right about the Bankruptcy Court lifting the stay. So unless the judge is much more clever than I am, which is likely actually, I suspect he'll have to grant the motion to reopen, and then we'll see IBM make its moves. But of course, SCO wants more.
- The Novell v. Microsoft Hearing at the 10th Circuit - Eyewitness Report ~pj 2013-05-07
- Our own Justin Ellis attended today's hearing at the 10th Circuit Court of Appeals on Novell's appeal in Novell v. Microsoft. This is the antitrust litigation Novell brought over WordPerfect. He has a report for us. He begins with his general impressions, and then provides his notes on the arguments.
To help you follow along, here are some resources:
- Novell's opening appeal brief
- Microsoft's brief
- Novell's reply
- Microsoft's renewed motion, asking the judge to rule as a matter of law
- Novell's opposition
- Microsoft's reply
- Judge Frederick Motz's Decision, the one being appealed
- Trial transcripts
His general impression is that Microsoft will prevail, as the judges seemed more positive toward its arguments. But keep in mind that you can't always tell what judges are thinking from their questions.
- MS v. Motorola Appellate Jurisdiction - Another Appeal Issue ~pj 2013-05-06
- Matt Rizzolo has an interesting article, "Which appeals court has appellate jurisdiction over the Microsoft-Motorola RAND case?":
The Western District of Washington sits within the 9th Circuit Court of Appeals (which, as noted below, has already heard an interlocutory appeal in this case). But as you may know, in order to preserve uniformity in patent law, the U.S. Court of Appeals for Federal Circuit in Washington, DC is the court designated by Congress as the appeals court with exclusive jurisdiction for nearly all patent cases. The Microsoft-Motorola case (at least the part which has garnered the most attention) involves a breach of contract issue relating to patents, standard-setting, and patent licensing issues. So, which is it - the 9th Circuit or the Fed Circuit?It's worth it.
Brace yourselves - this will take a couple thousand words.
- Newegg Tells the FTC and DOJ How Patent Trolls Are Damaging Retailers ~pj Updated 2013-05-04
- Newegg's Chief Legal Officer Lee C. Cheng tells the FTC and DOJ in its public comment [PDF] on Patent Assertion Entities that patent troll is a better phrase than politely calling them PAEs, because it describes exactly what they do:
While the FTC's and DOJ's investigation refers to this class of NPEs as "patent assertion entities," I believe that the term "patent troll" is more appropriate. A "troll," as in the under-a-bridge fairy tale figure that blocks one's way across a bridge without some payment (or worse, a fight), is the perfect term for this class of NPEs.Newegg describes what it and other retailers are going through, being sued for using internet commerce software they merely license from other companies, like Microsoft, Oracle, and Citrix. Rather than sue those companies, trolls go after users of their software, like Newegg, claiming that some minor detail of the software is the reason for Newegg's success and seeking damages, even though the troll isn't in business and isn't hurt at all by Newegg using the software. This, Newegg concludes, promotes opportunism rather than innovation. And the impact on Newegg of the constant flood of lawsuits is that it can't create new jobs, despite its success because patent trolls are skimming of the top of retailers' already "razor-thin profit margins".
Bridge trolls have one thing to offer-a right of way. The trolls have the ability to stop passers by unless they fight their way across or pay the fee demanded by the troll. It matters not to the troll why one requires passage, nor does the troll care that one's passage causes no actual harm to the troll or the bridge. All that matters to the troll is that this is their bridge and you should pay to cross it or prepare for a fight that could cost you dearly. So it is with patent trolls. A patent is essentially no more than a right of way. As a mere patent owner, a patent troll has nothing to offer or license except the right not to be sued under the patent.
- Let's Hear From the Trolls For a Change ~pj Updated 2013-05-04
- I've already highlighted a couple of public comments from those filed with the FTC by companies being harassed by trolls, describing just how destructive they think they are, like Barnes & Noble's and Google/Red Hat's. Now let's take a look at what the trolls have to say in their defense.
Wait. It seems their feelings get hurt if you call them trolls. IPNav tells the FTC it's "pejorative". Barnes & Noble in its comments uses the word troll throughout, and Newegg in its comments [PDF] said the word is a perfect fit, absolutely descriptive of how they act (see next article). The FTC calls them PAEs. I'll stick with Barnes & Noble and Newegg on this one, if you don't mind.
We'll be reading the comments from IPNav [PDF], which claims to be a "white hat" troll, as well as a snip from MOSAID [PDF], which also claims to be one of the good guys. They feel they are misunderstood. It is in a deal with Nokia and Microsoft to go after people with their sorta donated patents, so you might wonder what Microsoft has to say. In a nutshell, it says [PDF] it wouldn't want the PAE business model shut down. *That's* not the problem. Noooo.