Bookseller Defends Itself

Microsoft has sued Barnes and Noble for use of Android in the Nook Color. The bookseller has filed a supplemental notice of prior art that contains a 43-page list of examples it believes counters Microsoft’s claim that Nook violates Microsoft’s patents. I posted the PDF and slides at: http://jet-computing.com/patents/barnes-noble/

Instead of focusing on innovation and the development of new products for consumers, Microsoft has decided to invest its efforts into driving open source developers from the mobile operation systems market. Through the use of offensive licensing agreements and the demand for unreasonable licensing fees, Microsoft is hindering creativity in the mobile operation systems market.

The complaint also notes some odd behaviors on Microsoft’s part, such as refusing to explain what patents it was threatening B&N over, unless B&N agreed to sign a non-disclosure agreement. (more…)

Apple vs Android

Steve Jobs’ legacy at Apple Inc. goes well beyond cool gadgets, a thriving retail chain and a music empire. He also launched the company’s all-out legal war on Google Inc.

In the last months of Jobs’ life, Apple unleashed a patent-suit blitzkrieg on its Silicon Valley rival, filing 10 lawsuits in six countries that accuse the Internet search giant of stealing its smartphone and tablet computer technology.

The campaign is rooted in Jobs’ belief that Google and mobile device manufacturers that use its Android software copied key design and technology features from Apple’s iPhone and iPad.

“I’m willing to go to thermonuclear war on this,” Jobs told author Walter Isaacson for his recently released biography. “I’m going to destroy Android, because it’s a stolen product.”

He then vowed to battle Google until “my last dying breath.”

Google and manufacturers using Android are vigorously contesting Apple’s claims, which could take years to play out in court. But one thing is certain: There is a lot at stake for the company Jobs built. If it is unable to protect the iPhone’s distinctive look and feel, lower-cost competitors imitating its technology could threaten the future of its most profitable products, analysts say.

“Unless they can keep Android at bay, they cannot sustain their incredibly high margins,” said Florian Mueller, a patent specialist who has been closely following the disputes. “They’ll have to compete with much lower-priced devices with essentially the same features coming out of China and other places.”

Alternatively, victories by Apple would enable it to extract hefty ransoms from any phone maker that uses Apple-like technology, or even force its rivals to water down or remove popular features from their smartphones, including screens that respond to multiple finger touches, the graphical display of text messages, and the way users send email and browse the Internet.

That type of technological rollback, analysts and patent attorneys say, could demolish much of Google’s recent success in the $160 billion smartphone market, and gain Apple an unparalleled advantage in the industry. The market is growing rapidly as many consumers dump simpler cellphones for the more powerful and versatile smartphones.

“Some of the revelations from the Jobs biography suggest that this is almost a religious war,” said Toni Sacconaghi, an analyst at Sanford C. Bernstein Co. The question is whether Apple’s battle is based on a rigorous legal analysis of company’s patent holdings or part of a personal vendetta by the company’s late co-founder, he said.

Apple’s aggressive legal attack comes as it is losing ground to its rivals in the smartphone industry. Samsung Corp., whose devices run Google’s Android software, dethroned Apple in the most recent quarter to become the world’s largest vendor of smartphones, accounting for nearly a quarter of handsets sold last quarter, compared with about 1 in 7 for Apple, according to data from Britain-based Strategy Analytics.

Apple has hired some of the nation’s top patent lawyers, including William F. Lee of WilmerHale, who helped win networking chip maker Broadcom Corp. an $891 million infringement settlement against rival Qualcomm Inc., and Harold McElhinny of Morrison & Foerster, who led Pioneer Corp. to a $59 million judgment against Samsung.

In recent weeks, Apple has been successful in temporarily banning sales of Android-powered tablets in Australia, Germany and the Netherlands. The company is now involved in lawsuits covering dozens of patents, some of which date to the technology created for 1990s-era personal computers designed a decade before smartphones were invented.

But what may look like a shotgun approach may actually be a carefully crafted battle plan. Apple is using its initial round of lawsuits to see which of its many patent claims can survive intense legal scrutiny, analysts said. The ones that are successful will become the spearhead of Apple’s litigation strategy.

“Once they’ve found the battle-tested patents that can survive challenges,” Mueller said, “they’re going to assemble all of them, put the winning team together and enforce them against everyone.”

Although Apple’s patent war stretches around the globe, the heaviest assault is in the U.S. The company is currently locking horns with Samsung in separate federal lawsuits in Washington, Delaware and Northern California, where Apple’s attorneys have demanded court orders preventing Samsung from selling its smartphones and tablets in the U.S.

“This kind of blatant copying is wrong,” Apple spokeswoman Kristin Huguet said in a statement. “We need to protect Apple’s intellectual property when companies steal our ideas.”

Google has called the patent attacks “bogus,” but in August it made a major move to defend itself, announcing the largest acquisition in its 13-year history by paying $12.5 billion in cash for Motorola Mobility Holdings Inc., one of the leading Android manufacturers and the holder of 17,000 technology patents that Google could use as ammunition to fend off the lawsuits.

Google allies Samsung and HTC Corp., two major device makers, are also striking back against Apple, filing countersuits that ask courts around the world to ban Apple’s iPhone and iPad devices. Each patent case can cost upward of $8 million, according to attorneys and analysts said.

So far, Samsung has had mixed results with its legal fusillade against Apple, with courts in Italy and the Netherlands initially denying its motions to bar sales of Apple’s recently released iPhone 4S.

Samsung has denied that its phones infringe Apple’s patents, and has instead accused Apple of illicitly using Samsung communications technology in multiple iPhone, iPod and iPad models. The company said it has spent tens of billions developing its own digital technology in recent years, and has amassed nearly 30,000 patents in the U.S. alone.

Apple “continues to violate our intellectual property rights by selling these products,” Kim Titus, director of public relations for Samsung Telecommunications America, said in a statement. “The courts will find Apple has indeed been free-riding on our technology.”

But many of the technologies that these patents protect are so abstruse or vague that companies may end up running afoul of the law without even knowing it, said Bijal V. Vakil, a partner at law firm White & Case in Palo Alto, Calif.

“It’s become a virtually unmanageable task to go and see if you have the freedom to operate,” he said. “Procedurally it would be impossible to check all of (the valid patents) – even large companies can’t afford to do that.”

Many organizations around the world fear competition. They are scared that another bigger badder organization is going to come along that can offer the same features and benefits but will offer them: quicker, cheaper, with more customization, with better customer service, etc. Competition is actually a good thing, in fact it’s a great thing.

Without competition Apple would have never created their Ipod, Microsoft would have never created Windows, and Google would probably be non-existent. Competition is essential because it leads to one very important thing, innovation.

People are always looking for products with more features and capabilities, products that cost less but can do more, and products that just plain solve their needs/wants better than any other product can. When companies compete, consumers get what they want.

Competition pushes you to be more creative and innovate, and to truly master your skill set. A lack of competition may lead to your skills getting stale or hitting a plateau. Competition sharpens your skills and ultimately helps you achieve long-term success.

Ubuntu – Mark Shuttleworth turned down Microsoft’s offer that “you can’t refuse”

Linux Magazine: “Microsoft Has Already Approached Canonical Pressuring Them to Sign up to a Patent Deal, But They Turned it Down.”

First they ignore you, then they ridicule you, then they fight you, then you win.

Microsoft sues Salesforce.com for alleged patent infringement

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. - Bill Gates”

“At some point we will have to consider the patents they violate……I am unclear of what their business strategy is with the free version. It is a good product developed by a surprisingly lean team of people. - Bill Gates”

“People that use XXXXXXXXXX, at least with respect to our intellectual property, in a sense have an obligation to compensate us.” - Steve Ballmer”

Having realised that Microsoft faces competitive pressure from more affordable products, he reaches out for his software patents cabinet. Nowadays, as Microsoft’s Marshall Phelps points it, “other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio.”

Microsoft and Salesforce don’t compete directly on operating systems or office software, which are Microsoft’s biggest sources of revenue. But Microsoft does offer sales software, and both companies have platforms for web-based applications. Salesforce chief executive Marc Benioff (pictured above) is also a frequent (and entertaining) critic of Microsoft as a dinosaur that doesn’t understand the importance of cloud computing — for example, when comparing their cloud platforms, he said of Microsoft, “They hate everybody and we love everybody.”

Microsoft has been a leader and innovator in the software industry for decades and continues to invest billions of dollars each year in bringing great software products and services to market. We have a responsibility to our customers, partners, and shareholders to safeguard that investment, and therefore cannot stand idly by when others infringe our IP rights.”

Say what??…Innovator??…LOL… here is a listing of the most important software innovations, revised as of 2009. The Most Important Software Innovations.

Today the dominant vendor in software is Google.

Jim Allchin, Microsoft’s “Windows operating-system chief,” has been trying to convince the U.S. government that open source software (or at least the General Public License) is a threat to the U.S. and to intellectual activity; one of his arguments is that open source software is a threat to innovation. In its recent court battles, Microsoft also used innovation as justification for its business practices (which have since been determined to be illegal).

However, after examining the evidence, I’ve determined that Microsoft is not a substantial innovator, so its claims that it should avoid punishment “because it’s an innovator” are without merit. Its products are popular, but as determined in a court of law, that’s at least in part due to illegal business practices that restrain customers from obtaining or using competing products (which, without customers, then collapse) [*]. That doesn’t make Microsoft innovative, at least not in technology. There’s nothing wrong with a company that isn’t innovative! But there must be excellent evidence of innovation to even consider eliminating punishment for illegal activity or to consider new legal constraints on competitors.

Here, I’ll provide evidence that (1) none of the key software innovations have been produced by Microsoft, (2) all of the important Microsoft products are essentially copies of previous products, and (3) Microsoft’s underlying technologies are not innovative either. Microsoft is simply not an innovator, and must not be allowed to use “innovation” as a defense, or to convince others that open source software / free software (OSS/FS) is a threat to innovation when there’s no evidence to support the claim.

But first, we must define “innovation.” An “innovation” is not simply combining multiple functions into a single product – that’s “integration” and usually doesn’t require any innovation (just hard work). In particular, integrating functions into a single product to prevent customers from using a competitor’s product (a documented Microsoft practice) is “predation”, not “innovation.” An “innovation” is not a product, either, although a product may embody or contain innovations. Re-implementing a product so that it does the same thing on a different computer isn’t an innovation, either. An innovation is a new idea. And in this context, what’s meant is a new idea in software technology.

Open source software / free software (OSS/FS) has a better track record at producing key software innovations than Microsoft, who has never made one.