Google switches to open-source license for Java APIs in Android: will this limit Oracle's case to past damages?

I've seen comments on Internet discussion boards according to which the long-running Oracle v. Google copyright infringement dispute has been practically settled, given that Google has just confirmed to VentureBeat that its upcoming release of Android (Android N) will come with Java language libraries that follow "an OpenJDK-based approach." The OpenJDK is licensed by Oracle under the GPLv2 with a so-called Classpath Exception.

It's too early to agree with those who believe it's a virtual settlement (except that damages for past infringement might still have to be determined in court). I do remember that Oracle's lawyers released a statement ahead of the 2012 trial in which they basically said that Google had two options for using Java in Android--a proprietary license or using it on open source terms with the obligation to contribute back to the open source community--but, by simply using Java without either kind of license, Google had committed copyright infringement. That was more than three-and-a-half years ago. Why wouldn't Google have taken this step long before, if such a seemingly simple solution to the legal problem as OpenJDK had existed all along?

There are two possibilities:

• It could be that Google is now (that Android has unstoppable momentum) indeed fine with GPL'ing all of Android and just wanted to avoid it earlier on. Android already uses Linux, which is available under only the GPL (no proprietary option there). Now it's also going to use the OpenJDK libraries. So maybe Google doesn't care about applying copyleft--the rule that derivative works incorporating GPL-licensed code must also be published under the GPL (or they must not be published at all)--to Android as a whole. It previously preferred the Apache Software License, which gave Google and its partners more flexibility in terms of throwing closed-source components into the Android mix.

• Without knowing how Oracle views this and what Oracle will do, I consider a second possibility no less likely than the first one. It could be that Google still isn't going to put Android as a whole under the GPL. Maybe Google interprets the copyleft rule in the GPL (in this case, in conjunction with the Classpath Exception) in a way that differs from the way Oracle would interpret it. Maybe Google believes it can just replace those Java APIs with something based on the OpenJDK but still doesn't have to put any additional components of Android under the GPL. In that case, Oracle would likely disagree. And that disagreement could then give rise to another lawsuit.

The first possibility is, for now, a possibility. Maybe Oracle will look at Android N (when it's released) and say: this is in compliance with our rules, we just want to get damages for past infringement (including older Android versions that are still out there).

The second possibility, however, would lead to the most significant and dramatic GPL enforcement litigation in history. With the greatest respect for what the likes of Harald Welte and the Software Freedom Conservancy have done on that front, a lawsuit with which Oracle would seek to force Google to release the whole of Android under the GPL would dwarf everything that has ever been done to enforce the GPL.

As a litigation-focused blogger, I can't resist from speculating about what this scenario would mean in procedural terms.

So far, GPL enforcement lawsuits have typically been settled. To the extent that judicial decisions have come down, there is no indication that one can successfully seek what is called specific performance and have a court of law order a GPL infringer to release something under the GPL. It appears that the original right holder can at best obtain an injunction against continuing to distribute the derivative work without making it available on GPL terms.

Let's assume for a moment that Oracle defeats Google's "fair use" defense at next year's trial. It could then seek an injunction against further use of the proprietary Java API declaring code. If Judge Alsup and/or the appeals court agreed, Google would then be barred from continuing to distribute the proprietary Java APIs as part of Android unless it takes a license from Oracle.

But Google would then say: that five-year-old lawsuit is about the proprietary Java APIs, and new Android versions follow what Google now calls its "OpenJDK-based approach."

In that case, Oracle might argue that the injunction still applies, and seek sanctions against Google. So there would be an enforcement dispute.

If Oracle prevailed on the enforcement question, the whole OpenJDK thing wouldn't have helped Google in the end.

However, in order to enforce an injunction arising from the five-year-old lawsuit against Android N, Oracle would have to convince the district court (and/or the appeals court) that this is really an issue that was decided in the original lawsuit. Google, of course, would argue that the copyleft implications of its use of OpenJDK are a completely different matter. I don't want to state a position on this yet, but if the dispute reaches this presently-hypothetical point, I will say what I think (based on the facts that will be on the table at that point, and one of those facts would be the exact wording of the hypothetical injunction Oracle would have won in the meantime).

Without stating a position on a combination of hypothetical events, I think it's not too speculative to say that a not entirely impossible outcome of such an enforcement dispute would be that the court(s) would say: sorry, Google's use of OpenJDK raises one or more new legal questions that must firstly be decided on the merits. In that case, Oracle would have to bring a second complaint against Google, which would be OpenJDK-centric. All of this would take a long time--also including any appeals--to be resolved.

I don't think it's purely coincidental that Google is going down the OpenJDK avenue just in time before Oracle has its next opportunity to obtain an injunction, which will be after the upcoming trial.

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Apple wants a $180 million Christmas present from Samsung, seeks supplemental damages in patent case

While Apple is usually the net payer when it comes to patents (most recently vis-à-vis Ericsson), it has received $548 million from Samsung this month, though a reimbursement may be demanded later. Samsung might base a future reimbursement claim on its design patent-related appeal to the Supreme Court (if that one succeeds, which would not be a huge surprise) and/or on the fact that the United States Patent and Trademark Office has held the '915 pinch-to-zoom API-related patent invalid (a decision Apple is appealing to the Federal Circuit) and/or the increasingly likely invalidation of the D'677 iPhone design patent.

But not enough: yesterday, Apple brought a motion for supplemental damages and prejudgment interest. Most of the documents are hidden from the general public for now, but a declaration by Apple's damages expert Julie Davis was published (this post continues below the document):

15-12-23 Davis Declaration ISO Apple Motion by Florian Mueller

According to the Davis declaration, Apple wants supplemental damages (damages for infringements after the cutoff date of the jury trial) amounting to $178.7 million and prejudgment interest totalin $1.2 million, i.e., $180 million in total. Samsung is not going to fork that money over without a fight. The amount seems high to me given that the products at issue in this case (the first litigation between the two companies) were already somewhat outdated by the time of the 2012 trial.

While I strongly disagree with Apple's enforcement of patents held invalid (and also with its position that an unapportioned disgorgement of profits is the appropriate remedy for design patent infringement), yesterday's motion could not be accurately described as adding insult to injury: it's merely a logical step of the overall enforcement efforts Apple has started. It does make the underlying issues economically more significant, but it's just more of the same in terms of Apple's attitude. If Apple had decided not to bring this motion (for which it had sought permission), it would have had to backtrack. Again, I think it should have backtracked because no one in this industry, including Apple, would want invalid patents to be enforceable in any way, but a withdrawal is something unrealistic to hope or ask for at this stage.

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Federal Circuit denies injunction rehearing: will Apple v. Samsung become the next eBay v. MercExchange?

By sharply disagreeing with the majority of the panel ("This is not a close case."), Federal Circuit Chief Judge Sharon Prost practically invited Samsung to file a petition for a rehearing on Apple's injunction appeal. Samsung indeed filed the petition and received some impressive support from industry, NGOs, and academia. I actually thought a rehearing en banc (full-court review) was fairly likely to be granted, but no: today the notoriously patentee-friendly Federal Circuit merely modified its opinion slightly and denied a rehearing en banc.

The modification now establishes the following rule:

"Apple did [...] show that 'a patented feature is one of several features that cause consumers to make their purchasing decisions.' [...] We conclude that this factor weighs in favor of granting Apple's injunction."

The Federal Circuit has withdrawn the original decision and replaced it with the modified one (which also includes an amended dissent). Here's how Chief Judge Prost criticizes this modification:

"Perhaps recognizing its error, the majority reissued its opinion in this case to remove the implication that even an insignificant connection might be enough to satisfy the causal nexus requirement. While this change is a more accurate reflection of our law, it does not obviate the central problem with the majority's conclusion in this case. As we stated in Apple III, '[t]he question becomes one of degree, to be evaluated by the district court.' [...] Here, the district court weighed the evidence and found it lacking."

The amazing part here is "even an insignificant connection." This is just so inconsistent (of the panel majority, not of Chief Judge Prost) with the Supreme Court's eBay v. MercExchange ruling. Just like Chief Judge Prost's original dissent invited Samsung to request a rehearing, today's modified opinion--especially with the modified dissent--is almost a cert petition (request for Supreme Court review) in and of itself.

Just the day before yesterday, Samsung filed a petition for writ of certiorari in connection with design patents (on a couple of closely related issues on which Chief Judge Prost agrees with Apple, while she still believes Apple simply has no case for an injunction). Could today's denial of a rehearing lead to the next cert petition? I don't know what Samsung plans to do, but I hope that it will give it a try.

I don't think there's been a similarly splendid opportunity for the Supreme Court to provide some clarifications again on patent injunctions since eBay v. MercExchange. One might even argue that the Supreme Court's great work on eBay would have been in vain if the Federal Circuit's Apple v. Samsung ruling was allowed to stand.

Presumably it's not an easy decision for Samsung to ask the Supreme Court for help twice in a short time frame and in connection with the same dispute (though these are two different cases, one of which was filed about a year before the other).

The organizations and individuals who supported Samsung's petition for a rehearing with amicus curiae briefs would likely be interested in a cert petition, given the enormous importance of the issue. And at that stage, some others might also be prepared to chime in.

The first informal amicus curiae brief in support of a petition for writ of certiorari already exists: Chief Judge Prost's dissent.

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Apple v. Samsung: petition for Supreme Court to take first look at design patent case in 122 years

As it announced in August, Samsung has filed a petition for writ of certiorari (request for Supreme Court review) today in its almost five-year-old litigation with Apple. While it's statistically very hard to get the attention of the top U.S. court, I actually think the design patent-related issues Samsung's lawyers (of the Quinn Emanuel firm) raise here are extraordinarily certworthy:

1. Where a design patent includes unprotected non-ornamental features, should a district court be required to limit that patent to its protected ornamental scope?

2. Where a design patent is applied to only a component of a product, should an award of infringer's profits be limited to those profits attributable to the component?

The first question is about properly defining the scope of a design patent. If functional elements such as rounded corners (everyone carrying a phone in a pocket would agree that they have a practical benefit) were deemed to be "owned" by a design patent holder, juries could easily identify "infringements" where there aren't any, or they could consider design patents valid when the only relevant characteristics--the ornamental features--are not new. In other words, design patents would attain unreasonable strength.

The second question relates to the determination of damages. In Apple v. Samsung, the California jury was told that Apple was entitled to an unapportioned disgorgement of whatever profits Samsung made with products considered to infringe one or more Apple design patents. The Computer & Communications Industry Association as well as 27 law professors, among them three scholars who supported Apple's positions on FRAND licensing of standard-essential patents and a law professor who previously studied art and design and is now particularly interested in design patents, asked the Federal Circuit to ensure reasonableness in design patent damages. So did Google, HP, Facebook and others, who warned that a company could lose its entire profits over a design patent covering a single icon. But the appeals court claimed to have no choice under the law than to side with Apple.

There are two things to consider when reading Samsung's cert petition and thinking about its prospects:

• Fate has it that Samsung is now the petitioner and that Apple will oppose. Apple simply wants to collect many hundreds of millions of dollars (in pretrial and supplemental damages) and hopes to have leverage to achieve a settlement with Samsung on its terms. If Apple's shoe were on the other foot and Samsung had prevailed on a design patent (if it had, as it did not, asserted one in its counterclaims), or if Apple faced this issue in a dispute with anyone else (such as a patent troll), there isn't even the slightest doubt that the world's most profitable company would now be doing the same thing.

  Even some people who are Apple's allies on other issues can't support its positions here with a straight face. I mentioned above that three law professors who had filed an amicus brief in support of Apple against Motorola (on SEPs) filed one in support of Samsung's position in this case. And even a mere blogger like me just couldn't support Apple on this one. Generally speaking, I have disagreed with both Apple and Samsung on their offensive cases and agreed with them on their key positions as defendants. In Samsung's case I took a critical position right away because its pursuit of injunctive relief over SEPs had me concerned; in Apple's case I used to be somewhat sympathetic for a while but the longer it took and the more apparent the shortcomings of Apple's patents as well as Apple's positions on remedies became, the more I spoke out in favor of the defendant's positions--as I do in connection with Ericsson v. Apple.

• At this stage, it's not about who's right or wrong. It's only about whether the legal questions raised merit Supreme Court review, which has legal as well as economic implications.

  If the Supreme Court denied certiorari, the Federal Circuit ruling would be the last word on the issue, and as a result, design patents would be stronger than they should be and give their holders leverage beyond their reasonable value. A patent troll might acquire a design patent and sue a company like Google or Facebook--or Apple--for 100% of its profits. Worse still, and as Samsung's petition explains: the next patentee with a different design patent that is also a tiny part of a product could ask for the same. And so could potentially thousands of design patent holders, driving even the healthiest company into bankruptcy in such a scenario. If this here wasn't an issue of major importance to the U.S. economy, what would be?

There are strong and compelling arguments and interesting facts in all parts of today's cert petition, but they didn't save the best for last. Instead, the very first paragraph of the introductory section stresses that the case law surrounding U.S. design patents needs to be adjusted in the 21st century because of how products have changed since the late 19th century:

"[The Supreme Court] has decided many utility-patent cases in recent terms, but has not reviewed a design-patent case in more than 120 years. Late nineteenth-century [Supreme Court] cases considered design patents on such products as a spoon handle [1871], a carpet [188], a saddle [1893], and a rug [1894]. [...]

[...] A patented design may be the essential feature of a spoon or a rug. But the same is not true of smartphones, which contain countless other features that give them remarkable functionality wholly unrelated to their design. By combining a cellphone and a computer, a smartphone is a miniature internet browser, digital camera, video recorder, GPS navigator, music player, game station, word processor, movie player and much more."

On page 27 of the petition I found an argument that was exactly what I felt when I saw the Federal Circuit opinion on unapportioned disgorgement:

"The [appeals] court provided no basis for [that] interpretation, much less the strong justification needed where interpretation of a statute produces absurd results."

I mean, isn't that what judges are for? Interpreting the law reasonably. Identifying ridiculous results. I don't mean to argue that judges should be lawmakers. But when a law is very old and the world has moved on, when the products that lawmakers had in mind when they wrote and passed the law are very different from the products at issue in a case like Apple v. Samsung, then there must be a way to arrive at the result that the same lawmakers would have intended if they had known what was going to happen over a century later.

On page 31, absurdity is discussed again:

"As noted, the Federal Circuit's contrary interpretation of Section 289 produces absurd and anomalous results. The Federal Circuit's holding would require awarding Apple all of Samsung's profits for sales of a smartphone containing any Apple design patent, even a trivial one. [a footnote then points to an actual Apple design patent of that kind, which basically covers a musical not in a circle and also had the Patently-O blog stunned] And under this holding, profits on an entire car--or even an eighteen-wheel tractor trailer--must be awarded based on an undetachable infringing cup holder."

The petition then goes on to give examples of multiple disgorgements of total profits. Two easy-to-understand examples:

"[A] boat manufacturer whose boat infringed separately owned windshield, rooftop and seat designs, or a shoemaker that infringed separately owned design patents for the sole, heel and lace. Even if the first such award were deemed to have exhausted all profits, and the second and third patent holders in the race to the courthouse could obtain only a reasonable royalty, the infringer would still have to pay more than its full profits. Congress could not have intended such absurd results."

Actually, I think the petition even understates the potential scope of the problem. There aren't just "thousands" of designs in modern high-tech products that could infringe a design patent. There could be tens or even hundreds of thousands. If you think of all the apps preinstalled on a smartphone, and consider that each icon or even a part of an icon, each screen or even part of a screen, could be covered by a design patent, then the possibilities--in a negative sense--are pretty limitless.

I'm going to talk about this cert process more in the weeks and months ahead. I believe Samsung will get a lot of support from amici curiae, presumably even more than it did in the Federal Circuit proceedings. Apple will also get some support but hardly any from other information and communications technology companies. Still, there will be letters by "friends of the court" to talk about.

For now, I just wanted to highlight a few more things that I found interesting in Samsung's petition (and that one might easily overlook):

• I agree with the warning that the Federal Circuit's ruling, if allowed to stand, would turn design patents into "a weapon to take profits from others, even where those profits are attributable to their own innovations that have nothing to do with the patentee's ornamental design."

• It's an interesting fact that the Federal Circuit threw out the trade dress-related part of the decision in Apple's favor because of the functional aspects of the relevant trade dress, but allowed the design patent part to stand, though there is hardly a difference between what both types of intellectual property rights were meant to cover in this case.

• While design patents and utility patents are different, the petition does make some interesting references to Bilski, a Supreme Court decision on patent-(in)eligible subject matter.

• Samsung's lawyers draw analogies to the limits imposed on the scope of, and the damages for infringing, other intellectual property rights such as trademarks and copyright.

• At first sight (and I'll think about this some more), Samsung's argument on disgorgement appears to put the definition of "article of manufacture" front and center, which was at the heart of CCIA's amicus brief mentioned further above.

• Circuit conflicts are not as key for patent-related cert petitions as for most other cases, given that the Federal Circuit is now the only circuit to hear U.S. patent appeals, but still, Samsung's lawyers cite some old decisions by various circuits that are, as far as I can see, rather different from the Federal Circuit's position on unapportioned disgorgement.

Finally, here's the a copy of the petition (as uploaded to Scribd by Re/code's Ina Fried):

Samsung vs Apple - Samsung's Appeal to the Supreme Court by inafried

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Why would a patent office be afraid of bloggers? Only if it has something to hide. Like the EPO.

Over the years I've learned not to take things personally, but there are situations when it's hard. I did take it personally when I faced a shitstorm in 2012 after a totally erroneous decision by a judge who still doesn't correctly state the law on the copyrightability of declaring API code. And this morning I saw something that is just absurd. I'm talking about the last bullet point in the following quote from the EPO's official allegations against Elizabeth Hardon, a staff union leader they're now trying to fire:

"(1) actively cooperated with the campaign conducted by C [suspended in-house judge] against the EPO, members of the Administrative Council, and individual EPO staff members.

Specifically, the evidence demonstrates that she:

• discussed with C the strategy for his campaign and provided instructions to him;

• provided C, on at least one occasion, with non-public contact details for all delegates of the Administrative Council, which C used to send anonymous defamatory email messages;

• was in personal contact with at least one blogger habitually attacking the EPO, Mr. FM of FOSS Patents, which resulted in the publication on FOSS Patents of attacks regarding alleged corruption of delegates of the Administrative Council;"

First, I don't disclose sources unless they wish to be disclosed. Also, I sometimes get messages from anonymous sources. Therefore, I can neither confirm nor deny any allegations of someone having been in contact with me, regardless of how truthful or untruthful an allegation is. As for "personal contact", I can generally say that no SUEPO (staff union) person has ever met me or even talked to me over the phone--I listened to some of their speeches at demonstrations in Munich, without approaching them. I only talked to two persons at an EPO demo. I asked one guy to let me take a picture of a banner, and I said hello to an EPO in-house judge I happen to know for a reason that has nothing to do with the labor dispute.

Second, I comment on the EPO situation from time to time (not even very frequently), but "habitually attacking the EPO" is really not the way I view it. On one major issue I even agreed with the president of the EPO (though an expert on suicides tends to agree with SUEPO).

Third, regardless of who my sources are, none of my sources even tried to persuade me to allege "corruption of delegates of the Administrative Council [of the European Patent Organization]." The closest thing to corruption--and "closest" is an overstatement--that I wrote about was that the EPO allegedly pays for the visits of its supervisors (especially those from relatively poor countries) to Munich doctors. I wrote about this because I heard it at a SUEPO demo. I remember that Mrs. Hardon was among the speakers, but I also remember with certainty that the thing about medical care was mentioned by a male speaker at a demonstration about a year ago. Apart from that, I merely mentioned that Administrative Council delegates often hope to become EPO president or vice president, and that this ambition appears to prevent at least some of them from doing their supervisory job right.

Actually, it's only after the above reference to "corruption" in an official EPO document that I start to wonder whether the EPO leadership's hypersensitivity may have a factual reason that I don't know about yet.

Getting back to the first point: even if one wanted to assume arguendo that Mrs. Hardon had communicated with me, there wouldn't be anything wrong about it. Managing Intellectual Property magazine put me on their list of the 50 most influential people in IP in five of the last ten years, and Canadian IP lawyers and blogger Barry Sookman once listed FOSS Patents among the top three patent law blogs in the world. SUEPO must have the right to communicate with someone like me, just like BMW or Allianz couldn't prevent their staff representatives from talking to the general press.

The EPO leadership is just paranoid about bloggers who criticize what's wrong with the way that organization is run. But those EPO folks don't appear to understand that they're only making things worse by the day. They threatened legal action on at least four occasions against TechRights author Dr. Roy Schestowitz, who is still the most prolific writer on the EPO labor dispute. Now they blame a staff representative for my commentary without a factual basis.

What do they have to fear? They must have something to hide.

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Samsung announces payment of $548 million to Apple but reserves right to seek reimbursement

Last month, the United States Court of Appeals for the Federal Circuit denied Samsung's petition for an en banc rehearing on the question of whether Apple could enforce payments involving (among other things) a patent--the '915 pinch-to-zoom API patent--that the USPTO has held invalid. The en banc petition looked like Samsung might further appeal this matter to the Supreme Court. But on Thursday afternoon local California time, Apple and Samsung filed a joint case management statement with the United States District Court for the Northern District of California, in which Samsung says it has "has made arrangements to complete payment to Apple." It is now waiting for Apple's original invoice, and if that payment arrives before the weekend by Korean time, it will send $548 million to Apple by December 14.

So, approximately four months before the fifth anniversary of its original complaint, Apple will physically receive money from Samsung. After years of not getting a cent, more than half a billion dollars is significant. But the case management statement (which for whatever reason I haven't been able to upload to Scribd) indicates that Samsung, while apparently not asking the Supreme Court to look at this right now, does not believe that the funds will necessarily stay on Apple's bank account forever:

"Samsung continues to reserve all rights to obtain reimbursement from Apple and/or payment by Apple of all amounts required to be paid as taxes. [...] Samsung further reserves all rights to reclaim or obtain reimbursement of any judgment amounts paid by Samsung to any entity in the event the partial judgment is reversed, modified, vacated or set aside on appeal or otherwise, including as a result of any proceedings before the USPTO addressing the patents at issue or as a result of any petition for writ of certiorari filed with the Supreme Court. Samsung notes that the Patent Trial and Appeal Board has issued a final decision of invalidity on the '915 Patent, and Apple filed a notice of appeal to the Federal Circuit in the USPTO last week."

Apple writes in its own part of the filing that it "disputes Samsung's asserted rights to reimbursement."

I tend to agree with the president of the Hispanic Leadership Fund, who wrote an op-ed for TheHill.com with the following title:

"Patent office sides with innovation, yet Apple double-downs on fool's gold patents"

The situation surrounding the '915 patent is not the only factor of uncertainty here for Apple. Samsung announced in the summer that it would file a petition for writ of certiorari (request for Supreme Court review) concerning design patent damages. If the top U.S. court agreed to hear that matter and agreed with what will likely be a broad industry coalition, there would have to be a retrial.

Lest I forget, one of Apple's iPhone design patents underlying the decision is also under serious pressure as the patent office feels it shouldn't have granted that one either.

So this will go on for some more time, especially since the filing also notes that a settlement conference took place on November 2, 2015 and "did not result in settlement."

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Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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Privateering: UK court holds Ericsson patent valid, essential to LTE in case against Huawei, Samsung

In March 2014, Unwired Planet sued several smartphone makers over various patents it had "acquired" from Ericsson. Actually, "acquired" misses the key commercial point here. In April I took a closer look at the related arrangements and couldn't help but conclude that this was just a pseudo-sale of patents and simply an act of what is commonly referred to as "privateering."

The first decision relating to Ericsson's (technically, Unwired Planet's) infringement claims came down yesterday in the England and Wales High Court. Judge Colin Birss held that EP2229744 on a "method and arrangement in a wireless communication network" is valid (and in the UK) and "infringed by wireless telecommunication networks which operate in accordance with the relevant LTE standard," or more specifically, "essential to standard 3GPP TS 36.322 release 8 version 8.8.0."

This decision came down against Huawei and Samsung's challenges to this patent. According to Bloomberg, "Samsung said it was confident it had not infringed Unwired Planet's patents." I don't know whether this means Samsung will appeal and/or whether Samsung will argue that its own implementations of the LTE standard don't make use of the technique covered by the patent in Judge Birss's opinion.

If the patent was ultimately deemed valid as well as infringed by Huawei and Samsung's LTE devices, there might be equitable defenses (relating to privateering) and there almost certainly would be a debate over what constitutes a FRAND royalty for that patent and possibly some other patents. Privateering and FRAND are the two issue heres that I'm going to be more interested in. Those two parts are intertwined, especially because Ericsson once made a promise not to demand more than a certain royalty rate for all of its LTE patents--a promise Ericsson may have circumvented by "selling" some patents to a privateer like Unwired Planet.

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Oracle v. Google: Judge Alsup, who reportedly taught himself Java, gets the law wrong again

Many people were impressed by Judge William H. Alsup's claim (according to media reports) that he had taught himself Java to better be able to judge the Oracle v. Google Android-Java case. After the Federal Circuit threw out his non-copyrightability decision as fundamentally wrong, many Judge Alsup admirers remained loyal to their hero and thought that the Federal Circuit judges just didn't understand the issues. I have said all along that the Federal Circuit showed a better understanding not only of the law but also of the underlying technical aspects than Judge Alsup. I can now show you a major error in the introductory part of a new decision by Judge Alsup that shows the Federal Circuit understood the API copyright issues at the intersection of law and technology far better than Judge Alsup.

What the Federal Circuit has decided is now law of the case, and Judge Alsup has just incorrectly described the law of the case. Here's what he wrote in a procedural order he handed down yesterday:

"The United States Court of Appeals for the Federal Circuit held that the remaining five percent infringed Oracle’s copyright in the structure, sequence, and organization of the Java Application Programming Interface, reversing a decision by this Court that had held the Java structure, sequence, and organization constituted a non-copyrightable 'method of operation' within the meaning of Section 102(b) of the Copyright Act."

Something that omits an important part in such a context is also an error. The above passage is, therefore, an incorrect summary of what the appeals court actually decided. The easiest way to see that Judge Alsup missed a key point here is to look up the "Conclusion" part at the very end of the Fed. Cir. opinion:

"For the foregoing reasons, we conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages at issue are entitled to copyright protection." (emphasis added)

There you have it. Judge Alsup refers exclusively to the structure, sequence and organization, when in reality the Federal Circuit determined that not only the SSO but also "the declaring code"--approximately 7,000 lines--was protected by copyright. That's important because the declaring code was copied literally, while you can't literally "copy" an SSO any more than you could eat a recipe.

This error regarding the law (of the case) should give the remaining die-hard Judge Alsup fans out there pause.

By the way, his focus on a percentage, when copyright law actually doesn't care about percentages if the heart of a protected work was taken and especially doesn't care about the percentage of stolen material relative to what it gets incorporated into, does nothing to dispel concerns about him being "hostile" to Oracle's case. I just quoted "hostile" from The Recorder's article on yesterday's decision.

For the context in which that statement was made, let me refer you to my previous postings on the related Oracle v. Google motion process (in reversely chronological order):

• Oracle apparently facing an unfair judge and a tainted expert in its copyright case against Google

  (please note my disclosure statement in there: I don't have any business relationship with Oracle, its partners, or its counsel as we speak; that's a thing of the past)

• Oracle to court: Samsung's offense was also Google's defense in Apple case, expert not neutral anymore

• Oracle moves to disqualify damages expert because Apple v. Samsung is practically Apple v. Google

Judge Alsup denied Oracle's motion to disqualify the court-appointed expert, Dr. Kearl. I disagree with that decision and I will talk about it some more on another occasion, but before I do so, I want to see (i) what the scope of the expert's testimony will be (a footnote says a tentative order on that question will come down shortly) and (ii) whether or not Oracle is going to live with this decision or fight it.

Finally, here's the order:

15-11-23 Order Denying Oracle Motion to Disqualify Dr. Kearl by Florian Mueller

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Oracle apparently facing an unfair judge and a tainted expert in its copyright case against Google

On Wednesday, a motion hearing was held in the San Francisco courthouse of the United States District Court for the Northern District of California to discuss Oracle's motion to disqualify the court-appointed damages expert, Dr. James Kearl, who since his original appointment in this case has effectively defended Google's interests in connection with an Apple v. Samsung case.

Having just read this Courthouse News report on the hearing, I can't help but conclude that Oracle's problem in this case is not limited to the damages expert. There appears to be a bigger problem: I've been watching the remand proceedings for a while and feel that Judge Alsup is not fair. Instead of recognizing that the only reason this case hasn't been resolved yet is a decision he made on (non-)copyrightability, which the Federal Circuit found completely wrong and the Supreme Court declined to reinstate, and now doing his best to ensure that justice finally be served, Courthouse News reports that Judge Alsup said the case would be delayed by at least 18 months, or possibly until 2019 or 2020, if he granted Oracle's motion. It's obvious that Google would love this delay to happen, and for Oracle it would be very bad.

He says that he'd only appoint a new damages expert if necessary but makes it sound like that will probably happen. That is rather different from how other big commercial cases are handled in the U.S., where court-appointed damages experts are few and far between.

It would only be human if Judge Alsup hated Oracle (I don't know if he does; just saying it would be understandable) for having defeated his non-copyrightability decision on appeal. He's been described as an ego-driven judge, and a journalist said in 2012 that he appeared to be the smartest person in the room (at the 2012 trial), which contrasts with the circuit judges' remarks at the December 2013 appellate hearing: they found him "confused" and incorrectly conflating copyrightability and "fair use" aspects. The written opinion was even tougher. It was totally damning for the district judge.

Years ago I had proactively disclosed a consulting relationship with Oracle. Let me state this very clearly: there is no such relationship at this time and I have no reason to assume that there would ever be one again. Not with Oracle, not with any Oracle partner, not with Oracle's counsel, neither directly nor indirectly. I'll be happy to see many people at Oracle and its law firms download my apps next year, but I doubt Oracle and its counsel will do a lot of in-app purchasing of boosters and exclusive game content :-) I wanted to clarify this so it won't look like I was criticizing the judge to do Oracle a favor or, worse, that Judge Alsup would attribute my independent opinion (I've never discussed the damages expert or the way Judge Alsup runs this show with anyone even close to Oracle) to a company I'm completely independent from.

I've had the same positions on API-related copyrights for more than ten years. Before and after fighting against Oracle's acquisition of Sun. Before and after helping Oracle in connection with standard-essential patents.

In the first quarter of 2012, about two years after fighting against Oracle, and still a while before doing any work for Oracle, I noted that "threatening with a delayed trial gives the judge leverage only against Oracle, but even if he has leverage of a certain kind, he should use it fairly" and said I was surprised that after Google had delayed the case through a meritless mandamus petition, he faced Oracle with the choice of either leaving a key piece of evidence out of the case or the case being delayed. That was not balanced. Still in the first quarter of 2012, I wrote that Judge Alsup "can't force Oracle to withdraw anything, but he can delay resolution of the case, and that gives him enormous leverage." Unlike Judge Koh in the same district, who allowed both Apple and Samsung to reassert withdrawn patents in a separate case (they haven't made use of that option so far and maybe never will, but they could do so), and who even wants to let Apple enforce a patent that has been held invalid at a far later stage of proceeding, Judge Alsup required Oracle to drop patents with prejudice just because of rather early and not too meaningful USPTO findings. Actually, even during the earliest phase of the trial, one withdrawn patent was suddenly affirmed despite a prior "rejection" but Judge Alsup barred Oracle from asserting it again. Another withdrawn patent was revived on appeal this March. So much for justice and fairness in connection with reexamined patents.

After the appellate proceedings, I hoped and even thought that he would, despite his reportedly ego-driven way of running the show, try hard to be fair. I already had some doubts, but only voiced them cautiously between the lines, when he allowed (tentatively so far) Google to present its equitable defenses at the retrial, though this could greatly confuse the jury with respect to the (actually distinct) "fair use" factors, but did not want Oracle to bring up its willfull-infringement arguments (which are extraordinarily strong here and I will publish some of the evidence that is already in the public domain when the trial begins) in a first phase of the trial because he thought this time could be saved in case Oracle doesn't prevail on the merits: Oracle should only argue willfulness after prevailing on the merits, i.e., at the remedies stage.

Admittedly, if Google prevailed on an equitable defense, that would be dispositive. It's just very unlikely. There's a strong basis for saying Google actually lost on those defenses at the first trial and didn't preserve them on appeal. Anyway, it's true that willfulness is a remedies-related matter. But why would a judge who ran the 2012 trial in a very uneconomic way (letting a jury consider "fair use" even before he handed down his flawed non-copyrightability ruling) now all of a sudden be concerned about a limited amount of willfulness argument in the early phase of the trial? The simplest explanation would be because he might love to see Google defend itself on the merits, so if the jury gets confused by Google, that's fine, but if the willfulness arguments Oracle could present would psychologically influence the jury with respect to "fair use," then that must be avoided. I'm not saying I know what's going on in his mind, but the freedom of speech also extends to speculation about potential reasons.

I'll try to find that story again but I remember once having read something about Judge Alsup having written a letter to an appeals court to disagree with an appellant (he felt he needed to correct some misrepresentations) and to defend his ruling. I'm not aware of any other district judge ever having done that anywhere in the world. Apparently he cares a great deal about what happens to his decisions on appeal, and the highest-profile decision he made, at least in an IT/IP context, was the non-copyrightability finding that turned out to have been wrong on each point. But that wasn't Oracle's fault. Oracle's counsel tried hard to educate Judge Alsup about the way U.S. software copyright law works. If he had agreed with Oracle, the Federal Circuit would have affirmed his decision.

Since the beginning of 2012, this judge has not been fair in my opinion. He's also been completely wrong on a key issue, which is not just my opinion but also that of the Federal Circuit judges, who wield a far bigger stick every day than he ever has. He called Oracle v. Google the World Series of IP cases. The Northern District of California is a major IP litigation venue, but the World Series of IP finals take place in Washington, DC. Unlike in baseball, however, the local venue can delay things a lot. I hope Oracle will not back down because that would be a bad precedent for everyone who believes courts should be fair, experts should be neutral, and judges should be fair in light of the fact that "justice delayed is justice denied" almost always affects only the plaintiff.

I will continue to follow this case, and I won't mince words if I find more signs of unfairness. In my totally independent role, in which I can testify under oath that there is no relationship with Oracle, I can do so without having to fear that someone else would be penalized for what I say.

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Federal Circuit denies Samsung petition for rehearing in Apple case: next stop Supreme Court?

What's an invalid patent worth? As I noted at the end of my previous post on Samsung's appeal against a partial final judgment that would allow Apple to collect half a billion dollars over a set of patents including one the United States Patent of Trademark Office has held invalid, it should be worth nothing at all; actually, it should even have a negative value (an invalid patent is a non-material form of pollution). It appears, based on litigation results, that most patents in this industry are not valid in the form in which they were originally granted. Patent(ee)-friendly judges have a problem with that fact.

The United States Court of Appeals for the Federal Circuit is markedly patent(ee)-friendly, and it has just denied Samsung's request for a full-court review of a summary decision against Samsung's appeal of that partial final judgment. The document doesn't state any reasons:

15-11-19 CAFC Denial of Samsung v. Apple en Banc Petition by Florian Mueller

With the mandate scheduled to issue on November 30, I guess Samsung will have to make it clear pretty soon whether it will appeal further (i.e., to the Supreme Court). Its petition for a rehearing already looked very much like a petition for writ of certiorari. A cert petition appears more likely than not, and it will be very interesting to see which other companies support Samsung's position that a patent that has been held invalid not only by the Central Reexamination Division of the USPTO but also by a PTAB (in-house court) must not be enforceable at that advanced stage of the reexamination proceedings.

One could even ask the question of who will support Samsung on this one the other way round: who except for non-producing entities and companies with a stronger interest in patent monetization (in general or in certain markets) than in making products would seriously want to give any leverage to holders of invalid patents?

Long-term I don't even believe that Apple really wants this. It just wants it now, more than four-and-a-half years after bringing its first patent infringement lawsuit against Samsung.

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FRAND flurry: two new initiatives promote fair licensing of standard-essential patents, Qualcomm in trouble

FRAND-pledged standard-essential patents (SEPs) were a major topic (actually, the #1 topic) on this blog a few years ago. Then my focus shifted, but my positions on this issue did not. I'm following with great interest Apple's efforts not to bow to Ericsson's notoriously-aggressive SEP royalty demands and pleased to see that two new industry initatives relating to FRAND were launched this week:

1. ACT | The App Association has announced a new web resource for innovators, policy-makers, and academics. It's called All Things FRAND and supported by significant players including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but also quite active abroad.

2. The new FairStandards Alliance is based in Brussels, the de facto EU capital. Its website says: "We are friends of FRAND"

   The FairStandards Alliance is off to a pretty good start with this position paper and support from an interesting mix of IT (Cisco, Dell, HP, Intel, Juniper), mobile/IoT (Fairphone, India's Micromax, Lenovo, Sierra Wireless, Telit) and--this is particularly interesting but not surprising to me given that cars are increasingly "smartphones on wheels"--automotive companies (BMW, Volkswagen).

Both these initiatives are interested in various FRAND-related issues. The FairStandards alliance is particularly clear in its support of a proper royalty base. That question (on which Apple has been vocal in court and in standard-setting organizations) also appears to be key to findings of South Korea's Fair Trade Commission in an investigation of Qualcomm's licensing practices, including its device-based pricing strategy. I agree with analysts who view this as spelling trouble for Qualcomm. South Korea's FTC may very well get support, in political terms, from the two new FRAND initatives launched this week.

In the past, Qualcomm got away pretty much unscathed, at least in the EU. Even its Chinese settlements appears not to have caused similar worries in the investment community. South Korean antitrust enforcers are apparently taking the lead now with respect to this particular SEP holder, and I applaud them for their courage and steadfastness.

It would be great if Apple (which has always been on the good side of FRAND) and Google (which appears to be on the good side by now) could also lend support to one or more initatives of this kind. Google and Cisco have often agreed on patent policy matters. Why not on this one?

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EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

• Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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Hypocritical Red Hat hopes to leverage patents to cement its Linux market leadership: Microsoft deal

This commentary on the Microsoft-Red Hat partnership is a back-to-the-roots post for me. This blog started as a Free and Open Source Software Patents blog--hence the FOSS Patents name-- and only because of all the (ultimately not too meritorious, let alone impactful) patent attacks on Android, it effectively became a smartphone patent wars blog (but by then it was too late to rename it without losing traffic).

While I don't mean to endorse everything Dr. Roy Schestowitz has written about Microsoft on his TechRights blog (and certainly not everything he's ever written about me), I agree with him that media reports on the Microsoft-Red Hat deal could have dug deeper, especially into the patent aspects of that deal. I furthermore agree that Red Hat is apparently happy about making it easier for Microsoft to impose a patent tax on Linux and that Red Hat has simply sold out FOSS values. According to TechRights, Red Hat executives tried to dissuade Dr. Schestowitz from his vocal criticism of the deal, but failed.

I've been saying for years that Red Hat is utterly hypocritical when it comes to patents. It has a history of feeding patent trolls and fooling the open source community. There is, to put it mildly, no assurance that all of its related dealings actually comply with the GPL.

Sometimes I like the positions Red Hat takes in its amicus curiae briefs on patent issues, but more than once I got the impression that those filings were written primarily in an effort to create the appearance of defending the FOSS cause in this context. It was just window dressing.

The fact of the matter is that Red Hat seeks to be a major beneficiary of the software patents mess.

Red Hat is large enough by now that it can just make the trolls go away by paying them off, giving them funds and legitimacy to go after other companies, including other open source companies.

Red Hat has also accumulated a certain amount of patents over the years, which puts it into a better position than individual open source developers and smaller companies in this space to retaliate in the event of a strategic attack by a competitor.

Red Hat now wants to tell Linux users that the way to be protected with respect to patents is to use Red Hat Linux. "Reduce your exposure, buy from us." That is a way of seeking to benefit from software patents.

All of this is no surprise when considering that Red Hat has always just been about taking advantage of something. In terms of its product and licensing policies, Apple may be the very opposite of a "free software" company (no matter what it may do with respect to its Swift programming language). But you have to grant them one thing: they're not fooling anybody about their philosophy. They never even tried. They don't "openwash" anything. They don't pretend to be a charity. They want to make money, more than any company before them. But one could not create products more independently and single-handedly than Apple. And all by themselves they have brought about a revolution that the likes of Nokia and Microsoft would never have created.

By contrast, Red Hat's business model is parasitic (though some like to euphemistically describe it as symbiotic). While Red Hat has been a major contributor to Linux, Red Hat became what it is not because of what it did but because of what Linus Torvalds and others had done. And Red Hat is not nearly as honest as Apple. "Not nearly" may even be an understatement.

The question of whether covenants not to sue over patents (which appears to be the structure of the Microsoft-Red Hat deal and would be consistent with a Microsoft Android patent agreement that was filed publicly last year) violate the GPL v2 has not been addressed by a court of law yet. I would actually like to see someone sue Red Hat for breach of the GPL and obtain clarification, but even the Free Software Foundation and its satellite organizations are not as principled as they pretend to be. They never compromise their values per se, but they have their strategic priorities when it comes to where and how forcefully to defend them. It will be interesting to see their reaction to the Microsoft-Red Hat announcement--not in terms of what they say but in terms of what, if anything, they will do. I guess they won't do anything. Why? Red Hat is a donor, Red Hat is a code contributor, the deal offers benefits for "GNU/Linux" as they call it...

I want to give Simon Phipps (with whom I've often disagreed) credit for distinguishing between the positive and not so positive ramifications of this partnership from an open source point of view. The Open Source Initiative is an organization on whose board Simon Phipps serves with, among others, a Red Hat lawyer.

Without the Red Hat connection, Simon Phipps would presumably have criticized Red Hat clearly as opposed to just making it sound like Microsoft should do more. He says Microsoft should relinquish its patent rights because that's how he defines "love" for Linux. However, he doesn't talk about what Red Hat could have done. Red Hat could have challenged any Microsoft patents that allegedly infringe Linux: in court (declaratory judgment actions) and through reexamination requests. That course of action would have done free and open source software a greater service than a deal.

I, too, have a (past) Red Hat connection, but it's none that I would be proud of. Over the decades I've done work for a variety of companies, and Red Hat is the only one I wish I had never worked with. They supported my NoSoftwarePatents campaign in late 2004 and early 2005, probably because they just thought a sponsorship was useful for currying favor with the FOSS community. They were far larger than MySQL AB but contributed a far smaller amount. In terms of commitment relative to company size, MySQL AB was like 100 times more committed to the cause. But the worst part was that shortly before the European Parliament's decisive vote on a software patentability bill, Red Hat tried to keep the legislative proposal alive. The Red Hat lawyer who did so later responded to that, and he never denied the simple truth that he wanted the legislative process to continue.

On this blog I announced, years ago, working relationships with Microsoft and Oracle. Both are a thing of the past. But I would never say that I wasn't proud of them.

The Microsoft I worked with as a consultant was not the Microsoft under Bill Gates that made artificial scarcity of software a strategic objective and got into serious antitrust troubles. I found Microsoft to be no better or worse than the vast majority of companies in this industry. I overestimated the merit of their allegation that Android infringed on many of their patents, but I corrected that assessment more than a year ago based on the results of numerous Android-related patent lawsuits and, after a second-class settlement between Microsoft and Google/Motorola, declared Google the strategic winner. The number one priority of my work for Microsoft was about giving FRAND meaning, a cause I continue to promote (see today's post on Apple v. Ericsson). In that regard, Microsoft was the victim of abusive tactics by Motorola. Sure, that was just Motorola's retaliation for Microsoft's patent assertions against Android, but two wrongs don't make a right (as Microsoft accurately said in the FRAND context).

Oracle has been a longstanding advocate of reasonableness with respect to standard-essential patents, and of open (and ideally free-of-charge) standards. I'm happy to have helped them in that regard, too. As for their Google copyright lawsuit, everyone can see on this blog that I've always taken the same pro-interface-copyright positions. I took them before (going back to a conference in the European Parliament in 2004) and after working against Oracle's acquisition of Sun Microsystems, and before and after doing work for Oracle. I view Google's position on API copyrights as a wholesale attack on the copyright protection of all computer software. Google doesn't call for the abolition of software copyright, but there appears to be no limit to the collateral damage it's willing to inflict to software copyright only to avoid paying Oracle for using Java in Android.

I am now in the most independent position to comment on IP, antitrust and industry policy issues ever. I'll continue to be consistent, just like I'll continue to draw the necessary conclusions from new intelligence (as I did when all those anti-Android patent assertions turned out to have no merit in most cases and negligible merit in the remaining cases). That's why I can just say what I think about the Microsoft-Red Hat deal. I think it's great for Azure, and I like Azure, though my app development company is using it only to a small extent and will use a different cloud service provider for most purposes. The free and open source software community should, however, be opposed to this and shouldn't trust Red Hat with respect to patents. They weren't trustworthy with respect to the European legislative process on software patents; they weren't trustworthy with respect to various settlements with patent trolls; and they aren't trustworthy now in connection with what appears to be a covenant not to sue, which is a license by any other name, with Microsoft, when the alternative would have been to bring a declaratory judgment action that says "Linux does not infringe a single valid Microsoft patent claim and we're now going to prove it."

It's one thing to be a Linux parasite. It's another to be a Trojan horse. And the worst option is to be both at the same time.

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