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Re: Patent Sellout (Novell) and Patent Megatroll (LANCOR)

____/ Rex Ballard on Wednesday 02 January 2008 09:50 : \____

> On Jan 1, 11:06 pm, Roy Schestowitz <newsgro...@xxxxxxxxxxxxxxx>
> wrote:
>> Microsoft paid Novell $355.6 million in 2007 - Who's Novell's daddy?
>> ,----[ Quote ]
>> | With all due respect to Novell, I'm not sure scavenging in my top
>> | competitor's pockets for lunch money is something to crow about.
>> | Interoperability is great. Being a vassal to Microsoft is not. (The word
>> | is appropriate, Novell - look it up.)
> 
> One of the problems here is that we really don't know the true nature
> of the agreements between Microsoft and the other vendors.  We do know
> that Microsoft paid a LOT of money to Novell, Red Hat, and other major
> commercial Linux vendors.


Microsoft paid Red Hat? When? As far as I know, it's Microsoft that wants Red
Hat to pay /them/ for codecs in Global Desktop.

About Novell's deal, a lot is known after they filed documents with the SEC
(the last one being 100+-page long). It's very clear to see that Novell f* up
big time and sold some other people's blood for money. The Easter filing
revealed a lot of stuff that ought to annoy many developers. Other filings
make it clear that Microsoft /BOUGHT/ OOXML support from Novell. In turn, it's
reasonable to assume that Novell brought the OOXML 'disease' to projects like
GNOME. As I said a moment ago, Novell f* up big time.

Even IBM's VP of standards is already trying to escape Mono based on what I've
seen. IBM is starting to realise what is going on and it's ironic because
IBM /helped/ Novell acquire SUSE (avoiding alienation in case Big Blue also
becomes Big Linux Vendor, not to mention competing with AIX and other
proprietary offers).


> We know that most of those Linux vendors 
> had huge patent portfolios of their own, mostly defensive patents.  We
> know that all of these vendors were supporting the Open Patent
> project, which was working to nullify existing patents that were
> previously granted, and to challenge patent applications where the
> applications are public.
> 
> We know that Microsoft **claimed** that there Linux violated over 100
> Microsoft patents, but Microsoft has not disclosed which of these 100
> patentst Microsoft think Linux is using.


It's argued that Microsoft is bluffing. It may have never counted anything.
It's a long story.


> What has been said by both sides is that Microsoft and these other
> Linux distributors have agreed not to harass each other's customers.
> It seems that Microsoft may have been more concerned about possible
> violations of Linux intellectual property rights, than they were about
> Linux violations of Microsoft intellectual property rights.  It's even
> possible that Microsoft has since discovered that a substantial number
> of these "patent violations" are actually "patent nullifications"
> where Linux or OSS had published prior art which was not mentioned in
> the Microsoft patent application (a fraudulent application).  Since
> the Linux implementations and claims were widely published, and the
> Microsoft implementations were carefully protected by nondisclosure
> agreements, Microsoft would have to prove that someone who was
> authorized to access the code gave that code to someone else without
> Microsoft's permission, and that person knowingly published the
> Microsoft code and falsely claimed that it was his own original work.
> 
> On the flip side, Microsoft would have to prove that their employee
> was the true originator and inventor of the code in question, and that
> that person had never accessed the published open source code.
> Remember, in a civil suit, the judgement is usually based on the
> preponderance of the evidence, and since the Linux code was published
> and open, Microsoft's employees have a better chance of being exposed
> to the Linux code, than the Linux publisher has of accessing the
> proprietary Microsoft code.  In the case of a "wash", the Judge has to
> rule that both developers were able to intuitively derive similar or
> identical code, which means that the patent has to be nullified.
> 
> Microsoft has much more to lose, since they have hundreds, perhaps
> even thousands of patents, and many of those patents could be
> nullified or worse.

You're too optimistic. Microsoft is a patent troll, a 'patent bully', and what
Sun called a 'patent terrorist'. This wasn't a defencive move from Microsoft.

> The Linux vendors could probably win a court battle, but such battles
> are often lengthy, expensive, and may involve injunctions while the
> intellectual property rights are being sorted out.

That's just what Microsoft wants. Uncertainty, battles... just like with the
OLPC... can you not foresee Ballmer and the Microsoft gang approaching the
ministers as they did in Thailand and then intimidating them out of their
intentions and commitments to buy OLPCs?

>> | How can Microsoft removing Novell from effective Linux competition
>> | possibly be good for the market, or for Novell, long term? I understand
>> | that it's a lot of money, and that's great.
> 
> I must admit, Novell has already pulled some bone-head moves.  I
> remember getting an incredible e-mail from a board member at Novell,
> who told about how Microsoft's top people came to Novell and met with
> the board while Ray Noorda was in China.  They told the board that
> they would stop work on a Windows NT server if Novell would cancel
> work on a UnixWare workstation.  They were given only a few hours to
> make the decision, and if they didn't sign the contract, Microsoft
> would announce their server almost immediately.   Noorda could not be
> reached (it was about 3 AM in China), and the board decide to take the
> deal.  When Noorda found out about it, he was furious.  He eventually
> "gave away" Unix, sold unlimited distribution rights to SCO, and
> formed the Canopy Group, which was an incubator that provided the
> funding for Caldera and TrollTech (KDE).   Caldera eventually grew so
> large that they became a major vendor of cash register systems,
> especially in major franchises such as Pizza Hut, Burger King, Taco
> Bell, and even McDonalds.

What would Noorda say if he saw this deal with Microsoft? Do you know what he
would say?

> Many of these customers were former SCO customers and to staff the
> support team, Ransom Love purchased the SCO support organization.  The
> problem was that SCO was tightly held by several enemies of Microsoft,
> and Microsoft.  When Caldera purchased the SCO organization, it
> involved a stock swap, and Caldera had too many outstanding shares of
> stock.  Microsoft was able to stage a proxy fight and gain control of
> the company.  Their proxy agent fired Ransom Love and hired Daryl
> McBride, who agreed to a $30,000 annual salary, and about 1 million
> shares of SCO stock options at 75 cents per share.

Let's hope he held on to these stocks all this time. Maybe he'll have some
pennies left for the arcades in Utah. They're all bad company.

>> | In fact, I would assume that nearly every
>> | penny of Novell's profit in 2007 came from Microsoft's wallet.
> 
> Novell has been having to try and balance the losses for a diminishing
> Netware market while they grow and cultivate the Linux market and
> revenue stream.  Novell has also been very aggressively courting HP,
> Dell, and Lenovo, and is probably working with Acer.  Novell could sue
> these OEMs for Clayton Act violations if they have signed agreements
> that force them to exclude SUSE Linux from the market place as a
> result of exclusionary license terms.  In addition, if Novell wants to
> make a stink, they could probably be very effective at getting the DOJ
> order extended.

After Novsepian's claim (back in 2006) that Microsoft resorted to illegal
threatening of OEMs who pondered preinstalling SLED 9, Mr. Hovsepian ought to
have taken the legal route. Sure, Microsoft would resort to bribing some more
people like it always does (backing references upon demand... and yes, I do
dare to say "bribery"), but at the end we'll at least know the truth. Instead,
Novell choose to become friends with the very devil that use illegal tactics
against it even in 2006.

>> | But this isn't a recipe for success. Microsoft does not have Linux's best
>> | interests at heart.
> 
> Worse than that, Microsoft doesn't have Novell's best interest at
> heart.  Given any chance to do so, Microsoft would love nothing better
> than to drive Novell into bankruptcy.  The problem is that Novell has
> one of the most successful commercial Linux distributions, a strong
> and loyal customer base, and access to a market that is growing at
> exponential rates.
> 
> Novell could make life very unpleasant for Microsoft, but Novell isn't
> stupid either.  They know that Microsoft was more worried about it's
> own interests than Novells.  Microsoft has much more to lose in a
> conflict or confrontation with Novell.  Look at how Novell took the
> sails out of the SCO litigations.  Novell was able to prove that they
> had NOT sold all copyrights for UNIX to SCO.  They sold SCO unlimited
> distribution rights, but they retained ownership of the intellectual
> property rights.

Do remember that Novell is changing. A lot of the most talented staff has
already left the building and others are sending their resumes at a rapid pace
(based on reports, even from Asay). There are many layoffs coming, so Novell
might soon lose that "dominant desktop Linux player" status it once gained.

>> The minute Novell becomes more of a threat to Microsoft
>> | than Red Hat is, Novell will be shunted aside. In the meantime, Microsoft
>> | is Novell's sugar daddy, making Novell a mere vassal to Microsoft.
> 
> Keep in mind that Microsoft has cut deals with Novell, Red Hat,
> Linspire, and several other Linux distributors, especially those who
> have made overtures to major PC OEMs.

Red Hat? Maybe I'm missing something (see question at the top as well).

> Microsoft has lots to lose.  If Novell or any of the other major Linux
> distributors go to court on behalf of the states that want to extend
> the court oversight, it could trigger another 5 years of court
> monitoring and compliance control, and most of that will be under a
> new president who might not have been "bought and paid for" by
> Microsoft.
> 
> Microsoft could have many of it's patents nullified if it attempts to
> enforce patents against Linux, and there are numerous OSS patents and
> OSS related patents which could be used against Microsoft and it's
> newest applications.


That's not Microsoft's concern though. That's like saying.... I dunno... that
cancer is good for you because it battles appetite and makes you slimmer.
Microsoft's intent was /NOT/ to defend its portfolio. It's barely even a
side-effect.


>> http://blogs.cnet.com/8301-13505_1-9838466-16.html?part=rss&tag=feed&;...
>>
>> News about LANCOR v. OLPC
>>
>> ,----[ Quote ]
>> | I know. You thought I was goofing off partying and drinking in the new
>> | year. Not really. I was reading some cynical documents just filed in the
>> | LANCOR v. OLPC litigation. Yes, it's begun in a Nigerian court. LANCOR has
>> | actually done it. Heaven only knows it makes me want to drink. Guess what
>> | the Nigerian keyboard makers want from the One Laptop Per Child charitable
>> | organization trying to make the world a better place?
> 
> I'm not sure what Nigerian patent law is like.  The OLPC keyboard is
> hardly unique.  It uses classic Linux keyboard drivers, and uses a
> child-sized version of a common "flexible" keyboard.  Even the keys
> themselves are not unique.


Exactly. A lawsuit can nonetheless generate FUD. When SCO started with the
lawsuits, nobody in the Linux community believed it, but the court spent
almost 5 years on the case. And then there's Acacia...


>> | $20 million dollars.
> 
> Patent claims often start with ridiculously high initial amounts, but
> even if the patent is declared valid, the value of a patent is often
> determined by a judge and/or a Jury.  Microsoft has lost some serious
> judgments in jury trials, but this may be because Microsoft isn't that
> popular as a company, and lots of people perceive Microsoft as Bill
> Gates and his Billions, and figure a $300 million judgement is "taxi
> fare" for Gates.  Juries tend to be more sympathetic to other
> defendents, and very often, when someone puts a few hundred lines of
> code in the context of 2 billion lines of code included in a Linux
> distribution, the value of the software in question can often be
> substantially diminished.  There is even the possibility that a
> Nigerian judge or Jury could limit the award to just a few hundred
> dollars.


Award for what? This ought to be dismissed before it even starts in a sane
world.


> The problem with the whole patent law process is that there are so
> many unscrupulous hackers who are "inventing" OSS software and having
> an ambulance chaser lawyer file fraudulent poor-quality applications
> which don't even attempt to disclose related prior art.  Then the
> ambulance chaser tries to file a hue lawsuit and hopes for a "quick
> and dirty settlement", often for as little as a penny on the dollar,
> just to avoid the costs of litigation and injunctions.
> 
> Of course, if the patent quality is poor, and it's easy to prove prior
> art existed, then thinks can quickly get ugly, and the Judge can not
> only dismiss the lawsuit, but he can also nullify the patent, and can
> even award damages to the defendant, along with legal fees and court
> expenses.  Unfortunately, most of these ambulance chasers are
> representing hackers with no tangible assets, which makes it real easy
> to work for contingency, and nearly impossible to collect anything
> from the plaintiff.  At most, the defendent could collect 10% of the
> plaintiff's income.
> 
>> | I kid you not. $20 million dollars in "damages".
> 
> Let's see, the OLPC goes for about $100 each.  The code for the box,
> as shipped, is about 1 billion lines, and the keyboard table is only
> about 500 bytes.  That would mean that the code is worth about 5 cents
> per 1000 machines.  If they sell 100 million machines, that might be
> $5,000 in a legitimate settlement. 

Yes, but don't miss the point that they generate this type of FUD to /suppress/
mass production.

> To get triple damages, they would 
> have to prove that the OLPC developers knowingly stole the patented
> code, and used it even though they knew that it was patented, and had
> been told that it was patented prior to it's implementation.
> 
> In United States courts (and most other courts), the decision is based
> on a preponderance of the evidence.  There is a burdon to not only
> prove that you filed for a patent, and were granted that patent, but
> also that your patent was not based on prior art, and that the
> patented invention could not have been intuitively derived by someone
> knowledgable in the technology of the invention.
> 
> Often, a plaintiff will demand a Jury trial, hoping for a favorable
> "home town jury".  Often the bulk of the case will be argued in
> preliminary hearings, with the defendant asking for as many
> preliminary rulings as possible, dismissal of claims, suppression of
> evidence, and preliminary limitations on scope.  Often critical facts
> are uncontested, but many of the claims can be challenged.  In
> addition, the defendent can file requests for disclosures, requiring
> that all of the plaintiffs information related to the case be
> provided, often to see if there is ANY merit to the case at all.  Even
> if it turns out that there is some merit to the claim, the defendant
> can argue that the amount being demanded in the lawsuit is
> unjustified.  The defendant will often provide a very good and solid
> argument for an amount that reflects a proportion of the price being
> charged for the product.

This lawsuit mainly seems like a charade and an exhibit to serve someone's FUD
arsenal.

> The plaintiff will usually counter by arguing for a price it has
> collected from someone else. He might have sold 5 copies to a buddy
> for $200 each, just to provide justification of a claim of $200 per
> machine, but that doesn't necessarily mean that the Judge will decide
> that this is actually a reasonable value for the invention.  In the
> SCO case, SCO tried to claim that because they had gotten major
> franchises to pay $700 per copy for even workstations and unit
> servers, that SCO was entitled to $700 per copy for each copy of Linux
> sold.  The problem was that Linux was actually priced reasonably, and
> the SCO price was actually less than $50 per employee/user, because
> SCO was selling 1 server and simple terminals which were "used" by the
> entire crew, over 3 shifts.  Linux distributors, who sell millions of
> copies of Linux (actually support contracts), know what they have to
> charge to be competitive, what they have to include to offer a
> competitive product, and know what the actual value "per line"
> actually was.
> 
> Of course, if you are in a jurisdiction where the judge is the
> plaintiff's brother-in-law, or otherwise has a conflict of interest,
> but the local laws don't permit the defendant to request a change of
> venue, things can get more ugly.
> 
>> http://www.groklaw.net/article.php?story=20071226210020415
> 
> The problem is that this is a whiplash ambulance chaser who is getting
> funded by some deep pockets.  It looks like they are trying very hard
> to turn this into a war of attrition.   Remember that $20 million in
> Nigeria is worth substantially more - it's roughly the equivalent of
> $2 billion in the U.S.A. economy.

Well, Microsoft dropped some very big bribe there recently ($400,000 IIRC).
They showed that they are willing to resort to /anything/ in the battle
against GNU/Linux.

> Perhaps this is one of the reasons why the defendant often does NOT
> request dismissal of all charges.  They often don't request summary
> judgments against claims that they can prove are fraudulent.  This
> allows the defendant to hunt for deeper pockets.  Often, the plaintiff
> is required to relinquish lots of funding related information,
> including secondary sources of funding, any special infusions of cash
> intended to "sponsor" the litigation, and any other resources or
> assets that may be available in the event that the Judge rules the
> suit to be fraudulent.

-- 
                ~~ Best of wishes

Maths applied to numbers is like logic applied to statistics. Statistics are
lies.
http://Schestowitz.com  |  GNU is Not UNIX  |     PGP-Key: 0x74572E8E
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