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12.15.08

How Software Patents Impede Standards and GNU/Linux Development

Posted in Asia, Free/Libre Software, GNU/Linux, Kernel, Microsoft, Patents, Red Hat, Standard, Virtualisation at 8:17 pm by Dr. Roy Schestowitz

ISO in moneyLatest evidence from the news

THERE IS NOTHING MORE compelling than fresh examples which demonstrate the severity of the issues, so here are some reports and opinions that emerged this morning.

Patents Can’t Mix with Standards

In a free society, standards and patents mix as well as water and sand. They just don’t. We stressed this point last week and one new discussion from India re-highlights the threat of software patents to many different aspects of life.

Report on Free Software Free Society, 2008.

[...]

But this revolution is being threatened by monopolists who wish to control the generation and dissemination of knowledge. Venkatesh Hariharan, Eben, Mishi and Marco gave presentations on the current state of that stupid idea called software patents.

Glyn Moody says more on the same subject, with emphasis on so-called standards (which only the wealthy are permitted to support and comply with).

For if anything other than royalty-free terms are adopted, open source is effectively locked out – something that Microsoft knows full well, which is why it has pushed for “Reasonable and non-discriminatory licensing” (RAND). At first sight, this appears fair enough – after all, if it is non-discriminatory, what’s not to like?

But the point is that it is not possible for free software programs to support even nominal licensing fees, since the unlimited, unchecked distribution of code makes it impossible to monitor how much should be paid.

We wrote about this subject many times before [1, 2, 3, 4, 5, 6] and Rambus is a good example of the problems involved [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17]. Andy Updegrove, who is personally involved with that case, has got some new things to say about it.

This has made its stockholders particularly partisan, as its stock has risen and fallen in synchrony with its fortunes in court, and its detractors particularly irate, because they view Rambus not only as a patent troll, but also as one that has gamed the standards development process during the creation of a universally adopted SDRAM memory standard. Hundreds of millions, and perhaps billions, of dollars of royalties are at stake.

Software Patents Can’t Mix with Freedom

Apple’s software patents definitely harm GNU/Linux [1, 2] and it turns out that a GPL violator known as VMware is doing the same thing. This might not be deliberate, but it’s having the same effect. Despite the fact that VMware is a fairly new member of the Linux Foundation, this offers no peace of mind. VMware is now led by a Microsoft lackey [1, 2, 3, 4, 5, 6], who fought Microsoft’s rivals in all sort of nasty ways.

Here is the seminal analysis of the latest problem, which has just become visible to non-subscribers of LWN.

On the kernel page a few weeks ago, we took a look at KSM, a technique to reduce memory usage by sharing identical pages. Currently proposed for inclusion in the mainline kernel, KSM implements a potentially useful—but not particularly new—mechanism. Unfortunately, before it can be examined on its technical merits, it may run afoul of what is essentially a political problem: software patents.

Heise gives the shorter and simpler version of this story.

A report from LWN.net suggests that there may be a patent problem with KSM, a memory management technology that is a candidate for inclusion in a future version of Linux. KSM attempts to extend the idea of sharing memory pages between processes from just managing shared libraries, to any identical memory pages, such as running multiple copies of the same program, or virtualised guest operating systems.

The threat affects KVM, which is now owned by Red Hat, the largest contributor to Linux. Quoting from the above, “The folks behind the KSM project are some of the kvm hackers from Qumranet—which is now part of Red Hat.”

Well, Red Hat has already expressed its support for the Linux Defender project, which it also helps fund. From Red Hat Magazine:

“The idea is to create a defensive patent shield or no-fly zone around Linux,” says Keith Bergelt, the chief executive officer of Open Invention Network, the consortium launching the site. The core members of that group, formed in 2005, are IBM, NEC, Novell NOVL, Philips, Red Hat RHT and Sony.

We previously wrote about this initiative in [1, 2, 3, 4]. More could be done to topple the broken system rather than abide by and obey its rules.

“Fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.”

Richard Stallman

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16 Comments

  1. Rolv Heggenhougen said,

    December 16, 2008 at 3:49 am

    Gravatar

    You refer to Rambus as a patent troll and I would like to see the evidence behind that statement as it contradicts the FTC ALJ, CAFC and NDCA.

  2. Roy Schestowitz said,

    December 16, 2008 at 3:53 am

    Gravatar

    Andy said that it’s viewed by some as a troll. He did not call it a troll and neither did I.

  3. Rolv Heggenhougen said,

    December 16, 2008 at 4:00 am

    Gravatar

    I clearly understand Andy to believe Rambus is a patent troll after reading his blog yesterday. What is lacking is any evidence, as a a matter of fact the overwhelming evidence is to the contrary so one wonders about the motivation behind such statements. I am all for a healthy discussion but maybe we should add full disclosure rules for the debaters? I am an investor in Rambus.

  4. Roy Schestowitz said,

    December 16, 2008 at 4:03 am

    Gravatar

    Andy has fought Rambus for ll that I know. Hts bitterness might be the cause here.

  5. Rolv Heggenhougen said,

    December 16, 2008 at 5:21 am

    Gravatar

    I realize that Andy has an axe (or client) to grind but would appreciate more balanced “reporting”. He is of course entitled to his opinion but there’s another side to the story. Where Andy believes that (contrary to every single high court that has heard these cases) that Rambus acted improperly in front of JEDEC there are other (myself included) who believe that Rambus has contributed significantly to technological development in all computing devices. It is not without reason the investors received the highest IEEE awards. This whole saga reads better than a Grisham novel as it is truly a story of greed and David v Goliath. http://rambus.org/story/ gives a factual record.

  6. Roy Schestowitz said,

    December 16, 2008 at 5:31 am

    Gravatar

    There are two sides to every story, but what Rambus did is ambush that even the EU Commission was angry about.

  7. Ketchikan said,

    December 16, 2008 at 5:42 am

    Gravatar

    Andy and all other misinformed individuals should internalize Judge Prost’s opinion in the recent Qualcomm v. Broadcom CAFC ruling that cites the previous ruling made by Judge Rader in 2003:

    “After considering evidence regarding the JEDEC members’ understanding of the JEDEC policy, this court determined that “Rambus’s duty to disclose extended only to claims in patents or applications that reasonably might be necessary to practice the standard.” Id. at 1100. Applying that rationale to the claims at issue and the evidence in the case, it stated that “[t]he record shows that Rambus’s claimed technology did not fall within the JEDEC disclosure duty.” Id. at 1104. Accordingly, this court concluded that “substantial evidence does not support the jury’s verdict that Rambus breached its duties under the EIA/JEDEC policy.” (Judge Prost, CAFC)

    How could Rambus be guilty of not disclosing patents and patent applications that they did not posses while members of JEDEC?

    The whole Rambus “JEDEC misconduct” narrative has no bearing with reality and was propagated by a convicted pact of patent pirates.

  8. Rolv Heggenhougen said,

    December 16, 2008 at 5:42 am

    Gravatar

    Where is the EVIDENCE of that? The EU patent rules are very different from USPTO so let’s compare apples to apples.

    Judge Prost’s opinion in the recent Qualcomm v. Broadcom CAFC ruling:

    “After considering evidence regarding the JEDEC members’ understanding of the JEDEC policy, this court determined that “Rambus’s duty to disclose extended only to claims in patents or applications that reasonably might be necessary to practice the standard.” Id. at 1100. Applying that rationale to the claims at issue and the evidence in the case, it stated that “[t]he record shows that Rambus’s claimed technology did not fall within the JEDEC disclosure duty.” Id. at 1104. Accordingly, this court concluded that “substantial evidence does not support the jury’s verdict that Rambus breached its duties under the EIA/JEDEC policy.”

    The “ambush” was made by the memory manufacturing cartel, actually in full daylight. The same companies found quilty by the DOJ and ordered to pay close to $1b in fines and having key employees go to jail.

    Please read the FTC ALJ ID: http://rambus.org/legal/ftc/id.txt

  9. Roy Schestowitz said,

    December 16, 2008 at 5:47 am

    Gravatar

    Ketchikan,

    There is no such thing as “patent pirates”.

  10. Rolv Heggenhougen said,

    December 16, 2008 at 5:49 am

    Gravatar

    FTC Administrative Law Judge McGuire Initial Decision in FTC v Rambus:

    SUMMARY OF THE DECISION Complaint Counsel have failed to sustain their burden
    of proof with respect all three of the violations alleged in the Complaint.
    First, the evidence at trial establishes that Complaint Counsel failed to
    prove the facts they alleged in the Complaint. Second, an analysis of the
    legal theories advanced by Complaint Counsel demonstrates that there is no
    legal basis for finding a violation of Section 5 of the Federal Trade
    Commssion Act, either as based on other antitrust laws or solely as an unfair
    method of competition.
    Third, an application of the facts established at trial to the legal theories
    asserted leads to the conclusion that Complaint Counsel have failed to prove
    their case. The evidentiary record demonstrates that: (1) the EINJEDEC patent
    policy encouraged the early, voluntary disclosure of essential patents and
    Respondent did not violate this policy; (2) the case law upon which Complaint
    Counsel rely to impose antitrust liability is clearly distinguishable on the
    facts of this case; (3) Respondent s conduct did not amount to deception and
    did not violate any “extrinsic duties ” such as a duty of good faith to
    disclose relevant patent information; (4) Respondent did not have any
    undisclosed patents or patent applications during the time that it was a
    JEDEC member that it was obligated to disclose; (5) amendments to broaden
    Respondent’s patent applications while a member of JEDEC were not improper ,
    either as a matter of law or fact; (6) by having a legitimate business
    justification for its actions, Respondent did not engage in exclusionary
    conduct; (7) Respondent did not intentionally mislead JEDEC by knowingly
    violating a JEDEC disclosure rule; (8) there is no causal link between JEDEC
    standardization and Respondent’s acquisition of monopoly power; (9) members
    of JEDEC did not rely on any alleged omission or misrepresentation by
    Respondent and, if they had, such reliance would not have been reasonable;
    (10) the challenged conduct did not result in anticompetitive effects, as
    Complaint Counsel did not demonstrate that there were viable alternatives to
    Respondent’s superior technologies; (11) the challenged conduct did not
    result in anti competitive effects as the challenged conduct did not result
    in higher prices to consumers; and (12) JEDEC is not locked in to using
    Respondent’s technologies in its current standardization efforts. For these
    reasons, Complaint Counsel have failed to sustain their burden to establish
    liability for the violations alleged. Accordingly, the Complaint is
    DISMISSED.

    SUMMARY OF LIABILITY For the above stated reasons, Complaint
    Counsel, the party with the burden of proof, have failed to establish the
    elements necessary for finding liability on Counts , II and III of the
    Complaint. A review of the three violations alleged in the Complaint shows
    that although Respondent is in possession of monopoly power in the relevant
    markets, Complaint Counsel have failed to demonstrate that Respondent engaged
    in a pattern of exclusionary, anticompetitive conduct which subverted an open
    standards process, or that Respondent utilized such conduct to capture an
    unlawfl monopoly in the technology-related markets. Analyzing the challenged
    conduct under established principles of economics and antitrust law and
    utilizing the preponderance of evidence standard, Complaint Counsel have not
    proven the elements necessary to support a finding ofliability.

    SUMMARY OF CONCLUSIONS OF LAW Jurisdiction and Burden of Proof 1. Pursuant to
    Section 5 of the FTC Act, 15 US. c. ~ 45, the Commssion has jurisdiction over
    the subject matter of this proceeding and over Respondent, Rambus Inc. 2.
    Respondent is organized, existing and doing business under and by virtue of
    the laws of the state of Delaware, with its offce and principal place of
    business located at 4440 EI Camino Road Real, Los Altos, California 94022. 3.
    Respondent is a corporation, as “corporation” is defined in Section 4 of the
    Federal Trade Commssion Act, 15 US. c. ~ 44. 329 4. Respondent’ s acts and
    practices, including the acts and practices alleged in the Complaint, are in
    or afect commerce as “commerce” is defined in Section 4 of the Federal Trade
    Commssion Act, 15 US. C. ~ 44. 5. Pursuant to ~ 3. 43 (a) of the Federal
    Trade Commssion s Rules of Practice, Complaint Counsel bear the burden of
    proof of establishing each element of the violations alleged in the Complaint
    by a preponderance of the evidence. The Relevant Markets and Monopoly Power
    6. The relevant geographic market for purposes of determning the possession
    of monopoly power in this case is the world. 7. The relevant product markets
    at issue in this proceeding involve technologies that are incorporated in
    DRAs for use in current and recent generation personal computers and other
    electronic memory devices. Each market consists of a type of technology that
    addresses a specific aspect of memory design and operation. The four relevant
    product markets are: (1) the latency technology market; (2) the burst length
    technology market; (3) the data acceleration technology market; and (4) the
    clock synchronization technology market. In addition, there is a cluster
    market of synchronous DRA technologies. 8. Complaint Counsel have
    demonstrated that Respondent has acquired monopoly power in the relevant
    markets. However, Complaint Counsel have not demonstrated that Respondent’s
    acquisition or maintenance of monopoly power was unlawfl. No Pattern of
    Anticompetitive Acts and Practices 9. Complaint Counsel have failed to
    demonstrate that Respondent s challenged conduct amounted to a pattern of
    anticompetitive acts and practices. 330 10. Complaint Counsel’ s legal
    theory, i. , that Respondent’s challenged conduct violated Section 5 of the
    Federal Trade Commssion Act, which proscribes “unfair methods of competition
    ” lacks a reasonable basis in law. 11. Complaint Counsel have failed to
    demonstrate that the duties upon which they base their challenge are clear
    and unambiguous. 12. The evidence presented at trial does not provide a
    factual basis for finding a pattern of anticompetitive acts and practices.
    13. Complaint Counsel have failed to demonstrate that amendments to broaden
    patent applications are improper, either under patent law or EIA/JEDEC rules.
    No Exclusionary Conduct 14. Respondent has demonstrated that there were
    legitimate business justifications for the conduct challenged by Complaint
    Counsel. Maintaining the confdentiality of the proprietary information
    contained in its patent applications clearly related to a legitimate and
    normal business purpose and thus precludes a finding of exclusionary conduct
    in this case. 15. Complaint Counsel have failed to demonstrate that mere
    participation in a standard setting organization, without more, can form the
    basis for excluding a member s legitimate right to protect its trade secrets
    from disclosure. 16. Complaint Counsel have failed to demonstrate that
    Respondent engaged in exclusionary conduct for reasons extrinsic to the
    antitrust laws. No Intent 17. Complaint Counsel have failed to demonstrate
    that Respondent intended to mislead or 331 deceive JEDEC. 18. Complaint
    Counsel have failed to demonstrate that Respondent s challenged conduct rises
    to a level where intent can be inferred. 19. Evidence in the record indicates
    that Complaint Counsel have failed to demonstrate that the intent element has
    been met. No Causation 20. Complaint Counsel have failed to demonstrate a
    causal link between JEDEC standardization and Respondent s acquisition of
    monopoly power. 21. Complaint Counsel have failed to demonstrate that
    Respondent acquired monopoly power by virtue of JEDEC standard setting. 22.
    The evidence demonstrates that Respondent acquired monopoly power as a result
    of its superior technology and Intel’ s choice ofRambus s technology. 23. To
    the extent that Complaint Counsel’ s Section 5 cause of action is based upon
    a breach of duty to disclose under JEDEC’s rules , Complaint Counsel have
    failed to demonstrate that Respondent’s omissions or misrepresentations were
    relied upon by JEDEC or that such reliance was reasonable. No Anticompetitive
    Effects 24. Complaint Counsel have failed to demonstrate that there were
    viable alternatives to Respondent’ s technologies. 25. Complaint Counsel’ s
    economic expert failed to demonstrate that “equal or superior 332
    alternatives were excluded by Respondent’ s challenged conduct. 26. Under the
    economic theory of “revealed preference ” the evidence demonstrates that even
    if Respondent had made the additional disclosures alleged to have been
    required, rational manufacturers and a rational JEDEC would have selected
    Respondent’ s technologies because the proposed alternatives were inferior.
    27. Complaint Counsel have failed to demonstrate that Respondent’s
    challenged conduct resulted in higher prices to the consumer. 28. The
    evidence indicates that Respondent’s royalty rates are reasonable. 29. The
    evidence indicates that Respondent’s royalty rates are nondiscriminatory.
    JEDEC Is Not Locked In To Respondent’ s Technologies 30. The evidence
    indicates that DRA manufacturers were not locked in to using Respondent’ s
    technologies at any point from 1990 to the present. 31. JEDECs continued
    use of Respondent’ s technologies is due to the fact that Rambus
    technologies are superior in cost/performance terms to any alternatives,
    despite Rambus s royalty rates. 333 ORDER Accordingly, Complaint Counsel
    having failed to sustain its burden of establishing liability for the
    violations alleged, the Complaint is DISMISSED. Chief Administrative Law
    Judge February 23 , 2004 Washington, D. C. 334

  11. Ketchikan said,

    December 16, 2008 at 6:13 am

    Gravatar

    When a company willfully infringes valid, enforceable patents (IP) they are committing patent piracy, just like when clothing/fashion companies copy with out authorization the design/trademark of their competitors, they are infringing their copyright and are labeled as pirates.

    It was been proven in a court of law that members of the DRAM cartel knew of Rambus patents which were deemed to be valid, enforceable and infringed thus calling their deliberate infringement as patent piracy is pretty accurate.

    If you prefer you can call them patent/IP thieves…

    But back to my previous point, per Judge Prost’s ruling, How could Rambus be guilty of not disclosing patents and patent applications that they did not posses while members of JEDEC?

  12. Jo Shields said,

    December 16, 2008 at 6:18 am

    Gravatar

    Y’know, this is what happens when “Boycott Novell” turns into “whinge about 10 different things with a tangential relationship at best”

    What connection is there between RAMBUS and Novell? None! Should they be a topic on a site called “Boycott Novell”? No!

  13. Rolv Heggenhougen said,

    December 16, 2008 at 7:00 am

    Gravatar

    @Jo – The connection was made by reference by the author. There’s a lot of misconceptions when it comes to Patents and standards and as a Rambus shareholder I wanted to set the record straight.

  14. Jo Shields said,

    December 16, 2008 at 7:28 am

    Gravatar

    No record straightening is allowed here on BN. I’d quit while you’re ahead.

  15. Roy Schestowitz said,

    December 16, 2008 at 9:03 am

    Gravatar

    Ketchikan,

    Patents are not to be confused with ideas.

    Piracy often involves death and rape. Patents are not cargo, either.

  16. Fiery Spirited said,

    December 18, 2008 at 3:05 am

    Gravatar

    The objections from the Rambus shareholders are funny. They are at the same moment claiming that Rambus did not break JEDEC rules since they did not have the patent by then and that that the JEDEC group did a hostile overtake of Rambus technology.

    At the end of the day it is pretty simple…both these ideas can not be true at the same time. Either Rambus had patents in the area that they should have disclosed or they did not have patents and have been stealing the work of JEDEC members.

    What Rambus have been doing is the essence of a patent troll ambush no matter if Rambus is a troll or not normally. What remains to be seen if the laws are written well enough to nail Rambus for their behavior. There is no contradiction between that Rambus might walk free due to lack of evidence and that they in reality might be guilty of the charges.

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