Headlines:
| Some Really Good News for Barnes & Noble; and Microsoft Withdraws Another Patent ~pj |
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Tuesday, February 07 2012 @ 12:04 AM EST
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The big news being reported by Bloomberg is that Jeff Hsu, a staff attorney at the ITC, said in an interview he will be recommending that ITC Judge Theodore Essex find Barnes & Noble has not infringed three Microsoft patents. Essex rules in April on that. If I were a FUDster, I'd write that this means Barnes & Noble has prevailed, but I just tell you the truth, which is that this is one step in a longer process. It is, undeniably, however, fabulously good news for Barnes & Noble. It is also not a total surprise, in that the quality of Microsoft's patents is pitiful. It may also explain why Microsoft keeps dropping patents from the case. Microsoft says it's doing it to "streamline the investigation": Pursuant to 19 C.F.R. § 210.21(a)(1), in order to streamline the investigation, Complainant Microsoft Corporation hereby moves for partial termination of the investigation as to U.S. Patent No. 5,889,522 ("the '522 patent"), based on partial withdrawal of the Amended Complaint as to the '522 patent. The investigation will continue as to U.S. Patent Nos. 5,778,372, 6,891,551, and 6,957,233. And you can believe that explanation if you want to. Or, you can take another quick look at all the prior art Barnes & Noble presented to the ITC regarding Microsoft's patents, including the '522 patent.
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| Oracle v. Google - Google Denied Writ of Mandamus on Lindholm Email |
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Monday, February 06 2012 @ 09:00 PM EST
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The U.S. Court of Appeals for the Federal Circuit earlier today denied Google's petition for a writ of mandamus to overturn the district court's ruling that the Lindholm email was not privileged. Maybe, just maybe, Google will now throw in the towel on trying to protect the Lindholm email.
In an opinion which cast little doubt as to the law or the facts in this instance, a three-judge panel of the Federal Circuit found the claim of privilege to be totally undermined by the content of the email, the instructions that gave rise to the email (as stated in the body of the email), and the fact that the addressees of the email were not legal counsel to Google.
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| Oracle v. Google - Still Waiting on the Revised Cockburn Report |
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Monday, February 06 2012 @ 09:40 AM EST
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Although Dr. Cockburn's third attempt at a damages report was due to be filed last Friday, February 3rd, it has yet to show up on the electronic docket. That is most likely due to its length and the possibility that Oracle will seek to redact portions of the filing. In the meantime, Judge Alsup has issued a clarifying order with respect to the trial briefs on the issue of copyright. (710 [PDF; Text]) The judge basically instructs the parties to not interpret the law for him but to set out the relevant passages so he may draw his own conclusions. In addition, he wants the parties to make clear where they agree on the underlying law.
We also have the transcript of the July 21 Daubert hearing on the first Cockburn damages report. (Text of Document 231) You will recall that it was at the conclusion of this hearing that Judge Alsup ordered Oracle and Dr. Cockburn to go back and try again with something closer to a more reasonable assessment of damages. (Damages Report - Try Again, Oracle) We now get a better insight into the arguments set forth by Google in attacking the original report.
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| Oracle v. Google - The Copyright Issues |
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Friday, February 03 2012 @ 06:00 PM EST
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Today is the due date for Dr. Cockburn's third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.
To recap what this third report is to address if Oracle wants to argue these points on damages:
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| Oracle v. Google - Moving the Case Along |
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Thursday, February 02 2012 @ 08:50 AM EST
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Just because the Oracle v. Google case has not been set for trial (and won't be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can't move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup's latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.
This order adds to a somewhat lengthy litany of filings due from each party under various orders in effect at this time. The timeline for those responses is:
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| The Latest on the Barnes & Noble Patent Misuse Defense - Some AntiFUD ~pj |
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Wednesday, February 01 2012 @ 12:33 PM EST
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I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements. So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.
Litigation isn't like football. It is rarely suddenly over.
Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did
grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?
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| Oracle v. Google - Google On The Hot Seat On Marking Issue |
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Wednesday, February 01 2012 @ 07:00 AM EST
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Judge Alsup has considered the joint submission by the parties on the subject of patent marking as well as their supplemental filings (706 [PDF; Text]), and he has come out firing at Google. In a strongly worded order (707 [PDF; Text]) the court has strongly criticized Google for failing to live up to its obligations under the joint stipulation entered by the parties with respect to evidence of patent marking, declaring it:
[I]t is manifestly clear that Google failed to comply with its own stipulated procedure.
Fortunately for Google, they will get another opportunity to comply.
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| Oracle v. Google - Patent Marking - Closing the Gap |
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Monday, January 30 2012 @ 09:30 AM EST
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Oracle and Google have now filed their joint statement on patent marking (706 [PDF; Text]) as required by the court's supplemental order of December 6 (641 [PDF; Text]) Although reading the joint statement may give one the impression that the parties' positions are far apart (and they are), that doesn't mean that the joint statement hasn't closed the gap on the marking issue. In fact, it appears to have closed the gap significantly and in Google's favor.
You will recall that after the Judge Alsup issued his December 6 supplemental order the parties filed a joint stipulation on what they were to do. That stipulation provided:
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| Barnes & Noble and MS Agree: Ballmer Will Not Have to Testify Live at ITC, and Some Antitrust Homework ~pj |
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Sunday, January 29 2012 @ 11:30 AM EST
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B&N and Microsoft have come to an agreement about Steve Ballmer's participation in the Microsoft v. Barnes & Noble action at the ITC. They were
arguing about it, and they've now agreed that Ballmer will not have to testify
live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft's lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties' next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue. But it does mean that Microsoft's effort to have Ballmer avoid being deposed ended with him being deposed.
Meanwhile, I took some time to try to understand why Barnes & Noble is fighting with such vigor, when a patent misuse defense is so hard to win. What do they know that I didn't? I will share with you what I've learned.
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| Oracle v. Google - Google Wins on Claim Construction Issues |
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Thursday, January 26 2012 @ 09:30 AM EST
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The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.
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Over 3 years later, "deleted" Facebook photos are still online
It's 2012, and things aren't much different -- yet.
After confirming once again that all the photos that my friends and Ars readers had sent in were still online, I reached out to Facebook once again, looking for an answer as to why this is still going on nearly three years after the company first promised it was "working" on the issue.
"The systems we used for photo storage a few years ago did not always delete images from content delivery networks in a reasonable period of time even though they were immediately removed from the site," Facebook spokesperson Frederic Wolens told Ars via e-mail.
Wolens explained that photos remaining online are stuck in a legacy system that was apparently never operating properly, but said the company is working on a new system that will delete the photos in a mere month and a half. For really real this time. - Jacqui Cheng, ars technica on CNN
Change in Fedora leadership
I'm happy to announce that Red Hat has selected Robyn Bergeron to be
the next Fedora Project Leader. Robyn has proven herself in the
Fedora community over the last several years, and I have complete
confidence in her abilities to lead the Fedora Project. In addition
to planning FUDCon Tempe in 2011 and helping to lead the Marketing and
Cloud SIGs within Fedora, Robyn has been an integral part of many
other Fedora events and endeavors. Most recently, she has held the
role of Fedora Program Manager, helping to ensure that we all stay on
schedule and helping the Fedora feature process stay on track. Please
join with me in welcoming Robyn into her new role, and in giving her
your help and support in her new role. I'll be working with Robyn
over the next weeks and months to help her in the new role. - Jared K. Smith, Fedora Project
US state of New Hampshire passes open source, open standards and open data bill
At the end of last week, both houses of the New Hampshire legislature passed HB418 (2012). This bill is “relative to the use of open source software and open data formats by state agencies and relative to the adoption of a statewide information policy regarding open government data standards.”...
By itself, the preamble of the Bill makes interesting reading, so we’re reproducing part of it below:...
d) To guarantee the succession and permanence of public data, it is necessary that the state’s accessibility to that data be independent of the goodwill of the state’s computer system suppliers and the conditions imposed by these suppliers;
(e) It is in the public interest to ensure interoperability of computer systems through the use of software and products that promote open, platform-neutral standards;
(f) It is also in the public interest that the state be free, to the greatest extent possible, of conditions imposed by parties outside the state’s control on how, and for how long, the state may use the software it has acquired; and
(g) It is not in the public interest and it is a violation of the fundamental right to privacy for the state to use software that, in addition to its stated function, also transmits data to, or allows control and modification of its systems by, parties outside of the state’s control. - Bristol Wireless
Oracle rejects $272M court award for another chance to attack rival SAP in trial
Oracle has turned down a court order requiring rival business software maker SAP to pay $272 million damages for stealing copyrighted information. Oracle wants a new trial instead. - Washington Post
Is iPad 3 in Jeopardy? Apple Could Lose $1.6 Billion in China Trademark Lawsuit
"We ask the court to stop selling and marketing for Apple's iPad in China," said Xie Xianghui, Proview Technology's lawyer. "We also demand an apology."
Proview has filed separate lawsuits in local courts in two Chinese cities, Shenzhen and Huizhou, against Apple's authorized retailers and stores.
"We are starting with these two cities, and if we are successful in getting iPad sales stopped, we will consider going after Apple resellers elsewhere in China," Xie said.
Officials close to the situation believe Apple will lose its appeals.
"We have prepared well for a long-term legal battle," said Xiao Caiyuan, another lawyer representing Proview Technology. - Dave Smith, International Business Times
Apple Faces $1.6 Billion Legal Challenge Over iPad Name in China
Computer display manufacturer Proview Technology, a subsidiary of Hong Kong-based Proview International Holdings, said it has filed a motion for a temporary retraining order against Apple, according to The Wall Street Journal. “We have to admit that Apple’s iPad is a great product, and Apple creates great value out of that,” Yang Rongshan, chairman of the Proview subsidiary in the southern Chinese city of Shenzhen, told the paper. “But this is not the reason to support their irregular practice here.”
- Time
Yahoo! Releases Chairman’s Update for Shareholders
Finally, the board has concluded that in order to accelerate the Company’s transformation, the combination of a new Chief Executive Officer with an enhanced team of independent directors would provide Yahoo! with the expertise and perspectives necessary to drive innovation and growth going forward. Therefore, Mr. Joshi, Mr. Kern, Mr. Wilson and I have volunteered not to stand for re-election at the next shareholders’ meeting.
Furthermore, the board today elected two highly qualified independent directors, Alfred Amoroso and Maynard Webb, Jr. Mr. Amoroso served as President and CEO of Rovi Corporation until December 2011 and, among other positions, had previously served as the President, CEO and Vice Chairman of META Group, Inc., the President and CEO of CrossWorlds Software, Inc. and as a member of the world-wide management committee of IBM Corporation. Mr. Webb, the Chairman of LiveOps, Inc., served as that company’s CEO until July 2011. Prior to that, Mr. Webb was Chief Operating Officer of eBay and Senior Vice President and Chief Information Officer for Gateway, Inc., in addition to management, leadership and board positions at several other companies spanning his 30-year career.
The board continues its search for additional independent directors....Thus, following this year’s Annual Meeting a majority of Yahoo!’s directors will be new to the board this year, and all directors will have joined the board since 2010. We believe that this reconfigured board, with a fresh set of perspectives and diverse set of skills, will enable the Company to move forward even more aggressively. - BusinessWire
Patent Mass Aggregators: The Giants Among Us
The patent world is quietly undergoing a change of seismic proportions. In a few short years, a handful of entities have amassed vast treasuries of patents on an unprecedented scale. To give some sense of the magnitude of this change, our research shows that in a little more than five years, the most massive of these has accumulated 30,000-60,000 patents worldwide, which would make it the 5th largest patent portfolio of any domestic US company and the 15th largest of any company in the world....Rather than contributing technological innovations, mass aggregators operate as a tax on current production, burdening existing products and potentially reducing future innovation and productivity. In addition, characteristics of the market for patent monetization make it an excellent vehicle for anticompetitive behavior, including horizontal collusion and single firm or multi-firm behavior that raises rivals’ costs. Most important, the basic business model of mass aggregation is troubling. The successful aggregator is likely to be the one that frightens the greatest number of companies in the most terrifying way. This may not be an activity that society wants to encourage. - Tom Ewing, Robin Feldman, IP Watchdog
These and other concerns suggest that mass aggregators and the market for patent monetization should not be allowed to flourish unchecked. The burgeoning market must be properly monitored, regulated, and restricted so that the considerable risks associated with this activity may be fully contemplated and cabined.
Knight-Mozilla OpenNews: Building a news ecosystem on the open web
What is OpenNews? Knight-Mozilla OpenNews is about helping journalism thrive on the open web. It's about producing next-generation web solutions that solve real problems in news. It's about supporting communities of developers and journalists as they make, learn and invent together. And it's about deploying fellows—and code—into news organizations to collaborate and innovate in new ways. ...The hacker-journalist community is a vibrant one, and all our initiatives are designed to help it grow in size as well as strength. Later this year, we'll be launching Source, a new site that highlights the best code (and coders) in the community.
Many more details coming very soon. - Mozilla OpenNews
Dickens v. Lawyers
Lawyers appear in 11 of his 15 novels. Some of them even resemble humans. ...At 32 he filed his first suit against a pirate publisher. Dickens told a friend afterward that “it is better to suffer a great wrong than to have recourse to the much greater wrong of the law.” - Joseph Tartakovsky, NY Times
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