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LANCOR's Adé Oyegbola Answers Groklaw's Questions About OLPC
Monday, December 03 2007 @ 08:35 AM EST

Adé Oyegbola, CEO of LANCOR, the company that says it is suing OLPC, was gracious enough to answer some of the questions I sent to the company and to the attorney representing it in the threatened litigation. I'll present the questions and answers, along with some photographs he sent as attachments, as he presents at least an outline of his case.

Before I share the questions and answers with you, I want to remind you of the allegations in the press release LANCOR released:
The patent infringement lawsuit was filed on November 22nd, 2007 as a result of OLPC's willful infringement of LANCOR's Nigeria Registered Design Patent # RD8489 and illegal reverse engineering of its keyboard driver source codes for use in the XO Laptops.

LANCOR is seeking substantial damages as well as a permanent injunction to prevent OLPC from continuing to unlawfully manufacture, sell, distribute or offer for sale the XO Laptop, and any other products infringing on the RD8489 and using the illegally acquired keyboard driver source codes.

LANCOR is a pioneer in the development of advanced physical multilingual keyboard technology using four shift keys and characters with combining properties to allow for direct access typing of accents, symbols and diacritical marks during regular typing. LANCOR's technology named Shift2 keyboard technology has been used to create a new class of region specific based keyboards called KONYIN Multilingual Keyboards, which are currently on sale globally. (http://www.konyin.com)

LANCOR has retained the law firm of Adedeji & Owotomo a Lagos, Nigeria-based law firm that specializes in intellectual property litigation. Both LANCOR and its legal counsel are extremely confident that LANCOR's case will be successful.

LANCOR's lawsuit alleges that OLPC purchased two KONYIN Multilingual Keyboard models (KONYIN Nigeria Multilingual Keyboard and KONYIN United States Multilingual Keyboard) with the express purpose of illegally reverse engineering the source codes for use in OLPC's XO Laptops. "The willful infringement of our client's intellectual property is so blatant and self-evident in the OLPC's XO Laptops," said Solicitor Ade Adedeji, "we will have no problem establishing the facts of our client's case against OLPC in any court of law."

"LANCOR treats its intellectual property as one of the Company's most important resources," said Adé G. Oyegbola, chief executive officer of LANCOR. "This patent infringement lawsuit is another step in LANCOR's continued protection of its intellectual property. LANCOR will continue to take aggressive steps to protect its intellectual property around the world. LANCOR is also in the process of filing a similar lawsuit against OLPC in a United States Federal Court," Oyegbola, added.

As you can see, while a bit unclear, there are two prongs to the allegation, with two different lawsuits proposed. First, there is the alleged infringement of the design registration patent, which I think personally is going nowhere, for reasons I've already given. However, I'm not a lawyer and I have no experience in Nigerian law, and that is where that lawsuit is filed.

Then there is the second threatened infringement claim, based on alleged reverse engineering of drivers, to be filed in the US under US Copyright Law.

I had many questions, so I began by sending the following email to LANCOR and its attorney, iplawcentral.com, and as you'll see, I was at that point very much in the dark about what the litigation was based on:

Sirs,

I am working on an article about the litigation you have initiated against OLPC and Nicholas Negroponte which will be published in Groklaw, which is a news site covering legal and technical news.

Can you please provide me with a copy of the patent you claim is being infringed by OLPC? Your press release mentioned a Design Patent # RD8489?

I can find no such patent registered in Nigeria or in the US. I do see an industrial design registration in Nigeria, but that isn't the same thing in the US, so can you explain? I also see an application for a patent, but none that has issued. Is it automatic in Nigeria?

I also note that the design registration appears to have been allowed to lapse as of August of last year.

Can you please tell me for the article I am working on what the legal basis is, then, for your litigation? Also, may I please have a copy of the complaint you have filed, along with information on precisely what court it has been filed in?

If not, can you please tell me precisely what relief you are asking for from the court? Will it have implications, do you believe, in Nigeria only or do you foresee it as having international implications, should you prevail?

Thank you very much for any help you can provide,

Pamela Jones
Editor, Groklaw
http://www.groklaw.net

In the interim, I wrote the article with the information I had by then collected, including information on the patent law in Nigeria. I then received the following email, which had four attachments. One was a PDF showing the two keyboards. Then there were three photographs, "OLPC Original keyboard layout", and two labeled OLPC US Model keyboard before C&D and OLPC Nigerian Model keyboard before C&D. I put the graphics on separate pages, because they are too large to include in an article, and I didn't wish to thumbnail them. Here's the email:

Dear Pamela Jones,

We clearly understand your passion about the mission of OLPC, but here is our response to your questions and we hope you will post same to your Groklaw website.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

1. Check the first keyboard layout released with the XO laptop before August 2006. (see attached)

2. Take it from us that OLPC purchased our keyboards on August 7, 2006; (1 Nigeria model and 1 US model) delivery was by UPS on August 8, 2006.

3. Now go to OLPC's http://dev.laptop.org/query and follow the development of OLPC's new set of keyboard layouts and driver. (Take note of the first date this development started.)

4. Check for OLPC's XO keyboard layout used at the CES 2007 show.
http://www.tgdaily.com/content/view/30730/145/

http://www.tgdaily.com/index.php?option=com_content&task=blogsection&id= 18&Itemid=41&slideshow=20070111 [ see attached]

http://www.infoworld.com/article/07/01/10/HN$130laptop_1.html

5. Take it from us that OLPC received a cease and desist letter in August 2007.

6. Now go to OLPC's wiki.laptop.org and again follow the postings of information about their keyboard layout development and key date changes were made. (You can download current OLPC keyboard layout on the website)

7. Now when you have all these info collated, call OLPC and ask why they choose to remove the keyboard layouts used in the CES 2007 XO model after September 2007.

8. See if you can put together all the various versions of OLPC keyboard layouts and match them to events you discovered from their query database.

9. Do note that under Nigerian Law, a RD patent holder has 6 months to pay the renewal fee. So take it from us that the renewal fees were paid within the 6 months allowed. http://www.nigeria-law.org/Patents%20and%20Designs%20Act.htm [see the whole of section 7]

LANCOR

I looked at the pages cited and at the graphics, and I tried to trace the keyboard changes, but I don't honestly see what he means. Perhaps others will be able to. I by then had noticed that Nigerian law regarding both patents and design registrations refer only to commercial and industrial uses. So I sent another question:

PJ: Oh, sorry, one final question: in reading Nigerian patent law, it seems you have no claim against a noncommercial entity. Have I misunderstood?

Here is the response I received, again with no name but the company name, LANCOR, as the sender:

Please don't get us wrong, we have no opinion on the merits of the altruistic objective of getting cheap laptops into the educational system in African countries. It may or may not be the best use of resources at this time, but that is not our call.

As far as we know, OLPC is planning to sell products to Nigerian government, and not give it away for free, albeit, below cost of production.

We are sure OLPC's lawyers will make strong arguments in support of their client, and we will let the lawyers and the courts sort out these kinds of issues.

The facts, the entire facts will be presented by both sides and an objective arbiter will make the calls.

We strongly believe that the Nigerian Federal High Court will uphold the rule of law.

LANCOR

There had been no answer to my question about copyright extension, so I tried again, asking again if they had applied for an extension, and I asked for a name, not just a LANCOR signature, so I would know with whom I was speaking. I received the following reply:

You can cite Adé Oyegbola as the responder.

Our answer is in red below.

PJ: Also, you did not reply to my question regarding the copyright. My best effort to find a current copyright failed. Did you apply for an extension?

(These are legal questions that we differ to our lawyers, we are sure the details will be in court papers at the right time)

PJ: Is the essence of your complaint that they responded to your cease and desist by changing the keyboard design? Or are you claiming that it continues to infringe?

(These are legal questions that we differ to our lawyers, we are sure the details will be in court papers at the right time)

I gather by then the attorney had noticed the conversation and provided the stock reply. I replied:

PJ: Thank you for responding. I think you misunderstand then one thing about OLPC. OLPC is a recognized charity under the law. Selling a laptop for cost does not make them commercial, Ade.

Many of my readers have been asking me, and I hope you do not feel insulted if I ask on their behalf, but is there any connection or have you had any contact with Microsoft or Intel?

[No answer to date]

You might find this article from a year ago about his keyboard of interest, as it explains exactly how it works and why one might want such a keyboard.

Why, though, would LANCOR wish to sue for copyright infringement in the US and not in Nigeria? Nigeria's copyright law only allows a copyright for the following types of works:

(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph works;
(e) sound recording; and
(f) broadcasts.

I don't know if Nigeria considers source code a literary work. But the allegation isn't that OLPC saw their source code and copied it. It's that they reversed engineered. We don't even know if that's factually so, but while it seems inappropriate to explain much about copyright law at this juncture, I'll just point out that reverse engineering is not in and of itself illegal in the US, last I looked, whatever LANCOR may imagine.

The reason for that was expressed by the court in Sega v. Accolade, namely that forbidding reverse engineering would defeat "the fundamental purpose of the Copyright Act -- to encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on."

I don't think it can be argued that the timing of this litigation is suspicious. If it's Son of SCO time, and the only goal is to cast a cloud over OLPC while Classmates and Microsoft Brand X little laptops take over the third world, then it makes perfect sense to file a copyright action in the US. They take forever to resolve, if you want them to, as SCO proved. And if no one cares if they lose in the end, just so long as the cloud doesn't disperse too fast, then it all adds up in a very creepy way. For all I know, this isn't like that at all, and it's just some Lone Ranger litigating entrepreneur who deeply cherishes his "IP" whether he understands the law or not.

But here's the bottom line. Lawsuits don't stop Linux. SCO proved that too. And if the only way to compete with it is bizarre and hopeless litigation, then maybe you don't deserve to win. You think?

P.S. Peru just signed up for 260,000 OLPC laptops.


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