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?
20 million dollars.
I kid you not. $20 million in "damages". And an injunction blocking OLPC from distribution in Nigeria. They have the latter at the moment from an interim injunction, as they call it there, from an ex parte motion LANCOR filed, meaning OLPC wasn't there, didn't get a chance to tell its story in court, and based entirely on an attorney affidavit and some papers filed. The interim can last many, many months, and I think that may be the plan. OLPC, as I understand it, hasn't even been served yet. But I've learned that OLPC will aggressively respond shortly. Others listed as co-defendants, like the Growing Business Foundation, have been served and their offices searched for "evidence", which is the process there. No contraband patented materials were found, however, I'm told. I know. It's ridiculous. But any violation of the order can result in jail time. Nigeria is a hoot. Is this another email scam, I hear you ask? No. It's playing out in real life.
I've already explained why I think LANCOR's case is hopeless. So why do it? Maybe this doomed litigation effort will last just long enough for a Nigerian knockoff of the OLPC, or the OLPC on Intel, to become ready for release. Maybe it's just about money a couple of guys want. Who knows why people do things like this? I have the filings for you, so you can draw your own conclusions. So, here we go. Your first binary moment of 2008. It's laugh or cry.
Now, in SCOland we already have learned that frivolous litigation can last quite a while even in the US -- especially in the US, some of you will sing out -- and we've discerned that sometimes litigation has no legal purpose, but the courts are misused for competitive purposes, to slow down uptake of something better, or just to shake down the opponent in hopes of a settlement. It's sad that there are situations like this that lawyers have to slog through and set right. Which OLPC lawyers will. But there you are.
I'm not versed in Nigerian law, so who knows what can happen there. Here is a hint of what conditions are reported to be like, from the International Herald Tribune:
Nigeria's anti-corruption chief, whose investigations have ensnared some of the country's wealthiest politicians and officials, will be sent to a year-long training course in a remote police academy, according to senior law enforcement officials in Nigeria, in what many analysts and anti-corruption activists say is an attempt to sideline him....
Since the end of military rule in 1999, Nigeria has been struggling to remake its image, which has been seriously dented by corruption. That reputation was cemented for many outsiders by the notorious, fraudulent advance-fee e-mail messages that flood in-boxes across the globe, asking for bank account details in exchange for a cut of loot filched from government coffers.
But to most Nigerians, the most serious form of corruption is the kind that has left Africa's most populous nation one of the poorest countries on earth, even though it exports billions of dollars worth of oil each year: malfeasance by government officials.
Um... you mean... like judges? Government officials? Does that mean they can be bribed? Well. Shiver me timbers. I'm not saying that is what is happening. I don't know. But I do see one can't rule it out as a possibility out of hand.
Anyway, let me show you the documents. Then we can laugh or cry together. Basically, to bring you up to date, what has happened is this, and I must preface my explanation by saying again that I'm not up on Nigerian law, so it's very possible I might not capture every detail, but at least I can give you an overview:
1. August 6, 2007: LANCOR's lawyer, Ade Adedeji, sent a letter [page 1 and page 2] to OLPC's "CEO" (with ccs to the Growing Business Foundation, LeapSoft Ltd. Nigeria, and Alteq) asking for $20 million dollars. The letter reads in part like this:
Our Clients, for a period of 9 years conducted series of research work, engaged in extensive software design work, compiled data and consequently applied for and obtained patented rights for the protection and marketing of their novel Multilingual Keyboard and keyboard Layouts which was commissioned and marketed both in Nigeria and the U.S.
Our Clients have in the circumstances suffered huge economic and financial loss.
We are informed by our Clients and we believe same to be true that following your purchase of their products on or about August 06, 2006, you took information, albeit surreptitiously, and applied their work product for your use and benefit without permission thereby violating the end user license agreement and infringing on their intellectual property rights.
OUR CLIENTS' DEMAND:
In consequence of your breach/continuous infringement of our Clients' rights we have our Clients instruction to demand and WE HEREBY DEMAND payment in damages in the sum of $20 million (Twenty Million USD).
In addition, we demand an immediate restrain from further infringement and/or breach of said rights.
2. August 31, 2007: OLPC's lawyer politely declined the offer to hand over $20 million ("Twenty Million USD") and instead asked for more information as to exactly how LANCOR's rights were infringed. It's both a serious and a very funny letter [page 1 and page 2]. Here's part of it:
In your letter you allege that OLPC has infringed certain intellectual property rights of your client Lagos Analysis Corporation ("LANCOR"). Your letter lacks any detail as to the purported intellectual property rights that have allegedly been infringed and therefore we have no means of evaluating your claims.
You state that LANCOR has obtained certain "patented rights." Please identify by registration number the patents that you allege to have been infringed.
You state that OLPC has violated an end user license agreement that it entered into with LANCOR. Please provide a copy of such end user license and proof that such end user agreement was in fact executed by OLPC.
I assume that you are not claiming that LANCOR has a monopoly on the creation of multilingual keyboards. Please specify what aspects of LANCOR's multilingual keyboard design you believe to have been infringed.
Finally, although it is premature to engage in discussion of your client's alleged damages, I feel obliged to note that, given the fact that OLPC has to date sold no multilingual keyboards and that, according to LANCOR's website, its multilingual keyboard sells for $19.95, your demand of $20 million is not well founded.
In short, they apparently jumped the gun, sending the dunning letter before OLPC had even shipped anything, not to mention that OLPC is a charity, not a business, and asking for money in a sum that doesn't match reality.
There was no further communication. LANCOR did not send a letter with any further specifics to OLPC or any of the others. Notice that the original letter was also sent to three other entities, Growing Business Foundation, LeapSoft, and Alteq. Who are they and how did they get dragged into this?
Because they certainly have been dragged into it. I gather LANCOR had it in mind that they were manufacturing or distributing the laptops. Alteq has since been dropped.
3. Instead of sending proof of infringement to OLPC as had been requested, instead LANCOR went to court and filed a Motion on Notice [page 2; PDFs] on November 22, and it has an affidavit attached from the plaintiffs' attorney on behalf of the plaintiffs, Ade Oyegbola and Walter Oluwole, in support of the motion which describes how they invented a keyboard with extra keys: page 1, page 2, page 3.
On November 22nd, there was also a Motion for an Ex Parte Order: page 1, page 2, and page 3.
Significantly, the affidavit attached to the Motion on Notice, I note, does *not* say that OLPC at any time signed any EULA and there is no EULA attached as proof. Instead it just says that this is the "usual practice" for LANCOR. That's what lawyers in the US say when they haven't got a EULA to attach.
Here's the "evidence" that reverse engineering occurred: They saw a website about OLPC's keyboard and development tickets "clearly established" that it happened. The website is dev.laptop.org/query if you are curious. Speaking of curious, reverse engineering is something that normally comes up in copyright cases, not patents. So this must be related to the EULA that they have no evidence was ever signed.
Also, on page 3, note that LANCOR's attorney tells the court that LANCOR will pay damages, should the court ultimately find for the defendants instead. So this is an *interim* solution, one that I gather Nigerian law makes it very easy to obtain, to stop any further "damage" until the court can investigate.
The motion asked for an order of interlocutory injunction, essentially blocking any manufacture, selling, distribution or offering for sale in Nigeria any keyboard like LANCOR's KONYIN Nigeria Multilingual Keyboard (or US version) pending a hearing, but if you notice the motion sets no such hearing date. The lines are left blank.
4. On December 3, 2007, LANCOR got the ex parte order, what they call there an Anton Piller Order and Interim Injunction against OLPC, Alteq, and Nicholas Negroponte -- who, if he ever has another brilliant idea to make the world a better place will surely keep it entirely to himself after this repulsive experience. The court order is for an injunction against any sales or distribution on pain of jail time. The Order gives LANCOR authority to serve the Motion on Notice on everybody. Here's the Order: page 1, page 2, page 3, page 4,
5. On December 14, 2007, LANCOR went to search the premises of Growing Business Foundation and LeapSoft, looking for whatever one searches for on such missions, evidence of someone illegally using their keyboards, I suppose.
6. To date, so far as I know, OLPC has not been served, so they are under no legal obligation to obey a court order they never got served with, but my understanding is that they will not wait to be served but will be taking action to get the matter turned around. [ Update: I have just now, Jan. 3, learned that OLPC has received Writ of Summons and Statement of Claim, but no Order.] If the lower court is not amenable to dismissing the matter, it will be appealed, naturally. I find it significant that OLPC was not served. Why?
The Writ, which is like what we in the US call a summons, can be served any time within 12 months, unless it's been renewed within six months of issuance. I think that means that LANCOR, should it be desirous of stretching out the process, will be able to do so. As we have learned from SCO, sometimes just getting the process to drag out long enough can reap certain results, even if you know you can't win in the end. That might explain why OLPC has not yet been served but others were. It's conceivable also that it is just because OLPC is in the US, not Nigeria. Here's the Writ, so you can see what I mean, and it also sets forth what the claims are:
7. On December 17, LANCOR returned to court to report the results of the searches -- the December 3 Order had set the 17th as the date for further proceedings -- and they withdrew their case against Alteq. Alteq, by the way, is Intel's partner in Nigeria through a sister company, I have been told, and they market the Classmate, according to all I can find out. Here are the proceedings from the December 3rd hearing: page 1, page 2, page 3, and page 4.
Remember I pointed out that the "patent" had expired because there was no extension? Lo and behold, there was one presented to the court, allegedly applied for on August 15, 2007 and dated November 21, 2007. But it certainly was not in the file when I wrote about it. And that doesn't even matter, since at the time of the alleged violation of the plaintiffs' holy IP, there was no such issued extension, from all I can determine. I don't know Nigeria, but in the US, that would matter. Here's the document purporting to extend the patent: Certificate of Extension. I note that it says copyright, not patent:
... the copyright is hereby extended for a second period of five years until the 15th day of August, 2012
But did you notice something? It doesn't seem to be the paper that one would have thought the plaintiffs would have earlier received. It's a "Certificate of Extension of Copyright in Design for the Second Period of Five Years" certifying, on November 21, 2007, that on August 15th, 2007, the two plaintiffs paid for an extension of Design No. 8489. Pardon my cynicism.
We showed you the original registration in our first article on this mess of pottage, but here it is again: Registration of Design [PDF].
Not to be too cynical or anything, but if by any chance the roadblock of this case miraculously clears up in a few months, around the time the OLPC's with Intel chips are ready to roll into Nigeria, or some Nigerian ripoff of the OLPC is suddenly available for purchase, let's just say my FUD/bogo-litigation meter is going to start to ring off the hook.
Now, Groklaw tries to be fair, and so I will show you now some bits from an article that appeared in The Guardian on December 18th, an article that one of the plaintiffs, Ade Oyegbola, sent me. The article is no longer at the url he sent [http://www.guardiannewsngr.com/sunday_magazine/article05], but it gives his side of the story.
[ Update: A reader has found it here.]
The article was titled, "Why We Are Suing One Laptop Per Child Group, By Nigerian Keyboard Inventor":
Oyegbola told The Guardian in an email that in spite of a C and D (Cease and Desist) letter earlier sent to the OLPC to stop distributing its laptop along with a keyboard configured with LANCOR "function technique knowledge", the OLPC ignored the warning.
Reacting to criticisms of his action to the effect that LANCOR's lawsuit was unnecessary since the OLPC had changed its keyboard layout following the C and D letter, Oyegbola said: "The answer is that they changed their keyboard layout but continued to use the keyboard layout and function technique knowledge (our intellectual property and trade secret) illegally obtained by reverse-engineering our driver."
According to him, it has become necessary to make this clarification because of the several hate emails sent to executive officers of the company; and the accusation of deliberately wanting to circumvent the noble objective of the OLPC initiative, which is aimed at putting a laptop in the hands of every poor child in the nation's public schools.
LANCOR's Chief Technology Officer, Walter Oluwole said in an interview: "We're not looking to handicap One Laptop; we're not looking to tarnish them in any way. We don't want to do anything to harm his (Negroponte's) dream, but he went out of his way to kill our dream."
Well, I don't condone hate mail, of course, or worse, but let me ask you something. Does what was said to the Guardian match what you just read in the court filings? Or how about this part?
Asked about the feasibility [of] exploring an out-of-court settlement, Adedeji said: "Usually, before we sue we give the other party opportunity to approach us and try to reach some kind of settlement; it's the best way to go. And we did that. The response we got was such that left us with no other option than to go to court."
In the suit, number FHC/L/CS/ 1102/07, filed on November 22 at the Federal High Court, Ikoyi Lagos, before Justice I. N. Auta, LANCOR is seeking certain unspecified - but substantial, according to the company - damages, but mainly to stop OLPC from further infringement on LANCOR's patent by "continuing to unlawfully manufacture, sell, distribute or offer for sale, the XO Laptop, and other products infringing in the RD8489 and using the illegally acquired keyboard driver source codes."
No other option? Unspecified damages? Which is true? What they told the newspaper or what they told the court? And why is there the divergence? What might that tell you? The OLPC letter in response asked for further information, so as to provide some specificity, which was never provided. Specificity always seems to be the problem, doesn't it? The demand for $20 million was specific enough.
So, there you have it. LANCOR doesn't want OLPC in Nigeria. Or only if they get paid. Of course, OLPC will respond. Even if they are not served, I've learned they will be going to court to turn this around. But isn't it sad that they have to? I have my doubts about this design patent, by the way, as I explained, but even if it were totally valid, think about what patents can do, will you? Here we have an entire nation's children being kept from a laptop that they could be benefiting from, and yet it's out of reach for them, because of one company (and maybe some others too) who would like to make some money, honey. Patents have gotten out of hand, I think, when a result like that is even possible.
Update 2: Nigeria's law, the Nigerian Patents and Designs Act, does allow the government some room here:
Use of Patents for service of government agencies
15. Notwithstanding anything in this Act, where a Minister is satisfied that it is in the public interest to do so, he may authorise any person to purchase, make, exercise or vend any patented article or invention for the service of a government agency in the Federal Republic.
Update: It seems there is a deeper plot afoot. This article, How Lancor's $20m Suite Stalled OLPC Scheme, in the Nigeria CommunicationsWeek indicates that it is the government that is desirous of this blockage:
The federal government has cancelled the One Laptop per Child (OLPC) scheme initiated by the last administration two years after it became the first country to order and pay for one million of the OLPC. That might explain how such a spurious lawsuit could survive summary judgment.
Dr Aja Nwachukwu, education minister, said that the scheme was discovered to be a "white elephant" project, a conduit pipe to siphon public fund,"
Nwachukwu said the ministry was working on other options to promote the deployment of ICT at all levels of education.