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OLPC Tells Nigerian Court: We Don't Use LANCOR's Keyboard
Friday, January 04 2008 @ 05:36 PM EST

OLPC has answered the LANCOR claims.

And if you want to know what really happened between Intel and OLPC, I suggest you read this interview with Nicholas Negroponte in Fortune. Here's the meat of it:

Q: But in the end they quit?
Negroponte: They were on probation. They had violated very serious things. If you're in school and you are on probation for very serious misdemeanors you can say you quit but ....

I'll show you the filings in the Nigerian case, but you can sum them up like this: OLPC doesn't use LANCOR's keyboard, its keyboards are based on public domain techniques, and the plaintiffs misled the court in a number of particulars to get an injunction it doesn't deserve. OLPC asks that the case be tossed, describing it as "wholly incompetent, vexatious and a gross abuse of the process of court".

Here's what OLPC says was hidden from the court:

  • LANCOR has no valid patent
  • OLPC hasn't sold any XO laptops in Nigeria
  • it's a non-profit
  • the beta XO laptops tested in Nigeria were not for sale and were not given away
  • OLPC never signed a EULA
  • OLPC never reverse engineered anything
  • its keyboards that will be distributed use all public domain techniques and not LANCOR's Konyin keyboard

OLPC also raises jurisdictional issues, and it asserts the plaintiffs lack standing to bring the action. Additionally, OLPC says there is no reasonable cause of action here, and states the injunction is doing harm. For those reasons, and more, it asks the court to toss the case out.

Here are the details, and the filings, all PDFs. OLPC on December 31 filed a Conditional Appearance in the Federal High Court in Lagos, Nigeria, along with a Preliminary Objection [ page 2 and page 3], which as best I can make out is like what we in the US would call a motion, asking for the following relief:

1. An Order striking out the suit filed on the 22nd of November 2007 against the 1st, 2nd, 3rd and 4th Defendants/Applicants for lack of jurisdiction.

2. An Order dismissing the suit filed and dated 22nd November 2007 as it is wholly incompetent, vexatious and a gross abuse of the process of court.

3. An Order setting aside and/or discharging the Anton Piller Order and Interim Injunction granted on the 3rd December 2007 for have pre judged the main issue in the proceedings leading to a Miscarriage of Justice.

4. An Order setting aside the order for leave to serve out of jurisdiction granted ex parte by the court on the 3rd December 2007.

5. An Order setting aside the Writ of Summons and all other processes for been fundamentally defective.

The grounds for the application, are:

1. The Plaintiffs/Respondents lack locus standi to institute this action.

2. The Statement of Claim discloses no reasonable cause of action against the Defendants/Applicants.

3. The Plaintiffs/Respondents misrepresented material facts to this honorable court.

4. The Plaintiffs/Respondents concealed material facts from this Honorable Court.

5. The Order of interim injunction would not have been granted but for the misrepresentation and/or concealment of material facts from the court.

7. The interim injunction has continued to expose the Defendants/Applicants to risks.

OLPC is being represented in Nigeria by Musibau Ayodele Kusamotu, of the firm of Kusamotu & Kusamotu as lead counsel. There's an Affidavit of Adegoke Adejobi in Support of Preliminary Objection Dated 31st Day of December, 2007 from an attorney in the firm as well:

This document tells about the search at Growing Business Foundation on December 14, "carried out by bailiffs and the Respondents' representatives". The affidavit points out that OLPC and Nicholas Negroponte are outside the jurisdiction of the court, the plaintiffs failed to provide any security for costs, and the court did not grant them leave to issue the writ of summons out of jurisdiction.

The allegation is also made that the plaintiffs concealed from the court that all the XO laptops imported by OLPC were "Beta Models 1, 2, 3, 4 for test purposes only and none has ever been sold to anyone in Nigeria" and that furthermore all the beta test models will be leaving Nigeria after the test period for debugging. Further, the beta models were *donated* by OLPC to the Galadima School, not sold, and there is a Certificate of donation attached as an exhibit to the Affidavit [ page 2, page 3, and page 4].

There is also a report on the test project [page 2, page 3, and page 4]. OLPC has the beta laptops in its possession 'until school resumes'.

Next, the Affidavit says that contrary to plaintiffs' claims, the plaintiffs "do not have a Registered Patent on the Konyin Keyboard and at all material times there was not and never [has] been in existence any Registered Design or Registered Patent." Any such purported registration is invalid. "The features highlighted in 3(c) of the Affidavit in support of the ex parte motion for Interim Injunction are totally false, misleading and vague."

Further, the plaintiffs failed to disclose to the court, the Affidavit continues, that OLPC is a Not for Profit/Non Stock Organization, incorporated in Delaware, and there's the Certificate of Incorporation attached as an exhibit [page 2, page 3, and page 4], certified, along with the Memorandum and Articles of Association, and a Financial Statement for December 31, 2006 and 2005 [page 2, page 3, page 4, page 5, page 6, and page 7].

The plaintiffs concealed from the court, also, the Affidavit continues, that the Beta XOs were never for sale. There's another exhibit I haven't got yet but referenced in the Affidavit showing that inscribed inside the battery hold of the betas it is written: "This device has not met all regulatory approvals therefore can not be offered for sale or lease (Test Sample)." OLPC sought and got approval from the Standards Organisation of Nigeria to waive the SONCAP requirement. There is also the DHL slip, attached as another exhibit which reads, "Description: XO machines, testing only, not for resale." You can read the BBC's news coverage of the test of the XO laptop betas in the Galadima primary school, to get the picture.

Furthermore, the affidavit continues, OLPC didn't apply the design of the Konyin Keyboard on the beta XOs or any other XO laptop. Fuse Project and OLPC designed the physical design of the XO laptops, but the keycap iconography was designed by OLPC and Pentagram. The design uses techniques in the public domain. Two more exhibits show the physical layout of the beta 1 XO laptop and the shape of the Beta XO keyboard. And another exhibit shows the different keyboard that will be used on any XO laptops distributed in Nigeria. The keyboard of the Beta XO laptops "incorporates the X windows System xkb symbol tables to incorporate 2 (two) shift key: the standard Shift key found on typewriters for decades and the AltGr key (or any other key assigned to this role)." Here's part of what is different, from the Affidavit, page 5:

34. The Beta XO Laptop keyboard uses a different set of keys, 11 of which are unique. The glyphs commonly used in Igbo, Hausa and Yoruba were included as defined in the standard xkb symbol file.

The unique keys are the journal key, the neighborhood view key, the friends view key, the home view key, the activity view key, the digital/analog slide key(s), the bulletin board key, the frame key, the language key, the grab key(s), and the view source key.

Further differentiation can be seen in that the Beta XO laptop keyboards are moisture resistant and dust proof with flexible membranes. The dimensions are different too, as this vertical top view, this side view, and this horizon view. The xkb system is such, the Affidavit points out, such that to create a keyboard layout, the only information you need "is which keys you want to assign to which position. There is no software or encoding involved" -- pages 5 and 6:

39. The 1st Defendant/Applicant did not "reverse engineer" the Konyin Keyboard or any keyboard for that matter as there is nothing to gain from the process by which any other system does its internal mapping apart from the XKB System.

40. Paragraph 3 of the Affidavit in support of the Motion for Interim Injunction is false, the key board on the Beta XO laptops uses a two shift key which allows for direct access typing which is the xkb system that enables the use of 'dead keys', Unicode 'combining' keys and the assignment of arbitrary Unicode characters.

41. The Plaintiffs/Respondents do not have any REGISTERED PATENT WHATSOEVER in Nigeria.

43. That the 1st and 2nd Defendants/Applicants have been greatly injured by the Interim Injunction granted to the Plaintiffs/Respondents as it has put a stop to the Galadima Project and future importation of the XO laptop into Nigeria.

44. That the Interim Injunction has closed down the public spirited One laptop per Child project in Nigeria and done SUBSTANTIAL INJUSTICE to the PUBLIC, CITIZENS, CHILDREN AND TEACHERS.

45. That the One laptop Per Child Project is a global project involving several countries in Africa including Ghana, Rwanda, Nigeria and in Latin America, Paraguay, Brazil, Peru, Mexico and in Asia, India and the injunction has brought the project into disrepute.

46. Contrary to 3(k) and (n) of the Plaintiffs/Respondents Affidavit in support of the Ex Parte Application for injunction, the Defendants/Applicants have never seen the Plaintiffs'/Respondents' software and the physical layout is publicly available at http://www.konyin.com/.

47. Paragraph 3(f) of the Affidavit in support of the Motion Ex Parte for Interim Injunction is false. The 2nd Defendant/Applicant has never seen the Konyin Keyboard and did not order or execute an end user license agreement (EULA).

Further, the Affidavit accuses the plaintiffs of deliberately delaying the hearing of the Motion on Notice and failure to serve the Order of Injunction on the defendants. It sums up that it is "in the interests of justice that this application is granted.


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