Home > Standards Blog

Advanced Search 

Welcome to ConsortiumInfo.org
Tuesday, September 02 2014 @ 09:22 AM CDT

Email Article To a Friend View Printable Version

Rambus Redux: The FTC Tries One Last Time (and so do I)

Intellectual property Rights

Long time readers will recall that perhaps the most high-profile (and high emotion) legal dispute involving standards revolves around the conduct of a memory design company called Rambus Incorporated.  The emotion arises in part because Rambus develops and licenses technology, but does not actually fabricate semiconductors.  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. 

The Federal Trade Commission (FTC) is one of those that thinks that Rambus gamed the system and deceived the marketplace, and I'm another.  That's why the FTC is asking the Supreme Court to overturn a lower court decision and reinstate the FTC's conviction of Rambus, and why I'm filing another in a series of "friend of the court" briefs in support of that goal.

Email Article To a Friend View Printable Version

A Big Day in Court for the FOSS Community

Intellectual property Rights

Today those who believe in free content and free and open source software won a major victory in court, as reported by Larry Lessig, Mark Radcliffe,  and Pamela Jones, among others.  The underlying facts, and the legal counsel involved, were hardly major figures on the commercial landscape: the open source software at issue - the JAVA Model Railroad Interface - had been developed by the plaintiff, Robert Jacobsen, for model train buffs under an infrequently used free and open source license, and the attorney representing the plaintiff - a solo practicioner in Maryland - was young and inexperienced.  But as often happens, a small case between small parties can have huge implications.  And decisions that may make good strategic sense to the parties can also have disastrous consequences for those that are not in the same situation.

The case in question is called Jacobsen v. Katzer, and you can read the opinion here (a brief summary of the facts and proceedings to date is here).  It's been going on for quite awhile, and a lot of people have spent a lot of time behind the scenes helping make sure that it came out the right way.  That said, it hasn't received a lot of attention outside of FOSS legal circles, so for those of you who haven't heard of it before, I'll try to distill briefly why this decision is so important, and why people are so pleased with today's decision.

Email Article To a Friend View Printable Version

The Open Collaboration Revolution

Intellectual property Rights

Last week I sent out the latest issue of Standards Today, my bi-monthly eJournal of "News, Ideas and Analysis."  This time around, my topic is what I call "The Open Collaboration Revolution," by which I mean the unprecedented ways in which the Internet and the Web are allowing communities to form around projects of all types.  The benefits that can be enjoyed as a result of such collaboration are leading those involved to reevaluate the traditional rights of creators and content owners.  What they are realizing is that they have more to gain by sharing than hoarding.  The result is a new focus on "openness" of all kinds - not just open standards and open source, but open development, open content, open data and more.  The promise held out by these new methodologies and the innovative legal tools that have been created to serve them will, I believe, be truly transforming. 

What follows below is the Editorial from this issue, titled Patience and the Possibilities of Collaborative and Derivative Expression.  If that piques your interest, you may want to read the deeper dive that I take on openness of all types in the Feature Article for this issue, titled Openness and the Pursuit of Knowledge.

Email Article To a Friend View Printable Version

Rambus Ruling Overturned: A Legal Dispute of Dickensian Proportions Lurches On

Intellectual property Rights
The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.  Charles Dickens, Bleak House


According to John the Apostle, the poor will be always with us.  So too, it seems, will the never-ending skein of cases enmeshing Rambus, Inc., the brash memory design company that famously participated in a JEDEC standard setting process in the early 1990s, and later asserted various patent claims against implementers of the very standards created by the working group in which it participated.  And while the lawyers may not be to blame in this case (or more properly, these many cases), the flood of litigation involving more than a half a dozen different vendors and government agencies certainly rivals the worst that Jarndyce ever threw against Jarndyce in Charles Dickens' epic tale of litigation gone wild.

Email Article To a Friend View Printable Version

FTC Announces Landmark Settlement in “Patent Hold Up” Action

Intellectual property Rights

On Wednesday, the Federal Trade Commission (FTC) announced the most important resolution of a standards-related enforcement action since Rambus, and possibly since its landmark settlement with Dell Computer in 1995.  At issue was whether a licensing promise made by a patent-owning participant in a standards development process is binding upon someone that later owns the same patent.  In a split 3 – 2 decision, the FTC has ruled that it does, when the later owner exploits the “lock in” of the marketplace by dramatically increasing the cost to license the patent in question.

The decision is significant for a number of reasons.  First, the marketplace has long worried over whether such promises can be relied upon in the long term.  Second, the sole business of the defendant in the action, Negotiated Data Solutions (N-Data), is licensing patents – in other words, a “troll,” in market parlance.  Trolls are viewed by vendors and end users alike as a pernicious and increasing threat.

Email Article To a Friend View Printable Version

Giving the Lie to Patents and Innovation

Intellectual property Rights

I posted the following piece at my other blog (at the Linux foundation site).  If you haven't  checked out the home page of the Foundation before, you should check it out, as it consolidates quite a bit of news of interest to the Community, including the blog entries of many of the staff.

One of the enduring soap operas this year has involved the ongoing patent infringement threats by Microsoft against “Linux, OpenOffice, email, and other open source software.” According to Microsoft, 235 of its (unnamed) patents are being infringed, and it should be entitled to be paid for this use of its intellectual property. Steve Ballmer believes that Microsoft owes it to its stockholders to file patents to protect its innovations, and then to assert these intellectual property rights in this way, and at this time.

Of course, Linux is based on Unix, which has been around for decades, as have many flavors of Unix created by IBM, HP, Sun and others. Curiously, Microsoft is not now, and never has, alleged that those systems infringe upon these same patents. Apparently, its stockholders do not expect it to assert patents against Unix vendors or users - just open source vendors.

Email Article To a Friend View Printable Version

Telling the Truth About Software Patents and Innovation

Intellectual property Rights

While much of what I write appears here, I also contribute to other venues as well.  The following op/ed piece first appeared in last week's print  edition of MHT (formerly Mass High Tech), the New England regional technology paper to which I periodically contribute a piece.  Starting next month, I'll be doing a regularly column for them, focusing on the New England technology scene.

How often have you heard it said that "patents foster innovation?" That phrase rings true in pharmaceuticals, where investment requirements are enormous and failure common. But does it also apply in areas such as software? Does it really take the promise of a legal monopoly to motivate a typical founder or CTO to innovate? And what about the advantages patents give big companies over emerging ones, simply because the former can credibly threaten expensive patent litigation while the latter cannot?

I'll talk about the negative impacts of software patents another time. But today I'd like to make the case that patents are irrelevant to software innovation, based on my 25 years of representing hundreds of startups, the largest number of which have been either pure software companies or other ventures whose value lay in the software at the heart of their businesses. That history tells me that if patents were to disappear tomorrow, the process of innovation wouldn't skip a beat.

Email Article To a Friend View Printable Version

EU Court Holds the Antitrust Line Against Microsoft, but May not have Stemmed its Dominance Tide

Intellectual property Rights
In what the New York Times is calling a "stinging rebuke," the European Court of First Instance issued a much-awaited judgment at 9:30 AM today in Luxembourg affirming almost all of the March 23, 2004 holdings by the European Commission that Microsoft had abused its dominant position to further expand its market share. The Court also affirmed the remedies against Microsoft, including fines of approximately US $1 billion. Only those parts of the original decision that would appointed a trustee to monitor Microsoft's compliance with the EU's orders were rejected, as exceeding the powers of the Commission. But while the victory is a significant one for the European Commission, how great a defeat is this in fact for Microsoft?  Perhaps less than first meets the eye, on which more below.
 

Today's decision is but the latest event in an almost 10 year history of investigations, trials, appeals, and new allegations that initially focused only on Microsoft's activities involving server software, but eventually grew to involve allegations of abuses in the office software marketplace as well. All of these accusations involved contentions that Microsoft was limiting the ability of its competitors to create products that would interoperate with its own, thus further entrenching itself. With time, open source advocates and trade associations filed lodged complaints as well, as Linux gained market share and greater vendor interest, and OpenDocument Format (ODF) compliant products, such as OpenOffice, gained greater credibility.

 
 

In the decision announced today, the Court found that Microsoft had abused its dominant market through two types of conduct, and ordered Microsoft to remedy the situation as follows:

Email Article To a Friend View Printable Version

Appeals Court Rules that Deceptive Conduct in Standard Setting can Violate Antitrust Laws

Intellectual property Rights
While many of us have been preoccupied with the OOXML vote, the rest of the world has naturally been continuing to go about its business. One piece of business that took an interesting turn in the last few days is a ruling by a Federal Appellate Court in the United States that breaks new ground in protecting the integrity of the standard setting system. The ruling may also have relevance to the regrettable conduct witnessed in the recent OOXML vote. 
 
What happened
 

The ruling was handed down by the U.S. Circuit Court of Appeals for the 3rd Circuit, in one of the multiple, ongoing suits between Qualcomm Incorporated and Broadcom Corporation, involving the vast and lucrative market for next generation wireless telephones and related services. The litigation history to date is complex, so for current purposes I'll focus only on the central contention and related holdings that are of interest to the standards process, rather than on how the ruling fits into the past and future fortunes of the parties to the litigation.

Email Article To a Friend View Printable Version

Federal Court Rules Against Qualcomm in a "Son of Rambus" Suit

Intellectual property Rights
A Federal Court sitting in San Diego, California has upheld a jury's unanimous verdict that QUALCOMM Incorporated abused the standards process by failing to make timely patent disclosures during a standard setting process.  The litigation arose when Qualcomm filed suit against Broadcom Corporation, an implementer of the standard.  The decision follows on the heels of a unanimous verdict by the Federal Trade Commission against memory technology company Rambus, inc. under similar factual circumstances.
 
Cases involving standards abuse are infrequent, but Qualcomm and Broadcom are currently involved in as many separate pieces of standards-related litigation as the entire industry usually indulges in over a period of years. In one suit (in which I helped draft and file a friend of the court brief on behalf of several standards organizations), Broadcom alleges that Qualcomm refused to honor its pledge to license its "essential claims" under a standard on "reasonable and nondiscriminatory terms." Other suits are continuing in multiple courts in several countries, including an antitrust suit that Broadcom lost –but perhaps not permanently – before the FTC issued it's verdict in Rambus. Ironically, the flurry of legal action is helping develop judicial guidelines for standards development and licensing on a more rapid basis than usual.
 

The current case was brought by Qualcomm in October 2005, and involved two patents that it later alleged would be infringed by implementing H.264, a video compression standard developed by the Joint Video Team (JVT), an effort supported by two global standard setting bodies, ITU-T, acting through its Video Coding Experts Group (VCEG)and the ISO/IEC, acting through its Moving Picture Experts Group (MPEG). The jury concluded that implementing the H/264standard would not result in infringement, but also indicated that it believed that Qualcomm had acted improperly before the United States Patent Office in obtaining the patents in question.