Groklaw

I guess you heard that the Texas attorney general has opened an investigation into antitrust complaints against Google, complaints lodged by Foundem, SourceTool, and myTriggers.com. Them again? Their complaints are not new. Here's Google's blog post about it. And likely you heard about that utterly tasteless ad in Times Square from Consumer Watchdog, a cartoon of a creepy looking Eric Schmidt handing ice cream to children and asking for their secrets. I think I can explain both events, because they are part of one campaign. Or as American Lawyer describes [PDF] the lawyers behind this, they are on a crusade against Google. The article is titled "The Google-Slayers". Guess who the lawyers on this crusade have as a client? Microsoft. They handle Microsoft's antitrust work. Guess who sent the first complainant to these lawyers, which led to this crusade? Microsoft. The jumping off point. So. A crusade to destroy Google. By folks who count Microsoft as an important client, with new clients, at least one of them directly referred to the "crusaders" by Microsoft and the rest now under their umbrella. My stars, gentlemen. Where is your subtlety? But there's more.

Darl's purchase of the mobility assets was all done pretty much in the dark. We, the public were told one thing in advance, but something else after the fact. But now we get to see the final agreement. Darl and Me Inc Holdings LLC, Darl's LLC, got not only the copyrights but a patent application as well, including rights to sue for any past infringement. The patent is entitled "Systems and Methods for Providing Distributed Applications and Services for Intelligent Mobile Devices," and the application was filed in 2006, #11/533347. We were told in advance of the sale that this patent application was excluded, but then he got it anyway. What was SCO thinking, I was asking myself as I read the agreement? I could just see it: "Darl sues Google's Android". Why not? Everyone else and his dog is. Of course there's some prior art on that method of making fast, easy money. Seriously, though, if you check the transaction history for this patent application with the USPTO's PAIR system, what you learn is fascinatingly funny. At the time of the sale in April, the patent application was still working its way through the system. There was a non-final rejection notice that issued in January of 2010, which presumably Darl knew about if he did any due diligence. In July, post-sale, there was a request for more time to answer that notice and then they filed a reply. But on August 17, there was a final notice of rejection anyway of claims 1-17 and 19-20. Prior art and obviousness. Claim 18 had been "withdrawn from consideration" so the rejection was not only final but total. Darl has 3 months to reply, and, in some conceivable convoluted drag-it-out process the rejection outlines, it could last six months, tops. But it looks like Darl bought a pig in a poke. And some of you say there is no God.

SCO filed a motion asking for more time to file its appeal brief with the Tenth Circuit Court of Appeals. They needed 10 more days, and Novell agreed to it, so the clerk signed off on it the same day the motion was filed, and the new date for SCO to file its brief will be September 9. SCO's argument asking for more time is interesting, because we learn that Novell asked to -- and SCO agreed they could -- attach 60 more documents to the Appendix. And Stuart Singer, who takes credit in his bio on Boies Schiller's website for representing SCO as lead counsel at this same court of appeals the last time SCO appealed, is busy with another case, working on a preliminary injunction proceeding. Well. Almost. It doesn't say the "SCO" word:Won appellate decision from Tenth Circuit (August 2009) regarding ownership of copyrights and contract rights for the UNIX operating system. Heh heh. They are incorrigible. Not exactly the whole story, eh? What he won was a jury trial to *determine* the ownership of UNIX and UnixWare copyrights and contract rights, but the jury at the trial said Novell retained ownership of the copyrights for UNIX and UnixWare in 1995-6, and the judge ruled that Novell had the right to waive contractual violations, so SCO lost completely, despite the Court of Appeals granting SCO that extra bite of the apple with a jury trial. Which, I must point out, reached exactly the same conclusion that the first judge had on summary judgment way back in August of 2007. Singer's bio makes it sound like SCO prevailed. No wonder Bloomberg got it so wrong today [see News Picks]. That's the trouble with fibs and spin. They detach your mind from reality. Over time, that can't be good for anybody's mental health. Preliminary injunctions are very, very hard to win, because one of the things you have to demonstrate early in the case, meaning before you've done discovery, is that you probably will win in the end, so it's a legitimate excuse this time. But what might those extra 60 documents be, I wonder?

So, do you hate software patents yet, now that you've read about Paul Allen's patent infringement lawsuit against the world and his dog? I think it ought to inspire you, reading Allen's complaint [PDF], that it might get you to the tipping point, or at least help you to understand why most engineers do hate software patents, because they are a drain on the economy and a hindrance to innovation. So we did Allen's complaint as text, sort of as Exhibit A, shall we say, illustrating the point. But if you can figure out precisely what this litigation is about from this complaint, what the defendants are alleged to have done wrong, you are doing better than I am. It's unbelievably vague. So are the patents. What is it that these patents do? What's the process or method? I mean, "Alerting Users to Items of Current Interest", a patent on a system for recommending things that might interest you based on your interest in something else? How's this for prior art? When I go to the local hamburger joint, they ask me if I want fries with my burger.

I don't know about you, but I've found it hard to follow the various patent lawsuits involving Apple, Nokia and HTC. First there are so many cases filed all over the place, it's hard to understand the big picture. And I kept asking myself what it was all about. I mean, what's it all about really? Because some exhibits filed by HTC have just been unsealed, we get to read Apple admitting in one of the documents that the HTC litigation is indeed about Google and Android and the Open Handset Alliance. Or as Apple puts it, "HTC's products implicate the Android operating system developed by Google and the Open Handset Alliance."

SCO has filed, as expected, its objections to Novell's bill of costs: 08/26/2010 - 890 OBJECTIONS to 879 Bill of Costs filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A)(Normand, Edward) (Entered: 08/26/2010) Novell's bills, SCO argues, "beg credulity". They are too high. Who makes that many copies? Some items are not authorized by statute. They are not demonstrated to have been necessary. They were for a mock trial, in one case. They are for things like slides that they should have asked the judge for permission to have made. The judge, SCO argues, should deny Novell's bill of costs entirely. I will translate for you. What that means is that SCO would like to pay less. If Novell had lost, and they had been ordered to pay SCO's bill of costs, SCO would have fervently argued the opposite. Last time, SCO was able to get a bit knocked off the bill, so they may again. But they'll probably still have to pay something. But will they? In real life, I mean. Not on paper.

I would like everyone to watch tridge's talk [.ogv] [mp3] on patents and how engineers can interact efficiently with patent lawyers, to get your knowledge across to them. More formats are linked from End Software Patents, if you prefer audio only. Focus, please, also on what he's learned about patents, how to invalidate them in various ways, especially the part about proving non-infringement and why that is easier than proving prior art, and then the part about finding a workaround and then publicizing it. He shows how to read a patent filing document. You guys have been effective already in the past in finding prior art, but he is raising the bar with more techniques. I see some of you are already posting what you believe to be prior art on the Oracle America patents being used against Google, and we might as well do it as well as we can once we are sure Oracle is going to go forward full steam ahead, but there are other arrows to add to our quiver. I'm waiting to see if there is a settlement of some kind, but when I am sure it's going forward, I'll tell you. Patent infringement cases go on for years, usually, so there's time to hope for progress. Larry Ellison is giving a talk at JavaOne September 20 in San Francisco on "Oracle's vision and strategy" for Java. As James Gosling points out, there is still a way to fulfill the 2007 Java pledge by setting up an independent Java foundation, and there are other steps Oracle can still take. In spite of all that is happening, one thing I am clear on. Oracle is not SCO. Oracle is Oracle. Sui generis. Update: Google announced it will not be attending JavaOne. But as Eben Moglen pointed out recently at LinuxCon, the patent crisis in general isn't going away. So it's best that we figure out the very best ways to deal with it. I'm told his talk will be available as video soon, and when it's up, it will be here on the Linux Foundation website.

This could get interesting. HTC has filed its answer to Apple's complaint [PDFs] against them for patent infringement, with affirmative defenses and counterclaims. The case, Apple Inc. v. High Tech Computer Corp. et al, is now before Judge Gregory M. Sleet, docket number: 1:10-cv-00544-GMS, in the US District Court in Delaware. The et al means there are others as defendants, and the full caption is Apple Inc. and NeXt Software, Inc. v. High Tech Computer Corp., a/k/a HTC Corp., HTC (B.V.I.) Corp., HTC America, Inc., and Exedea, Inc. The defendants are asking to move the case from Delaware, where Apple filed, to Northern California. I don't know about you, but I'd rather be in any state *but* Delaware, after watching SCO's bankruptcy there.HTC denies infringing the patents, of course, but they also say as a first affirmative defense that four of the patents are invalid for "failure to comply with one or more of the conditions for patentability set forth in Title 35 of the United States Code, including, but not limited to, utility, novelty, non-obviousness, enablement, written description and definiteness in accordance with 35 U.S.C. §§ 101, 102, 103, 112, and/or 116, or are invalid pursuant to the judicial doctrine barring double-patenting". HTC also claims prior art, marking, laches and marking defenses, and it says it has license agreements with third party suppliers to do what they do the things Apple is suing them over. It asks the court to declare the patents invalid. Here's a recent case highlighted on EFF's site where some of those types of defenses worked perfectly. You know how in the movies when two guys get into a fight on the street, another guy will run into a bar and yell, Fight! and everyone runs outside to watch? I feel like that guy reading this filing, because I see HTC intends to fight back.

It will not surprise you to learn that the bankruptcy court has approved SCO's request to auction off "substantially all of the debtors' software business assets" free from liens, claims and encumbrances, as well as certain executory contracts and leases. We learn this from the docket minutes and the signed order. Details will follow from our reporters who attended the hearing today.

Look what I just found, SCO's Partners page from 2002, on Internet Archive, and lo and behold, it provides proof positive that SCO, then calling itself Caldera, knew that IBM was involved with Linux as far back as 1998. That's the year Santa Cruz and IBM signed the agreement regarding Project Monterey, executed in October of 1998. No one, therefore, Santa Cruz or Caldera, had any reason to be in the dark about IBM's Linux activities while IBM was also working on Project Monterey. Now that the old caldera.com pages are on Internet Archive again, thanks to SCO selling off the domain name, many interesting things are surfacing, and we find out why SCO tried to hide them for so long. They should have waited a little bit longer.

We have at last Novell's appeal brief [PDF] in the private antitrust case Novell brought against Microsoft regarding WordPerfect. The brief was filed with the US Court of Appeals for the Fourth Circuit. It begins: "This case has been here before." Indeed. Here's the decision from the US District Court in Maryland that Novell is appealing, as text. But there's more. Microsoft is fighting to keep certain documents it alleges the judge in the district court didn't base his ruling on from being considered by the court of appeals. Here's the Microsoft Motion to Strike [PDF]. The full title is Motion to Strike Certain Exhibits from the Joint Appendix and Any References to Such Documents in Novell's Brief. Microsoft is relying in part on some cases Novell already pointed out to Microsoft don't apply, as I'll show you. [Update: One of the exhibits is actually marked as filed under seal. So we've now split them apart.] [Update 2: We checked, and the filing is now unsealed and is part of the public record, so I've added it to the list.] But the case is interesting also on a tech level, because, in my view, the judge doesn't understand fully the difference between an operating system and an application. He ruled that WordPerfect is, under the relevant APA, an associated DOS operating system product and hence covered by the DR DOS litigation Caldera brought successfully against Microsoft. Because he lumped them together in a jujitsu way, accepting Microsoft's position, he found for Microsoft on summary judgment. That reminds me, because Groklaw is now in the Library of Congress's digital collection, accessible if you visit the library, I have been taking time to try to fix older broken links, and I just finished updating the links in the US v. Microsoft litigation section, part of our permanent page on Microsoft Litigation, to include the famous video moment, the doctored video. There are links now to Ed Felten's testimony [PDF] that you could indeed uninstall IE in Windows 98, the trial exhibits, the depositions used, and direct testimony transcripts. including the transcript of the cross examination of Microsoft's Jim Allchin by David Boies, the famous Perry Mason moment. The transcript is, ironically enough, in Microsoft's .doc format, but if you don't have Microsoft Windows and don't wish to buy it, you can download OpenOffice.org for free, as in beer and as in freedom, thanks in part to all the antitrust rulings in the US and the EU and then thanks to all the volunteers who worked so hard to give us a viable alternative, and you'll be able to read it just fine. If you notice any broken links, particularly on our permanent pages, please let me know. Being included in the Library of Congress is a great honor that I feel deeply, and when I disappear on the weekends somewhat these days, it's because I'm feeling that responsibility, knowing our work is available to researchers there who might not otherwise know about Groklaw, and I want to be sure our historical collections are as accurate as human limitations and the constantly changing Internet allow, so they are optimally useful. Also, I continue to work on completing our collection of exhibits in the Comes v. Microsoft antitrust case, some of which turned out to be relevant in the Novell v. Microsoft case, so if you'd like to help finish up, just go here, find any numbered PDF that isn't described or available in full as text, and do either a description or a transcript following the general style you see others have used, and then post what you find in plain text, ideally with HTML done and showing, or email me by clicking on the envelope icon. Thank you. But let's take a look at the latest dispute in the Novell v. Microsoft appeal.

We have a new Timeline page where you will be able to find all the filed documents in the Oracle America, Inc. v. Google, Inc. litigation. The complaint and other administrative filings are there now, and when Google files an answer, you'll find it there. So if you read something in the media about the case, you can always verify the facts right here in the filings themselves. We've added a link to the new page in the standard menu. We also have set up a new topic, so if you are a member and you read Groklaw by topic, look for OraclevGoogle.

SCO's Chapter 11 Trustee in the bankruptcy has replied to Oracle and Novell's reservation of rights filings regarding his desire to sell off SCO's assets, whatever that means to him. He does now provide more information about that. We learn from footnote 2 that he also got informal responses from the US Trustee's Office and from HP, although later in the document he says his lawyers have resolved some of the OUST's issues and will discuss the rest at the Sale hearing. HP had concerns about "a certain release agreement" between SCO and HP, dated August 15, 2003. Interesting. I don't recall any such document. So this is Cahn's omnibus reply to them all, with some points regarding each objection. He still wants the sale to go forward, and the hearing on this will be Monday at 3 PM, so I hope some of you can go! The schedule for the day is filed as well, with all the details.

The chickens have flown home and are circling SCO, looking for a place to roost, with SCO doing its dance to postpone the inevitable. Judge Ted Stewart, who presided over the SCO v. Novell second trial has denied SCO's motion to stay taxation of costs, a motion which Novell opposed. "Motion to stay taxation of costs" is legalese for "SCO doesn't want to have to pay what they owe Novell for dragging them through another pointless trial that found exactly what the first trial found, so it would like to figure out what the costs are later, much, much later." SCO asked for a postponement until all their appeals were decided. But the judge wasn't buying it. Note they don't have to pay within ten days. They have to tell the court within ten days if there are any items on Novell's bill it thinks it should not have to pay at all.

Oracle, as well as Novell, have both filed a Reservation of Rights objecting to SCO's Motion in bankruptcy court to sell off all the assets, all but the litigation and whatever is on the list of excluded assets. If you recall, Oracle made an appearance in connection with an earlier SCO sales scheme, and now it says SCO needs to tell it more detailed information about the new plan and amend it, if any Oracle contracts are involved. "At this time, Oracle does not consent to any proposed assignment or transfer of use via the Sale Motion or otherwise, as proposed transfers must be in compliance with the license terms," Oracle tells the court. It has copyrights and patents on this software, it points out. Not that it needs to mention that this week. We are aware.

Here's the Oracle complaint [PDF] against Google, as text. More accurately, it's Oracle America v. Google. That is what Oracle has named Sun Microsystems now that it's a subsidiary, Oracle America, the company formerly known as Sun. So it's Sun that is being made to be the plaintiff. It's Sun's patents and copyrights, so that makes sense, but it gives me an icky feeling. All the Sun people who'd never do this in a million years either wouldn't go to work for Oracle or left promptly, so here we are, Oracle America. Doing documents as text is very helpful, because it forces me to notice such details. Here is what else I'm noticing so far.

It's hard to think about SCO today, but Cahn continues to file. Now he wants Tanner to audit SCO's 401(k) plan. I'd prefer that he audit all the professionals' bills, personally.

On the Oracle v. Google litigation announcement, here's something that I don't see anyone else mentioning yet. On the Oracle patents, in a post-Bilski world, the right question would seem to be: Are *any* of the asserted Oracle patents tied to a specific machine? That test wasn't tossed overboard. The Supreme Court said [PDF] it's a helpful test, just not the only one. Carlo Daffara has the patents Oracle is relying on listed with helpful links here. Groklaw member Celtic_hackr went through them and sees none that are tied to any specific machine. Only look if you are free to do so, but this is a shout out to the lawyers out there to at least investigate this possibility. If it's true, this might turn into one of the most interesting litigations we've ever covered. Yes, Groklaw will cover this litigation soup to nuts. And may software patents crash into the ocean as an unintended consequence of this patent attack. I've collected some links to give you context. I put them in News Picks already, but unless I put them in an article, they're hard to find down the road, and now that I've decided Groklaw will cover this litigation, we'll probably want to refer to these resources.

SCO Group's Chapter 11 Trustee, Edward Cahn, has now filed the monthly operating reports for June, as well as bills for Ocean Park Advisors for June and July. And take note: there's no hearing in bankruptcy court on Monday. Once again, it's called off. So, Ocean Park wants more money for advising SCO about its way forward and its obligations. I will provide my own analysis for free: SCO has fallen and it can't get up. It can never pay off all the folks it owes, even if it suddenly tried. The litigation history is rather clear, is it not, that SCO's stories in court rooms don't actually get believed? There's a reason for that, one SCO's current leadership might want to look into. As a result, SCO is now a serial loser. Extrapolate. The way forward seems clear enough to me. There is no way forward. There. I suggest my analysis is worth at least 5 cents. I'll assume my check is in the mail.

First word has arrived from today's status hearing that SCO requested in SCO v. IBM, but we had more than one reporter there today, so there will be updates later tonight. SCO in its motion had asked that two of IBM's motions for summary judgment on some of SCO's claims, long on ice because of the SCO bankruptcy, be revived and allowed to go forward so SCO could pursue claims not affected, in SCO's view, by SCO's loss in the SCO v. Novell case. IBM, of course, opposed on several grounds. First, it makes no sense to go forward until SCO's appeal is decided. Second, IBM wasn't crazy about SCO's idea of being allowed to go forward piecemeal, with IBM standing there tied up, so to speak, while SCO gets to kick them in the shins. IBM's position as well is that all SCO's claims are off the table, due to its loss in the Novell case, so unless it wins on appeal, there's nothing to go forward on. What a waste of judicial resources. Oddly, SCO, as it turned out, at the conference asked to proceed on only one of the motions, #782, IBM's Motion for Summary Judgment on SCO's Unfair Competition Claim (SCO's Sixth Cause of Action). Probably they read IBM's memorandum in opposition. Argument was heard, and the judge, the Hon. Tena Campbell, has taken it under advisement.