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Google’s Nexus Tablet; Maddog’s Blog; Patent News & More

Friday FOSS Week in Review

Lot’s of stories of interest in the FOSS world this week. Patent issues, of course, dominated the news. In addition, however, a travel site got outed for a OS bias and a hardware manufacturer discovered the hard way that ignoring open source can be costly.

We’ll start with the patent news…

The Patent Wars Continue

I don’t know what we’re going to do about the patent situation. The sensible thing would be to simply change the law and make software unpatentable, but there are plenty of reasons why that’s not likely to happen anytime soon. Banning patents wouldn’t only effect the trolls, those snakes that don’t make anything but monetize their patent portfolios through the courts. If it did, we could probably get it done tonight.

The trouble is, too many big publicly held companies have invested tens if not hundreds of billions of dollars of shareholder money buying up patents. Eliminating software patents, then, would wipe out billions of dollars in wealth being held not only by the trolls but by the likes of IBM, Oracle, Google, Apple and Microsoft. In other words, it isn’t going to happen. Too many of these guys employ people on K Street.

Software patents are costing us even more than we realize, however. We got an inkling this week from the BBC of how much that cost might be. It seems that the trolls alone are costing the U.S. $29 billion dollars yearly, according to James Bessen and Michael Meurer who took part in a study conducted by Boston University:

“This [$29bn] figure does not include indirect costs to the defendants’ businesses such as diversion of resources, delays in new products, and loss of market share,” they wrote.

“Even so, the direct costs are large relative to total spending on [research and development], which totalled $247bn in 2009, implying that NPE patent assertions effectively impose a significant tax on investment in innovation.”

This is important because the trolls often claim they serve a beneficial purpose, furthering innovation by making sure developers get paid for their work.

Even without the trolls, however, patent wars are being fought.

Google’s recently acquired Motorola has been in the news twice in the last week in patent related stories, as has Apple. Last Friday, US Court of Appeals Judge Richard Posner threw out a lawsuit in which the two were suing each other. Previously, the same judge had canceled a Chicago jury trial for the case and called the patent system “chaos.” ars technica reports that the judge was careful to make sure neither of these cases will see a courtroom again:

“Noting that dismissals without prejudice allow suits to be refiled, Posner made it clear that this one would be dismissed with prejudice. ‘It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff [Apple] to refile the suit so that he could have a second chance to prove damages. This case is therefore dismissed with prejudice,’ Posner wrote. Posner had previously ruled that proposed testimony from experts put forth by both sides would be inadmissible, making it difficult to support any claims for damages or injunctions.

“The case would have involved two trials, one covering Apple’s claim that Motorola infringed four of its patents and another covering Motorola’s claim that Apple infringed one of its patents.”

This ruling comes at about the same time that Microsoft rejected a peace offering by Motorola in another patent case that might end up with import injunctions being issued against xBox, Windows devices and a Motorola Android developers’ kit. The Register reports that Motorola offered a cross-licensing solution to end the dispute:

“But Microsoft didn’t like the terms Motorola proposed for the two firms to cross-license each other’s gear. The one-time leader of the tech world said Motorola was offering it 33c for the use of Microsoft’s ActiveSync in each of Moto’s Android phones, and that in return it wants a 2.25 per cent from every Xbox and 50c for every copy of Windows that uses its patents.

“While we welcome any good faith settlement effort, it’s hard to apply that label to a demand that Microsoft pay royalties to Google far in excess of market rates, that refuses to license all the Microsoft patents infringed by Motorola, and that is promptly leaked to the press,” Horacio Gutierrez, Microsoft’s deputy general counsel, told The Register in an emailed statement.”

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