Bruce, you say you were anything but wrong about me, after you claimed further above that I was hostile to open source "all the way back to the SCO issue", a dispute that began in 2003 and ended in March 2010, only to claim that a totally unrelated issue (mainframe patents) I commented on in April 2010 was a way to lend credence to SCO's arguments. "All the way back to the SCO case" is not "a week after the final nail in the coffin of SCO's case, on a matter involving patents, though patents were never at issue in any SCO case." And now you still can't just apologize for a false allegation. I'm sorry for you, really.

It's your fault, not mine, that you've been exposed here in this discussion as someone who is not just emotional but also very unreasonable. And it's easy for the world to see that you said something that was baseless and then tried to justify it with a totally baseless theory.

1) In response to my first mesage to you here, you wrote: "You also made yourself a paid voice that was often hostile to Free Software, all the way back to the SCO issue." I repeat the last part: "all the way back to the SCO issue".

2) I then pointed out that I never ever, not even privately, expressed an opinion on any of the issues in the SCO case because I never cared enough about it to take a close look.

3) You then mentioned the IBM patent threats against an open-source mainframe emulator, which I first blogged about on April 6, 2010 and claimed the following: "It was a way to lend credence to IBM [which you then corrected to mean SCO] and MS arguments during the SCO issue. To state otherwise is deceptive, perhaps even self-deceptive." However, according to Wikipedia, "[t]he SCO Group allege[d] that its license agreements with IBM means that source code that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights." This has nothing at all to do with IBM theatening an open-source project with patents. On that Wikipedia page the only kinds of rights that are mentioned are copyrights and contractual rights, and it says: "SCO has not claimed patent infringement"

So Instead of just admitting that you accused me of a connection (SCO) that never existed because I never said anything about that case, you're now actually saying that someone drawing attention to an open source PATENT issue in April 2010 was trying to lend credence to DIFFERENT parties' arguments in a COPYRIGHT and CONTRACT case in which no patent was ever at issue. That's already bizarre, but it's even worse in chronological terms. According to Wikipedia, summary judgment had issued against SCO in 2007 (which suggests the judge didn't believe SCO had any reasonable point), the appeals court (in 2009) had reversed in part and remanded for a trial, and "[o]n March 30, 2010, following a jury trial, Novell, and not The SCO Group, was unanimously found to be the owner of the UNIX and UnixWare copyrights." That was exactly a week before I first blogged about the IBM mainframe patent issue. So apart from a patent issue being factually unrelated to a copyright/contract issue, it would also have been to late.

Why don't you just admit now that you were wrong about me and SCO? Everyone who reads this exchange of arguments here can say that I'm right. If you at least conceded that you made a mistake, you could minimize the damage to your credibility.

Your emotions lead you to speculate and this results in absurd claims and theories. The problem is you're digging yourself, not in the eyes of unreasonable people but in the eyes of rational people, a hole that gets deeper and deeper.

This thing about the IBM mainframe issue having had any connection with the SCO case is a wild conspiracy theory and a non sequitur. Even though I didn't follow the SCO case in detail, I believed, with the very limited information I had, it was already pretty much over when I ran my campaign against software patents (which was, at the time, mentioned by Groklaw). I certainly believed so in 2010, when the IBM story came up.

So I have a hard time seeing why SCO (at a time when it had apparently already lost) and Microsoft (?) could have achieved any particular SCO-related objective in connection with a mainframe antitrust issue. There was an issue in the mainframe context--otherwise the European Commission wouldn't have opened formal investigations (which isn't the same as a prohibition decision, but there is a considerable hurdle because the Commission gets so many complaints all the time and investigates only a limited number of them).

But the fact that you apparently have no qualms about IBM having threatened patent assertions against an open-source mainframe emulator is now the first indication I've seen that your "high road" is self-deception.

Your theory about "guilt" is similarly wild and baseless. It has nothing to do with guilty feelings if one doesn't want untruths and misconceptions to be spread. My connection with SCO is an untruth. My taking an open source leadership position is a misconception at best and an untruth at worst.

While I criticized IBM's patent threats against an open source project because I previously criticized their open source patent pledges, I'm not generally against them and actually had a very friendly meeting with an IBM executive earlier this year in Munich.

As for credibility, I know where I have plenty of it, and I've mentioned some of it here. Based on how you argued in this discussion here, I consider it much less desirable than before to have credibility in your eyes--in the eyes of a self-righteous guy who is (unlike what I ever was or tried to be) an open source leader and apparently thinks it's wrong to draw attention to patent threats against an open source project (when those threats even had an antitrust regulator concerned), which is inconsistent to put it mildly.

Needless to say you weren't going to be part of the core target audience for my app. Nor is my core target audience going to be influenced by you and the likes of you to any significant extent.

I don't have to rationalize something that was rational, but I do appreciate your answer because it allows me to clarify a couple of things, especially one that is a fundamental factual error on your end.

You can scour the archives of the Internet and talk to everyone who listened to me at a conference, and even to everyone who had private conversations with me on industry issues, but you'd never find anyone who could tell you that I ever said anything about "the SCO issue." I was absolutely stunned to read this. I mean, I've seen this claim by no-name forum trolls before: they thought since Groklaw didn't like me (or maybe because people compared some of my copyright-related work to the SCO thing), I must have been on SCO's side. But you're the first well-known person to say this though it's absolutely, positively false. I never expressed an opinion on the SCO case publicly or even privately because I, quite frankly, never even cared to look into the details. I never read a single court filing in that case. I had and still have only a very vague idea of what it was about. There were a very few situations in which people thought they could elicit some comment from me on it, and on those two or three occasions I said that I had no opinion simply for lack of information.

Please, check on Google. Try to find anything linking me to SCO. You won't find anything because there was nothing like that. Now that this has been clarified, which of the things I really did/said made you arrive at this negative opinion? If it's Oracle v. Google, I took a pro-API-copyright position more than 10 years ago, I took it during the fight against Oracle's acquisition of MySQL, and early in the Oracle v. Google case and throughout the case--and the Federal Circuit agrees, which shows I had a reason other than cash to believe so.

It does sound more than a bit self-righteous that you claim to have consistently taken the high road, but I can't contradict you on this because the things I know about your work are indeed consistent, just like I believe, however, that I've also been pretty consistent over a long period of time. As for a wager on who's been economically more successful in recent years, it would be a risky bet for you. I'm not a public company and I have NDAs with corporate clients, but I can share here what was reported about me in the German edition of the Financial Times: an hourly rate of $800 at the time, paid by many dozens of clients (most of them investment banks and hedge funds), most of whom had to pay an agency fee on top of that. When I stopped making myself available to financial services folks because it was too much of a distraction from my app development project, I actually did a call through one firm at a rate of $1,000 for one hour (plus the client paid an agency fee) and I could have done more calls at that rate but declined to, because I want to focus on real, creative work again. At least for your work as an expert witness I'm sure you charge about half of either of those rates. This has nothing to do with who's right or wrong, or who stands on higher moral ground, but it does show that my knowledge was valued by a great diversity of clients. With my app I'm sure I'll do a lot better. I won't open-source it, though. I've always been a big believer in closed-source business models, though I was involved with MySQL AB (as you might imagine, even a very small piece of the big billion-dollar payout from Sun was a nice chunk of money at the time).

While not nearly as bad as the totally inaccurate claim about SCO, I also disagree with your claim that I "took a leadership position, and later turned [my] coat." I ran a one-man show with the NoSoftwarePatents campaign. I had corporate backers, a majority of which (in terms of the number of companies as well as the percentage of financial contributions) were *not* open-source companies. I had no community backing--it was just a political alliance, an issue coalition of the kind you see in politics all the time. An issue-coalition partner does not become a leader of their partners.

The NoSoftwarePatents campaign did make open-source arguments in connection with software patents, but only as part of the story. Most of the arguments it raised had nothing to do with open-source or closed-source. Yes, open-source code can be analyzed particularly easily for the purpose of building infringement claim charts, and that's a fact I stressed. Yes, open-source projects face a particular problem if even a tiny per-unit royalty is charged. But that was about it in terms of my open-source work back then.

Throughout the European NoSoftwarePatents campaign I positioned myself as different from the FFII movement, though I shared their criticism of the proposed EU directive. I made clear on numerous occasions, in public (interviews, conferences) as well as in private (meetings with politicians and their advisers), that I had a closed-source background (including, for example, Blizzard Entertainment). That fact actually opened some doors and made some meetings (especially with conservative politicians) very fruitful. I complemented the FFII's and FSF's efforts. I didn't become their leader. It wasn't my fault that my campaign was perceived by many people, including the media but also including the other camp (at the time, a key industry association was EICTA, and they feared me more than the FFII; also, IP-specialized publications viewed me as the more important opponent and later gave me awards etc.), as the more forceful and impactful effort in some respects--while the FFII actually did far more lobbying, and their chief lobbyist Erik Josefsson alone presumably met with 10 to 20 times more MEPs than I did. The FFII has only itself to blame because it didn't even manage to put a decent website in place and came across as too ideological, while I, as a patent lawyer-blogger (Axel Horns, ipjur) accurately noted at the time, argued on the basis of business models rather than moralism.

There's no general answer to this because it depends on the specific circumstances. If you've seen someone else's audio editing app and you want to implement an innovative feature you first saw in that one, then I'd probably recommend very strongly to check on whether the maker of the other app has filed for a patent. If you create something totally independently, you may still be held liable for patent infringement later, but then the question is whether you actually have the resources to perform patent clearance. If you do perform clearance, you must, however, focus on what the claims--and not the titles--of potentially relevant patents cover. A patent named "Timeline display for audio waveform" could actually be very narrow. It could cover only a very particular type of display, so your own app wouldn't necessarily infringe it. But it might also be very broad, in which case it's another question whether that patent would be upheld if seriously challenged on the basis of prior art, especially prior art that was not known to the patent examiner. So I can't tell you what you should do, and I understand the question as relating to a completely hypothetical scenario anyway. I can just talk about the pro's and con's of different approaches.

Bruce, now that the discussion here has finally subsided, I want to comment on your involvement in this and I thought it was the right thing to do it here in public.

Maybe I should thank you for having discouraged people from asking questions because it saved me valuable time I got to spend on my app (I've just hired three full-time programmers and am currently interviewing others, so this project does need attention). No one paid me for this or encouraged me to this, nor do I have any reason to assume that anyone will be more likely to do business with me going forward because of this (it's actually unlikely because the people who matter to me professionally don't spend time on discussion boards of any kind). It was just that a /. guy who edited a /. op-ed of mine 10 years ago invited me to talk about Microsoft's billion-dollar Android licensing business and I didn't want to turn them down. I knew I was going to face a reasonably hostile audience and reminded /. of it.

Now, I can certainly understand that you're disappointed or, to make it sound more dramatic, feel betrayed by me. I haven't forgotten that you supported my efforts against software patents in various ways, and on my way to my computer I walked past that CNET Networks UK award for Outstanding Contribution to Software Development, which the FFII and my campaign jointly won because you, as a member of the CNET UK awards jury at the time, supported our cause and liked our work. That was in 2005, and then, in 2011, when I disclosed a then-already-ongoing working relationship with Microsoft on my blog (voluntarily; before any judge or anyone else with the authority to require me to do it asked about it), at a time when I was talking a lot about Android IP issues (patents as well as copyright) and the (limited, partial) compatibility of open sources licenses with FRAND licensing for open standards, Red Hat's dealings with patent trolls etc., you--who preferred to be dismissed by HP rather than stop criticizing Microsoft, which shows how principled you are and I admire you for it--considered me a traitor. A sellout. There's nothing difficult about it to understand. (And to make things even worse from your point of view, I'll confess to having filed for patents, PCT and immediate parallel filings in the U.S., on three inventions this year.

But this disappointment over a perceived betrayal doesn't change anything about three very important facts:

1) In reversely chronological order, let me draw your attention to the fact that I have throughout those years and especially this year done some hard and effective work on things we very likely agree on. In March, I brought to light, ahead of a key Apple v. Samsung (and Google, which paid part of Samsung's legal defense) trial, the irrationality of Apple's damages claim over 5 patents. There was no Groklaw or anyone else around to do that job. I did it. The following month I urged Apple and Microsoft not to act against software developer interests through their latest pro-patent lobby group. And this month I published an analysis of 222 smartphone patent assertions by Apple, Microsoft, Motorola, Nokia, and Samsung, less than 10% of which had merit based on final or latest preliminary results. None of all the people who criticized software patents and other issues with patents ever showed up at the countless (!) smartphone patent trials I attended. None of them ever made any effort to draw attention to what was happening there and to the political conclusions that could be drawn from the game that was being played, though the "smartphone patent wars" would have been a splendid opportunity to highlight certain issues to policy makers (for example, most of the asserted patents in the European parts of those disputes were software patents, and only a very few were deemed invalid because of subject matter). I know for sure that if I had still been running the NoSoftwarePatents campaign in recent years, I would have tried to leverage the "smartphone patent wars" for that cause.

2. You don't give me the benefit of the doubt when I actually had very good reasons--consistent with the positions I took a long time before I ever did any work for Microsoft--to believe what I believed. In that analysis of 222 smartphone patent assertions, I admitted that I would have expected more impact of all those patent assertions against Android (most of the 222 assertions were against Android, and the rest were retaliatory strikes by Android companies). My NoSoftwarePatents campaign had repeatedly warned against the strength of Microsoft's operating system patent portfolio. At times it engaged in outright Microsoft-bashing. When I saw Microsoft starting to collect patent royalties from the likes of HTC and suing Motorola, I honestly did believe that it had a strong IP position, stronger than what it has so far (there can also be a reversal of fortunes as long as disputes continue) established in court. There was a time when Microsoft had three German patent injunctions (with only six assertions adjudicated there at the time) in force and effect against Motorola's Android devices. All three patents have since been declared invalid by the Federal Patent Court of Germany (which decisions Microsoft has appealed to the Federal Court of Justice), so currently there is no enforcement anymore. Thus I adjusted my positions to the (new) facts.

While we're on the subject of long-held beliefs and positions, let me add that I spoke out in favor of interface copyrightability in April 2004 at a conference in the European Parliament that the Greens co-organized with the FFII. A speaker from the EFF mentioned that organization's work against my old friends at Blizzard Entertainment in the bnetd case, and in my intervention I argued in favor of strong copyright protection in this context. I reiterated that position on LWN in 2005, in a rather heated debate. This was before I worked against Oracle (opposing its Sun/MySQL deal), and I worked against Oracle before I ever did any consulting for Oracle.

3. There are issues--maybe few and far between from your point of view--on which Microsoft clearly defends what is in the public interest. The biggest one of those from my perspective was the fight for giving FRAND meaning. I know that FRAND is a red flag in open source circles, but at the end of the day even open source leaders like you are consumers and it would have been a terrible thing to let certain companies get away with flagrant abuse of standard-essential patents. Microsoft and its lawyers did some great work curbing FRAND abuse, and on that topic they had allies like Cisco and Intel. I'll be forever proud of having promoted--at a time when Microsoft was a client of mine, as was Oracle, which has an even longer track record of fighting against FRAND abuse--reasonable interpretations of FRAND and having opposed injunctions (including U.S. import bans) over standard-essential patents. You don't have to be excited about it, but you discredit yourself if you call someone a "troll" who has been recognized by IP professionals and academics around the globe and by companies with no stakes at all in the "smartphone patent wars" for this effort. By the way, I took clear a no-SEP-injunctions position in 2010, while Microsoft still made a submission to the FTC in mid-2011 (from which it later distanced itself by saying it was misinterpreted but if people interpreted it correctly, it would have been wrong) that said injunctive relief over SEPs is available. I was happy to see Microsoft take a clear no-SEP-injunctions position from 2012 on. It would have been a knee-jerk reaction to change my stance only to be on the other side.

It's not as simple as the question suggests. Let me quickly explain the state of software patents in those three jurisdictions (Europe, US, NZ):

Europe and NZ have an explicit exclusion of patents on computer programs as such in their statutory laws, but they do allow patents on software-powered technical inventions. This is a very difficult line to draw. NZ lawmakers agreed that smartphones should remain patentable--but 99.9% of patentable smartphone-related inventions are effectively software patents (in terms of the innovative element being in the way the thing is programmed). In Europe, the technicity requirement has been met by software that merely takes into account the resource constraints of the machine, i.e., saves screen space, processing time, memory, bandwidth, etc.

In the U.S., everything under the sun made by man is patentable and there is no explicit exclusion of software, but abstract ideas are excluded by statutory law. The U.S. Supreme Court's recent Alice decision appears to have resulted (based on USPTO and lower court decisions in recent months) in a de facto technicity requirement, except that there isn't (yet) much of a body of case law on the details of what constitutes a technological advance (while there's a rich body of case law in Europe on this question). So far, the vast majority of patents invalidated or patent applications rejected in the post-Alice world have been business method patents, not the kinds of software patents that are really interesting from a line-drawing point of view, such as patents on software that optimizes the use of computing resources (screen space, processing time, memory, bandwidth, etc.). It could be that it's presently even harder to get certain kinds of software patented in the U.S. than in Europe because of the lack of clarity of the Alice decision; it will take some time for things to settle out, but when all is said and done, U.S. patent law will most likely still be more inclusive than European (and NZ) law.

As for legislative intervention, the most recent patent reform effort was blocked by the leadership of Senate Democrats. If the Republican Party took control of the Senate after next month's mid-term elections, patent reform could go forward again.

Thanks for this question. Estimates that patent trolls cost tens of billions of dollars may be a bit too aggressive, but the damage that patent trolls do is a serious issue and I am all for meaningful patent reform in the U.S. (where the best chance for reform is probably a Republican senate majority after the mid-term elections) and I continue to promote balanced rules of procedure for Europe's future Unified Patent Court so as to make trolling less profitable. As for startups, I honestly don't know an example of a startup that got "destroyed" by patent trolls. There may be examples, but if so, no one has ever given an example. There's no benefit to a troll in destroying a startup: they just want to make money. And with respect to startups it's important to consider that some startups do benefit from patent protection (including mine, which has filed U.S. and PCT patent applications for three inventions this year). It's very difficult to say whether the bottom line (startup innovation destroyed/discouraged by patents vs. startup innovation enabled/encouraged by patent protection) is positive or negative.

The question was polite on the surface but contains a fundamental factual error: "tenure at MySQL AB ... short-lived." I became an adviser to MySQL's CEO and other executives on September 1, 2001. My advisory role ended on August 31, 2004 because I then focused on a patent policy campaign of which MySQL was a major backer (relative to company size, the most supportive one). So I seamlessly continued with MySQL, just in a different role and context. I received support from MySQL for my work on patent policy in 2004, 2005, and until the late 3rd quarter of 2006. That was more than five years after my work as an adviser started. Five years is almost an eternity in this industry, wouldn't you agree?

Also, I bought some MySQL AB shares early on and held on to them until the company was sold to Sun Microsystems in early 2008.

Then, in the second half of 2009 and the first few weeks of 2010, I was working on issues related to Oracle's acquisition of MySQL as part of Sun. That project naturally ended when the regulatory decisions had been made. It was not a project for MySQL AB anyway (MySQL AB at that point belonged to Sun, which wanted the acquisition to go through while I was fighting against it).

Based on where the case currently stands (after this year's ruling by the United States Court of Appeals for the Federal Circuit), Oracle is on the winning track with respect to API copyrightability.

I've answered the disclosure question elsewhere in this discussion. As for "anti-open source pro-patent scaremongering" please check out this analysis of 222 smartphone patent assertions (most them against Android), less than 10% of which had merit.

While I track lawsuits in detail, I never kept a log that would enable me to provide a list of events as an answer to this question. If I had to testify to this under oath in court, I would be able to say that I have done this repeatedly, that corrections were made repeatedly, and that to the best of my recollection, I have contacted every news agency or publisher when I was inaccurately described as a patent attorney.

The fact that I'm not a patent attorney has certainly not prevented IP professionals and academics from finding me a useful source of news, facts, and commentary.

Ten years ago I took the NoSoftwarePatents position. In recent years, however, I've been watching major patent disputes play out in court, and less than 10% of the assertions I watched had merit. On the one hand, this high rate of failure suggests to me that there is a fundamental problem with the system. On the other hand, it appears that bad patents can still be defeated, though it's probably harder with jury trials in the U.S. than with professional judges.

Based on the content of his non-copyrightability ruling, I wouldn't say it's "clear" that he knows Java very well. Almost all of the people who agreed with the outcome never cared to even read the decision, or if they did, they turned a blind eye to its factual and legal mistakes.

The United States Court of Appeals for the Federal Circuit overruled Judge Alsup. At the appellate hearing, one of the Fed. Cir. judges said that Judge Alsup had apparently gotten confused about the law. The current state of affairs is that Oracle is on the winning track re. copyrightability (I don't believe the Supreme Court will side with Google on tihs one), so I was right and people like you (and Groklaw etc.) were wrong.