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Comment Re:New low (Score 1) 187

If you are not good enough for Pamela Jones (PJ), you are not good enough for me.

I'd be profoundly worried if I was "good enough for Pamela Jones (PJ)" because in order to meet that criterion I'd have to take a legally wrong position on API copyrightability. There are obviously people who think Groklaw is higher authority than the United States Court of Appeals for the Federal Circuit, but I'll go with the Fed. Cir. any day of the week.

Comment Re:OK... (Score 1) 187

I won't dispute that "large chunks of the F/OSS community", as you put it, have taken issue with my work in recent years. However, this was just because I honestly and accurately highlighted inconvenient truths. For example, the fact that more than two dozen Android device makers pay Microsoft patent royalties on a piece of supposedly "free" software, and that others pay Microsoft patent royalties on their use of non-mobile Linux, is a fact regardless of whether "large chunks of the F/OSS community" like it. As I've said on Twitter, those billions of dollars of Android patent royalties that have been and continued to be paid show that Android isn't "free," though litigation results suggest that Android could have been free if every device maker had done what Motorola has been and continues to be doing: to simply defeat the infringement assertions in court and to work around the few that will ultimately be found to have merit.

My track record in predicting decisions is extremely good, and IP professionals and researchers the world over recognize it regardless of what parts of the F/OSS community think. With the greatest respect for the F/OSS community, I wouldn't want it to be the other way round. And to be perfectly forthright, to me those who think PJ ever proved me wrong on anything are pathetically clueless, unbelievably naive, totally brainwashed, or a combination of all of the foregoing. On the single most important issue, API copyrightability (which relates to Oracle v. Google as well as the Linux-kernel-headers-in-Android issue), the appeals court said exactly what I had been saying for years, and the opposite of what PJ and her brainwashed followers believed. (I'm pretty sure the Supreme Court won't put Google back on the winning track with respect to copyrightability.)

Comment How can I... (Score 1) 187

The idea of this online interview was to discuss smartphone patent issues involving major players (such as the ones mentioned at the top), but I'll respond to some of these questions anyway.

As an independent software developer, how can I avoid getting dragged into a patent lawsuit?

There's too many patents out there to ever be sure that you won't ever be sued. For example, none of the little app developers sued by Lodsys over in-app purchasing appeared to even have known about Lodsys's patents, and Apple argued that it was already licensed to those patents (because they once belonged to Intellectual Ventures).

That said, there can also be cases in which independent developers infringe because they see an interesting invention in someone else's product and decide to implement it in their own product(s) without a license.

How can I leverage my rights to ensure others aren't exploiting my patents?

This depends on how much of an effort you are willing and able to make. If direct competitors infringe your patents, chances are you will find out sooner or later. Then you may (but only based on professional legal advice) consider putting them on notice of any infringements identified.

As a middle management cog in a large organization, how can I impress the importance of patents on the executive leadership?

Large organizations tend to be pretty patent-savvy, at least in innovative industries.

How can I work with our console on ensuring that our creations are correctly patented?

The first thing you can do is provide precise descriptions of your inventions and how they compare to the prior art known to you. Thereafter you can cooperatively answer their follow-up questions.

And what steps should I be taking to minimize our risk of being sued?

This is basically another version of the first question.

Comment FOSS Patents (Score 1) 187

To be perfectly honest, if I had anticipated what my blog was ultimately going to focus on (smartphone IP disputes), I'd have called it "Mobile Patents" or "Smartphone Patents", not "FOSS Patents." But by the time I knew, it was already too well-known under its original name.

I actually agree the name is an oxymoron, but you may not have applied the same definition of "oxymoron": it means that two terms appear contradictory -- not that they necessarily are contradictory. In this case, they do appear contradictory (FOSS philosophy is irreconcilable with patent protection) but they are not in reality, with 27 companies paying Microsoft royalties on Android devices, for example. The name was brutally realistic. Let's face it, even Red Hat has paid off a number of patent trolls.

Comment How can you still keep a straight face? (Score 1) 187

Time and time again your forecasts about legal disputes have been falsified in court.

Quite the contrary. The Federal Circuit reversed Judge Alsup's grossly erroneous non-copyrightability ruling, so I got this one right and most others got it wrong.

I was demonstrably spot-on on five of the six most important smartphone IP decisions that came down in 2014.

Comment Re:Can I have my money back? (Score 1) 187

What Halo1 wrote about FFII and me having been independent from each other (and having had a cooperation that was everything but easy) is true. As for companies that supported my efforts, MySQL made the greatest effort relative to company size, but the largest supporter was a German Internet company (ISP, freemail, web hosting etc.) named 1&1. Red Hat gave me the least support and only for the shortest period of time of all companies that supported me.

Comment Leading IP experts do find me a valuable source (Score 1) 187

He was never a valuable source for anything [...]

You're entitled to your opinion on this, but it is not shared by some very credible people in the intellectual property universe:

- Managing Intellectual Property (ManagingIP) magazine has put me on its annual list of the top 50 most influential people in IP five times so far (2005, 2006, 2012, 2013, 2014).

- IAM (Intellectual Asset Management) magazine named me one of the IP personalities of 2011 (and had me on some other ranking that I can't find at the moment).

- Canadian IP lawyer Barry Sookman conducted some research on the leading IP and tech law blogs. According to his analysis (published in early 2013), my FOSS Patents blog was the #3 U.S. patent law blog at the time.

- I have received invitations to speak at conferences organized by universities and around the globe (in the U.S., literally from California to New York) and at commercial conferences in the U.S., different European countries, different Asian countries, and New Zealand. Only for logistical reasons I have had to politely decline except for invitations in my home region. I have spoken at the renowned Max Planck Institute for IP and Competition Law in Munich, at the Munich University of Technology (three times already), and the University of Bayreuth, where I shared a panel with a judge from the patent-specialized division of Germany's equivalent of the U.S. Supreme Court (see page 2 of the conference program), who is also widely expected to become one of the top-ranking judges of Europe's future Unified Patent Court. This incredibly well-respected patent judge and I both addressed the same topic, from our different vantage points, and had a panel discussion with questions from the audience and our moderator, a Switzerland-based patent law professor.

- Professor Thomas Cotter (University of Minnesota), an expert in comparative patent remedies (he travels the world to research differences between national patent laws), wrote this post about the significance of FOSS Patents earlier this year. Professor Cotter's independence is underscored by the fact that he has in recent years signed amicus curiae briefs supporting a core Apple position (on FRAND) and opposing a core Apple position (on design patent remedies).

- I could give more examples, but suffice it to say that any of the above references easily outweighs whatever a blog like Groklaw may have written about me over the years.

Comment Re:I'll pass... (Score 1) 187

Add Google the the list

I've become accustomed to an ever-growing list of companies someone somewhere thinks I'm beholden to. Years ago there was speculation in the Groklaw discussion forum about Apple paying me and earlier this year an Apple blog referred to speculation elsewhere on the Internet (and supposedly at Apple HQ in Cupertino) about an affiliation with the Android camp. I've addressed the disclosure question in this part of the discussion. I take it as a great compliment that opposing camps (Apple fans on the one hand, Android/open source fans on the other hand) simultaneously allege a conflict of interest.

I know that I only write what I believe in. There was a time when Apple and Microsoft had scored a number of (temporary) wins in court against Android, but then came a time when most of those wins eroded (patents got invalidated etc.) and when whatever little was left turned out not to be forceful, so I had to adjust my position because anything less would have been unreasonable. At the beginning of this month I published my analysis of what happened to 222 smartphone patent assertions (most of them against Android) by Apple, Microsoft and three other major litigants, with less than 10% having proved to have merit. The facts speak for themselves.

The most absurd thing is, however, that people still say Groklaw proved me wrong on the Oracle case when the current state of affairs is that the appeals court threw out Judge Alsup's grossly erroneous non-copyrightability ruling for reasons my blog had already explained years ago. Even my toughest critics would have to acknowledge that I was right (and they and Groklaw were wrong) if only they had a scintilla of rationality.

Comment Re:Thoughts about (Score 0) 187

How does API copyrightability "promote the Progress of Science and useful Arts"? Or, how does it help to deter interoperability?

The progress of science and useful arts is promoted by a balanced intellectual property regime that adds the fuel of interest to the fire of genius while ensuring that incremental innovation can occur and that competition is healthy.

If interoperability is the goal (and it's a very important one for sure), non-copyrightability is not the only and especially not the best means to promote it. Copyrightability is the first and not the last step of the analysis. Highly-creative program code is copyrightable but, depending on the specifics of a case, using APIs may be considered fair use. Alternatively, someone wielding too much market power based on ownership of APIs may have to grant a (compulsory) license on fair, reasonable and non-discriminatory (FRAND) terms. Fair use and a compulsory license involve a case-specific analysis of all the relevant facts and circumstances. If something is simply declared non-copyrightable, the point of a case-by-case analysis is never reached.

Comment Re:Thoughts about (Score 1, Troll) 187

See other posts about links to many posts which are about why they think you are wrong. There are many posts dealing with you... E.g. []

While Groklaw mentioned me many times, I'd need to see a list of cases in which Groklaw made a prediction that turned out true and I made one on the same issue that didn't. The one you linked to is from the spring of 2010 and it's about the IBM mainframe antitrust matter. Stuff like that is obviously not decided by an online community (or the open source community). The way to look at complaints about allegedly anticompetitive behavior is not binary. It's a question of whether someone had a reasonable basis for being concerned. In this case, the basis was clearly reasonable given that the European Commission opened formal investigations (a few months later) and IBM ultimately made commitments (the following year).

Also maybe Oracle can win that API copyrightability dispute, but that is because the Judges have no clue (except Alsup) (Cooperations are people and such, yeah right).

Judge Alsup's non-copyrightability ruling was flawed even from a purely technical point of view (for example, the way he conflated the Java language and the APIs). I know that a lot of people here (and on Groklaw, for that matter) liked the outcome (sort of like 'the end justifies the means') but I doubt that they even cared to read the decision from a critical perspective. There was an unjustified apotheosis on the Internet after his decision (an apotheosis that the judge himself presumably didn't even want to happen). Then the Federal Circuit, which enjoys a great reputation around the world for its IP expertise, determined that he had confused even basic principles of copyright law (for example, by importing fair use considerations into the copyrightability analysis). Those who hated that outcome concluded, like the post I just quoted, that the Fed. Cir. must have gotten it all wrong. Again, they substituted their belief as to the proper outcome for an analysis of the actual reasoning. Just like I thing people missed the weak aspects (even in purely technical regards) of Judge Alsup's ruling, the same crowd missed the strong ones of the Fed. Cir. opinion. I recommend to those who disagree with the Fed. Cir. to read the actual opinion, including the footnotes (some of the best stuff is found in them). The Fed. Cir.'s description of the Java language-API relationship makes a whole lot more sense than what the district judge wrote.

That still does not change that you talked about billion dollars, and come on, even if they lose you don't really believe it will be in this order of magnitude finally, are you?

To answer your question (before explaining why the first part is based on a misunderstanding), my refresher Q&A on this case says in its headline that while there was a billion-dollar damages claim, this case is about something more strategic. The commercial value of what's at stake far exceeds a billion dollars, and the key to the kingdom for Oracle is to prevail on the merits and obtain an injunction, not for the sake of harming Android but for the purpose of bringing Android back into the Java fold (as Oracle's lawyers described it in a court filing).

The fact that Oracle brought a billion-dollar damages claim came to light in mid-June 2011. I merelyquoted from a court filing and explained that this was the (financial) risk (of course, as always provided that the plaintiff prevails on the merits, which goes without saying). On the same day and at around the same time, Reuters reported the very same thing. So I wasn't the only one to deem it a newsworthy fact.

Comment Thoughts about (Score 5) 187

You may or may not be surprised, but despite various disagreements over the years I'd have liked Groklaw to continue or, after its 2013 shutdown, to have come back. For example, I think Groklaw could have made some useful contributions to the public debate over this year's Apple v. Samsung trial in the Northern District of California. Also, I do regret some of my derogatory comments about PJ, including that I wondered at some point whether there was more than one person behind the PJ name. Earlier this year I met a highly trustworthy source (a corporate executive) who confirmed PJ's participation in a certain (patent-related) meeting years ago.

The part I don't understand is how Groklaws "predictions were mostly more accurate than [mine]" or "[my] opinion was painted as clearly wrong there." With respect to approximately 98% of the IP lawsuits I covered, Groklaw never made any prediction whatsoever (for example, you won't find any Groklaw prediction concerning German smartphone patent disputes, and very few relating to U.S. smartphone patent cases). The overlap essentially came down to API copyright matters: the use of Linux kernel headers in Android and the API copyright part of Oracle v. Google. While Groklaw's position on API copyright was shared by one district judge in California, my opinion was unanimously validated by three circuit (i.e., higher-level) judges in Washington DC this year. Now Google is trying to take that case to the Supreme Court. Any conspiracy theory concerning the opinions I had expressed about API copyrightability in general and the API copyright part of Oracle v. Google in particular makes no sense unless someone is crazy enough to believe that those Federal Circuit judges are part of the conspiracy.

Comment What Is Your Relationship with Microsoft & Ora (Score 5) 187

This is my first reply here because I can easily clarify the question of why, when and how disclosures were made and address some misconceptions.

The "court order" mentioned above came down in August 2012, see e.g., approximately four months after a voluntary, proactive disclosure I had made in April 2012, see Oracle attached that previous disclosure to its response to the court order:

Oracle has retained Florian Mueller, author of the blog FOSS Patents,, as a consultant on competition-related matters, especially relating to standards-essential patents. Oracle notes that Mr. Mueller fully disclosed his relationship with Oracle in a blog posting dated April 18, 2012; that Oracle retained him after he had begun writing about this case; and that he was not retained to write about the case. Mr. Mueller is a frequent critic of Oracle and was a leading advocate against Oracle's acquisition of Sun Microsystems, Inc., which led to Oracle's ownership of Sun's Java IP portfolio. A copy of Mr. Mueller's disclosure is attached as Exhibit A at 5.

I disclosed consulting work for Microsoft in October 2011, see At that point, no judge had asked for a disclosure, nor has this happened to date. I did it because it was the right thing to do.

At the end of last month I shut down my consulting firm in order to focus on my (Android and iOS) app development project. I'm still blogging, but less than before.

My consulting business had served numerous clients, not just Microsoft and Oracle. There were dozens of investment banks and funds who paid me to answer questions or participate in conference calls. I also did research for a couple of law firms and a German car manufacturer (that company allows me to refer to them like this but not to disclose the name, just industry and country).

I wish all others commenting on these types of issues were equally transparent.

Comment Re:Apple's proporsed answer to Lodsys's complaint (Score 1) 83

You keep failing to acknowledge that what you claimed was wrong. It doesn't matter for this particular discussion between us what's in the Apple license agreement. You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion). Don't try to confuse reasonable, unbiased readers here who follow our discussion. You said something utterly uninformed and you desperately try to muddy the water. But that's very transparent.

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