Andrew Katz's presentation of legal issues surrounding mobile technologies. Presented at Transfer Summit on 8th September 2011

1. Licensing and Mobile
Technologies
Andrew Katz
Moorcrofts LLP
andrew.katz@moorcrofts.com
twitter: @andrewjskatz

2. About me
• Former programmer
• Have released code under GPL
• Technology enthusiast
• My firm provides legal advice for:
– Corporate, fundraisings etc. (F/OSS DD)
– Employment (including GPL friendly
employment contracts)
– Commercial property
– IP/regulatory/licensing

3. Hot issues
• Patent madness
• API protection
• GPL enforcement
• App stores

4. “Patents seem to work pretty
well in the mobile space.
There's plenty of innovation
there, and the system runs
very smoothly.”
Anonymous patent agent to me at a cocktail party, c. 2003

5. Patent Madness
• Patents don't work
• Oligopoly supporting
• Jurisdictional in nature
• Contributory infringement and source
code.

6. Do patents work?
• Are they necessary for innovation?
– No - many reasons e.g.:
http://endsoftpatents.org/resources-for-economists
– “software patents...are associated with
lower R&D intensity” - Federal Reserve
Board report, 2004
• Potential barrier to entry for small
businesses

7. Oligopolistic
• Incumbents can afford expensive
patent application/acquisition fees.
• Incumbents amass a defensive patent
portfolio
– Patents should only protect stuff which would NOT
have been invented otherwise.
– Defensive patent portfolios are aimed at stuff which
is being invented anyway.
– Therefore the existence of defensive patenting
proves that the system is broken.

8. Jurisdictional Only
• Reports almost always omit the jurisdiction
where the patent exists.
• Usually US
• Historically, it's been easier to obtain software
related and business method patents in the US
than in the UK (and the rest of Europe)
• Some inventions may not be released in
jurisdictions with the strongest patents
• Will the US change its tune if China becomes a
net exporter of IP?

9. Contributory infringement
• Providing an essential element for the
infringement of a patent
• Could this apply to source code?
• The patent itself could contain source
code

10. API Protection
• Is copy or recreate still the binary
option?
• JVM vs. Dalvik
• (Oracle vs. Google)
• In EU (inc UK) – Computer Programs
Directive
• SAS -v- World Programming

11. GPL enforcement
• GPLViolations.org
• Software Freedom Law Center
• “Pay for an exception”
• Oracle
• Search and seizure

12. App Stores
• GNU go
• Incompatibility with GPL
• FSF says
– Apple is in violation of GPL
– Upstream provider violates
http://www.fsf.org/news/2010-05-app-store-compliance
• Android terms of service ok: carve
out GPL

13. Licensing and Mobile
Technologies
Andrew Katz
Moorcrofts LLP
andrew.katz@moorcrofts.com
twitter: @andrewjskatz