Wednesday, April 6, 2022

Despicably deceptive: Big Tech's Save Our Standards campaign presents small app developer as victim of standard-essential patent abuse though it NEVER had to license SEPs

I am outraged. What Save Our Standards, a "coalition" formed last fall, has recently employed is by far the most disingenuous lobbying and campaigning tactic ever in the context of standard-essential patents (SEPs). It's an utter disgrace, brutally unethical and shockingly incompetent at the same time. The companies who funded that particular effort--mostly Big Tech, but also automotive industry players--should be ashamed. Very ashamed.

In an infomercial, they presented a small contract development firm from Alabama as an example of a small business that allegedly has reasons to worry about standard-essential patent (SEP) abuse. But the facts are 100% clear. It's all a lie. A damn lie, just for political gain. Deceptive lobbying at its worst. The truth of the whole matter is that the company in question never had to license a single SEP--and not even the customer for which it developed the only existing app mentioned in the infomercial incurred the slightest risk related to SEPs. One just needs to understand the basics of U.S. patent law to understand why, and I'll explain it further below based on a transcript of that Save Our Standards infomercial. If you want to skip the other explanations and go straight to the most absurd part of that infomercial, click here.

With their small-business lie they're trying to get other small businesses to sign up for a newsletter (presumably so they can subsequently make some of them "members" and argue that their agenda is not just about Big Tech and car makers' interests' in devaluing SEPs). They even try to fool the DOJ, USPTO, and NIST into believing there's a small-business concern here.

Once policy makers around the globe figure this out (for which they just need to read this post), they'll see that Save Our Standards is, in part, an astroturfing campaign. Save Our Standards just can't be trusted. If they have to come up with a fake story like that in order to make a "small business" argument, it just shows the bankruptcy of the whole claim that small app developers are impacted by SEPs. They also conflate app development (software) and IoT products (hardware). I will always be in favor of solutions--such as fair patent pools--that truly help small IoT companies license SEPs. But I reject--and even despise--scare tactics targeting small businesses (which may not figure this out for lack of IP expertise) and attempts to disinform policy makers like the DOJ or the European Commission.

While Saved Our Standards described itself in its original announcement as "a broad-based group of 28 innovators that includes small, medium and large businesses, associations, academics, and civil society organizations," it's just ACT | The App(le) Association by any other name. The initial press release quoted only one person--ACT's president--and provided an ACT email address in its Media Contact section:

I've previously criticized ACT's astroturfing and applauded Microsoft for withdrawing from it after more than two decades. The Save Our Standards campaign is just a new label for ACT, with support from Big Tech groups like the High Tech Inventors Alliance (HTIA), Computer & Communications Industry Association, and Software & Information Industry Association (SIIA). Apple, Google, and Amazon are additionally direct members (not just through the aforementioned Big Tech groups). And there are some automotive companies like Continental and Honda, as we ll as their Alliance for Automotive Innovation (AAI).

That's obviously not a "a broad-based group of 28 innovators that includes small, medium and large businesses" (emphasis added). If you wonder where all those small businesses are, they have a fig leaf, though, and it's named MotionMobs. I venture to guess they either pay that one directly for its services or there are some indirect incentives in place.

MotionMobs is a contract software developer, especially contract app developer. It's not a lie that MotionMobs is small. The untruth here is that MotionMobs allegedly has a problem with SEPs. MotionMobs doesn't need to license SEPs or fend off SEP infringement lawsuits any more than you or I need to license patents on nuclear reactor technology.

Here's what Save Our Standards tweeted just about a week ago (on March 29). Being the drama kings and queens they are, their Twitter profile picture says "SOS." If they're drowning in anything, it's the disingenuity of the following:

Let that sink in:

"Our member @motionmobs joins @gigastacey 'The Internet of Things Podcast' to discuss the impact of #sepabuse on #smallbusiness"

@gigastacey is Stacey Higginbotham, an IoT blogger and podcaster. She got paid by Save Our Standards to spread patent policy propaganda. I don't blame her: she probably doesn't understand patent law, thus couldn't know what she was being used for.

Episode 364 of Stacey's Internet of Things Podcast podcast (dated March 24, 2022) was sponsored by Save Our Standards. The relevant part begins at 36m06s, and it's so obvious that MotionMobs just parroted talking points prepared by ACT and most likely recorded those messages as opposed to answering in real time. Here's my transcript, with comments:

STACEY HIGGINBOTHAM: "But first a message from our sponsor [...] This week's sponsor is Save Our Standards. Save Our Standards brings together a cross-section of industries to advocate for a fair and transparent standard-essential patent licensing system. And I have Emily Hart, who is the COO of MotionMobs, which is a software consulting and development firm based in Birmingham, Alabama, here to talk to us about Save Our Standards."

COMMENT: If they want to advocate for a fair and transparent SEP licensing system, maybe they should do so in a fair and transparent way. The sponsorship notice is, of course, transparent. But it's astroturfing to claim that MotionMobs has any SEP issues.

STACEY HIGGINBOTHAM: "Hi Emily, can you talk a little bit about standard-essential patents and the way MotionMobs uses them when developing tech-driven solutions for your clients?"

COMMENT: The honest answer would be that MotionMobs uses SEPs in its app development just like anybody uses them when making a phone call or browsing the Web with a smartphone. They don't implement standards, period.

EMILY HART: "Standard-essential patents are part of wireless standards that go far beyond smartphones. They're used in everything these days from smart manufacturing to vehicles. One of the reasons that we joined SOS is really to deepen our knowledge of what's going on in the policy landscape around SEPs and to share our perspective as a small business. As app developers at MotionMobs we fairly rely on a healthy functioning ecosystem that grants us access to the hardware components that our software needs."

COMMENT: Are you kidding me? You're worried about "access to the hardware components [y]our software needs?" What's the problem then? You can't buy an iPhone at the next Apple Store? LMGTFY: the nearest one is on 217 Summit Boulevard, Birmingham, AL.

EMILY HART (cont'd): "When we developed GuideSafe, Alabama's official COVID-19 exposure notification app in 2020, that software hinged entirely on privacy-protecting Bluetooth tech and right now we have another health tech product that's in development. It's being designed for a very specific line of healthcare display units in hospital. Neither of these projects would even be possible without fair access to the standard-essential-patented components in the units that we're developing for."

COMMENT: Give me a break. There's nothing in or about your app that would expose you to any SEP-related risk (other than the risk any of us have when we use our phones).

Let's even forget about the fact that Bluetooth practically never gives rise to any litigation (or to complaints about unfair licensing terms). Even if we assumed for the sake of the argument that there were lots of abusive Bluetooth SEP holders out there preying on small businesses, MotionMobs wouldn't have to worry because its app just uses the Bluetooth functionality of an iPhone or Android phone. Your "fair access to the standard-essential-patented components" is provided by the iOS or Android APIs (application programming interfaces), and it's free apart from Apple's and Google's app store tax.

Any direct infringement of Bluetooth SEPs would have to occur by the device maker, and the device maker would then infringe with or without your app. There's no indirect--for example, compulsory--infringement either. It starts with the fact that MotionMobs doesn't even publish that app. It just sold software development services to the State of Alabama, which published the app. And, by the way, even the State of Alabama doesn't have to worry: if all else failed (and there'd be other strong defenses), U.S. states are not liable for patent infringement because patent law is federal law, which the states are immune to under the Eleventh Amendment. (The federal government waived its immunity, but the only remedy patent holders have is fair compensation in the Court of Federal Claims.)

STACEY HIGGINBOTHAM: "And as a small business in the IoT ecosystem, why is it important to educate yourselves about licensing standard-essential patents?"

EMILY HART: "Small businesses like us have limited resources and most don't have access to a general counsel for navigating malicious threats from SEP holders or hostile negotiations. Education is the key in protecting all small businesses against being forced to take a bad deal or halting production or distribution due to a licensing dispute or--even worse--a small business can be shut down entirely due to defending those threats."

COMMENT: Oh my. So after some weird references to access to patented components, she's now talking about the need to license patents (which for the reasons I explained above MotionMobs simply doesn't have to), she then makes it sound like MotionMobs' development work could be "halted" or their apps couldn't be distributed.

Now, I do agree with those astroturfers that "education is the key." That's why I'm writing this post: to debunk a total lie.

EMILY HART (cont'd): "MotionMobs also supported a recent draft statement from DOJ NIST USPTO on regulating the licensing of standard-essential patents because we believe it would lead to a more balanced system for all players. Standard-essential patent holders, of course, would receive fair compensation for their patented technologies, but we also need to make sure that small and large innovators alike would be ensured of their access to the standards needed to develop and sell their product."

You don't need to make this sure. It's already ensured. You don't infringe directly (to any greater extent than other smartphone users), nor indirectly--and the State of Alabama is even free to infringe (sovereign immunity). But if Save Our Standards (i.e., ACT | The Apple Association) or any of its backers are your customers, companies like Apple and Google indeed do have to license SEPs.

The DOJ, NIST, and USPTO should not take a submission seriously that is signed by a company that doesn't even face any SEP issues.

STACEY HIGGINBOTHAM: "Great! OK, so where can people find more about Save Our Standards?"

EMILY HART: "For details on the coalition, resources about standard-essential patent licensing and to share your email to stay in touch with our activities and news, visit us at"

COMMENT: What a puff piece, designed to recruit clueless small companies as members (because they struggle to underpin their small business-related SEP claims). They may even have planned to use that "interview" to disinform policy makers about the structure of their membership ("no, we're not just Big Tech, we got MotionMobs from Birmingham, Alabama") and the impact of SEPs on little app developers.


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