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Summary:

Florian Mueller, a German software savant, is invaluable to many in the public and media for his ability to explain the arcane patent battle…

Microsoft
photo: Corbis

Florian Mueller, a German software savant, is invaluable to many in the public and media for his ability to explain the arcane patent battles engulfing companies like Google (NSDQ: GOOG) and Apple (NSDQ: AAPL). But is Mueller’s keen analysis being swayed by his ties to Microsoft?

On his popular FOSS Patents blog, Mueller summarizes in plain English the legal wrangling surrounding disputes like Apple’s effort to snuff out Samsung. A self-styled intellectual-property expert, his quick quotes have made him popular with blogs and major news outlets alike.

On Friday, the 9To5 Google blog pointed to a post in which a Google software engineer noted that Mueller had disclosed that he received money from Microsoft (NSDQ: MSFT) for a new study. The engineer also described Mueller as “anti-Google” and pointed out that he is a patent analyst not a lawyer.

So what should we make of Mr. Mueller? The engineer’s assessment is fair in one sense but unfair in another. Let’s start with the latter. As a former practicing lawyer, I don’t believe one needs a law degree to understand or report on law. In Mueller’s case, he is able to parse and summarize tricky judgments more effectively than many of his credentialed counterparts and does not make any obvious mistakes. He is very smart and his blog provides an excellent way to keep up with the tic-toc of global software patent litigation. As for the Microsoft-funded study, it seems a worthy enough initiative (a review of FRAND patents) and Mueller has the qualifications to undertake it.

The problem lies not with Mueller’s analysis — but with his impartiality. The engineer is right when he says that Mueller has the knives out for Google. Even a casual reader of the FOSS blog can easily discern that Mueller is quick to amplify any legal setback for Google’s Android or its affiliates. His tone can be crowing and haughty — see the tendentious “Google scores an Own Goal” post about Motorola (NYSE: MMI) — and for all the world echoes Microsoft’s own “they’re getting what they deserve” attitude to Google.

In a friendly email, Mueller said he calls things as he sees them and that he is typically validated by what happens in court. He gave examples (some of which were overstated — like Google’s failure to win a summary judgment motion). But he did not address the larger question of whether he is selective in what he does and does not report.

“I don’t see a conflict of interest between my work as an analyst and my blogging activity,” he wrote. “I have had consistent positions for many years. For example, my position on the immense strength of Microsoft’s patent portfolio has always been the same whether I worked with them or against them. During my campaign against software patents on Europe I repeatedly warned the industry and the public at large against the strategic leverage that Microsoft and other large players — but especially Microsoft — had and would have in the future thanks to their patent holdings.”

He says that he and Microsoft have worked together more than once, but that because of a confidentiality agreement with the company, he can’t elaborate on the details of that relationship. “I have a large number of clients, and there will always be some I cannot disclose due to confidentiality obligations.” On his web site, he says that his “consulting services are available directly as well as through three primary research firms (Gerson Lehrman Group, Coleman Research Group, Guidepoint Global Advisors) serving the financial community.”

The relationship between Mueller and Microsoft is noteworthy for another reason: Microsoft’s history of using proxies to attack Google. Prior to hearings on the Google Books Settlement, for instance, Microsoft paid a professor and former employee to run a project summarizing objections to the settlement.And the Wall Street Journal (NSDQ: NWS) reported that Microsoft lawyers were behind the efforts of an obscure Ohio company to bring an antitrust action against Google.

Mueller may have perfectly good reasons to consistently zing Android — he’s far from the only pundit that has consistently strong views about a particular company. But given his financial relationship with that company’s archenemy– and the fact that Microsoft has a history of “hiring” outside experts to attack the competition — it’s hard to regard him as a disinterested party. The time has come for Mueller to amend the conflict of interest disclaimer on his blog and for the media to cease citing him as an impartial authority.

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  1. Florian Mueller Tuesday, October 18, 2011

    Even though I see several elements in this article that reflect a certain sense of fairness, it has a fundamental flaw that calls the intentions of its author into question. Why does Jeff Roberts make a selective call on the press not to quote me as an independent expert? Is paidContent.org now going to call on its competitors not to cite Gartner, IDC, Forrester Research, Goldman Sachs, Citigroup, UBS etc. as independent because they all had some project-based working relationship with someone in the industry? To make this call only with respect to me instead of putting this into a broader context is flawed at best and utterly hypocritical at worst.

    1. Why should the press not quote you as an independent expert? Because if you are being paid by Microsoft, then it is an outright lie to call you an “independent” expert on any matter that Microsoft has a vested interest in. Also most knowledgeable people out there would not refer to you as a patent “expert” either.

      There are many journalists who have little understanding of what they are writing about when it comes to tech issues and patent law in particular, and who simply recycle content from others as a result, possibly including content from highly partial PR content from paid “consultants” like yourself. 

      Hence it makes perfect sense for poor unsuspecting readers to be made aware that what they are getting from you is material from someone with a vested interest to churn out PR material for Microsoft, so they can judge the content in this context – this is the difference between a free press and the sort of thing you might get from Stalin’s or Goebbels’ media.  

      Why should you be noted as non-independent? Because ALL paid “consultants” writing content who are paid by a party that has an interest in introducing a bias into that content should be outed as to any vested interests – including yourself. It is all about openness, honesty, and journalistic integrity for the benefit those journalists who haven’t yet compromised theirs, and may be damaged by your lack of impartiality. 

  2. Florian Mueller Tuesday, October 18, 2011

    I have another thing to point out that casts doubt on the author’s efforts to be accurate and fair. Jeff Roberts says that I “overstated” Google’s failure to win a summary judgment motion. In the email that he refers to, I wrote the following about that matter:
    “I raised a number of issues that drew some initial backlash but ultimately turned out right. For example, when I warned against certain Android-related copyright issues, there were some who disagreed vocally, but Google’s summary judgment motion against Oracle’s copyright infringement claims failed, which shows that it’s not at all clear whether everything that Google says isn’t protected by copyright truly isn’t protected.”That’s quite a bit more nuanced than the “overstatement” Jeff Roberts grossly inaccurately alleges.I didn’t say that Google’s failure to win summary judgment was a definitive decision. However, Google has taken many hundreds of source code files from the Linux kernel and other GPL-based software projects and added a header that categorically denied copyrightability (“contain no copyrightable material”). With such a categorical denial of copyrightability of API-related files, Google must win on summary judgment. Everyone knows that a jury trial comes with considerable uncertainty — and building an entire ecosystem like Android on legally uncertain matters is not an option. There has to be enough certainty to win on summary judgment. I don’t blame Jeff Roberts too much for not understanding this context. But it’s inexcusable that he misrepresents a differentiated, nuanced statement of mine by characterizing it as an overstatement.

  3. Once I found about Mueller’s relationship with Microsoft I stopped reading his posts. Before that I thought he was gunning for Google and Android. The Microsoft connection makes me think I was right and know I may know why.

  4. The consultant doth protest too much, methinks. The issue here is simple enough: Is Mr. Mueller’s ability to hold himself out as an impartial analyst of smartphone patent litigation compromised if he is funded by Microsoft? Instead of responding, Mr. Mueller engages in an orgy of rhetorical boot-strapping (“grossly inaccurately”,  “utterly hypocritical,” etc) in an effort to discredit me.

    As for the repeated innuendos about “my agenda” (another staple of primitive political discourse), that’s an easy one. I am paid by paidContent/The Guardian to offer informed, impartial reporting on law and technology.

    1. My primary point was selectiveness. In which way is what I do different from what pretty much every other analyst or firm does? The article fails to state what’s particularly problematic or outrageous about me and sets me apart from the likes of Gartner, IDC, Goldman Sachs, UBS etc. who all have over time had various dealings with industry players. Either Jeff Roberts doesn’t know how the analyst business as a whole works — in which case paidContent/The Guardian pay him to write about something he knows nothing about — or he does know that what I do is perfectly normal but is obsessed with me and turns a blind eye to everyone else.

      1. Ha, not so much.,  Perhaps people are just on to your game?  I’ve been watching you for years, Mueller.  You’re no analyst; you’re a FUDmaster.  The only people who would listen to you are those who don’t already know you.

  5. As soon as you said “I don’t believe one needs a law degree to understand or report on law.” I became skeptical of this evaluation. Beyond that, there was nothing you pointed to that really felt like bias when going back and looking at Mueller’s posts – or really anything that’s suspect when just looking at this article itself. He’s been spot on with the concerns over Android and Google, and his looks into possible future outcomes often coincide with how courts react to the patent suits he speaks of. However, you seem to have done your job: getting us here because of Mueller’s name and thus securing a few more ads successfully delivered.

  6. This article can be seen as the opposite of Mueller’s views. Both far from objective but we’ll see when the case is closed. My bet is on Google losing big time. It is always funny when a huge company like Google is on it’s toes and needs to use some PR power. This article is a good example.

  7. There will be a lot of comments criticizing this article. Those are “cosy” with Microsoft and generate content as Mueller do. I am also waiting to see Oracle vs Google verdict. 

  8. Glad to see Google PR’s proxies are finally on the Mueller case. I was worried they were sitting back on this one. Good job!

  9. Why don’t we ask Groklaw for the long list of instances where Mueller has been wrong or grossly inaccurate in his past predictions (or just google the site).   PJ has studied this stuff as much as he has, and her record with predictions, like the SCO fiasco (also indirectly supported by Microsoft.) have been spot on.  To get a true picture of the situation, ask both sides.. we know who is buttering Muellers toast, so ask PJ for the other side, she without a doubt as a pro OSS and Google bias, but at least she calls a fair argument as such.Be interesting to hear Mueller address all the instances in which he has made forward statements that turned out to be sans reality…

    1. Groklaw has accused me of being wrong — but that doesn’t make me wrong. You fail to state even one example that one could respond to. On all of the issues on which Groklaw claimed I was wrong, I was right and can prove it. All of them without any exception.

      1. The question is when were you right and what were you right on? – the anti-Google lawsuit are not yet decided.

        You may well have been right at predicting issues relating to Microsoft’s actions and charges given your insider access to Microsoft’s intent, and the fact that Microsoft is very likely feeding you with content to go into your articles, but the one thing that is without question is your complete lack of impartiality on all issues being pushed by Microsoft given your financial connections with Microsoft, and it sure shows in your various articles.

  10. The main problem is that FM is often cited as an ‘impartial’ expert, which most people who followed the last years’ stories (including the lobbying for FRAND clauses in the EUs EIFv2.0, harming FOSS) know is utterly wrong. Many have long ago suspected a financial link to Microsoft.

    I don’t care if he really does this on Microsofts or any other company’s behalf, but everyone should note his anti-FOSS, anti-google agenda.

  11. Chaotic3quilibrium Wednesday, October 19, 2011

    It’s enjoyable to see you write this article and have it clearly activate FM. I only found out about FM by reading responses in Groklaw. And I very quickly discerned if his purpose was to defend/promote FLOSS, he was going about it in very foolish ways. In ways that were not so foolish if he was on Microsoft’s payroll. So, I speculated (much as he does) that he in some way disingenuous regarding FLOSS and have pretty much disregarded his “output” as over-dramatic inflammatory blog self-promotion; kind of the “National Inquirer” of the patent blog world.

    1. I agree with you that after seeing his crap on Groklaw, I simply dismiss any and all of his comments as more Micro$oft drivel — part of their never-ending FUD against their competitors, Google in particular. The whole Apple v Android thing just gets FM dancing up and down in glee.

  12. Jeff must be new to this beat or something, because FM’s pro-MS bias isn’t exactly a secret.  He does the same FUD raindance on various forums and has for the past many, many years.  He is always exposed, however, and then the debate turns into him defending himself and denying any MS connection –kinf od like what you’re seeing here now.  Accuse him of being a Microsoft sock-puppet and watch him cut a rug faster than Fred Astaire.  Somehow, his analysis always seems to be in favour of Microsoft and against Microsoft’s competitors.  Funny that, eh?  Mr Mueller, if that is indeed your real name, where there is smoke, there is usually fire.  For some reason, every time you appear, people smell smoke.  Or is that Brimstone?

  13. Florians bias against google android is obvious, and makes be think the guy is obsessed with Google! What is ironic is that he owns an android phone and blogs on a google platform! Maybe he’s counting on a kickback from Google like he gets from M$?

  14. Mueller created the site NoSoftwarePatents.com and was an advocate against software patents, then started doing work for Microsoft and likely other big companies and getting his biased quotes in many stories. He favors Microsoft, Oracle, Apple…you name it. His favorite targets include Linux and Android, which seems to be his current favorite.

    He does things like put big emphasis on a quote from a decision with his own highlights and then say “Steve Jobs would have loved to read all of the above.” And then in other places say that what Apple needs to do is exercise their right to protect their intellectual property using software patents.

    All this from a guy who created a No Software Patents campaign. Regardless of what you think about the evidence he is paid by just one of these big companies (it’s likely more than one), there’s obviously something not right with this guy. Don’t you think? How about we all ponder that and then go look for the bias in his quotes, blog, and articles…it’s everywhere.

  15. So, he is the bad guy playing the good guy?

  16. Anton Tikhonov Friday, October 28, 2011

    “So when do Florian Mueller and the TurboHercules trolls come by and tell me they are sorry they were wrong and sincerely apologize to me for filling the Internet and Groklaw comments with attacks on me because I said nothing ought to come of the complaints against IBM? Should I hold my breath for an apology? No. But it turns out the EU Commission confirms my position. It all came to nothing…. Well. Nothing but FUD” Pamela Jones 
    Groklaw

    http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1044&format=HTML&aged=0&language=EN&guiLanguage=fr

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