On Thursday Dish sued the four major broadcast networks in federal court asking for a “declaratory judgment” that a controversial ad-skipping feature on its new digital video recorder doesn’t infringe copyright.

Read the rest of this post on the original site »

Now there’s some additional information on timing, thanks to a lawsuit between Activision and some former employees.

According to confidential agreements unsealed in the court case, Microsoft’s next game console, which is referred to as the “Xbox 720,” could be released in time for the 2013 holiday season.

The Los Angeles Times originally posted the documents on Monday, but it was Brier Dudley of the Seattle Times who came up with the theory on the timing.

The lawsuit is a complicated tale, involving Activision’s insanely successful first-person shooter Call of Duty. Former Activision developers are claiming they are owed hundreds of millions of dollars in royalties and bonus payments. Activision is claiming breach of contract.

The documents, revealed last week, detail a high-profile deal between Bungie and Activision in 2010.

The 27-page agreement calls for Bungie to develop four “sci-fantasy, action shooter games,” code-named “Destiny,” released every other year, beginning in the fall of 2013, according to the Los Angeles Times. Additionally, Bungie agreed to put out four downloadable expansion packs code-named “Comet.”

Bungie is the developer behind the successful Halo franchise, but is not the developer behind Halo 4, which Microsoft is developing and releasing in November.

Here’s what Dudley is suggesting based on the contract language:

Microsoft hasn’t said when the next version of the Xbox will go on sale, but the Bungie contract suggests that it could happen in the 2013 holiday season, with “Destiny” as a key launch title. That would be similar to the way Halo was a cornerstone of the first Xbox launch in November 2001.

An Xbox spokesman declined to comment on this theory, and referred questions to Activision and Bungie.

The document also says the game is expected to be released for the PlayStation 3 successor in the fall of 2014.

The big caveat to all of this guesswork is that the document is now two years old, so timing could easily change. Additionally, the name “Xbox 720″ could just be a code name or placeholder. Of course, console makers keep the timing of their upcoming hardware close to their vests, so that consumers don’t hold off on making purchases.

In March, Microsoft’s Corporate Communications boss Frank Shaw told AllThingsD that consumers probably shouldn’t expect new hardware at the E3 game conference, or “anytime soon.”

“For us, 2012 is all about Xbox 360,” he added.

The suit follows reports that analysts at Morgan Stanley and Goldman Sachs Group Inc. cut their revenue forecasts on Facebook amid the investor roadshow, a change that wasn’t widely disseminated.

Read the rest of this post on the original site »

Yahoo is in the final stages of selling a large chunk of its stake in the Alibaba Group back to the company — in a complex deal that is set to include a multibillion-dollar share buyback to investors of the Silicon Valley Internet giant and an eventual IPO of the Chinese company — according to multiple sources close to the situation.

The deal has yet to be officially approved by the boards of both companies, but sources said it is likely to be, and could be announced as early as Monday.

This all could change, of course, since negotiations between Alibaba and Yahoo have taken place in a variety of ways in recent years, without success and with much acrimony. Talks over a tax-free deal — also involving Yahoo’s Japanese partner, SoftBank — collapsed in February, for example.

But the 324th time is apparently the charm — so here are the details of what looks to be a nearly complete agreement that I have ferreted out thus far from lots of relieved sources familiar with the situation:

Yahoo will sell half of its roughly 40 percent stake in Alibaba, in a taxable deal. The transaction is likely to value that portion of Yahoo’s holdings at about $7 billion — or 20 percent of Alibaba’s $35 billion enterprise valuation. Alibaba is in the midst of raising capital to fund the sale.

After taxes of upward of 35 percent are paid on the long-term gains — remember that Yahoo bought the now-lucrative Alibaba stake for a fraction of that, many years ago — the company will likely use the funds to buy back its own shares. That stock has been caught in the mid-teens doldrums for quite a while.

A shareholder dividend is also being considered. It’s not clear if some of the cash will be held back for acquisitions by Yahoo, sources added, but it is unlikely.

As part of the deal, sources said, incentives have been put in place for Alibaba to move forward with a public offering, which sources stressed is without the contractual obligation or a time frame. Alibaba execs have already been publicly indicating such a direction recently, but this will put them more firmly on that path.

In return, Yahoo has agreed to sell the remaining quarter of its current holdings when that IPO does occur. It would then have an only 10 percent stake of Alibaba, which it could sell at any time after the IPO.

If finally struck, the transaction will finally bring to an end one of the more protracted and disputed relationships in the Internet world.

Once close, the pair have been wrangling over the large Yahoo ownership, which Alibaba CEO Jack Ma has been trying to dislodge in a variety of nice and not-so-nice ways. It has resulted in a number of very public disagreements.

That included a nasty back-and-forth over its Alipay unit with now-fired CEO Carol Bartz, threats of takeover of Yahoo with private equity firms and, more recently, making friendly with its just-ousted CEO, Scott Thompson.

Those talks with him in recent weeks, which included a visit to China by Thompson, led to the new deal, which was negotiated primarily between Yahoo’s CFO Tim Morse and legal head Mike Callahan and Ma and Alibaba’s Joe Tsai.

The talks continued even as Thompson was suddenly engulfed in a controversy over a fake computer science degree on his resume that quickly led to his departure from Yahoo on Sunday.

Ironically, the error was first discovered by activist shareholder Daniel Loeb, who will now vote on the deal as a newly named director of Yahoo, after successfully helping to oust Thompson.

He owns almost 6 percent of Yahoo, and is expected to approve the transaction.

But the final decision to approve the deal will be in the hands of a very new board of Yahoo, which has been drastically reshaped in recent weeks. It is meeting tomorrow and perhaps over the weekend to vote on it.

While the deal with Alibaba looks to be nearing an end, Yahoo’s talks to sell its 33 percent stake in Yahoo Japan is not part of this agreement. That’s due to what Thompson had called a “valuation gap,” which sources said is still an outstanding issue.

New interim CEO Ross Levinsohn has not been involved in the Alibaba deal in any significant way. But he certainly will benefit from its halo effect, if approved, especially given that it will likely boost Yahoo shares.

Next up for Levinsohn, who has just rejiggered Yahoo management again, other sources said, is an effort to settle the patent-infringement lawsuit with Facebook, and also to renegotiate its search deal with Microsoft.

And, oh yes, fix Yahoo’s rocky core-advertising business, which is still in distress and needs a major overhaul to push it back to growth.

But that, as they say, is yet another episode of Yahoo’s ongoing reality show.

When last we tuned in to the ongoing drama that is the patent-infringement lawsuit that Yahoo aimed at Facebook, Yahoo had a CEO — Scott Thompson — who was full steam ahead in pressing the controversial legal action.

Now, multiple sources said, the Silicon Valley Internet giant has got a new one — interim CEO Ross Levinsohn — who is already reaching out to top execs at the social networking giant in hopes of finding a settlement.

Still, until peace reigns in the digital kingdom, the legal wrangling grinds on and, today, Facebook has answered Yahoo’s most recent claim of “inequitable conduct” because of false statement by moving to dismiss it.

Yahoo had called many of Facebook’s counterclaims — using some of its own newly obtained patents — “tainted,” and said Facebook’s actions were “retaliatory.”

Not so, answered Facebook lawyers today, claiming that Yahoo did not do its homework, and also that Yahoo had “no coherent theory or facts suggesting deceptive intent.”

Among other issues, Facebook alleges in the claim that Yahoo did not check if Facebook had filed an inventor affidavit with the Patent Office, related to two of the patents. Except, um, it did.

“Yahoo claims that two of the ten patents Facebook asserts are unenforceable due to inequitable conduct. But all of these allegations are unsupportable and/or deficient,” said the Facebook filing, which is embedded below. “First, Yahoo claims these patents do not list Joseph Liauw as an inventor and that there is no sworn statement by Mr. Liauw in the Patent Office records explaining his omission. Yahoo’s claim is demonstrably false. Yahoo made this allegation without actually reviewing the publically available Patent Office records, because these records include the exact sworn statement from Mr. Liauw Yahoo claims is missing.”

What? Yahoo not good at checking? Hmm … that sounds familiar!

It’s interesting that Facebook struck on the eve of its IPO on Friday, perhaps making it clear to investors that it was not going to pay up big bucks to Yahoo in what it clearly considers a patent shakedown.

I have a call into Yahoo PR for a comment, but have not heard back as yet.

Here is the latest filing, which is getting more legally confusing by the millisecond (I am now totally glad I decided not to go to law school, so make it stop, Ross!):

FINAL

And here is more affidavit stuff:

FH-60104311

At today’s all-hands meeting for Yahoo employees — in the wake of the dramatic ouster of its former CEO Scott Thompson — what pop culture icon did new interim CEO Ross Levinson use to loosen up the crowd?

Why, a little Al Pacino from the movie classic “The Godfather,” of course — the go-to guy solution menu for all troubles in the world.

Comparing the battered Silicon Valley Internet giant to Don Corleone after a gun ambush, Levinsohn said to the crowd gathered at URL’s Cafe on the Sunnyvale, Calif., HQ campus: “This weekend was like that scene from ‘The Godfather’ — ‘They hit ’im with five shots, and he’s still alive!’”

And also, trying to make Yahoos feel as if there were forward momentum: “There are things being negotiated now that are gonna solve all your problems and answer all your questions.”

Well, let’s hope so, and that it does not end for Yahoo — and Levinsohn — like it did for Luca Brasi (who sleeps with the fishes, in case you didn’t know).

So far, in his first impress-the-employees outing, the reviews for Levinsohn were largely positive on its internal message boards and from numerous sources I talked to.

What they liked: Acknowledgement of the tough past week, but not dwelling on the past, either; a theme of revival and spirit; no PowerPoint slides; and zero direct mention of Thompson.

What they really liked: The whole pile of compliments that Levinsohn doled out to the troops.

No tough-love dude he — unlike Thompson and his predecessor Carol Bartz, who liked to verbally smack around the troops a little more in a mobster kind of way.

Instead, said one person in attendance, “he was appealing to Yahoo pride, which is pretty much in the doldrums.”

Still, one questioner worried about the future and whether the company was going to still be stuck in a leadership vacuum, especially since Levinsohn was not named as the permanent CEO.

Fred Amoroso — who was just named Yahoo’s new chairman and was the only person who appeared with Levinsohn on the stage — tried to assuage that concern by saying he wanted Levinsohn to eventually become the head of the family for good.

While there will likely be a search for other CEO candidates, it is as close to a ring-kiss as Levinsohn is going to get for now.

That is, unless he does not produce some quick results on a variety of Yahoo’s thorniest issues, such as an Asian asset sale and a settlement of the patent lawsuit fight with social networking giant Facebook.

But the over/under on him and Amoroso together was good.

One person said it was important when Amoroso talked about coding and technology and products, which is not advertising- and media-focused Levinsohn’s expertise.

“It was nice to see a board member who cared about products and innovation,” said one person. “Or at least said he did.”

We’ll see how this pair works out together, but always remember this, Yahoos:

Just when you thought you were out, they pull you back in.

Until we know how the movie ends, here is a scary video of me talking about the last week’s events at Yahoo on a local ABC television news station — I look a fright since I’m so tired from covering it all:

RELATED POSTS:

• Yahoo’s Parting With Thompson Will Be for “Cause” (a.k.a. CSLie)
• Ross Levinsohn’s Yahoo Plan: Back to the Future
• Here’s New Yahoo CEO’s First Note to Troops! (The Leaking-Internal-Memos-to-ATD Policy Remains in Effect As Usual)
• Yahoo Officially Confirms ATD Report on CEO Changes and Proxy Settlement
• Meet the Man I Call “The Hair”: The Video Stylings of Yahoo’s Newest CEO Ross Levinsohn
• Will Thompson’s Ouster Mean a Yahoo-Facebook Patent Settlement Too?
• Exclusive: Yahoo’s Thompson Out; Levinsohn In; Board Settlement With Loeb Nears Completion
• Heidrick & Struggles Slaps Back at Thompson’s Yahoo in Blame Game Over ResuMess
• Is He In or Is He Out? Crunchtime for Scott Thompson at Yahoo.
• Not So Scott Free? Yahoo’s Other Big Shareholder — Cap Re — Leaning Toward Supporting Loeb Over Thompson ResuMess.
• Tech Nation’s Gunn Says She and Yahoo CEO Discussed Their CS Degrees Before 2009 Show (Video and Audio)
• Loeb Calls Again for Thompson Firing From Yahoo, as Former eBay Boss Supports Him
• Place Your Bets: Will Loeb Drop Another Bomb on Yahoo at Vegas Confab Later Today?
• Exclusive: Yahoo Director in Charge of Botched CEO Vetting to Step Down From Board
• CEO Says Sorry to Yahoos for Borked Bio “Distraction” — But Will Mea Culpa Work Without an Apology for Error? (Memo)
• Buffett Comments on Trust Issue in Yahoo CEO BioGate: “You’ve Got a Problem”
• Loeb Lobs Lawsuit, as Expected, at Yahoo’s Borked Bio Mess
• As Yahoo CEO Reaches Out to Top Staff, Board Meets to Weigh “Options” (I.E., Deciding Who Gets to Take the Borked Bio Blame)
• Yahoo Should Expect Incoming Lawsuit Lobbed by Loeb Tomorrow on CEO Hiring
• They Shoot Yahoo CEOs, Don’t They? But Not Without a Really Smoking Gun and a Much Stronger Board.
• Yahoo’s Thompson Asks Employees to “Stay Focused” — Except Not on Him
• In 2009 Interview, Yahoo CEO Does Not Deny He Has a CS Degree, and Calls Himself an “Engineer” (Audio)
• Yahoo’s Board Will “Review” Resume Discrepancy of CEO
• How Did a Phantom CS Degree Get on CEO’s Bio in SEC Filings? Yahoo’s Not Saying.
• Yahoo’s Response on CEO’s Computer Science ResumeGate: “Inadvertent Error”
• Dan Loeb Alleges “Discrepancies” on Yahoo CEO Scott Thompson’s Resume Related to Computer Science Degree

In January, as the freshly crowned CEO of Yahoo, Scott Thompson initiated a series of dramatic acts to get the company back on track. The most notable was to make the boldest — or most boneheaded — move the head of Yahoo could make: Filing a patent infringement lawsuit against Facebook.

The controversial move was wildly unpopular in Silicon Valley, and even among many Yahoo employees.

But after a drawn-out weeklong controversy over a fake computer science degree on Thompson’s resume, he is reportedly headed out, and global media head Ross Levinsohn is in the driver’s seat as interim CEO.

Now one of the big questions is: Will Levinsohn take steps to repair Yahoo’s relationship with Facebook, especially since it has proved to be one of the most fruitful the ailing Silicon Valley Internet giant has seen in years?

Sources say that some members of Yahoo’s board, as well as the top exec, would welcome a settlement with Facebook on the litigation. Thompson was the main advocate of the in-your-face strategy against the social networking giant, levying a barrage of legal claims at a critical time — the quiet period before Facebook’s public offering this month.

So, if Yahoo wanted to turn back the tide of rancor toward Facebook, now is the time it could happen.

The lawsuit essentially deemed Facebook a thief of Yahoo’s social innovation, claiming that were it not for Yahoo’s many years of research and development, products such as Facebook’s News Feed, privacy settings, advertising models and more would never have come into existence.

“Facebook’s entire social network model, which allows users to create profiles for and connect with, among other things, persons and businesses, is based on Yahoo’s patented social networking technology,” one line from Yahoo’s lawsuit reads.

It’s unclear how much Levinsohn, acting as temporary CEO, will be able to change, in terms of the progress of the lawsuit. But if he’s looking to dial things back, his first call could be to Facebook COO Sheryl Sandberg, who would be instrumental in reaching some sort of detente in the case.

The initial act of aggression from Yahoo caught many in technology — including Yahoo’s employees — by surprise.

That’s because the various partnerships that the pair have struck in recent years have been hugely successful.

Yahoo’s Facebook-integrated Social Bar application, for example, has essentially been a traffic funnel from Facebook to Yahoo, with nearly 40 million monthly active users accessing the application, according to AppData statistics, and it is now one of the top Facebook apps.

It’s what Director of Product Development Jonathan Katzman called, in an interview last year, “the future of social for Yahoo.”

Finding a middle ground in some sort of settlement with Facebook could win back Yahoo detractors, a culture that praises innovation and largely rebuffs the practice of patent litigation as an act of trolling.

Facebook declined to comment, as did Yahoo, but several sources said to expect some movement sooner than later.

Dutifully following judge’s orders, Apple on Monday said it will narrow its claims against Samsung, essentially cutting them in half. Meanwhile, Samsung agreed to pull from its case five of the 12 patents it has asserted against Apple.

By cutting their claims down like this, the companies hope to retain a proposed July 30 trial date.

The moves significantly reduce the scope of the case. For example, by paring its claims from 75 to 15, Samsung has reduced its total claims by 80 percent. Which should make the case much more manageable for judge and jury both. This time around, anyway. Because while Apple is dropping some of its claims against Samsung, it doesn’t want to do so “with prejudice.” In other words, it wants to reserve the right to assert those claims at a later bench trial, or roll them into a new lawsuit.

“Obviously, Apple is not willing and should not be required to waive any right to a jury trial on claims and defenses that arise from Samsung’s continued assertion of patents that Samsung contends are essential to practice the UMTS telecommunication standard, including Apple’s Twenty-Fifth through Twenty-Ninth Counterclaims in Reply,” the company wrote in its filing.

[Image credit: Wikimedia Commons]

Botched CEO bio. Activist shareholder. Screwy board of directors. Mix it all together and what do you get?

More legal filings, natch!

This — as I reported this weekend would happen today — from Dan Loeb of Third Point, which is waging a proxy fight against Yahoo.

The aggressive hedge-fund investor — who owns close to 6 percent of Yahoo — recently scored a direct hit by revealing that new CEO Scott Thompson had added a faux degree in computer science to his bio, which somehow made its way into regulatory filings of the Silicon Valley Internet giant.

This, despite a supposed thorough vetting by Yahoo’s board of the former president of eBay’s PayPal payments unit.

Not so much, as it turns out — which is why Loeb is asking for all the information about Thompson’s hiring process and more.

Third Point said it was making a demand “under Section 220(b) of the Delaware General Corporation Law to inspect books and records relating to the hiring of CEO Scott Thompson, the appointment of Patti Hart to the Yahoo! Board, and the selection of Board Members Peter Liguori, John Hayes, Thomas McInerney, Maynard Webb, Jr., and Fred Amoroso.”

And its press release added:

“Third Point believes that Yahoo! shareholders and employees will be best served if the Board accepts responsibility quickly for this latest debacle … We believe that this internal investigation by this Board must not be conducted behind a veil of secrecy and shareholders deserve total transparency.”

Well, it looks like it will eventually be all out in the open, what with all the legal motions flying.

Expect a Yahoo response soon, which sources said will focus on a board investigation — using an outside law firm, and headed by independent director Amoroso.

Here you go on Loeb’s shot today:

Third Point May 7 Demand Letter Release

RELATED POSTS:

• Yahoo’s Parting With Thompson Will Be for “Cause” (a.k.a. CSLie)
• Ross Levinsohn’s Yahoo Plan: Back to the Future
• Here’s New Yahoo CEO’s First Note to Troops! (The Leaking-Internal-Memos-to-ATD Policy Remains in Effect As Usual)
• Yahoo Officially Confirms ATD Report on CEO Changes and Proxy Settlement
• Meet the Man I Call “The Hair”: The Video Stylings of Yahoo’s Newest CEO Ross Levinsohn
• Will Thompson’s Ouster Mean a Yahoo-Facebook Patent Settlement Too?
• Exclusive: Yahoo’s Thompson Out; Levinsohn In; Board Settlement With Loeb Nears Completion
• Heidrick & Struggles Slaps Back at Thompson’s Yahoo in Blame Game Over ResuMess
• Is He In or Is He Out? Crunchtime for Scott Thompson at Yahoo.
• Not So Scott Free? Yahoo’s Other Big Shareholder — Cap Re — Leaning Toward Supporting Loeb Over Thompson ResuMess.
• Tech Nation’s Gunn Says She and Yahoo CEO Discussed Their CS Degrees Before 2009 Show (Video and Audio)
• Loeb Calls Again for Thompson Firing From Yahoo, as Former eBay Boss Supports Him
• Place Your Bets: Will Loeb Drop Another Bomb on Yahoo at Vegas Confab Later Today?
• Exclusive: Yahoo Director in Charge of Botched CEO Vetting to Step Down From Board
• CEO Says Sorry to Yahoos for Borked Bio “Distraction” — But Will Mea Culpa Work Without an Apology for Error? (Memo)
• Buffett Comments on Trust Issue in Yahoo CEO BioGate: “You’ve Got a Problem”
• Loeb Lobs Lawsuit, as Expected, at Yahoo’s Borked Bio Mess
• As Yahoo CEO Reaches Out to Top Staff, Board Meets to Weigh “Options” (I.E., Deciding Who Gets to Take the Borked Bio Blame)
• Yahoo Should Expect Incoming Lawsuit Lobbed by Loeb Tomorrow on CEO Hiring
• They Shoot Yahoo CEOs, Don’t They? But Not Without a Really Smoking Gun and a Much Stronger Board.
• Yahoo’s Thompson Asks Employees to “Stay Focused” — Except Not on Him
• In 2009 Interview, Yahoo CEO Does Not Deny He Has a CS Degree, and Calls Himself an “Engineer” (Audio)
• Yahoo’s Board Will “Review” Resume Discrepancy of CEO
• How Did a Phantom CS Degree Get on CEO’s Bio in SEC Filings? Yahoo’s Not Saying.
• Yahoo’s Response on CEO’s Computer Science ResumeGate: “Inadvertent Error”
• Dan Loeb Alleges “Discrepancies” on Yahoo CEO Scott Thompson’s Resume Related to Computer Science Degree

According to Proview attorney Xie Xianghui, mediation talks between the two companies are progressing, albeit slowly. “We feel that the attitude of Apple has changed,” Xie told China’s government newswire. “Although they expressed that they were willing to negotiate, they have never taken any action before. But now, they are having conversations with us, and we have begun to consult on the case.”

And, evidently, Apple is looking to close the complaint. Xie says the company has already proposed a sum to end the litigation, though it’s not high enough for Proview. “Right now, there is still a big gap between the two sides on the settlement amount,” he said.

Which isn’t at all surprising. Apple has maintained throughout this battle that it legally owns the iPad mark across Asia, and that Proview is doing nothing more than squeezing it for additional money to use the trademark in China — despite the fact that it has already purchased those rights.

“We bought Proview’s worldwide rights to the iPad trademark in 10 different countries several years ago,” Apple spokeswoman Kristin Huguet told AllThingsD earlier this year. “Proview refuses to honor their agreement with Apple in China, and a Hong Kong court has sided with Apple in this matter.”

RELATED POSTS:

• Apple, Proview Will Try to Talk Out iPad Trademark Tussle
• Apple vs. Proview: We Lawyers Have a Word for Cases Like This, and It Starts With “Cluster”
• Proview’s New PR Attack: Apple Cheated Us Out of the iPad Trademark
• Proview Loses Bid to Ban iPad in Shanghai
• Surprise — Proview’s Ready to Talk Settlement With Apple
• Proview to Apple: You Owe Us $2 Billion
• Take a Look at Some of Apple’s Evidence in Proview iPad Dispute
• Here’s the Chinese Court Ruling Backing Apple in iPad Trademark Tiff
• Apple: China’s Proview Trying to Weasel Out of iPad Trademark Deal
• All Apple coverage

]]> http://allthingsd.com/20120507/apple-proview-talking-settlement-in-ipad-trademark-spat/feed/ 0 http://allthingsd.com/20120506/as-yahoo-ceo-reaches-out-to-top-staff-board-meets-to-weigh-options-i-e-figuring-out-who-gets-to-take-the-borked-bio-blame/ http://allthingsd.com/20120506/as-yahoo-ceo-reaches-out-to-top-staff-board-meets-to-weigh-options-i-e-figuring-out-who-gets-to-take-the-borked-bio-blame/#comments Mon, 07 May 2012 03:27:43 +0000 Kara Swisher http://allthingsd.com/?p=204185

Even as Yahoo’s board was kibitzing all weekend about how to handle the continuing resume-padding controversy around its recently hired CEO Scott Thompson — including hiring its own outside crisis communications firm to represent it — he was working the phones to keep top staff apprised of the evolving situation.

While Thompson told those he spoke to that he was limited in what he could say and blamed a “personal vendetta” by an activist shareholder for his troubles, being proactive in this regard is probably a good idea.

That’s because multiple sources said he said exactly nothing in various strategy meetings with top employees last week about allegations leveled by Dan Loeb of Third Point, which proved correct, that Thompson had not gotten a computer science degree in college, as his longtime bio had claimed.

“It was the gorilla in the room and it was awkward in the extreme,” said one exec present at the meetings. “He never brought it up, which was even worse.”

At this point, it seems unlikely that Thompson can regain the confidence of many at Yahoo — even though a company spokeswoman said he received a lot of incoming support too, both externally and internally — until he can render some cogent explanation about how the borked bio got into both Yahoo’s public site and also its more critical regulatory filings.

Even more mysteriously, how the error was never present in filings with the Securities and Exchange Commission made by eBay, where Thompson led its PayPal payments unit, although his public eBay bio has also been wrong for close to a decade.

And, most of all, how was it that Thompson never caught the mistake himself — even when directly asked about it — despite the likelihood of reviewing it multiple times over those many years and ultimately certifying it for Yahoo’s own SEC filings.

Calling Encyclopedia Brown to solve the Case of the Computer Science Degree That Wasn’t!

Thompson has given no explanation about the debacle to the bulk of the Yahoo staff at all levels, save for an information-free and terse note to employees on Friday afternoon that essentially asked them to focus on their work instead of his bizarre crisis.

Unfortunately for him, many Yahoos are focusing a lot on Thompson, with message boards at the Silicon Valley Internet chastising their CEO and giving him support that is tepid at best. From interviews I have had with two dozen employees this weekend, to say morale is at an all-time low is perhaps understating the situation.

Here is a short selection of comments that were read to me, for example:

“Resume padding is one thing, but lying about something that is so easy to check is puzzling.”

“There is no reason to let it slide by … This isn’t some guy who’s trying to impress a date … It’s sad that we just accept this kind of stuff from corporate heads and politicians.”

“Having some document to prove you can do a job is not all that important, lying about it is.”

What appears to trouble employees the most in the threads I was read was the nonchalance of the initial Yahoo statement about the issue, which called the addition of a fake degree on Thompson’s bio an “inadvertent error.”

“From a pure employee perspective, it feels like it is a violation of their principles,” said one person, reflecting a dozen or more conversations I had this weekend up and down the organization. “And anyone else would probably be immediately fired for this, even with an explanation.”

Said another: “He clearly knew and lied for years; and his handling since exposed has been unacceptable.”

As I noted above, a company spokeswoman said there was also much support for Thompson (pictured here) within the company, but declined to provide any quotes or details.

Presumably, some answers will be coming from a board investigation aimed at getting to the bottom of the situation, including trying to grok who put the error in the bio in the first place.

My bet: They’ll try to pin it on a lower-level minion, although that will not fly with a lot of people.

Including me, because whoever typed in the faux degree, its presence there has been too long for Thompson not to be responsible for it.

Flunky error or not, there are important questions about whether Thompson himself provided a bio that contained the inaccuracy to the board when he put himself forth for the job via direct emails to Yahoo director and Intuit CEO Brad Smith.

That line of thought basically boils down to: Can Thompson not read?

More problematic is the fact that the placement did not come via Yahoo’s headhunter on the CEO search, Heidrick & Struggles, which apparently was not charged with doing a background check on Thompson.

Instead, the director in charge of the search, Patti Hart, sources said, hired another forensic firm, which appears to have missed Thompson’s erroneous academic record.

The only thing completely clear amidst all the confusion: Hart screwed up by botching an extremely simple part of a vetting she was charged with. That makes her vulnerable, of course, along with other Yahoo board members or staffers closely involved in the talent search.

While Hart (pictured here) is in a much dicier position, Thompson still appears to have initial board backing — at least for today — as it’d be a very tough call to fire yet another CEO so quickly in the middle of several key deals for Yahoo, as well as a proxy fight.

Said one person close to the situation, the board is still considering its “options,” in an effort that is being led by independent board member Fred Amoroso.

So, it will be instructive to see how the board will proceed tomorrow — especially since it is likely that Loeb will lob a lawsuit to try to get more information on the Thompson hiring process.

But it’s started by hiring its own outside communications firm, Sard Verbinnen, which has handled other crises for Yahoo in the past.

Sard’s Charles Sipkins — welcome back, Charlie! — had no comment about the board’s next move, except to reiterate its statement from last week that it is looking into the Thompson bio mess and will make appropriate disclosures at some point.

We can’t hardly wait.

RELATED POSTS:

• Yahoo’s Parting With Thompson Will Be for “Cause” (a.k.a. CSLie)
• Ross Levinsohn’s Yahoo Plan: Back to the Future
• Here’s New Yahoo CEO’s First Note to Troops! (The Leaking-Internal-Memos-to-ATD Policy Remains in Effect As Usual)
• Yahoo Officially Confirms ATD Report on CEO Changes and Proxy Settlement
• Meet the Man I Call “The Hair”: The Video Stylings of Yahoo’s Newest CEO Ross Levinsohn
• Will Thompson’s Ouster Mean a Yahoo-Facebook Patent Settlement Too?
• Exclusive: Yahoo’s Thompson Out; Levinsohn In; Board Settlement With Loeb Nears Completion
• Heidrick & Struggles Slaps Back at Thompson’s Yahoo in Blame Game Over ResuMess
• Is He In or Is He Out? Crunchtime for Scott Thompson at Yahoo.
• Not So Scott Free? Yahoo’s Other Big Shareholder — Cap Re — Leaning Toward Supporting Loeb Over Thompson ResuMess.
• Tech Nation’s Gunn Says She and Yahoo CEO Discussed Their CS Degrees Before 2009 Show (Video and Audio)
• Loeb Calls Again for Thompson Firing From Yahoo, as Former eBay Boss Supports Him
• Place Your Bets: Will Loeb Drop Another Bomb on Yahoo at Vegas Confab Later Today?
• Exclusive: Yahoo Director in Charge of Botched CEO Vetting to Step Down From Board
• CEO Says Sorry to Yahoos for Borked Bio “Distraction” — But Will Mea Culpa Work Without an Apology for Error? (Memo)
• Buffett Comments on Trust Issue in Yahoo CEO BioGate: “You’ve Got a Problem”
• Loeb Lobs Lawsuit, as Expected, at Yahoo’s Borked Bio Mess
• As Yahoo CEO Reaches Out to Top Staff, Board Meets to Weigh “Options” (I.E., Deciding Who Gets to Take the Borked Bio Blame)
• Yahoo Should Expect Incoming Lawsuit Lobbed by Loeb Tomorrow on CEO Hiring
• They Shoot Yahoo CEOs, Don’t They? But Not Without a Really Smoking Gun and a Much Stronger Board.
• Yahoo’s Thompson Asks Employees to “Stay Focused” — Except Not on Him
• In 2009 Interview, Yahoo CEO Does Not Deny He Has a CS Degree, and Calls Himself an “Engineer” (Audio)
• Yahoo’s Board Will “Review” Resume Discrepancy of CEO
• How Did a Phantom CS Degree Get on CEO’s Bio in SEC Filings? Yahoo’s Not Saying.
• Yahoo’s Response on CEO’s Computer Science ResumeGate: “Inadvertent Error”
• Dan Loeb Alleges “Discrepancies” on Yahoo CEO Scott Thompson’s Resume Related to Computer Science Degree

]]> http://allthingsd.com/20120506/as-yahoo-ceo-reaches-out-to-top-staff-board-meets-to-weigh-options-i-e-figuring-out-who-gets-to-take-the-borked-bio-blame/feed/ 0 http://allthingsd.com/20120506/yahoo-should-expect-incoming-lawsuit-lobbed-by-loeb-tomorrow-on-ceo-hiring/ http://allthingsd.com/20120506/yahoo-should-expect-incoming-lawsuit-lobbed-by-loeb-tomorrow-on-ceo-hiring/#comments Sun, 06 May 2012 16:01:48 +0000 Kara Swisher http://allthingsd.com/?p=204107

On Friday, Third Point’s Dan Loeb — the activist shareholder who is waging an ever-nastier proxy battle against Yahoo — said in a letter regarding the inexplicable errors in the resume of its CEO Scott Thompson that he would take “further action” if he did not get answers.

Let me translate that for Yahoo and any other interested observers: Come Monday, the Silicon Valley Internet giant is likely to be on the receiving end of an official lawsuit demanding all the notes and records related to the hiring of Thompson.

Presumably, Loeb hopes that if he gets ahold of the material on the quick hiring of the former president of eBay’s PayPal payments unit that it will show a sloppy vetting by the board, which led to it not catching inaccurate educational information about Thompson.

Last week, Loeb discredited Yahoo CEO Scott Thompson’s academic credentials and credibility by showing that his bio listed a computer science degree, even though he never obtained one while at Stonehill College.

Perhaps most problematically, that data got into official regulatory filings Yahoo made.

After proven correct, Loeb than quickly lobbed in another letter, making an explicit legal threat to get the resume information:

Third Point will consider it grounds for further action if the Board does not take the following steps by Noon EDT on Monday, May 7th:

1) Publicly reveal the process by which it vetted Mr. Thompson as a potential CEO candidate. This disclosure should include the release of all minutes of any meeting at which Mr. Thompson’s candidacy was discussed and any reports or other materials upon which directors relied to evaluate Mr. Thompson’s candidacy.

2) Disclose whether any Board member, including Maynard Webb, who has long-standing ties to Mr. Thompson, and Ms. Hart, who headed the Search Committee, was aware of Mr. Thompson’s deception prior to receipt of Third Point’s letter yesterday.

3) Provide shareholders with all information regarding the director nomination process, including the so-called “skills matrix” referred to in the Company’s preliminary proxy statement, which the Board purportedly used to determine the qualifications of various candidates, including Third Point’s nominees.

How such a legal demand will be greeted by Yahoo will be interesting, especially given the tension internally. While Yahoo initially reacted to Loeb’s allegations about the inaccurate bio by saying the insertion of a computer science degree was an “inadvertent error,” the board quickly backpedaled and said it would conduct an investigation into the matter.

But that will not be speedy enough for the aggressive Loeb — so, I expect his lawyers have been working all this weekend to prep for his next attack.

RELATED POSTS:

• Yahoo’s Parting With Thompson Will Be for “Cause” (a.k.a. CSLie)
• Ross Levinsohn’s Yahoo Plan: Back to the Future
• Here’s New Yahoo CEO’s First Note to Troops! (The Leaking-Internal-Memos-to-ATD Policy Remains in Effect As Usual)
• Yahoo Officially Confirms ATD Report on CEO Changes and Proxy Settlement
• Meet the Man I Call “The Hair”: The Video Stylings of Yahoo’s Newest CEO Ross Levinsohn
• Will Thompson’s Ouster Mean a Yahoo-Facebook Patent Settlement Too?
• Exclusive: Yahoo’s Thompson Out; Levinsohn In; Board Settlement With Loeb Nears Completion
• Heidrick & Struggles Slaps Back at Thompson’s Yahoo in Blame Game Over ResuMess
• Is He In or Is He Out? Crunchtime for Scott Thompson at Yahoo.
• Not So Scott Free? Yahoo’s Other Big Shareholder — Cap Re — Leaning Toward Supporting Loeb Over Thompson ResuMess.
• Tech Nation’s Gunn Says She and Yahoo CEO Discussed Their CS Degrees Before 2009 Show (Video and Audio)
• Loeb Calls Again for Thompson Firing From Yahoo, as Former eBay Boss Supports Him
• Place Your Bets: Will Loeb Drop Another Bomb on Yahoo at Vegas Confab Later Today?
• Exclusive: Yahoo Director in Charge of Botched CEO Vetting to Step Down From Board
• CEO Says Sorry to Yahoos for Borked Bio “Distraction” — But Will Mea Culpa Work Without an Apology for Error? (Memo)
• Buffett Comments on Trust Issue in Yahoo CEO BioGate: “You’ve Got a Problem”
• Loeb Lobs Lawsuit, as Expected, at Yahoo’s Borked Bio Mess
• As Yahoo CEO Reaches Out to Top Staff, Board Meets to Weigh “Options” (I.E., Deciding Who Gets to Take the Borked Bio Blame)
• Yahoo Should Expect Incoming Lawsuit Lobbed by Loeb Tomorrow on CEO Hiring
• They Shoot Yahoo CEOs, Don’t They? But Not Without a Really Smoking Gun and a Much Stronger Board.
• Yahoo’s Thompson Asks Employees to “Stay Focused” — Except Not on Him
• In 2009 Interview, Yahoo CEO Does Not Deny He Has a CS Degree, and Calls Himself an “Engineer” (Audio)
• Yahoo’s Board Will “Review” Resume Discrepancy of CEO
• How Did a Phantom CS Degree Get on CEO’s Bio in SEC Filings? Yahoo’s Not Saying.
• Yahoo’s Response on CEO’s Computer Science ResumeGate: “Inadvertent Error”
• Dan Loeb Alleges “Discrepancies” on Yahoo CEO Scott Thompson’s Resume Related to Computer Science Degree

]]> http://allthingsd.com/20120506/yahoo-should-expect-incoming-lawsuit-lobbed-by-loeb-tomorrow-on-ceo-hiring/feed/ 0 http://allthingsd.com/20120501/facebook-ipo-docs-could-get-approval-this-week-followed-by-road-show-with-zuckerberg-no-guarantee-on-tie/ http://allthingsd.com/20120501/facebook-ipo-docs-could-get-approval-this-week-followed-by-road-show-with-zuckerberg-no-guarantee-on-tie/#comments Tue, 01 May 2012 12:58:49 +0000 Kara Swisher http://allthingsd.com/?p=201743

According to sources close to the situation, Facebook is anticipating getting approval from government regulators to officially distribute its S-1 public offering prospectus to investors within days, which would mean its road show could begin as early as next week.

As I reported back in January, the social networking giant is expected to go public in the second or third week of May, a timeline (get it?) which currently appears to be on track.

In addition — although some have speculated that its famous CEO and co-founder Mark Zuckerberg might not take a “hands-on” role in the high-profile process, having missed one pre-IPO meeting with Wall Street analysts and bankers (can you blame him?) — sources said he would be appearing before potential shareholders, and would be present at key meetings to help sell the company to them.

Of course, he will — although there was much speculation that the Silicon Valley superstar would bow out of any of the hubbub around the huge IPO, and that bankers were practically begging him to appear, sources said Zuckerberg is too key to all aspects of its business not to appear.

(No word as yet on whether he will don a tie, as he sometimes does, or if his usual hoodie will be Zuckerberg’s outfit of choice — although his sartorial choices on the road show are sure to get excessive media scrutiny.)

“Facebook is Mark Zuckerberg and Mark Zuckerberg is Facebook,” said one person with knowledge of the situation. “He’ll do his job as CEO, as he always does.”

Indeed, although he is often portrayed as shy and not a fan of the limelight, Zuckerberg has always stepped up — and rather enthusiastically — when a public appearance is needed, whether in times of trouble or touting for the eight-year-old company.

This is a touting-Facebook moment, of course, as it seeks to raise up to $10 billion in a blockbuster offering that could value the company at $75 billion or more. Filed in February, that will make it the biggest Internet IPO ever.

Also expected to play key roles in the road show are CFO David Ebersman and COO Sheryl Sandberg, as well as other top Facebook execs.

Whether they all can rev up the jets and get going on the road show depends on the Securities and Exchange Commission finally declaring Facebook’s preliminary prospectus of its business and finances “effective” or in legal compliance.

Facebook has updated the initial filing several times, with new financials as well as information about its purchase of photo-sharing site Instagram and its ever-nasty patent battle with Yahoo.

But, overall, the SEC process has been rather smooth for the company, and sources said it appears it will continue that way.

After the road show: A sales process in which investors ask their questions of management and then officially begin to place orders for Facebook stock.

Among the areas of likely concern are that Yahoo patent lawsuit and, most importantly, how Zuckerberg and others characterize the slowing of its explosive revenue growth in its most recent filing update.

Last week, Facebook said its revenue was $1.058 billion, up 46 percent for the year, but down 6 percent from the previous quarter. In the first quarter of 2012, its net income was $205 million, which was down from $233 million a year ago. The company attributed the decline to rising costs, including in marketing and in research.

After the road show, Facebook’s bankers will price the offering — which is widely expected to be massively oversubscribed — and then it will go public on the Nasdaq market, under the “FB” ticker.

The rest, as they say, will presumably be history — or, in fact, the future for Facebook in the public eye.

]]> http://allthingsd.com/20120501/facebook-ipo-docs-could-get-approval-this-week-followed-by-road-show-with-zuckerberg-no-guarantee-on-tie/feed/ 0 http://allthingsd.com/20120427/we-cant-all-get-along-yahoo-files-more-patent-claim-against-facebook/ http://allthingsd.com/20120427/we-cant-all-get-along-yahoo-files-more-patent-claim-against-facebook/#comments Fri, 27 Apr 2012 18:05:29 +0000 Kara Swisher http://allthingsd.com/?p=200806

In spite of intense criticism against its patent infringement lawsuit in March, Yahoo filed additional claims against Facebook today.

“Today Yahoo! filed additional claims against Facebook in U.S. District Court in San Jose related to two additional patents on which Facebook infringes. Today’s filing underscores the breadth of Facebook’s violation of Yahoo!’s intellectual property,” said a Yahoo spokesperson in a statement. “As we have stated previously, Yahoo!’s technologies are the foundation of our business that engages over 700 million monthly unique visitors and represent the spirit of innovation upon which Yahoo! is built. We intend to vigorously protect these technologies for our customers and shareholders.”

Facebook had filed its own counterclaims against the Internet portal over various social networking patents and also has recently spent hundreds of millions of dollars for patents and licenses from both IBM and Microsoft to bolster its portfolio.

In its filing, Yahoo’s legal aces got all hot and bothered that Facebook did this, especially the part about handing over piles of dough to others (and not Yahoo).

“However, on information and belief, Facebook lacks a good faith basis for most, if not all, of its counterclaims, particularly those patents that it purchased from others,” read the filing. “All eight of these patents were purchased by Facebook in the past five months, and several of these patents were purchased (independent of any separate technology acquisition or merger) after Yahoo! filed its complaint in this action. On information and belief, many, if not all, of these patents were acquired by Facebook for purposes of retaliation against Yahoo! in this case.”

Uh, duh! (Also, not to be picky, but Yahoo also bought a lot of the patents they are asserting way back when from its acquisition of Overture and did not invent all these innovations, either.)

I am awaiting a response from Facebook, which will probably be along the lines of: Byte me.

[UPDATE: I was right -- here's the comment:

"We remain puzzled by Yahoo's erratic actions. We disagree with these latest claims and we will continue to defend ourselves vigorously."

(Erratic, by the way, means desperate and pathetic in Facebook-speak.)]

Here is the latest filing:

Yahoo Reply to Counterclaims 4-27

]]> http://allthingsd.com/20120427/we-cant-all-get-along-yahoo-files-more-patent-claim-against-facebook/feed/ 0 http://allthingsd.com/20120424/bebo-founders-and-shareholders-sue-new-owner/ http://allthingsd.com/20120424/bebo-founders-and-shareholders-sue-new-owner/#comments Tue, 24 Apr 2012 23:45:44 +0000 Liz Gannes http://allthingsd.com/?p=199774 Bebo’s co-founders Michael and Xochi Birch and other investors are suing its new owners and seeking $5 million in damages, paidContent reports. The group was persuaded to put more money into Bebo after Criterion Capital Partners bought the social network from AOL in 2010. The investors allege that Criterion has mismanaged the site and withheld information from them.

]]> http://allthingsd.com/20120424/bebo-founders-and-shareholders-sue-new-owner/feed/ 0 http://allthingsd.com/20120424/oracle-presses-case-with-google-emails/ http://allthingsd.com/20120424/oracle-presses-case-with-google-emails/#comments Tue, 24 Apr 2012 08:27:32 +0000 John Letzing http://allthingsd.com/?p=199373 The Google Inc. executive in charge of its Android mobile phone software at the heart of the company’s legal dispute with Oracle Corp. was confronted Monday in court by a series of internal emails he wrote years earlier cautioning the search company against an “uncharacteristically” aggressive use of outside intellectual property to develop the technology.

Andy Rubin, Google’s senior vice president of mobile, was shown during his testimony at a trial in San Francisco a series of emails he wrote about six years ago advising others at Google that the company should buy the right to use Sun Microsystems’ Java technology in Android.

Read the rest of this post on the original site »

]]> http://allthingsd.com/20120424/oracle-presses-case-with-google-emails/feed/ 0 http://allthingsd.com/20120423/new-s-1-facebooks-yearly-growth-up-45-percent-but-down-six-percent-from-last-quarter/ http://allthingsd.com/20120423/new-s-1-facebooks-yearly-growth-up-45-percent-but-down-six-percent-from-last-quarter/#comments Mon, 23 Apr 2012 19:13:53 +0000 Kara Swisher http://allthingsd.com/?p=199091

Facebook filed an updated version of its S-1 public offering document today, which included somewhat disappointing first-quarter financials.

In the new filing with the Securities and Exchange Commission, its fourth update for its upcoming public offering, the social networking giant’s revenue was $1.058 billion, up 46 percent for the year, but down six percent from the previous quarter.

In the first quarter of 2012, Facebook’s net income was $205 million, which was down from $233 million a year ago. The company attributed the decline to rising costs, including in marketing and in research.

Facebook also said its current share price was $30.89 each, which values the entire company at about $77 billion.

Some investors might worry about the latest results, which show a slowing in Facebook’s torrid growth. But Facebook said the quarterly decline was due to seasonality — it was flat in the same period a year ago.

As it noted in the document:

“We believe that our rates of user and revenue growth will decline over time. For example, our revenue grew 154% from 2009 to 2010, 88% from 2010 to 2011, and 45% from the first quarter of 2011 to the same period in 2012. Historically, our user growth has been a primary driver of growth in our revenue. We expect that our user growth and revenue growth rates will decline as the size of our active user base increases and as we achieve higher market penetration rates.”

Its audience, though, was still growing strongly: Facebook also said it had 532 million daily active users, up from 372 million a year ago and 483 million in December. Its monthly active users were up from 680 million last year to just over 900 million and up from 845 million from December.

Facebook also added an explicit figure for average revenue per user, which was $1.21, up six percent year over year. It also said the number of full-time employees grew 46 percent from last year to 3,539 at the end of March.

The last update to Facebook’s regulatory filing for its mid-May IPO was in late March. That one gave investors more information about a patent infringement lawsuit waged by Yahoo — Facebook noted its counter claim in the newest filing — and also its motion to dismiss Paul Ceglia’s legal attempt to garner half of the company. It then included more information about growing engagement by users of the social networking site.

Along with some other minor changes in the new document, Facebook noted, in news that was already known, that it would trade its stock on the Nasdaq market under the ticker symbol “FB.” It also said it had bought photo-sharing start-up Instagram, another piece of old news, and noted its just-struck patent deal with Microsoft.

One new detail about Instagram: Facebook forked over “approximately 23 million shares of our common stock and $300 million in cash” to buy it.

Also, said Facebook, in an interesting new section on its global business:

“In the first quarter of 2012, 50% of our revenue was generated by users in the United States and Canada, a decrease from 54% of our revenue for the first quarter of 2011, and in 2011, 52% of our revenue was generated by users in the United States and Canada, as compared to 58% in 2010, as we experienced more rapid revenue growth in markets such as Germany, Brazil, Australia, and India.”

Here is the whole updated file, if you want to peruse yourself:

4thfbs1update

]]> http://allthingsd.com/20120423/new-s-1-facebooks-yearly-growth-up-45-percent-but-down-six-percent-from-last-quarter/feed/ 0 http://allthingsd.com/20120423/in-pricey-microsoft-patent-deal-facebook-delivers-another-smackdown-to-yahoo-lawsuit/ http://allthingsd.com/20120423/in-pricey-microsoft-patent-deal-facebook-delivers-another-smackdown-to-yahoo-lawsuit/#comments Mon, 23 Apr 2012 17:36:30 +0000 Kara Swisher http://allthingsd.com/?p=198944

When I wrote that Facebook was going to play rough after Yahoo sued it for patent infringement earlier this year, perhaps it would have been more prescient to say that it was going to pay much.

Except not to Yahoo, whose bully-boy bluff has effectively just been called.

Instead, the social networking giant scooped up 750 patents from IBM in March for an undisclosed amount and today paid $550 million in cash for 650 patents that Microsoft recently bought from AOL.

Facebook’s message to Yahoo, which had previously been a strong partner to the Silicon Valley Internet giant pre-lawsuit: We reward friends and, well, countersue enemies.

Where that leaves the case between Yahoo and Facebook is in a legal quagmire that will now see the defendant armed to the teeth against the plaintiff.

The lastest move, which was announced this morning, involves the patents that Microsoft bought from AOL for $1.1 billion. While the price was considered high, the software giant has now recouped half its investment and also helped out Facebook, in which it holds a stake and is a longtime search partner.

Facebook is poised to go public in mid-May, and has been trying to strengthen its weak patent portfolio, especially after Yahoo attacked in March over 10 social networking patents.

“Today’s agreement with Microsoft represents an important acquisition for Facebook,” Ted Ullyot, the company’s general counsel, said in a statement. “This is another significant step in our ongoing process of building an intellectual property portfolio to protect Facebook’s interests over the long term.”

Where it leaves any talks with Yahoo to settle their dispute is unclear. Yahoo CEO Scott Thompson has maintained in several public statements that the company would continue to defend its intellectual property rights.

But with the latest deal with Microsoft, it is clear that Facebook is more likely to continue its hard line against Yahoo and less likely to settle as quickly and pay up to get Yahoo’s patent portfolio, too.

“They tried to shake us down,” said one person close to the situation. “And we don’t appreciate that.”

Not to be outdone, Yahoo took yet another oh-yeah tough stance today in a statement to me, after news of the Facebook-Microsoft deal was out:

“Nothing about today’s action changes the fact that Facebook continues to infringe our patents. Companies who purchase patents are often working from a position of weakness and take these actions to strengthen their portfolio. We see today’s announcement as a validation of our case against Facebook.”

And a validation of Facebook’s intent to spurn Yahoo, too, which is creating a troubled situation for Microsoft, since it also has a search partnership with Yahoo.

That deal has been rocky and, in a recent earnings call, Thompson underscored that Microsoft efforts at improving performance and monetization was still facing headwinds.

That situation has led to talks between the pair to rejigger the deal, several sources said, even as Microsoft helps Facebook improve its patent defenses.

Microsoft’s top lawyer Brad Smith didn’t say as much, in an interview with AllThingsD.com writer Ina Fried, but he acknowledged Microsoft is in a dicey situation with two of its partners.

“We have a very high regard for the value of the Yahoo patent portfolio,” Smith said. “It’s an important portfolio that reflects all of the tremendous value Yahoo brought to this space and we are very sensitive to the importance of our relationship with Yahoo and our relationship with Facebook.”

In other words, a delicate dance begins with much bluster ahead.

]]> http://allthingsd.com/20120423/in-pricey-microsoft-patent-deal-facebook-delivers-another-smackdown-to-yahoo-lawsuit/feed/ 0 http://allthingsd.com/20120417/yahoo-beats-expectations-as-expected-now-will-new-ceo-outline-strategery-in-investor-call/ http://allthingsd.com/20120417/yahoo-beats-expectations-as-expected-now-will-new-ceo-outline-strategery-in-investor-call/#comments Tue, 17 Apr 2012 20:15:24 +0000 Kara Swisher http://allthingsd.com/?p=197379

Yahoo beat Wall Street estimates in its first-quarter earnings report today, with revenue of $1.08 billion and earnings of 23 cents. That’s a gain of 28 percent from a year ago in net earnings and 38 percent per diluted share.

Analysts had been expecting Yahoo to report revenue of $1.06 billion and earnings of 17 cents a share. But, as I reported earlier today, sources had indicated that the results would be on the upside.

Still, revenue was only up year over year by 1 percent — not exactly a great achievement, given exploding growth across the Internet industry. The real drag was the Europe, Middle East and Africa regions, whose revenue was down 9 percent — which Yahoo attributed to the weak economy there — with its “contribution” down 27 percent. That region has been run by Rich Riley, who is now Yahoo’s sales lead in the U.S.

One interesting note: While display revenue was down, search revenue was up. And unique visitors to Yahoo were up 7 percent, which was lower growth than in previous quarters. The reason was declines in search and communications, with media up strongly.

Now, investors are hoping to get more clarity from new CEO Scott Thompson in a call at 2 pm PT about the overall strategy for the troubled Silicon Valley Internet giant, which just restructured its management again and also had layoffs of 2,000 employees.

Thompson has yet to articulate a specific plan beyond the broad strokes of media, commerce and data/platforms as Yahoo’s aim.

But there is a lot more to deal with and in detail, including figuring out its troubled advertising search partnership with Microsoft, the talks around selling off parts of the company’s lucrative Asian assets, Yahoo’s patent lawsuit against Facebook, how Yahoo is going to deal with activist shareholder Third Point’s possible proxy challenge and whether more layoffs beyond recent firings will be needed.

“In the first quarter, Yahoo!’s results came in at the high end of our guidance range and beat consensus on revenue and profits,” Thompson said in a statement. “We also made changes to resize the organization and establish a new leadership structure to quickly deliver the best user and advertiser experiences at scale.”

Until Thompson gives more deets on the earnings call, which I will be liveblogging, here’s Yahoo’s official press release and cool charts on the subject:

YHOO News 2012-4-17 General

YHOO_Q112EarningsPresentation

]]> http://allthingsd.com/20120417/yahoo-beats-expectations-as-expected-now-will-new-ceo-outline-strategery-in-investor-call/feed/ 0 http://allthingsd.com/20120415/its-on-oracle-and-google-to-meet-in-world-series-of-ip-lawsuits/ http://allthingsd.com/20120415/its-on-oracle-and-google-to-meet-in-world-series-of-ip-lawsuits/#comments Mon, 16 Apr 2012 01:07:33 +0000 Arik Hesseldahl http://allthingsd.com/?p=196512 On Monday, what is being described as the “World Series of intellectual property trials” will get under way with jury selection in a federal court in San Francisco.

The parties are the software giant Oracle and the Internet concern Google. At issue is Java, the software platform Oracle became owner of when it acquired Sun Microsystems in 2010. And the witness list will be interesting: Both Google CEO Larry Page and Oracle CEO Larry Ellison are expected to take the witness stand during the trial; as will former Sun CEO Jonathan Schwartz and Andy Rubin, the Google senior vice president who runs its Android and mobile operations.

The allegations are fairly simple, but the case could have some significant impact if Oracle prevails in some of its arguments. Oracle sued Google in the summer of 2010, alleging that the Android mobile operating system violated seven different Java patents.

Five of those patents have since been tossed out since they were reexamined, leaving two. That reduces the potential amount of damages that Oracle might be entitled to, should it prevail. Google even went so far as to offer to cut Oracle in on Android and $2.8 million in damages, in the event that it prevails. Oracle declined.

The other issue, and the one that has the potential for more lasting impact, is over copyright. Oracle will argue in court that Google violated copyrights on Java. Specifically, Oracle alleges that when Google was creating Android, it copied a lot of material — more than 37 Java application programming interfaces (APIs), and 11 lines of Java source code — and that these are subject to copyright protection like other intellectual property.

This is a new and controversial legal argument that has software developers watching the trial closely. Google has argued that APIs shouldn’t be subject to copyright protection, because they’re more akin to tools and techniques that programmers use to build software. I may be simplifying it a little too much here, but one way of thinking might be to ask if it’s possible to copyright the technique and instructions for hammering a nail or fitting a door.

Google has argued that APIs and programming languages aren’t entitled to copyright protection, for exactly that reason: You can copyright a given program because it’s unique, but you can’t copyright the language it’s written in. Perhaps I’m straining my skills at analogy here, but the way I understand Google’s argument, as put forth in an April 12 brief, is that you can copyright “So What?” but you can’t copyright “jazz.”

As Google puts it in that brief, which is the first two of two legal filings I’ve embedded below:

“That is a classic attempt to improperly assert copyright over an idea rather than expression.” And earlier in the brief, it argues: “Without a computer programming language, the set of statements or instructions cannot be understood by the computer. As such, a computer language is inherently a utilitarian, nonprotectable means by which computers operate. … The protectable material is the computer program (the set of statements or instructions); the unprotectable material is the method or system (the language). So understood, original computer programs may be protected, but the medium for expression in which they are created is not.”

For its part, Oracle outlined its position on the issue in a trial brief filed on April 5, which is the second of the two documents embedded below. Here’s a meaty paragraph summing it up:

“Allowing copyright protection for computer interfaces makes sense because original expressions in software are innovations of an incremental sort that Congress meant to encourage. Trade secrecy law cannot achieve this goal because interfaces can be reverse-engineered. Patent law, because of its novelty and non-obviousness requirements and examination process, protects those substantial innovations, claimed as broadly and generically as possible, and in return gives strong protection against even those who independently develop the same technology. Copyright law protects innovations at a much finer level of detail (where original expression can be found) than patents ever could, but only offers protection against the copyist.”

Obviously, it’s going to be an interesting trial, provided the parties don’t find some way to settle before it’s all over. They tried settlement talks once. It didn’t work.

Google Brief

Oracle Brief

]]> http://allthingsd.com/20120415/its-on-oracle-and-google-to-meet-in-world-series-of-ip-lawsuits/feed/ 0 http://allthingsd.com/20120412/nest-fires-back-in-honeywell-suit-brings-apple-chief-legal-counsel-on-board/ http://allthingsd.com/20120412/nest-fires-back-in-honeywell-suit-brings-apple-chief-legal-counsel-on-board/#comments Thu, 12 Apr 2012 12:59:58 +0000 Lauren Goode http://allthingsd.com/?p=195778 The fight over a thermostat just heated up some more.

Palo Alto, Calif.-based Nest, maker of a “smart” thermostat and target of a patent-infringement lawsuit filed by industrial giant Honeywell, has submitted a formal response to Honeywell’s claims.

The start-up has also brought Richard “Chip” Lutton, a 10-year Apple Inc. veteran who managed the company’s patent portfolio, on board as vice president and general counsel.

In Honeywell’s suit against Nest, first filed in a U.S. district court in Minnesota on Feb. 6, Honeywell, maker of the iconic round thermostat, identified seven patents it believes Nest Labs infringes on with its Nest Learning Thermostat, a digital thermostat that came to market late last year. (You can read more about Honeywell’s complaint here.)

And now Nest has fired back.

“Nest does not use the Honeywell patents; but even if the patents covered what Honeywell alleges, they are hopelessly invalid. They are retreads — already invented by others years before …” the response reads.

Nest goes on to point out that specific patents — around remotely controlling temperature set-point marks, displaying temperature set points on an LCD inside a rotating ring, and presenting a user of an HVAC controller with “complete grammatical sentences” — are either indistinguishable from earlier Honeywell patents or aren’t worthy of a patent.

Chip Lutton, Nest's new vice president and general counsel.

The start-up does admit it was using Honeywell thermostats as research in its labs, stating, “Nest Labs admits that some Honeywell thermostats and/or boxes for Honeywell thermostats are shown in the photograph.” In the original filing, Honeywell references an AllThingsD video from last year showing that Nest Labs was examining “numerous” Honeywell thermostats in its research, indicating that Nest was aware of Honeywell’s contributions to the thermostat industry.

Despite the fact that Honeywell is an “industrial behemoth” with revenues that exceeded $36 billion in 2011, Nest says the company hasn’t innovated. “That ‘blah-looking controller’ on the market today is very often from Honeywell, which has long dominated the thermostat market, but has yet to generate a device that offers ordinary consumers as much as the Nest Learning Thermostat,” Nest claims.

Through the nature of its response and by bringing in Lutton, Nest doesn’t seem to be shying away from a battle with Honeywell, despite the David-and-Goliath nature of the fight.

Lutton’s departure from Apple was first reported last July, just as Apple was filing another complaint with the U.S. International Trade Commission, seeking a ban on the import of electronics and software made by rival HTC. That, of course, was just one complaint amid an ever-expanding web of patent lawsuits flying between Apple, Samsung, Motorola and Nokia, to name a few.

According to the Reuters report, Lutton is well-known in IP circles, and was once mentioned as a possible nominee for the Federal Circuit, which hears patent appeals.

]]> http://allthingsd.com/20120412/nest-fires-back-in-honeywell-suit-brings-apple-chief-legal-counsel-on-board/feed/ 10 http://allthingsd.com/20120411/apple-could-face-federal-book-suit-today-reports/ http://allthingsd.com/20120411/apple-could-face-federal-book-suit-today-reports/#comments Wed, 11 Apr 2012 11:32:59 +0000 Peter Kafka http://allthingsd.com/?p=195227 The Department of Justice may file a suit against Apple today over e-book price-fixing complaints, according to reports from Reuters and Bloomberg. The DOJ has been probing antitrust complaints regarding Apple’s 2010 pacts with  book publishers; several of the biggest publishers are preparing to settle those charges by “tearing up” those deals, according to The Wall Street Journal.

]]> http://allthingsd.com/20120411/apple-could-face-federal-book-suit-today-reports/feed/ 0 http://allthingsd.com/20120409/more-d10-speakers-ellison-meeker-myhrvold-along-with-pixar-and-visa/ http://allthingsd.com/20120409/more-d10-speakers-ellison-meeker-myhrvold-along-with-pixar-and-visa/#comments Mon, 09 Apr 2012 21:49:26 +0000 Kara Swisher http://allthingsd.com/?p=193639

A month ago, I posted an initial list of speakers for the 10th D: All Things Digital conference.

After a decade, the event — which is held in Rancho Palos Verdes, Calif., just south of Los Angeles, at the end of May — has attracted another amazing group of speakers, including: New York City Mayor Michael Bloomberg; serial entrepreneur Sean Parker, who will appear with Spotify co-founder and CEO Daniel Ek; Zynga founder and CEO Mark Pincus; Federal Trade Commission Chairman Jon Leibowitz; LinkedIn Chairman and VC Reid Hoffman, who will appear with the social business site’s CEO Jeff Weiner; and Skype CEO Tony Bates.

Now, here’s another group of stellar speakers we’ve added to the programming lineup (and there are still even more big names to come in the weeks ahead): Oracle CEO Larry Ellison; former tech analyst superstar and now VC Mary Meeker of Kleiner Perkins; Intellectual Ventures’ Nathan Myhrvold; Pixar co-founder and Disney animation head Dr. Ed Catmull; and Visa President John Partridge.

Larry Ellison, CEO and founder of the enterprise giant Oracle, needs little introduction, as one of tech’s highest profile figures and a true Silicon Valley icon. Frankly, I think the short bio that’s on Oracle’s Web site says it all: “Larry Ellison has been CEO of Oracle Corporation since he founded the company in 1977. He also races sailboats, flies planes, and plays tennis and guitar.” There will be a lot to talk about with the voluble and always entertaining exec — who appeared at the D conference once before many years ago — from the current state of the tech industry to insights to where it’s all going. (In addition, Ellison has agreed to appear on a panel we are doing as a tribute to his close friend, Apple’s former CEO Steve Jobs.)

Another well-known tech figure is Meeker, who is now a partner at Kleiner Perkins Caufield & Byers, having joined the storied venture capital firm in early 2011. She focuses there on investments in its digital practice and via KP’s Digital Growth Fund, working with companies such as Spotify, Jawbone and One King’s Lane. But Meeker is perhaps best known for her long stint — 1991 to 2010 — as a star Internet research analyst at Morgan Stanley, where she brought many of the Internet’s great companies to the attention of Wall Street and beyond. She also wrote a series of groundbreaking reports on the landscape. That includes her annual “State of the Internet,” which Meeker will debut this year at the conference in an extended demo of her always riveting Internet trends presentation.

Nathan Myhrvold is also a tech legend, having worked for 14 years as chief strategist and CTO of Microsoft. But, instead of retiring, the avid inventor decided to focus on patents, founding and leading a controversial company called Intellectual Ventures, which buys them up and licenses them out (or sues if it doesn’t sell). With all the mishegas around patents right now, it’s a good time to have Myhrvold back to explain it all and perhaps to take some of the blame for the explosion in intellectual property lawsuits. (Myhrvold also co-authored a cookbook, “Modernist Cuisine,” so we hope we will also get some sort of futuristic cooking demo. Perhaps, Patently Delicious Flan?)

Speaking of tasty, the animation from Pixar over the years has been just that and it’s been one of Disney’s greatest acquisitions. Given how much Pixar has contributed to animation technology, we are glad to finally get Dr. Ed Catmull onstage. As co-founder of Pixar Animation Studios and president of Walt Disney and Pixar Animation Studios, he will discuss where entertainment and technology are intersecting and where they are not. Catmull is a geek’s geek in the industry — having also founded the computer graphics laboratory at the New York Institute of Technology, the computer division of Lucasfilm, as well as Pixar, which he did with chief creative officer John Lasseter. Get ready to talk about image compositing, motion blur, subdivision surfaces, cloth simulation and rendering techniques, texture mapping and the z-buffer. Also, Catmull’s five Academy Awards.

Lastly, it is perfect timing for bringing on John Partridge, president of Visa. With swirling issues around online identity theft, digital privacy, the future of money and the rise of upstart competitors such as Square, Partridge has his hands full at the credit card giant. One of the most neglected arenas in tech, the way we manage payments is perhaps the biggest story of the next era, especially as it relates to mobile and the rise of smartphones as all-purpose devices.

]]> http://allthingsd.com/20120409/more-d10-speakers-ellison-meeker-myhrvold-along-with-pixar-and-visa/feed/ 0