05.09.08

Software Patents, Microsoft Trolls and Intellectual Monopoly Miscellany

Posted in Asia, DRM, Microsoft, Patents at 11:49 pm by Dr. Roy Schestowitz

Can’t compete? Buy new laws to ban the competition.

The intellectual insanity resumes. Let’s take a quick look at some highlights from the news.

Software Patents from the Back Door

The last time we complained about force-feeding of software patents we concentrated on an example from the Philippines. We cited other recent examples from Russia and China.

Watch what’s happening in India at the moment [via Groklaw] and recall this old talk about why Europe, for example, must never repeat America’s mistakes, for competitive and purely logical reasons.

Life is never easy for an open source evangelist. The OOXML drama came to a close on 2nd April 2008 and we were on to our next issue — software patents. The Draft Patent Manual might end up bringing software patents through the back door. this would be surprising because the Indian parliament explicitly rejected software patents in the Patent Amendment Act 2005. In this blog, I am including extracts from a letter that I sent to the Patent Office on 11th April 2008. The deadline for comments was 15th April 2008.

Microsoft’s principal patent troll was last mentioned yesterday, but here he is again showing that ideas are dime a dozen. [via Glyn Moody]

Gladwell uses this to talk up what Myhrvold is doing, suggesting that Intellectual Ventures is really about continuing that process, getting those ideas out there — but he misses the much bigger point: if these ideas are the natural progression, almost guaranteed to be discovered by someone sooner or later, why do we give a monopoly on these ideas to a single discoverer? Myhrvold’s whole business model is about monopolizing all of these ideas and charging others (who may have discovered them totally independently) to actually do something with them. Yet, if Gladwell’s premise is correct (and there’s plenty of evidence included in the article), then Myhrvold’s efforts shouldn’t be seen as a big deal. After all, if it wasn’t Myhrvold and his friends doing it, others would very likely come up with the same thing sooner or later.

This is especially highlighted in one anecdote in the article, of Myhrvold holding a dinner with a bunch of smart people… and an attorney. The group spent dinner talking about a bunch of different random ideas, with no real goal or purpose — just “chewing the rag” as one participant put it. But the next day the attorney approached them with a typewritten description of 36 different inventions that were potentially patentable out of the dinner. When a random “chewing the rag” conversation turns up 36 monopolies, something is wrong. Those aren’t inventions that deserve a monopoly.

You could kindly ask Microsoft what merits ‘innovation’ and then ask how it reached desktop dominance in absence of software patents. Was it not innovating? As a smaller company back in the days, was it not ‘protected’?

The Fox Watches the Patent Hen House

USPTO Several days ago we mentioned claims that appointment of patent appeal judges was probably unconstitutional. Here comes another report that suggests no less than 46 such appointments might come under fire. How about this report from the other day about the “Chief RIAA Litigator Named Colorado Judge”? The Pirate Party’s Andrew Norton said: “Being the lead counsel in a multi-year campaign of extortion, pretexting, and sham litigation should not be rewarded with a seat in any court, except perhaps as a defendant.” We’ll return to this later in this post, but in the mean time consider what happens in the patent system:

A US law professor has uncovered a constitutional flaw in appointing judges who decide patent appeals and disputes, which could undo thousands of patent decisions concerning claims worth billions of dollars.

The basic point John F. Duffy, who teaches at the George Washington University Law School, has raised does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.

“I actually ran it by a number of colleagues who teach administrative law and constitutional law,” Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must be missing something. “No one thought it was a close question.”

Speaking of Microsoft again, the court is now split on the Alcatel-Lucent/Microsoft decision, despite the fact that Microsoft lost the case the first time around [1, 2, 3, 4, 5].

A federal appeals court reinstated one of two patent cases tossed out last year in the ongoing patent dispute on user-interface technology that pits Alcatel-Lucent (ALU) against Microsoft Corp. (MSFT) and Dell Inc. (DELL).

The appeals court said the San Diego district court erred in its determination of a “terminal device” and remanded the case, which was dismissed, back to the court for further proceedings. The technology covered by the patent in that matter is a communications protocol that aids information exchange between a host processor computer and a terminal device, like a portable computer or smart phone.

The seemingly-endless Alcatel saga was also covered (or at least alluded to) previously in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. Always mind the choice of judges and jury, bearing the OOXML scandal in mind, as well as the following quote from Microsoft:

“I have mentioned before the “stacked panel.” Panel discussions naturally favor alliances of relatively weak partners — our usual opposition. For example, an “unbiased” panel on OLE vs. OpenDoc would contain representatives of the backers of OLE (Microsoft) and the Backers of OpenDoc (Apple, IBM, Novell, WordPerfect, OMG, etc.). Thus, we find ourselves outnumbered in almost every “naturally occurring” panel debate.

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. “

–Microsoft, internal document [PDF]

The Latest on Bilski

We wrote about Bilski yesterday and many times before that too [1, 2, 3, 4]. Here is an update from CNN.

A U.S. federal appeals court Thursday considered making it harder for companies to obtain business-method patents that, among other things, protect novel tax strategies, financial-services processes and one-stop online shopping.

In a rare 12-judge session, the Federal U.S. Circuit Court of Appeals said it was using the Bilski case, which involves a process for reducing weather-based risk in commodities trading, to consider stemming a tide of business-process patents that has followed the panel’s 1998 ruling in State Street Bank & Trust. The State Street case involved a process for handling mutual-fund assets and said processes could be awarded if they achieve a “useful, concrete and tangible” result.

Groklaw has some comprehensive coverage, courtesy of people who were there, physically.

Even Microsoft filed a brief [PDF], along with Dell and Symantec, and they too are worried at the thought of such a patent as Bilski is trying to get…

[...]

By affirmed, he means that the USPTO refused to grant a business method patent (the Board of Patents and Interferences’ decision {PDF]), and he believes the appeals court will affirm that refusal. But Red Hat raised the issue of software patents hindering innovation, particularly for Free and Open Source software creators. Here’s another account of how the arguments went, by Gene Quinn on the Practising Law Institute’s website.

This case could have a serious impact on software patents, especially their scope or validity in the United States.

“All Your Copyrights Are Our Own Rights”

There are some news items about copyrights that are outrageous enough to be worth bringing up. Watch how Blizzard tries to redefine copyrights. Shades of Microsoft and SCO.

Cheating is bad, but does cheating infringe on a video game publisher’s copyright? World of Warcraft-maker Blizzard, a subsidiary of Vivendi, is trying to argue in court that it does. If this argument succeeds, it could change the way all software copyrights operate in the eyes of the law.

More outrageous, however, is what Hollywood’s greedy moguls try to do to the Internet at the moment — essentially treating all traffic as though it’s theirs. There’s an attempt to shut down not only sharing as a whole (blindly killing the medium), but also things like the Internet Archive, which is all about information and rarely about entertainment.

After one big blow that was served to a BitTorrent finder (there will be an appeal) comes yet another one:

Hollywood wants SEK93 million (US$15.4 million) in damages for copyright infringement from the people behind The Pirate Bay, according to a claim filed by industry organization the Motion Picture Association this week.

To clarify, I have no interest in copyrighted content, but apart from the gross use of propaganda terms (the conceited Dan Glickman calls them “pirate sites” and he sometimes talks about “criminals”), the main concern here is the targeting of the medium.

“They just kill the whole media, suffocating creativity (and code) in the process.”What about independent film producers and GNU/Linux distributions, among other things? They rely on torrents. They haven’t the money or resources for dedicated servers or Akamai. These can be shared legally and legally steal the thunder from proprietary software vendors and Big Media. What better excuse for Big Media to end it all? They can just poison the well (they did, as a matter of fact, resort to baiting before) and then call it a day.

It’s worth emphasising this again because it parallels the fight against Free software: Filtering the media isn’t what the media moguls want. They just kill the whole media, suffocating creativity (and code) in the process. They wish to ‘own’ communication as a whole (or have a monopoly on production of software). It’s about limiting choice. Mind Microsoft’s active role in the fight against YouTube [1, 2].

Here is an update on the fight against the Internet Archive. Is there any free source of data that won’t be attacked nowadays?

The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive’s founder to speak out for the first time about his battle against the record demand.

Starting with more recent examples, here are some other related stories to consider: