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10.09.08

Patents Roundup: Symbian Derails UKIPO, Monopolists Try to Ruin Indian Law

Posted in Asia, Europe, Free/Libre Software, Microsoft, Patents at 11:07 am by Dr. Roy Schestowitz

United Kingdom

There is some sad (or outrageous) news about what has happened in the UK. As scandalous as it may seem, software patents were pushed a step further into enforceability in the UK. Glyn Moody, a mathematician, explained why this is utterly ridiculous.

…[A]llowing physicists to patent the laws they discover, or the theorems that mathematicians prove. The point is, software is not “closer to a mathematical method”, it *is* a mathematical method, or rather a concatenation of them.

All this juridical “on the one hand” and “on the other” in the interests of “balance” does not change this. The current decision is seriously bad news, because it opens the door to even more weaselly patent applications that contort themselves into the magic position to gain the favour of whichever Jesuit is on duty that day.

There is a lot more coverage of this, including:

Times Online: Court ruling strengthens patent protection for UK software

Technology companies will find it easier to safeguard their innovations in the UK after a court ruled that software should receive wider patent protection.

The Court of Appeal said today that complex software such as programmes designed to make mobile phones and computers work faster can be patented in the UK.

Previously, manufacturers could claim commercial exclusivity for their products under copyright laws but had less legal protection for underlying technical processes.

As a result of the ruling, developers are likely to find it easier to secure approval from the UK’s Intellectual Property Office (IPO), which has traditionally been reluctant to grant patents to cover software.

IAM: Court of Appeal delivers a software patent boost in the UK

Companies looking to obtain and enforce software patents in the UK received a boost today when the Court of Appeal ruled against the UK IP Office in its appeal against a decision of the High Court in the Symbian case. The High Court had overturned a UKIPO decision not to grant a patent to Symbian for an accelerator relating to iPods, mobile phones and computers.

Here is what a legal firm said:

Today’s Court of Appeal decision on the Symbian case has affirmed that the UK and European approaches to software patentability are fundamentally compatible. This upholds a High Court decision which had overturned the rejection by the UK-IPO of an application to patent “Mapping dynamic link libraries in a computing device”.

The prolonged mission to ruin more patent systems makes gradual progress. These laws are incompatible with Free software and Nokia should be ashamed of itself for doing what it does (not for the first time).

India

We recently summarised the developments in India and showed how Microsoft's potential trolls had invaded India and signed some patent deals there. Microsoft has shown that it is determined to break the Indian law by applying for software patents while at the same time lobbying to change the law to permit this. Here is an unnerving update.

Arguments on why section 4.11 of the Patents Manual needs to be modified.

3. There are now attempts being made in India to bring in software patents using either the EPO or the USPTO practice. This attempt is being supported by a small number of large international software companies, who had earlier benefited from software being free from patents and are now trying to obstruct others who are entering the field. It is not in the interest of India’s software industry to have restrictive patent regime, particularly as they switch from being service providers to product developers.

There is some more information here, under the very same Web site.

After introductions by Sunil Abraham of CIS, the discussions were kicked off by Sudhir Krishnaswamy (an Assistant Professor at National Law School), who spoke about typology of laws; principle-based arguments for excluding software from patenting; policy-based arguments for the same; and lastly, strategies for combating the patent manual. About the rationale behind excepting software (“computer programmes per se”) from patentability, he theorised that given the location of “computer programmes per se” in section 3(k) of the Act, surrounded as it is by “mathematical or business method” and “algorithms”, the exception seems to be a principle-based one and not a policy-based one. He also talked about what he saw as the practical realities of the Patent Office, and questioned the role the Draft Manual would actually play in the decisions of Patent Examiners.

He listed out economic arguments as:

1. Inapplicability of the incentive arguments. The software industry does not need patents since copyright covers software, and even if incentives are required, that is incentive enough;
2. Return on investment. Short shelf-life, and hence 17-year patent terms are irrelevant when the shelf-life is so small;
3. New intermediaries are created, who are neither producers nor consumers of software. These intermediaries who help in price-discovery. They discover value in patents which were previously thought neglected by the process known as patent trolling.

BT turns out to be among the culprits there as well.

UK-based telecom major British Telecom has filed a patent application in India for its invention computer telephony system, which could make a phone call through internet more secure, a development particularly more useful for call centres.

The following article presents another summary of the recent events. [via Digital Majority]

In August this year, the US Patents and Trademarks Office granted Microsoft ownership of “page up” and “page down”. So in theory, no other company can scroll without permission and acknowledgement to Microsoft in monetary terms.

A number of seemingly ubiquitous software ideas have been patented: the use of tabs to shift from one hyperlink to another on a web page, the “Add to Shopping Cart” function that appears on every online store, automated online loan requests, and even reducing image size to make a webpage load faster.

“Most companies register defensive patents to protect themselves, not offensive ones,” said Sunil Abraham of Centre for Internet and Society. “Not many actively pursue patent infringement, but it is still very scary for a small-time entrepreneur.”

At a time when the Indian Patent Office is in the process of putting together a new Manual of Patent Practice and Procedure, the Centre for Internet and Society is holding a one-day consultation on the issue of software patenting in the city. Participants include the Delhi Science Forum, RedHat, IT for Change, Open Space, as well as the Alternative Law Forum.

Signs That “Intellectual Property” Has Gone Patently Absurd

How broad should Intellectual Monopolies be? Is American society a sensible place to be in when just sketching something becomes a crime? [via Glyn Moody]

Keene Valley resident Jerilea Zempel was detained at the U.S. border this summer because she had a drawing of a sport-utility vehicle in her sketchbook.

In some cases, photography is forbidden too. It’s due to “Intellectual Property”.

Patent Trolls

One problem that is not going away is the trolling, which according to Rick Frenkel, is increasing. Here is Facebook being hit.

PA Advisors, LLC is an arm of Erich Spangenberg’s patent-holding empire. Its job is to assert U.S. Patent No. 6,199,067, which claims the use of user profiles in Internet search; it was used to sue Google, Yahoo, Facebook, and several other smaller players in November 2007.

Yesterday we complained the poor coverage of software patents in ECT. Well, here is their very latest about patent trolls.

Matsuura describes modern-day patent trolls as companies that primarily own a portfolio of patents but manufacture or market nothing. They exist primarily to seek out financial compensation from firms that infringe upon their patents.

The guy whom they cite, Jeff Matsuura, has an iffy name in some circles.

Campaigns

Hope for change comes from campaigning. In contrary to this, wealthy companies use money and lobbyists to make the laws more perverse. The Zen Partners Web site has mentioned the World Day against Software Patents.

A global petition designed to raise awareness of software patents has been launched September 24 as part of the World Day against Software Patents. Currently in draft format, the petition includes information about how software patents can affect business, research and development.

Here is another interesting one.

Software Patents: A Time for Change?

Over the years, nearly all limits to patentable subject matter in the U.S. have been removed by the specialized patent court without input from Congress, empirical evidence to justify its decisions, or consideration of values and principles outside of the patent system. Problems related to software patents have sparked calls for patent reform here in the U.S. and have driven efforts to reject legislation authorizing US-style software patents in Europe.

The EFF also continues its patent-busting project with this new target.

he Electronic Frontier Foundation (EFF) is challenging a bogus patent on Internet music files that could stifle new innovations in online music distribution. Seer Systems was awarded this illegitimate patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file.

Good insights from a reader are probably worth including at end this quick digest.

Here is part of an old judgment: “it would be somewhat arbitrary and unfair to discriminate against people who invent programs which improve the performance of computers against those who invent programs which improve the performance of other machines. However, as against that, what goes on inside a computer can be said to be closer to a mathematical method (which is, of course, not patentable by virtue of art 52(2)(a)) than what goes on inside other machines.”

“I don’t understand the difference between “computers” and “other machines”,” says the reader. “And people do not “invent programs,” they “write programs.”

“Freedom of expression cannot be limited by patent law but freedom of expression is not enough because the patent guys will say “fine, you can have your freedom of publication.” But there is still patent infringement when you run it into a piece of hardware: “Any problems caused in the context of patents in the field of IT, in particular in conjunction with OSS, might be solved by carefully redesigning the effects of granted patents, preserving freedom of expression when software code is exchanged over the internet as long as the computer program code isn’t matched with the desired processor for production operation.””

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3 Comments

  1. AlexH said,

    October 9, 2008 at 11:21 am

    Gravatar

    The Symbian decision isn’t a good one, but it’s probably not as bad as you describe: certainly, it seems the UK is still out of step with Europe on this.

    The original UKIPO decision against Symbian was actually extemely good; and took the UK a good couple of steps forward. The appeal from Symbian is a set back, but we’re still less software patent friendly than many other countries.

    Symbian basically got through on a technicality: they convinced a Judge their DLL system was more reliable. It’s plainly not, but they managed that. Other patenters are going to find it difficult to make use of the same loophole.

  2. Roy Schestowitz said,

    October 9, 2008 at 2:29 pm

    Gravatar

    Yes, I spotted your comment in IPKat about the judge being bamboozled.

  3. AlexH said,

    October 9, 2008 at 2:39 pm

    Gravatar

    It’s safe to say that this issue isn’t over yet :(

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