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Patents Roundup: Microsoft, Free Software Innovations and Impending Changes to Patent Law

Posted in America, Courtroom, Europe, Free/Libre Software, Law, Microsoft at 8:45 am by Dr. Roy Schestowitz

“If I have seen further it is by standing on the shoulders of giants,” Sir Isaac Newton (1642-1727)

Newton's Cradle

Newton’s Cradle

Microsoft continues to upset with its infatuation of everything “invention” or “innovation”. While Gates and Myhrvold patent everything under the sun (for vanity and profit), other Microsoft employees claim credit for things that have prior art and plenty of foundations upon which to build.

Microsoft boss Don Mattrick still believes he was the very first person to invent controllable 3D human avatars.

“I’m claiming to have invented avatars! I did 4D Sports Boxing! Do you know what 4D Boxing was? Hey, you should be writing this! That was me,” Mattrick told Official Xbox Magazine.

By the way, Google is no angel, either.

Google Patents Searching Through Multiple Categories At Once


What’s unclear to me is how anyone “skilled in the art” could consider this a non-obvious solution. This is (and was) the sort of evolutionary improvement that pretty much anyone in the space would have known was coming to search engines.

It wasn’t long ago that we wrote about Halliburton and its pursuit for a patent on patent trolling. The Register has a more detailed report on the subject.

Halliburton – the Texas-based company famous for pocketing billions from the war in Iraq – hopes to patent the art of patent trolling.

Innovation in Free Software

Eric Raymond, who has been eerily quiet over the past year, wrote in the OSI blog about open source software and innovation.

There’s an argument commonly heard these days that open-source software is all very well for infrastructure or commodity software where the requirements are well-established, but that it can’t really innovate. I laugh when I hear this, because I remember when the common wisdom was exactly the opposite — that we hackers were great for exploratory, cutting-edge stuff but couldn’t deliver reliable product.

How quickly people forget. We built the World Wide Web, fer cripessakes! The original browser and the original webservers were built by a hacker at CERN, not in some closed-door corporate shop. Before that, years before we got Linux and our own T-shirts, people who would later identify their own behavior correctly as open-source hacking built the Internet.

It’s important to remember that Free software predates proprietary software. It’s not a new phenomenon but it’s the way things used to before people like Bill Gates stood up and said: “They are the ones who give hobbyists a bad name, and should be kicked out of any club meeting they show up at.”

The Patent System Ain’t Working

Michael Tiemann

Michael Tiemann of the OSI, citing this writeup, summarises and shares some takeaway points.

Venkatesh Hariharan recently wrote an article titled The practical problem with software patents, a subject near and dear to my heart. He draws on the same research that I have cited in the past, the book “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” by Boston University professors, James Bessen & Michael J. Meurer, but I confess that he shows both greater insights and certainly a better sense of humor than I do when I write abou[t] the subject.

Groklaw has meanwhile released the third part of an article about re Bilski.

In my view, the short answer is that Bilski isn’t the last or best word, and that in time there will be further refinements. That may be too small a word, actually, but I read Bilski as leaving it to the Supreme Court to do anything new, useful and practical about software patents, if I might coin the phrase, while the US Appeals Court for the Federal Circuit stands on a very old dime in the meanwhile, while attempting to basically make it harder to patent mathematical “fundamental principles.” The court doesn’t want anyone to patent 1 + 1 = 2, in other words, because the whole world needs to be able to do that. But if you use 1 + 1 = 2 in a process that is patentable because it’s tied to a particular machine and/or is transformative, that’s fine with them. That’s if I understand what the court wrote. Considering that patent lawyers and professors are still struggling with it, I’m guessing I don’t yet fully.

Here is some more interesting commentary on the subject on Bilski.

It’s not just the ease of writing programs that guarantees we’ll involved external agents more and more in our lives. It’s also the development of cheap sensors that will become ubiquitous and that will provide raw data for agents to work on. And of course, the availability of Internet access everywhere, all the time, which allows agents to communicate with both the sources of data and the people who want the agents’ output.

Additional new resources (re Bilski and beyond):

A brief explanation of what the free culture movement is and the various factors that led to its fighting to preserve the commons, including corporations and special interests trying to restrict the commons to protect their interests, the development of the open source community, technological developments, such as the Internet and digital copying of media, the developmentof web 2.0 and its philosophies, current state of copyright law and youth culture.

We previously wrote about Rambus in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. It is a perfect example of patent ambush, which got the wrath of the European Commission (the US government seems to have remained indifferent). The impact is massive and the company is now making a move to embargo another company (Nvidia), potentially driving it out of the market (because, to be a tad sarcastic, that’s what innovation is all about).

It seems that the negotiations between Rambus and Nvidia over the licence fees for Rambus patents haven’t been going too well. Rambus has now filed a complaint against Nvidia at the US International Trade Commission (USITC), asking the USITC to order an import ban for products with Nvidia parts containing memory controllers for SDRAM memory components like DDR, DDR2, DDR3, LPDDR, GDDR, GDDR2 and GDDR3. This probably includes most of Nvidia’s graphics chips, mainboard chipsets and notebook chipsets, including those incorporated in the latest Apple notebooks as well as products by Asus, BFG, Biostar, Diablotek, EVGA, Gigabyte, HP, MSI, Palit, Pine and Sparkle, who were all explicitly listed by Rambus.


Over in Europe, there is a glimmer of hope for the EPO, whose action can save the UK-IPO as well. Glyn Moody wrote about this yesterday.

The UK’s Patent Office – which now goes by the awful name of UK Intellectual Property Office, which means it’s really the UK Intellectual Monopolies Office – is a curious beast. On the one hand, as its name suggests, it’s tied into one of the biggest confidence tricks around, dressing up conceptual mutton as intellectual lamb. On the other, there are odd outbreaks of sanity that suggest someone in there understands some of the deeper issues concerning software patents.


It’s not coincidence that Microsoft still maintains that GNU/Linux infringes on some 200 of its sacred software patents – and yet is strangely coy about naming them, since it doesn’t want its bluff called.

Spurred by the EU’s response (or lack thereof), here is another little status report about the ACTA, which we mentioned a lot recently [1, 2, 3, 4].

One of the most disgusting displays of an industry crafting laws to benefit their industry in backrooms is the secret negotiations over the ACTA treaty. This is the international agreement on copyright that’s basically been written by entertainment industry insiders, and will effectively force governments around the world to change copyright laws in favor of the entertainment industry. Yet, the actual negotiations are being held in secret. When confronted about it, various government negotiators have basically said it has to be secret because that’s the way things are done.

Don’t forget to tell people about ACTA [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11]. It’s about the so-called “copyrights cartel” seeing it as its privilege to take the law into its own hands, backed by corruptible diplomats who harbour secrecy and discourage discussion with the public. These ‘elites’ want more control and more money. They want to suppress or forbid peer production in an increasingly-digital era. This threatens not only culture, but also the Internet and Free software. The ACTA encompasses many areas.

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A Single Comment

  1. Gentoo User said,

    November 12, 2008 at 12:37 pm


    No, “free software” as the definition you are likely referring to about does NOT predate commercial software. Sharing code freely was a common thing in the early days of computing, especially within academia, because software was just a means to and end. Hardware was extremely expensive and it was shared among multiple users, who saw software as nothing more than a commodity. If anything, software was largely in the public domain.

    And the commercialization of software also predates anything Bill Gates ever did, your desire to blame the death of a non-existent “free software” movement on him notwithstanding. Unix had been commercialized long before Microsoft ever became relevant.

    Why are people like you so desperate to fit *that* kind of free sharing into the GNU/FSF/RMS definition, which came much later?

    Why do you make these false assertions and present them as fact?

    Also, ESR wouldn’t be caught dead talking about “free software”, as you know very well. He’s talking about open source. After years of banging on the “free != open” and “you must call it GNU/Linux like Stallman says” are you now using an ESR blurb to make a point on your blog? That’s disingenuous at best.

    Note: comment arrived from a witch hunter that does not even use GNU/Linux.

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