11.17.08

Patents Roundup: Better Days Ahead, Lawyer Ignorance/Greed Prevails

Posted in America, Europe, Microsoft, Patents at 7:22 am by Dr. Roy Schestowitz

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

–Larry Goldfarb, key investor in SCO

THERE ARE SEVERAL important developments around patents, but as the FFII had expected, several people showed up to express resistance to change. They object to the mending of the system or a much-needed reform, labeling it a “deform” instead.

Patents Kill Standards

Let us begin with this report about standards getting hobbled by patents. A misconception traveling around the Free software world is that being a standard means that patents are automagically annulled. Microsoft and its apologists use this pattern of disinformation to suggest that Mono and OOXML are safe to use. It could end up an ambush like this:

What A Shock: Another Wireless Standard Beset By Patent Problems

It’s becoming such that news about another patent battle surrounding a new standard is barely newsworthy — especially in the wireless space. Name the standard, and we can probably find someone claiming patents on it. There are still ongoing patent battles surrounding both WiFi and WiMax.

To those who think that OOXML is a done deal, <No>OOXML has some news.

The Dutch standard researcher asks: “Who pays for interoperability in public IT procurement?”. Our site reproduces her letter sent by email to standard professionals.

Unrest lingers on.

re Bilski Limits Software Patents

It is with great pleasure that the FSF recently pronounced many software patents dead. Here is an analysis that’s well structured.

Although the Bilski case doesn’t involve computer software, the implications for a software company may be enormous. Expect several immediate outcomes from this court decision –

- A “pure business method” patent claim is clearly not patentable. Such business method patent claims often set out broad, human-implemented type processes, without requiring the use of a computer.

- Software patents will need to be drafted very differently in the future to enhance the likelihood of the U.S. Patent Office agreeing to issue a software patent.

- Existing software patents may be challenged and attacked, particularly if the patent owner is trying to enforce rights against others.

Lawyers Fight for Software Patents?

Groklaw and Gene Quinn (patent lawyer) are exchanging arguments. Quinn wrote:

Groklaw is right about one thing for sure though, Microsoft filed an amicus brief asking that software and business method patents be curtailed. The trouble with this, however, is that Microsoft’s motives were anything but pure and anything but intelligent. The fact that a major corporation would advocate a position that will ultimately lead to their demise is hardly newsworthy. Microsoft and the other members of the Coalition for Patent Fairness have taken the position that patents should provide weaker rights and be harder to get. While this is short sighted, it is also self serving. These technology companies get sued constantly and sometimes unfairly. As a result, much of what they support are measures aimed to curtail litigation where they are the defendant. The fact that the positions they take are significantly weakening their own intellectual property portfolios and will make it much easier for the next generation of mega-companies to supplant them as market leaders demonstrates that their position is not at all rational and is likely impulsive.

It’s funny to see how lawyers perceive (or fail to understand) software. Quinn later wrote:

From a conceptual standpoint why not allow for software to be patented. What is the harm? I know many of you reading this have now gone into an apoplectic rage, but conceptually why should software be treated any differently? Isn’t the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none….

Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software. When you write software you are trying to enable a device, such as a computer, to provide certain functionality given a certain stimulus. So you are writing instructions for a computer or other device and explaining how the computer or device needs to process information. You do not explain how to process information with mathematical equations.

Groklaw has amassed almost 600 responses to that. Change just won’t stick without a fight from those who could exploit a dysfunctional and vulnerable patent system. There is also this members-only followup which states: “Keep in mind that while we feel Quinn doesn’t comprehend math or software, he thinks you don’t understand what patents protect.

“Here’s his view. The code is not what receives the patent. The code can only receive a copyright. The code is not what is protected, it is the *functionality* that is protected. So if you write the code in a different way you could still be infringing a patent. The computer will read a series of 1s and 0s and will interpret these 1s and 0s. So what is really being sent to the computer is a stream of instructions, much like morse code. This code then explains on vs. off, or switches. It could not be argued that a unique series of switches is unpatentable subject matter, he points out, so why would something similar be unpatentable just because a computer is in the picture?”

Hope for Change

“Change” is the motto of the Obama campaign. Unlike McCain [1, 2, 3], Obama made promises regarding the patent system. According to the press, he faces tough challenges implementing this. [via Andy Updegrove]

[I]t seems unlikely that US IP policy will change significantly under the Obama administration. The pharmaceutical industry remains a powerful lobby in the United States regardless of which political party is in the White House and Congress, and the same goes for Hollywood and the entertainment industry. The technology sector, from information technology to biotechnology, contributes significantly to the US economy. The influence of these and other industries that rely heavily on patents, trademarks and copyright is due to one simple fact—IP is the largest export of the United States to the world.

There is also this from IP Watch.

The American Intellectual Property Law Association faces profound political, legislative and administrative challenges in coming months, new Executive Director Q. Todd Dickinson said in a 13 November interview in The Hague. Key among them are major changes at the United States Patent and Trademark Office (USPTO) in the new Obama administration, the fate of patent reform in the new US Congress, and the impact, if any, of the global economic downturn on patents, he said.

The EU-based Digital Majority has meanwhile provided this update about the European Union patent court. The full PDF [PDF] can be obtained too.

Delegations will find in Annex a Presidency working document containing a revised version of the Draft Agreement on the European Union Patent Court, for discussion at the meeting of the Intellectual Property (Patents) Working Party on 11 November 2008. This revised version takes account of the discussions in the Working Party on 24-25 July 2008 and on 11 September 2008 as well as of written comments submitted by delegations.

There are many eyes on the EPO at the moment, but it could take a long time for certainty regarding exclusion of software patents to be restored. EPO staff (pictured below) remains unhappy. █

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