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11.21.08

Patents Roundup: Microsoft|Myhrvold Trolls Fill Up Their Patent Basket

Posted in America, Free/Libre Software, GPL, Law, Microsoft, Patents at 8:21 pm by Dr. Roy Schestowitz

Patent troll
“I’m not a troll, damn it! I’m an innovator.”

“On the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO’s strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO’s financing, hiding behind intermediaries like Baystar Capital.”

Bruce Perens

WORTH STARTING OFF WITH is the news most relevant to Free software. There are many signs suggesting that Microsoft gambles on patent trolling as a business strategy [1, 2, 3] and the following is new addition to a chain of evidence we accumulate for studying purposes. The Gates|Myhrvold ambition is secret no more and this ‘axis’ can be intercepted once it’s better understood.

Nathan Myhrvold Now Capitalizing On Failed University Patent [Initiatives]

With so many university technology transfer offices losing money, IV has been going around and signing deals with universities. Basically, IV gives those tech transfer offices some money upfront, allowing IV to effectively add each university’s patent pool to its own portfolio that it uses to go around demanding hundreds of millions of dollars from companies to “protect” them against any future lawsuits.

They seem to have already done this routine in India. There are different ways to approach this problem:

  • One is to expose those who can be used by Microsoft, e.g. Acacia [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11]. Visibility makes them easier to catch and thus more reluctant to take action;
  • The second option is to fight fire with fire (patents for patents), but it’s complicated when inflicted by patent trolls. It renders OIN somewhat ineffective;
  • Another option is a push for the end of software patents. Fortunately, progress is made towards this objective.

Bilski

Roughly reverse-chronologically, the Bilski case was previously mentioned in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33]. There are some new and noteworthy analyses of its impact on software patents, so these are included below for completeness and future references (mostly research in retrospect).

1. “Software Method Claims: Bilski in light of Benson

It is important to remember that the Supreme Court’s decision in Gottschalk v. Benson is still controlling law. In that 1972 decision, the Supreme Court held unpatentable a method of converting a signal from “binary coded decimal” into “binary.” The Benson method operates by using a “reentrant shift register” – a particular electronic memory circuit of the day. The rejected claim reads as follows:

[...]

Thus under Bilski/Benson, tying a software algorithm to particular computer hardware may well be unpatentable subject matter if the patent would still preclude all practical uses of the otherwise unpatentable algorithm.

2. Post-Bilski at the USPTO: Is the BPAI Looking to Create a ‘Software Per Se’ Exception?

The BPAI, acknowledging Bilski, stated that the claim did not recite patentable subject matter, as it was “directed to purely software components.”

3. COMMENTARY: Business-Method Patents—Down But Not Out?

The case most often cited for opening the door to business-method patents is State Street Bank & Trust v. Signature Financial Group Inc., decided in 1998 by the same court. That case, however, involved a fairly complex computer program, and all the court really said was that the validity of the patent should not turn on whether the “subject matter does ‘business’ instead of something else.” Even the poster child of business-method patents, the Amazon “one-click” patent, which was in the patent pipeline well before State Street, involved software operating on a specially designed client-server system.

In addition to this, worth considering is this new essay on why software should not be patentable. It’s a followup to that friendly Gene Quinn confrontation (amicable debate rather).

One final note with regards to Specific Description and that is a look at how it would work when applied to various assets. Take a car engine, no matter how much detail we put into describing it we never end up with a car engine. A text only book is a simple case, clearly you can write word for word the contents of the book and so therefore it fails the Specific Description test. Music, even a recording, can be respresented in a form which can be translated to give the recording itself. The same applies for imagery and therefore as a combination of the previous two movies. These are all things which have long been established as the domain of copyright law, not patent law. Suggesting perhaps the Specific Description test is similar to the thought processes of those who created patent and copyright law. There is something else very common in society which fails the Specific Description test. Software.

Let copyrights protect software developers. Mathematical recipes are a step too far in creating fences, which are not necessary.

GPLv3

The GNU GPLv3 gains acceptance

Another mechanism for defanging patent trolls is the GPLv3 and a new article explains the role it serves and its necessity.

Regardless of opinion on the merits of the new GPL, the fact is it’s here–and likely here to stay.

In essence, copyleft is a complete reversal of traditional copyright values where the law sees software as a literary work under the Copyright, Designs and Patents Act 1988.

[...]

The result is a new version of the license that is much clearer in its scope and application. It also takes greater account of software patents. To prevent software owners using patents to impose additional terms on users, the license includes the use of any patents owned by copyright holders that fall within the scope of the software. The termination provisions are also made clearer and are now automatic instead of requiring a notice from a copyright holder.

[...]

Conversion from GPL version 2 to version 3 is increasing as existing open source applications seek to benefit from the improved certainty afforded by the new terms. That’s not to say that version 2 is unenforceable, it will continue to exist and be used by those who prefer it, but version 2 and version 3 are incompatible. Thus a decision needs to be made by those organizations ‘going open’ as to how they would prefer their software to be made available–and soon.

OpenMoko Harassed by Philips, Facebook Sued

The OpenMoko situation was brought up in [1, 2] and LWN.net has some further discussion of interest. It illustrates aggressive action which is carried out by proxy (Sisvel in this case [1, 2, 3, 4, 5, 6, 7, 8, 9]).

On November 12, the OpenMoko project announced that all of its system images had been removed from the download server.

Facebook too has just been sued… by a patent troll in fact.

Leader Technologies, a provider of web-based enterprise software for groups, is apparently suing Facebook. It claims the popular social network is infringing on a patent it obtained in 2002, that “relates to a method and system for the management and storage of electronic information.” Facebook tells me it hasn’t seen the complaint yet, although Leader issued a press release earlier today saying that it has already filed the suit in Delaware.

This is also covered here and here. Will Facebook join the cause against software patents, despite its Microsoft slice?

USPTO: Shot in the Foot

Those in the mood for entertainment can take a glance at some of the newly-discovered ‘innovations’ this patent office brings to our world (and virtual world too):

1. The Rocky Legal Landscape of Virtual Worlds, Part 2: Patents

For example, U.S. Patent No. 6,935,954, owned by Nintendo of America is directed to a sanity system for a computer game whereby events in the game affect a character’s sanity, which in turn affects the ability of a user to control the character. This sanity system appears suitable for any single or multiplayer game in which characters encounter scary situations.

2. McDonald’s Sandwich Patent

And don’t miss the flowchart that explains how to make a sandwich.

You can’t make this stuff up!

On the grill
“We’re sorry, sir. Your BBQ party is over.
Your cooking infringes on patents.”

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