EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

11.24.08

Bilski Case Working Against Patent Trolls and Against Software Patents — Already

Posted in Courtroom, IBM, Microsoft, Patents at 12:52 pm by Dr. Roy Schestowitz

Supreme court
U.S. Supreme Court, March 2008

TODAY’S NEWS is encouraging because there are finally signs of resistance rather than cowardly settlement. The Facebook case that we mentioned the other day is summoning re Bilski [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] as precedence to fend off the patent trolls.

Nick O’Neill of AllFacebook thinks Facebook might have to pay up (and he has a copy of the patent up on his site, for the curious). I’m not sure. A top patent court has recently ruled against the validity of patents that don’t involve some sort of “machine or transformation” — I wonder what “machine or transformation” Leader has to offer here? I’m no legal expert, but it’s not clear to me, after reading through the patent. I’m guessing Facebook, if not the rest of the web-based tech industry, won’t be losing too much sleep over it tonight.

Holders of software patents are already warned that their patents might be worthless and that they may require revision.

Clients with issued software patents, medical method patents, and other similar patents may want to run a “Bilski test” on the claims of those patents, particularly if there is a likelihood that the patents will be asserted in the future. If those patents raise any concerns, it may be advisable to correct potential problems or insure against them (e.g., by adding new, more-patentable claims) via reissue proceedings or continuation practice. However, clients should understand that amendments made in a reissue proceeding can provide competitors with additional defenses against a patent. As for patent applications that are still pending, applicants should develop strategies for adding the sorts of elements identified by the Federal Circuit to the claims – in most cases, we expect this can be done without significantly affecting the strength of the claims. For patents currently in litigation, defendants should re-check their defenses, but should be careful not to over-read Bilski, and plaintiffs may really want to look into correcting suspect patents.

As we showed back in May, even the pharmaceuticals are beginning to question the notion of intellectual monopolies as they decide to collaborate instead. Irrespective of this, there’s some fear there of the Bilski ruling.

In re Bilski: Trouble Ahead for Biotech?

[...]

While Bilski purports to clarify the test for analyzing the patent-eligibility of processes, many key questions remain unanswered: When is a process sufficiently tied to a particular apparatus or machine? When is the use of a recited machine more than “insignificant extra-solution activity”? When is the claimed transformation “central to the purpose of the claimed process”? When does a claimed invention foreclose substantially all uses of a fundamental principle, such as an algorithm or natural phenomenon? Does Bilski have implications for method of treatment claims? And what about non-process claims, such as claims to a peptide or polynucleotide that was isolated and purified from nature?

Those companies ought to concentrate on bringing drugs to markets in urgent need. Patents encourage overpricing and isolation, i.e. slow progress. They often lead to death and make a morbid society, even literally speaking. So whatever the outcome of re Bilski may be, it’s a clearly step in the right direction, which is rare.

On the downside, IBM and Cisco seem to be playing ball with the patent trolls of Intellectual Ventures, claiming that they do so in order to battle other trolls.

Now, two former executives of Myhrvold’s Bellevue patent licensing firm are striking out on their own with support from IBM and Cisco to serve as a counterweight to patent holding firms like Intellectual Ventures. Today, RPX Corp. is launching what it dubs “defensive patent aggregation” — a membership club of sorts where large and small technology companies pool capital in order to order to protect themselves from patent litigation.

What about small companies? Fighting fire with fire is not a solution. It only leads to burning. IBM should just step up and end software patents already.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

5 Comments

  1. Z-man said,

    November 26, 2008 at 11:53 am

    Gravatar

    “Patents encourage overpricing and isolation, i.e. slow progress.”

    Imagine you are at a company struggling to make a vaccine to HIV. You devote substantial resources to creating this vaccine and finally after millions of dollars of investment you are successful.

    You put the drug on the vaccine on the market and of course it sells very well. Then big generic drug company purchases the vaccine and reverse engineers it in about a month. Then they produce it at about half the price as your company due to their massive infrastructure.

    They sell it at price far less than yours and people stop buying from you. Your borrowers come to collect and your company goes bankrupt.

    The moral of the story: wait till someone else does the work then copy.

    The end result? Why invest in innovation when someone can easily copy you? Everyone ends up waiting around until someone else does it.

    You are so right, the patents slows progress.

  2. Roy Schestowitz said,

    November 26, 2008 at 12:01 pm

    Gravatar

    You seem to have missed this link about the notion of collaboration, which drug companies harness.

    Going by the logic you present, IBM, Intel and other companies are foolish to invest in Linux because others ‘steal’ their ideas (and code).

  3. Jose_X said,

    November 26, 2008 at 4:56 pm

    Gravatar

    Z-man,

    Very clever. Spend money by yourself without collaborating so that you can complain how you need a lucrative monopoly.

    Without patents, more companies would have to collaborate.

    As for software patents, the cost to invent, mass-produce, market, distribute, etc, in the field of software is very low. This is different from some other industries. If I wanted to invent a drug and take it to market in an attempt to profit, I would have to sit on the sidelines forever perhaps. Z-man, you are speaking about vultures who have money to put on R&D but would rather not. You are not speaking about the many that want to invent but only can when the overhead costs are very low.. as is the case in software when you enable collaboration over the Internet or otherwise.

    Imagine giving out patents for joke-telling. [Wow, that was such a creative approach.. patent it!]

    Imagine if the practice and creation of law was hampered by patents. [Hey, you just won a case, now go defend your gains from everyone holding patents on the tactics you used to win the case.]

    Every job/profession has methods and processes that can be patented if limits are not imposed (the “machine or transformation” limits).

    Note that while useful drug compounds get invented sparingly. Useful chunks of software get invented daily many times through. There is no shortage of software inventors because the costs to effectively participate and/or make money with it are so low.

  4. Roy Schestowitz said,

    November 26, 2008 at 5:08 pm

    Gravatar

    Reductions in patents maximise reach (more people access software, literature, media, or life-saving medicine), development (more people working alongside), and profit (related to reach, scarcity), unless profit is treated as selfish gain. This means that both ends of the spectrum win.

  5. stuart said,

    December 7, 2008 at 12:56 pm

    Gravatar

    But — computers are devices but not machines.

What Else is New


  1. IRC Proceedings: Tuesday, April 07, 2020

    IRC logs for Tuesday, April 07, 2020



  2. GitHug - A Guest Article by Thomas Grzybowski

    "Now, if Azure revenue has increased 72%, but the gross revenue in this category has only increased 25%, that means that the other components, primary GitHub, are actually a substantial negative."



  3. Links 7/4/2020: Firefox 75, Python 2.7.1 RC1

    Links for the day



  4. The Fall of the UPC - Part XIV: Media Owned and Controlled by Law Firms Did Not Properly Cover the Decision of the German Constitutional Court (FCC)

    We take another look at the shallow if not deliberately misleading coverage in sites that are literally owned and run by law firms, for the benefit of law firms rather than informing the public



  5. The Media Paints Bill Gates as the Man Who Will Save the World While Seattle's Police Department Obstructs Access to Documents About Pedophilia Arrest at His Home

    We're still unable to receive even one single page of the police report about arrest for pedophilia at the home of Bill and Melinda Gates; the media says nothing about this and instead it paints Gates as a national or international hero



  6. IRC Proceedings: Monday, April 06, 2020

    IRC logs for Monday, April 06, 2020



  7. Software Patents Remain Junk Patents in the United States (Not Enforceable), Whereas the EPO Keeps Granting Them and Promoting Them

    We take note of the positive outcomes in the US, where courts continue to reject software patents, but in Europe the largest patent office, which sought to replace all the courts, still acts as if patent law does not exist and patents can be endlessly printed irrespective of their merit (or validity as judged by actual courts)



  8. The Fall of the UPC - Part XIII: A Death Worth Celebrating and Many Lies Worth Debunking

    We take stock of positive responses to the decision made by the German constitutional court (FCC) 2.5 weeks ago; we also explain why it has taken so long to piece together firm-by-firm scoresheet for UPC lies



  9. GitHub is Moving the Free Software Movement Into “Check”

    GitHub's growing levels of control over Free software projects (GitHub itself is proprietary and Microsoft-controlled) ought to alarm the community; it's a lot worse than most people care to acknowledge, based on weeks of detailed analysis of GNU/Linux distros



  10. Links 6/4/2020: New Red Hat CEO, elementary OS Hera Updates

    Links for the day



  11. When the Decision is OK and the Judge's Motivations Are Also OK

    Justice Huber made the right call; but the bullies and charlatans who conspired to undermine laws and constitutions will never be satisfied



  12. The Fall of the UPC - Part XII: Doing the Unthinkable by Blaming the Judge's (Justice's) Wife?

    Team UPC and its media partners never cease to amaze us; anybody who stands in their way is either portrayed as a Russian stooge or too ignorant to be worth talking to



  13. The Fall of the UPC - Part XI: Lies Told by Bundesverband der Deutschen Industrie (BDI) in Süddeutsche Zeitung

    Today we look at misleading claims (or lies) published by Süddeutsche Zeitung after the Germans' constitutional court (FCC) had pointed out the obvious, namely that UPC ratification would be in violation of the German constitution



  14. IRC Proceedings: Sunday, April 05, 2020

    IRC logs for Sunday, April 05, 2020



  15. Links 5/4/2020: MindSpore, Covid-19 Projects and More

    Links for the day



  16. EPO is Just Like Some Cruel Political Party and Not a Patent Office

    The "cabal" which runs today's EPO (even the word "Mafia" seems suitable here) isn't acting -- not even remotely -- like a patent office; it's a patent-printing operation ("protection money" as income) that uses shallow political stunts to manufacture consent with the EU's 'generous' assistance



  17. Digitalisation and Digital Technologies as a Ploy to Justify Illegal Software Patents

    Say "hello" to the next weasel word/s; from the "hey hi" hype wave we've now moved to something "digital" (which can mean just about anything, including algorithms of all sorts)



  18. The Fall of the UPC - Part X: How We Shall Catalogue UPC Lies

    The cult that Team UPC became (one member lying to another member, maintaining a false version of reality) will be judged based on underlying facts, not lying about facts; we start with a token of contempt for IP Kat and Bristows LLP (there are overlaps)



  19. IRC Proceedings: Saturday, April 04, 2020

    IRC logs for Saturday, April 04, 2020



  20. Major Revelation: Microsoft Blackmail Against LAMP (GNU/Linux and Free Stacks for Servers) Goes At Least 16 Years Back, Predating the Novell Patent Deal

    (Techno-)Anthropological analyses of Microsoft's patent war on Free/libre software must take into account what Microsoft did to MySQL, a Swedish company at the time



  21. Links 4/4/2020: Sparky 5.11, Firefox 74.0.1, POCL 1.5

    Links for the day



  22. IRC Proceedings: Friday, April 03, 2020

    IRC logs for Friday, April 03, 2020



  23. Links 3/4/2020: Ubuntu Beta, GNOME 3.36.1, ExTiX LXQt Mini, NetBSD 8.2 Released

    Links for the day



  24. Digital Communication, Digitalisation and Videogaming Among the EPO's Latest Smokescreens for Illegal and Abstract Patents on Algorithms

    The EPO keeps liaising with the EU to promote patents which EU officials have themselves said were illegal; to make matters worse, the EPO's violations of its own laws inspire the United States to do the same



  25. Emotional Blackmail for Illegal Software Patents

    Semantic tactics the European Patent Office (EPO) uses to promote software patents in Europe and may theoretically use in the future (satire)



  26. Clear Linux is to GNU/Linux What Clearly Defined is to Open Source

    The idea that we need Intel to take GNU/Linux ‘mainstream’ is ludicrous; as OSDL co-founder (now succeeded in the flesh of the Corporate Linux Foundation), Intel is more about Linux (with DRM, “secure boot” and everything that lets it be remotely controlled) than about GNU and it’s not too keen on GPL (copyleft), either



  27. IRC Proceedings: Thursday, April 02, 2020

    IRC logs for Thursday, April 02, 2020



  28. Links 2/4/2020: Linux 5.6.2, Qt Creator 4.11.2, LineageOS ROM Based on Android 10

    Links for the day



  29. OIN in 2020 Resembles Linux Foundation in 2020 (Corporate Front Group Piggybacking the Linux Brand)

    We regret to say that the Open Invention Network seems not to care at all about Software Freedom; to make matters worse, it is a proponent of software patents and a voice for companies like IBM and Microsoft, not the "Community" it fancies misrepresenting



  30. Inside the Free Software Foundation (FSF) - Part IX: Semi-Happy Ending

    Richard Stallman is here to stay and the FSF will let him stay (as chief of GNU); we want to close the series on a positive note


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts