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


Patents Roundup: Government Gets Involved, Software Patents at Risk

Posted in Courtroom, Patents at 8:14 pm by Dr. Roy Schestowitz

Ambushed by Antitrust

The infamous patent ambush from Rambus [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] is leading the way to some new developments. First of all, the recent ruling is being appealed.

Rambus appealed the FTC’s ruling and the US Court of Appeals for the District of Columbia Circuit ruled against the FTC in April.

Further to that, there is a referral of the antitrust case to the Supreme Court, whose word on this would set solid precedence.

The U.S. Federal Trade Commission has asked the U.S. Supreme Court to intervene in a case in which the agency accused memory-maker Rambus of anticompetitive behavior in deceiving a standards-setting body.

The U.S. Court of Appeals for the District of Columbia Circuit in April threw out the FTC’s case against Rambus, in which the agency accused the company of convincing industry groups to declare a standard for the memory used in PCs, servers, printers and cameras without admitting that it owned the patents to those technologies. The FTC Monday asked the Supreme Court to overturn that appellate decision.

Reform in Progress

Also related to the FTC is the following report about an upcoming hearing which may change the way patents get treated.

The US Federal Trade Commission has announced the first of a possible series of public hearings to explore the evolving market for intellectual property (IP). The hearings will be held beginning on December 5, 2008, in Washington, DC. “The patent system has experienced significant change since the FTC released its first IP Report in October 2003, and more changes are under consideration. The courts and patentees are exploring the full implications of Supreme Court and Federal Circuit decisions on injunctive relief, patentability, and licensing issues. Congress has considered sweeping legislative patent reform, and new debates on the appropriate methods for calculating infringement damages have engaged the patent community. New business models for buying, selling and licensing patents have emerged and evolved since 2003. In addition, there is new learning regarding the operation of the patent system and its contribution to innovation and competition.”

The Bilski case, which was escalated up to the top where Bilski’s patenting got defeated, continues to wreak havoc even where software is involved, and that’s a good thing. Here is the latest example.

Halligan’s patent application claims a “programmed computer method” that operates to identify trade secret information. (Claim 119). In essence, the computer program has the common law rules of trade secrets hardcoded, and those rules are applied to determine whether particular information is a “trade secret.” Applying the machine-or-transformation test of Bilski, the Board of Patent Appeals and Interferences (BPAI) rejected Halligan’s claims as lacking patentable subject matter under 35 USC § 101.

Under Bilski, “[a] claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” To avoid preemption the Federal Circuit emphasized that “the use of a specific machine or transformation of an article must impose meaningful limits on the claim’s scope to impart patent-eligibility;” that “the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity;” and that the transformation “must be central to the purpose of the claimed process.”

Here is another new review of the book “Intellectual Property and Open Source,” which probably requires radical revision after re Bilski.

Intellectual property is an increasingly important part of our economy, and computer code in particular is presenting IP laws a serious challenge. Is code functional or expressive? Should it be covered by a patent or a copyright? What rights do we consumers have when we purchase a piece of computer software? Intellectual Property and Open Source: A Practical Guide to Protecting Code answers these questions, at least as well as any questions can be answered in this notoriously wishy-washy field of law.

Hardware Miscellany

Like many large companies, Nintendo got sued recently and the following new video tells one side of the story.

Ogg Theora

Direct link

Hardware patents remain an area that we do not cover in this Web site, but here is another report about this sector from the news.

Although there are few official press releases available, it seems that numerous well-known chip manufacturers are arguing about patents apparently involving tungsten metallisation processes.

When it comes to hardware, it’s easier to impose extreme measures like an embargo [1, 2]. It’s actually physical products that are taken to task, not mere knowledge that can be passed around over the wire, even across continents.

Patent Trolls

Amid tremendous pressures in an already-volatile and embattled industry, the patent trolls assault undeterred. Groklaw reckons they want a piece of the bailout money, i.e. taxpayers’ expenses.

In the suit, LML alleges that the defendants infringe U.S. Patent No. RE40220. LML is seeking damages, injunctive and other relief for the alleged infringement of these patents.

RPX, which we mentioned earlier today, continues to receive coverage. The Wall Street Journal beat everyone to it (marginally), including Larry from ZDNet. It’s being described as “defense” against patent trolls although it operates in similar ways to patent trolls.

Thus far, RPX has acquired more than $40 million in patent rights and will hit $100 million in its first year. The company, founded in March, counts John Amster, a former Intellectual Venures and Ocean Tomo executive, and Geoffrey Barker, founder of Cobalt, as co-CEOs.

They arrive from a patent troll [1, 2] and probably create yet another.

The biggest troll buster, Rick Frenkel, is still under attack by the very same vindictive trolls whom he was fighting.

Before departing, I took some time to study up on some of my most-followed cases there. As regular readers know, former Patent Troll Tracker blogger Rick Frenkel was sued by two East Texas patent lawyers after his identity was revealed.

Not much has changed in these lawsuits. The parties in Ward v. Cisco are still fighting over venue, and in Albritton v. Cisco they’re fighting discovery battles, but since I checked up on them anyhow I’ll take a minute to update both cases.

For background, see our notes about the most vicious troll, Ray Niro [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. He attacked his legitimate critic [1, 2, 3], whom we recently mentioned in [1, 2, 3, 4]. What an ugly and brutal corner of the industry this must be. it used to be about development, not racketeering and gavels.

“Software patents are a huge potential threat to the ability of people to work together on open source. Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat.”

Linus Torvalds

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

A Single Comment

  1. David Gerard said,

    November 27, 2008 at 9:04 am


    Of course, with 3D printers and fabricators increasing in sophistication, we will in fact be talking about “mere knowledge that can be passed around over the wire, even across continents” when we talk about hardware.

    Hardware patents will soon be as damaging to innovation as software patents are. Don’t think industry isn’t quite aware of this.

What Else is New

  1. Links 17/3/2018: Varnish 6, Wine 3.4

    Links for the day

  2. Deleted EPO Tweets and Promotion of Software Patents Amid Complaints About Abuse and Demise of Patent Quality

    Another ordinary day at the EPO with repressions of workforce, promotion of patents that aren't even allowed, and Team UPC failing to get its act together

  3. Guest Post: Suspected “Whitewashing” Operations by Željko Topić in Croatia

    Articles about EPO Vice-President Željko Topić are disappearing and sources indicate that it’s a result of yet more SLAPP from him

  4. Monumental Effort to Highlight Decline in Quality of European Patents (a Quarter of Examiners Sign Petition in Spite of Fear), Yet Barely Any Press Coverage

    he media in Europe continues to be largely apathetic towards the EPO crisis, instead relaying a bunch of press releases and doctored figures from the EPO; only blogs that closely follow EPO scandals bothered mentioning the new petition

  5. Careful Not to Conflate UPC Critics With AfD or Anti-EU Elements

    The tyrannical Unified Patent Court (UPC) is being spun as something that only fascists would oppose after the right-wing, anti-EU politicians in Germany express strong opposition to it

  6. Links 15/3/2018: Qt Creator 4.6 RC, Microsoft Openwashing

    Links for the day

  7. PTAB Continues to Increase Capacity Ahead of Oil States; Patent Maximalists Utterly Upset

    The Patent Trial and Appeal Board (PTAB) sees the number of filings up to an almost all-time high and efforts to undermine PTAB are failing pretty badly -- a trend which will be further cemented quite soon when the US Supreme Court (quite likely) backs the processes of PTAB

  8. Patent Maximalists Are Still Trying to Create a Patent Bubble in India

    Litigation maximalists and patent zealots continue to taunt India, looking for an opportunity to sue over just about anything including abstract ideas because that's what they derive income from

  9. EPO Staff Has Just Warned the National Delegates That EPO's Decline (in Terms of Patent Quality and Staff Welfare) Would Be Beneficial to Patent Trolls

    The staff of the EPO increasingly recognises the grave dangers of low-quality patents -- an issue we've written about (also in relation to the EPO) for many years

  10. The EPO is a Mess Under Battistelli and Stakeholders Including Law Firms Will Suffer, Not Just EP Holders

    As one last 'gift' from Battistelli, appeals are becoming a lot more expensive -- the very opposite of what he does to applications, in effect ensuring a sharp increase in wrongly-granted patents

  11. The EPO Under Battistelli Has Become Like China Under Xi and CPC

    The EPO is trying very hard to silence not only the union but also staff representatives; it's evidently worried that the lies told by Team Battistelli will be refuted and morale be affected by reality

  12. Links 14/3/2018: IPFire 2.19 – Core Update 119, Tails 3.6

    Links for the day

  13. Links 13/3/2018: Qt Creator 4.5.2, Tails 3.6, Firefox 59

    Links for the day

  14. Willy Minnoye (EPO) Threatened Staff With Disabilities Said to Have Been Caused by the EPO Work Pressures

    Willy Minnoye, or Battistelli's 'deputy' at the EPO until last year, turns out to have misused powers (and immunity) to essentially bully vulnerable staff

  15. IAM and IBM Want Lots of Patent Litigation in India

    Having 'championed' lobbying for litigation Armageddon in China (where IBM's practicing business units have gone), patent maximalists set their eyes on India

  16. The Patent Trolls' Lobby (IAM) Already Pressures Andrei Iancu, Inciting a USPTO Director Against PTAB

    Suspicions that Iancu might destroy the integrity of the Office for the sake of the litigation ‘industry’ may be further reaffirmed by the approach towards patent maximalists from IAM, who also participated in the shaming of his predecessor, Michelle Lee, and promoted a disgraced judge (and friend of patent trolls) for her then-vacant role

  17. Patent Trolls in the United States Increasingly Target Small Businesses Which Cannot Challenge Their Likely-Invalid Software Patents

    South by Southwest (SXSW Conference/Festivals in Austin, Texas) has a presentation about patent trolls, whose general message may be reaffirmed by recent legal actions in Texas and outside Texas

  18. EPO Staff Union Organises Protest to Complain About Inability “of the Office to Recruit the Highly Qualified Staff it Needs.”

    Having already targeted union leaders and staff representatives, the EPO may soon be going after those whom they passionately represented and the staff union (SUEPO) wants the Administrative Council to be aware

  19. Battistelli Likes to Describe His Critics as 'Nazis', Team UPC Will Attempt the Same Thing Against UPC Critics

    Demonising one's opposition or framing it as "fascist" is a classic trick; to what degree will Team UPC exploit such tactics?

  20. Session in Bavaria to Discuss the Abuses of the European Patent Office Later Today

    The EPO shambles in Munich have gotten the attention of more Bavarian politicians, more so in light of the Constitutional complaint against the UPC (now dealt with by the German FCC, which saw merit in the complaint)

  21. Links 12/3/2018: Linux 4.16 RC5, KEXI 3.1, Karton 1.0, Netrunner 18.03, Debian 9.4

    Links for the day

  22. EPO Patent 'Growth' Not Achieved But Demanded/Mandated by Battistelli, by Lowering Quality of Patents/Services

    Targets at the EPO are not actually reached but are being imposed by overzealous management which dries up all the work in a hurry in order to make examiners redundant and many European Patents worthless

  23. Doubt Over Independence of Judges at the EPO Clouds Reason in Deciding Regarding Patents on Life

    With the growing prospect of a Board of Appeal (BoA) having to decide on patentability of CRISPR 'innovation' (more like explanation/discovery), questions linger or persist about judges' ability to rule as they see fit rather than what some lunatic wants

  24. Patent Academics and CAFC Make a Living Out of Patents, But Both Must Begrudgingly Learn to Accept That Patents Went Too Far

    A look at academic pundits' views on the patent system of the United States and where the Federal Circuit (a high patent court) stands on these matters after the US Supreme Court (highest possible court) lashed out at many of its decisions, especially those from the disgraced Rader years

  25. Patent Maximalists Cause a Crisis of Legitimacy for Patent Law

    The patent extremists who nowadays equate monopolies on mere ideas to "property" and "rights" gradually cause the public to lose respect for patents, more or less in the same way copyright maximalists (and copyright trolls) cause the population to seek alternatives (both legal and illegal)

  26. We Shall Soon Find Out Where Trump Appointees Such as Neil Gorsuch Stand on Patent Policies

    Staff shuffles at top-level roles will soon reveal what Donald Trump's changes mean to patent law and caselaw

  27. Trump's USPTO Changes Patent Designs, Changes Director/Deputy Director, and Anticipat 'Ranks' Patent Examiners Based on How They Deal With Section 101

    Today's USPTO isn't the same USPTO which was managed by Michelle Lee and anti-PTAB groups (proponents of software patents) have begun profiling examiners based on their stance on abstract/software patents -- a form of neo-McCarthyism

  28. Links 10/3/2018: Amarok 2.9.0, Debian 9.4, Sparky 5.3

    Links for the day

  29. Alice/§ 101 is Improving the Quality of Patents in the United States and Patent Law Firms Are Panicking

    Patent maximalists in the United States not only freak out over Alice but also distort the outcome of recent court cases (Federal Circuit) in order to make it seem as though Alice is going away

  30. Watchtroll is Back to Attacking Judges of the Patent Trial and Appeal Board (PTAB) Because It Can't Tolerate Justice

    The attacks on judges at PTAB seem to be culminating again, perhaps mere weeks before the US Supreme Court delivers a decision regarding PTAB's patent review process (IPRs)


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