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11.30.08

Patents Roundup: Patent Failure, Rambus Ambush, and Death by Patents

Posted in Free/Libre Software, Patents at 3:33 am by Dr. Roy Schestowitz

It’s Not Working

THE FOLLOWING new article does not necessarily focus on software patents, but on the whole, the article does address an important issue that leads to patenting by large and wealthy companies whose so-called ‘innovations’ are not actually theirs. A portion of the article that speaks of software specifically tackles the issue of litigation burden, mostly costs.

Quicker, cheaper solutions needed for patent law

[...]

A further possibility, which is being trialled in the US in relation to software patents, is to expose patent applications to comment from those in industry. This would enable interested players to draw prior art to the attention of the examiner, and potentially also to identify ambiguity or lack of clarity. This would presumably assist examiners greatly in dealing with complex and new technologies.

The second major protection for the system is to ensure that those who wish to challenge the validity of a patent have access to a cost-effective dispute resolution mechanism. Typically, running a hotly contested patent case in the Federal Court can cost upwards of $2 million and take over a year to get to trial. On this basis, smaller players and issues that affect smaller markets will be shut out.

A particular district (or two) in Texas continues to be a major loophole and therefore a major part of this issue.

How to Attract Patent Litigation

If you’re a federal district court, that is.

The answer? You need something not every federal district has. The Eastern and Southern Districts of Texas have them. The Northern District of California has them. The Districts of Pennsylvania (Western), Georgia (Northern) and Illinois (Northern) have them. In fact, so many U.S. District Courts have them that its getting difficult to keep up. Like so many things in life, at first its an advantage to have them, and eventually it becomes necessity.

Black Sheep

Digital Majority, by pointing to this slightly older post, shows just how a single company or a minority of a much larger group can stand in the way of a reasonable system.

Except for the few patent holders and Accenture, the tax strategy business community has been largely anti-patent – going so far as to lobby congress to introduce legislation to create a specific exception that would block enforcement of those patents.

Another company that gives a bad name to patenting is Rambus, whose ambush is almost unprecedented and is causing a lot of trouble in several industries.

Judge Ronald M. Whyte of the US District Court, Northern District of California in San Jose, who has already presided over other cases involving Rambus and Hynix, has now reached a number of decisions, which were preceded by a legally and technically interesting 42-page set of findings. According to the court findings, DDR2, DDR3, GDDR2, and GDDR4 SDRAM chips made by Hynix, Micron, Nanya and Samsung infringe claim 16 of Rambus patent 6,266,285, granted on July 24, 2001; where GDDR3 memory is concerned, only Hynix, Micron and Samsung are affected. Rambus had also filed complaints over patent infringements related to nine further US patents, but Judge Whyte denied them for the most part.

If Rambus, which is a struggling and therefore merciless company, gets its way, this will be a serious injury to the integrity of the whole system. It would raise question with regards to the aim of patents and whether or not they are beneficial.

Sick Patents

Back in March we showed that collaboration in the drug-developing industry is seen as preferable by an increasing number of companies that set aside their patents and adopt what they refer to as an “open source” approach. This marks a turning point where science benefits the most and those whose illnesses depend on science likewise.

There is a stream of new articles at the moment which are very critical of patents in the medical field, particularly those that prevent access to vital medicine. Here is the story as told by Reuters.

The Commission said it had found documents during the inquiry, which contained admissions from brand-name companies that they had tried to stop generics, and many examples of obstacles being placed in way of less-expensive competitors.

A catalyst for action here is indeed the Commission, which rarely seems to intervene in this area. It’s nothing to sneeze at when patents kill.

Glyn Moody labels the situation “patently outrageous” and one of our readers, pointing to this interesting story on the BBC, said: “My take from it is what I have suspected all along. At least in the EU (and theoretically in the US), anti-trust law overrides patent protections. The EU is considering anti-trust action against the big pharmacy companies. This is good news especially since I consider that, since Microsoft does so little that is original, the big pharmacy companies have a better case than Microsoft has.”

Other coverages of this include:

1. Commission accuses drug developers of blocking rivals

The inquiry has revived calls for the creation of a single European Union patent, an issue that regulators have struggled with for 30 years due to disagreements over the languages used. Kroes said that the preliminary findings of the sector inquiry supported the case for a community patent, which she argued could help avoid litigation and cut costs.

2. Sick babies denied treatment in DNA row

BABIES with a severe form of epilepsy risk having their diagnosis delayed and their treatment compromised because of a company’s patent on a key gene.

It is the first evidence that private intellectual property rights over human DNA are adversely affecting medical care.

It is true that some patents may result in unnecessary deaths.

Medicals

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