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Patents Roundup: Disintegration, EU in a Limbo, Applecrosoft Patents and Scientists’ Rebellion

Posted in America, Europe, Intellectual Monopoly, Law, Patents at 3:54 am by Dr. Roy Schestowitz

The voice of dissent against intellectual monopolies is becoming too broad and loud to cover exhaustively and one site promptly contends that the system is broken, citing Techdirt among other sources that are like-minded.

I’ve been thinking a fair amount about software patents the last couple of weeks. Two weeks ago I attended a Brookings Institution conference that focused pretty heavily on the patent system. Since then, I’ve interviewed several sharp patent scholars in preparation for an article I’m working on. In those conversations, I noticed the same cultural gulf I blogged about on Techdirt last week. You might say that on the subject of software patents, lawyers are from Mars and programmers are from Venus.


So when a programmer thinks about software patents, he’s interested in improving the software industry. Given how screwed up software patents are, programmers often think the best solution would be not to have them at all. In contrast, when a patent lawyers thinks about software patents, he’s interested in fixing the patent system. Abolishing software patents looks like a horrible hack, because the flaws in the patent system that caused software patents to be so dysfunctional are probably plaguing other areas of patent law

Here is a new essay countering the perception that wealth is created by (intellectual) monopoly:

Let’s see how this works. Property rights are protected. Trade is free. People made useful stuff. People bought stuff and used it. They imitated and emulated each other and improved things step by step through investment, profit, and re-investment. That’s all. All development since this great age of innovation that preceding software IP has built on this foundation of open-source material. Bill Gates: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”

In Re Bilski [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] is noted for its already noticeable impact on weakening intellectual monopolies.

Software patents are increasingly being used like lottery tickets: If you file enough of them, you’ll eventually have the winning number for litigation. Information Protection and Authentication of Texas (IPAT) has sued a dozen computer makers and some software developers for allegedly violating two security related patents that it holds. IPAT filed a formal complaint in a south Florida district court last Thursday. Some of the defendants are Apple, Dell, HP and Lenovo. It has also separately filed suit against software makers including Microsoft and Symantec in a Texas court.

Further to that, another terrible patent potentially sees its death.

The PTO rejected all 20 patent claims over Internet subdomains held by a company called Hoshiko, which were used to bully sites like LiveJournal and Freehomepage.com and pursue litigation against larger companies like Google. The idea behind how to manage subdomains–domains hosted within larger domains, such as news.cnet.com–is too obvious to patent, the PTO ruled after the nonprofit Electronic Frontier Foundation requested the patent be re-examined.


Alison Brimelow

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

In theory, the situation in Europe should be much better, but too many questions remain and the process of clarification is too slow and culmbersome, which leaves everyone involved in an almost-eternal state of uncertainty. Here is a little update regarding the important referral.

It was a full house at law firm Baker & McKenzie’s London office last night as they hosted an Intellectual Property Institute lecture from EPO President, Alison Brimelow, on the ‘Future of IP’.

Brimelow befriended the audience early on by recognising, and voicing frustration at, weaknesses in the patent system. Europe’s seeming inability to move forward with a Community patent and/or a single patent jurisdiction, and the global issue of the unnecessary duplication of work and the backlog it is helping to create, were at the fore. As Brimelow freely admitted, she has no radical proposals to offer. But she did insist that the future of the patent system is a subject that requires action rather than the wait and see attitude she said was favoured by many in the IP world. If those who work inside the IP system do not help shape the future, others will do it for them, Brimelow said.

It is still possible to play a role in the process. It remains likely and it’s only natural to expect Microsoft's pressure groups to step up and intervene.

Interested parties have until the end of April to submit written statements to the EPO’s Enlarged Board of Appeal for the president’s referral on the patentability of computer programs


Given the controversy over the patenting of computer programs in recent years, a large number of submissions can be expected, from the software industry, legal professionals, trade associations and the open-source and anti-software patent communities.

There are still some ongoing attempts to further increase the damage by centralising and thus expanding the scope of litigation.

Disputes on the EPO patents are decided by national courts with the risk of multiple litigation. Consequently, the Council is working on a draft agreement to create a new European-wide jurisdiction. The agreement will be between the States wishing to ratify it and the EU itself.

The situation in the UK too is uncertain. We have been writing a lot about it recently and according to this, software patents are still being actively challenged, despite what Symbian did [1, 2].

Many observers saw the ruling as a rejection of the IPO’s previous methods of judging software patent claims. The IPO has said, though, that it will continue to apply the Aerotel/Macrossan test to decide whether an invention qualifies for a patent.


Having threatened Palm for its highly anticipated Linux-based device, Apple claims to be “innovating” again.

Apple’s 358-page patent application for their iPhone interface entitled Touch screen device, method, and graphical user interface for determining commands by applying heuristics has been approved after more than two years of review by the US Patent Office. [...] As Apple seems eager to defend their intellectual property, what will this mean to other touch developers?

Glyn Moody calls it “ridiculous”, saying that he “was using a touch-screen HP 150 in the mid-1980s.” Here are some more details.

Apple has been granted a patent for touchscreens and related technologies, many of which have been combined to make up the iPhone.


We’ve mentioned Microsoft’s pay-as-you-go patent application in [1, 2, 3] and although it was rejected, it provided some insight into the sorts of Orwelian things Microsoft may have in mind.

All your data are us, and now your hardware too

If you thought that details of trusted computing were grim the patent to impose a charging structure on a PC’s hardware relative to software usage would tax the greatest genius of Jesuitical causitry. If you were impressed by the talents of now defunct investment bankers to leverage profit from packaged sub prime pyramid schemes then Microsoft’s wheeze would earn them a place on the board of Lehman Brothers.

Sharing is Better

Michael Geist has been combating a deformation of copyright law in Canada — a move initiated by Hollywood and further propagated with Microsoft’s help [1, 2]. Backed by this professor’s view, argues Mike Masnick:

Scientists Feel That Patents Cause Significant Harm To Research

Michael Geist points us to a recent survey of scientists who say that IP protection has a negative impact on their research. It’s greatly slowed down the ability to do research, as universities (thanks to the dreadful and damaging Bayh-Dole Act — which has significantly hurt progress in scientific research) are trying to hoard anything that can be patented for the sake of profit, rather than scientific advancement. Of course, advancement doesn’t work that way. It works through collaboration and sharing ideas — and what patents do is add a huge bureaucracy to the process, encouraging secrecy, not sharing and hoarding, not collaboration. Once again, we’re seeing that about the only folks who really truly benefit from patents are the lawyers.

Tim O’Reilly writes: “Dave Gray’s Free The Facts presentation is a must-read, must-share for anyone who cares about either science or open access.” Here is the presentation:

The Internet has proven to be a liberating force when it comes to rapid exchange of valuable knowledge. We’ll be seeing plenty more of this in the future.

We feel privileged to be referenced by IPJur, which recognises our cause.

However, now it looks as if they are in serious trouble: The same reader also hinted me to a posting on the Boycott Novell blog which is dedicated to some kind of political agitation against Novell, Inc., because of the people behind this blog think that Novell has moved far too much towards an alliance with Microsoft.

Consent on this issue is unlikely to arrive from lawyers, but hope lies in the minds of managers, who ought to realise the technical impact of their decisions.

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A Single Comment

  1. Andre said,

    January 28, 2009 at 9:34 pm


    What institution obstructs the EU community patent? Could it be a patent office?

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