THE problem with the patent system -- and software patents in particular -- continues to be discussed around the Web. Lora Bentley from IT Business Edge spoke to the SFLC and came up with the following two posts:

i. SFLC Says Software Patents Impede Technology

The writers then go on to argue that software is not patentable subject matter because "it does nothing more than execute mathematical algorithms." And the Supreme Court has held that algorithms, abstract concepts and the like, on their own, are not patentable. (There is more to the argument, of course, but that's the main point.)

ii. Software Patents from Another Angle

However, if you ask why the patent system is bad for software as opposed to other things, she agrees you may have a point. As Kuhn also noted, software is subject to both copyright protection and patent protection at the same time. And it makes no sense to apply both schemes at once -- especially when they work so differently. Copyright covers expression. Patents cover functionality. Patents are used to exclude people from doing things. Copyright is more enabling.

Over at IPJur, readers are being reminded that not just the FSF -- but major economists too -- are opposed to this patents extravaganza.

From time to time, prominent scholars inhabiting the top floors of the ivory tower like to publish their musings about the usefulness or evilness of the current system of IP law. For example, even Nobel laureate Mr Eric Maskin (LinkedIn) was involved in developing certain theories based on mathematical models of economy according to which the patent system plays a rather detrimental role. Have a look at the formulas of the Bessen/Maskin mathematical model. Where is the evidence that reality in economy can be mapped by such models? Should such work really be taken as a basis for any actual political decisions? I am in doubt.

In the United States, a word with a positive connotation, namely "reform" [1, 2, 3, 4, 5], is being used to describe a move that curbs patent trolls to an extent but is not terribly helpful, all things considered. The New Scientist echoes some of the backlash this so-called 'reform' has brought.

US patent bill a 'chill on innovation'

[...]

One aim is to slash incentives for "trolls" who patent ideas with the intention of suing companies with a similar technology. Such a case cost the BlackBerry maker Research In Motion $612 million in 2006. However, the inventors' group Innovation Alliance says that all inventors will suffer from reduced damages as a result.

Mercury News addresses the same wrong question that focuses on "innovation" rather than "competition".

Opinion: Patent reform will remove the brakes from innovation

[...]

But in other sectors, the present system functions as a tax on innovation. In IT, resources have been expended to build up huge portfolios of patents, most of which have little value in themselves but which collectively hold out some promise of defensive use or licensing potential. Patents are not ordinary assets; they are options to litigate. While patent lawyers and other intermediaries benefit directly from the scope and scale of IT patents, that volume represents potential liability for companies that market useful products. Most patents belong to others, and the sheer volume obscures the patent landscape, limits the ability to evaluate patents and inevitably leads to inadvertent infringement.

By impeding competition software patents merely obstruct innovation and in Europe we might see the EPO selling out as things are headed the wrong way.

Commission repeats call for single EU patent

The European Commission has reiterated its demand for the creation of a single European patent. It said the absence of such a protection is hindering the growth of technology companies in the European Union.

This is not a good thing.

Over in India, which resists software patents quite strongly (with the exception of Microsoft and some business partners [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]), the opposition party which supports FOSS also expresses its clear views against software patents. This is good.

“The Left, specially the Communist Party of India-Marxists, have also been supportive in taking stand against software patents in India, and are in favour of open standards,” Venkatesh Hariharan of Red Hat India and a FOSS lobbyist told IANS.

IDG has this new article which reviews some Microsoft patents for readers to assess their quality (or lack thereof). It provides as examples: "Proxy engine for custom handling of Web content", "Electronic program guide displayed simultaneously with television programming", "Multiple paradigms within a single application", "Test results management", "Secure network location awareness", "Dynamic Host Configuration Protocol (DHCP)", "Techniques to allocate virtual network addresses", "Managing navigation history for intra-page state transitions", "Online advertising relevance verification", and "Updating contents of asynchronously refreshable Web pages."

If Microsoft wants a case against Linux, then it will have to be specific, but surely it realises that patents like the above may be trivial to challenge and circumvent. In the case of Microsoft vs. TomTom, the aggressor is naming patent numbers, but when it comes to the core kernel (Linux), it just is just throwing out number of patents (not patent numbers) without anything specific. According to this report about a new ruling, the latter strategy is bound to fail badly.

A U.S. judge has dismissed a patent lawsuit brought by chip maker Broadcom against rival Qualcomm, saying the company didn't identify specific patents it was suing over.

Sounds familiar?

The Inquirer has some more coverage of this.

Broadcom had argued that Qualcomm was unfairly limiting competition by putting excessive conditions in its patent licensing terms.

In other news, a patent lawsuit against Microsoft has just been lost.

A judge in the U.S. state of Texas has thrown out a lawsuit filed against Nintendo and Microsoft that alleged the two companies infringed on a patent covering an interface for joysticks.

The suit was filed in 2007 by Texas-based Fenner Investments and a jury trial was due to begin on Tuesday but on Monday Judge Leonard Davis of the U.S. District Court in Tyler, Texas, dismissed the case.

This is also covered here and we wrote about it on Monday.

To close off, here is a seminar on "Maximizing Intellectual Property Value in Tough Economic Times." Pamela Jones offers one highlight: "Predictably, in a downturn, more companies are suing others in hope of generating income. 'A harsh market spurs more litigation,' Rugg said. Litigation is expensive. To make sure it’s worth it, first conduct a litigation analysis that considers the overall business model, costs and benefits. 'Don’t become enamored with enforcement as a shortcut for innovation,' Rugg cautioned."

Microsoft falls under this category of companies which sue proactively over patents, even against GNU/Linux (volunteers). What does that say about Microsoft's financial condition? This is a subject that we covered before [1, 2, 3, 4, 5, 6]. ⬆

"Small enterprises generally adopt a rather negative position towards the current increasing granting of patents for software and algorithms because they fear that these will hamper or eventually even impede their work (more than 85%)." —German Federal Ministry of Education and Research (BMBF), Study of the Innovation Performance of German Software Companies, 2006, p. 86 [PDF]