03.22.09
Patents Roundup: Red Hat Again; EPO and USPTO Debated
Rest on your laurels and you will lose your rights
Summary: Another quick look at AMQP and some developments in major patent systems
ONE ISSUE on our minds at the moment is the Red Hat situation because we are hoping to receive answers to some questions which were raised in:
- Red Hat Fights Fire with Fire
- The Other Side of Red Hat: Pieter Hintjens on AMQP and Patents
- Novell, Red Hat, and Software Patents: Strike II
A regular reader drew our attention to this press release from Microsoft which pretty much intersected with Red Hat’s “Welcome to AMQP, Microsoft” (on the same date, 9:34 AM). Clearly enough to some observers, Red Hat claims leadership in AMQP and it knew about this announcement from Microsoft in advance (they collaborate in other areas). Jeff Gould, who hates Free software with passion and always promotes Microsoft, pushed it into Slashdot’s front page using his eternal sockpuppet/pusher, “AlexGr”.
AlexGr writes to tell us that Microsoft apparently has plans to embrace a little known messaging standard called AMQP (Advanced Message Queuing Protocol). Red Hat, a founding member of the AMQP working group, was very excited about the news and wrote to welcome Microsoft to the party.
This is an issue that will be debated a little later. Red Hat does point out that “Because this [joining of Microsoft] will be of concern to many people—particularly in the open source community—it is worth pointing out one of the legal ramifications of Microsoft joining AMQP. There is a strong IP provision in the contract for joining the AMQP working group. Anyone joining the AMQP working group must freely license IP that is used by AMQP—AMQP is and will always be an open standard that is free to implement. By joining the AMQP working group, Microsoft has signed this contract. So, there is no threat of Microsoft holding the AMQP standard hostage via patent threats.”
We are actually a lot more concerned about the patent systems which, according to this new article, continue to leave too much room for patenting of software, i.e. algorithms (even post-Bilski).
It is easier to obtain patent protection for computer software and/or business method type inventions in the US as opposed to Europe, as the US criterion of a “useful, concrete and tangible result” is easier to meet than the corresponding European “technical effect” or “technical character” requirement.
An invention consisting of software that controls a machine, for example, would most likely meet the technical effect requirement in Europe and would also certainly be patentable subject matter in the US.
Europe wants to poorly resolve its software patent pains, which are partly to do with ambiguity and loopholes. The Register concurs with previous reports and suggests that further loopholes may be created that facilitate software patenting.
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.
Whether patents are becoming a little passé and give way only to litigation, that may be hard to tell. Earlier this year, the EPO had laid of some staff and it tried to claim a rise in patent quality. This tune is being propagated by IP Watch right now.
In a trend appearing in other patent offices around the world, patent applications at the European Patent Office continued to rise in 2008, but at a slower rate toward the end of year. At the EPO, this was coupled with the lowest percentage of granted patents in its history.
Over in the United States, the bad 'reform' receives support from a state senator. His endorsement was predictable though because of the man’s prior role.
Senator Orrin Hatch, a leading proponent of a bill to overhaul the patent process, predicted it will pass and contain language making it more difficult to show misconduct in applying for patents.
The Senate version of the patent reform bill does not currently include language making it harder to strip a patent holder of a patent if they erred in the application process, known as “inequitable conduct” in the patent world.
This bill does not address patent quality; it’s about damages and it’s about patent trolls, which it does not even put an end to.
To give an example of the sad state of the USPTO, Georg Greve of the FSFE found this one: “Painting kit and related method”
Amazing!
According to the Daily Herald, those who can afford to challenge patents may — just may — be able to shoot down existing patents.
Aruba says another Motorola patent rejected by patent office
Aruba Networks Inc., which is involved in a patent battle with two Motorola Inc. units, says the U.S. Patent and Trademark Office has kicked out one of the patents under which it’s being sued.
The patent office rejected all claims of Motorola’s patent 7,173,923, the Sunnyvale, California-based company said in a statement March 17.
So why was it granted in the first place? It’s worth adding that Aruba makes products with Linux and even Microsoft uses Aruba's goods. Microsoft is very pleased with Aruba’s Linux-based solution which it has deployed in its own facilities, according to its own people.
On the one hand, this Aruba case shows that patent lawsuits are worth fighting against. The patent which attacks Amazon's Kindle, on the other hand, won’t be so easy to extinguish, according to Wired.
Interestingly enough, the patent filed in 1999 was approved in November of 2007, the same month that the first Kindle launched. And all of the hype and sales estimates have likely encouraged Discovery to finally take action.
The problem might not be individual lawsuits. Lawsuits are enabled by a system that leads to them. It is a system that encourages ownership of anything under the sun which is to blame. This is good for lawyers. Patents are the blood in their system, so the more patents, the merrier. The more lawsuits, the merrier too, so it’s about disputes and conversations, not engineering. █
“There is much pleasure to be gained from useless knowledge.” —Bertrand Russell
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