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04.06.09

Patents Roundup: Microsoft Likes Patent Deform, OIN to Strike Back, EU Still Besieged for Software Patents

Posted in Europe, Free/Libre Software, Law, Microsoft, OIN, Patents, TomTom at 1:54 am by Dr. Roy Schestowitz

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FOR the benefit of Free software supporters and activists, we are keeping a close eye on software patent issues. Here is the latest summary, which would not have been possible without Digital Majority.

Microsoft Loves Patent Deform

The USPTO is in a very bad shape. Just how bad? Well, over at USENET, Richard Rasker showed this patent on a stick. Here is the abstract:

An apparatus for use as a toy by an animal, for example a dog, to either fetch carry or chew includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance. The toy is formed of any of a number of materials including rubber, plastic, or wood including wood composites and is solid. It is either rigid or flexible. A flavoring (scent) is added, if desired. The toy is adapted to float by including a material therein that is lighter than water or it is adapted to glow in the dark, as desired, by the addition of a fluorescent material that is either included in the material from which the toy is made or the flourescent material is applied thereto as a coating. The toy may be segmented (i.e., notched) so as to break off into smaller segments, as is useful for smaller animals or, alternatively, to extend the life of the toy. Various textured surfaces including camouflage colorings are anticipated as are straight or curved main sections. The toy may be formed of any desired material, as described, so as to be edible by the animal.

With silly patents like this one, no wonder companies are constantly being injured, despite making no attempts to imitate. The only ones to gain here are lawyers.

The largest IT company in the world, Hewlett-Packard, has been humbled by Australia’s national science agency CSIRO and agreed to settle for an undisclosed sum over a long running Wi-Fi patent infringement suit. The win against the Silicon Valley colossus has given CSIRO ammunition to continue pursuing 13 other technology giants for millions of dollars in licensing fees.

Forth comes a so-called ‘change’. Welcome the patent deform[sic], which is a farce. IP Watch Dog, who has always been hostile towards Free software*, still keeps track of it.

Although the agreements were discussed, the specific language has not been announced as yet, but will be forthcoming. Senator Leahy explained that the Senators and their staff are still working over the exact language that will be put in place prior to the next meeting, which will take place on Thursday, April 2, 2009. The language is apparently going to be circulated prior to the next Executive Meeting on Thursday, April 2, 2009, so that the stakeholders can have an opportunity to be heard regarding the changes.

Guess who else likes this deform? Microsoft goes on the record applauding it publicly.

Even though it suggested that there was additional room for improvement, Microsoft applauded action taken by the Senate Judiciary Committee on the Patent Reform Act of 2009. The US Senate Judiciary members managed to reach an agreement at the start of April 2009 on U.S. patent legislation, and the markup will now move to the next stage in the Senate.

More information about this bill, which a Senate panel approved, can be found in CNET.

A Senate panel on Thursday approved a patent reform bill that brings opposing parties from the technology, pharmaceutical, and other industries closer to a compromise on the contentious issue.

This bill does nothing to eliminate software patents. As such, OIN intends to use its patent portfolio to clear FAT.

OIN: TomTom settlement is no win for Microsoft, expect challenge

[...]

Open Invention Network CEO Keith Bergelt said the settlement announced yesterday was anticipated and expected and he is “nonplussed” with the result. He said Microsoft’s effort to build a series of tiny “totem” patent cases to create fear, uncertainty and doubt about using Linux is futile.

Information about the TomTom settlement can be found here. Microsoft has resorted to intimidation tactics and as Patently-O puts it, this raises antitrust concerns.

Patents Blocking Antitrust Action: Carrier suggests that the existence of IP rights should not grant a company a free-pass to take otherwise anticompetitive actions. In his post, Prof. Phil Weiser (Colorado) agrees “IPRs should not displace antitrust oversight.” Weiser argues that this is especially true in the area of software patents: “Given that software patents are controversial to begin with, awarding the recipient of a patent on an application programming interface or communications protocol a get-out-jail free card is hard to justify.”

A Linux discussion about software patents took place in lwn.net and it’s concluded as follows.

There was a brief discussion of the practice of not researching patents at all with the hope of avoiding triple damages for “willful infringement.” The participants agreed that this was a dangerous approach which could backfire on its practitioners; convincing a judge of one’s ignorance can be a challenge. But it was also acknowledged that there is no way to do a full search for patents which might be infringed by a given program in any case.

All told, it was a more interesting afternoon than one might expect. The discussion of software patents in the free software community tends to follow familiar lines; the people at this event see the issue differently. For better or worse, their view likely has a lot of relevance to how things will go. There will be some tweaking of the system to try to avoid the worst abuses – at least as seen by some parts of the industry – but wholesale patent reform is not on the agenda. Software patents will be with us (in the US) for the foreseeable future, and they will continue to loom over the rest of the world. We would be well advised to have our defenses in place.

Europe and Software Patents

To Microsoft, it is not enough for just one country to honour its software patents. It still yearns for the day when software patents are universally accepted and it hires lobbying guns for the job. On the face of it, the EPO is selling out and here is the explanation provided by one person a fortnight ago:

Sadly, the questions posed to the EBA are mined with typical EPO philosophy including their definitions of “technical effect”, “further technical effect”, “technical character”, “technical considerations” and other terminology they have used over the years. In that way they justified black being white, or more specifically the applicability of software patents (but, naturally, not “as such”).

Seeing how the specific questions to the EBA are phrased (quite some traps in there), and what is not asked, it seems clear to me that any set of answers with just “yes” or “no” is unable to speak against software patents in any meaningful way. Furthermore, if only one was to accept the premises of the questions, I submit that seemingly innocent arguments could be twisted in a number of ways to justify software patents. Nice job!

This is not the first such criticism and Microsoft’s pressure groups [1, 2, 3, 4, 5, 6, 7, 8] are raving about EPO incompetence in their blogs right now. They are trying to force software patents on Europe through the latest back door which is unification. On April Fool’s Day, IP Watch published a joke about it (some people easily fell for it) and also a British workshop on software patents was announced on April 1st, but it’s no joke.

On the bright side of things, the German juridical system has just canned a controversial software patent which was never supposed to be granted in the first place.

The German Federal Patent Court ruled to rescind Vistaprint’s controversial software patent, subject to paragraphs 99(1) PatG [Patent Act] and 709 ZPO [Code of Civil Procedure]. The verdict is now official and the judgment in question was published by the Court on March 25, 2009.

The spokesperson from unitedprint.com SE, Andrea Fleischer stated: “The software sector can now breathe a sigh
of relief.

If — and only if — there is truth in the statement from Microsoft’s Marshall Phelps that The EPO “can’t distinguish between hardware and software so the patents get issued anyway,” then this court ruling means that their back doors won’t impress the courts (presuming defendants would take it there). The German court has already rejected Microsoft's FAT patent.
____
*Gene Quinn is a proponent of software patents and he seemingly trolls FOSS even at this very moment by suggesting that FOSS ruins the software industry.

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