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05.17.09

Patents Roundup: Microsoft, Patent Ambush, Moral Issues, and Europe’s Back Door

Posted in Europe, Free/Libre Software, Microsoft, Patents at 5:38 pm by Dr. Roy Schestowitz

Summary: The latest news about patents with emphasis on software

Microsoft

THE COMPANY from Redmond has been busy creating patent FUD against Linux using an assault on TomTom. This does not mean, however, that the company is immune to the very same patents its actively lobbying for around the world (with the simple aim of making truly Free software illegal). IDG presents this new story of the company which won hundreds of millions of dollars for what it claims to be patent violations in Microsoft software.

A small security company that won a $388 million judgment against Microsoft after accusing the company of patent infringement has big plans for the future.

Uniloc, with U.S. headquarters in Irvine, Calif., prevents software piracy by creating a unique device fingerprint that can distinguish the computer in your hands from any other computer ever built. Vendors that want to prevent unauthorized use of software tie their product activation processes to Uniloc’s patented method of identifying a device.

Patent Ambush

FAT is a good example of patent ambush, a practice whereby a company seeds the market with its technology and then waits until it spreads widely before attacking/extorting. It is a form of ambush, or the setting up of a trap for competitors.

Rambus is a recent case study [1, 2, 3, 4] in this one particular area. The FTC had the company investigated. But now, however, it turns out that the FTC does just what it always does. The British press says that the FTC just lets Rambus off the hook despite patent ambush.

US regulators have finally thrown in the towel after seven years of battling memory chip designer Rambus in court.

The Federal Trade Commission today said it’s officially dropped claims Rambus violated antitrust laws by hoodwinking the JEDEC (Joint Electron Device Engineering Council) industry standards group into approving memory technologies on which it was quietly obtaining patents.

 

The FTC has been wrestling with Rambus for yonks on claims the firm manipulated the Joint Electron Device Engineering Council (JEDEC) – the body in charge of memory industry standards, not some distant galaxy – to adopt memory technology designs that Rambus was sneakily patenting.

This looks pretty grim for the FTC. It tolerates abuse in the standards/patent industry and thus breeds mistrust.

Further on the same subject of patents in standards, read what this man shrewdly says.

Either EU remains committed to open standards or the term “open standards” need to be removed from the new interoperability framework decision. Perhaps just standards as in formal standards from ISO would be more adequate? Open standards should not be stolen from the winning innovative Internet realm just because the greed of those that prefer royalty based industry standards.

[...]

” The term “open” is usually restricted to royalty-free technologies while the term “standard” is sometimes restricted to technologies approved by formalized committees that are open to participation by all interested parties and operate on a consensus basis.” (at least still)

If one needs to pay a competitor for use of a so-called ‘standard’, then it’s proprietary, not open. “Open” should not be taken just for visibility, or else new terminology is required, such as “free(dom) standards”.

Counter-Productive

Look what IBM is doing.

“Last week, the USPTO granted IBM a patent for its System and method for comprehensive automatic color customization in an email message based on cultural perspective. So what exactly did the four Big Blue inventors come up with? IBM explains: ‘For example, an email created in the U.S. in red font to indicate urgency or emphasis might be mapped to a more appropriate color (e.g., blue or black) for sending to Korea.’ IBM took advantage of the USPTO’s Accelerated Examination Program to fast-track the patent’s approval. BTW, if you missed the 2006 press release, IBM boasted it was ‘holding itself to a higher standard than any law requires because it’s urgent that patent quality is improved.’”

IBM should be shamed for this. It is still a big part of the problem. Digital Majority has found another good article about the economic impact of this gold rush to own every idea under the sun.

It costs high-tech companies an average of $5 million to defeat a frivolous suit. So often defendants pay large sums just to make the case go away. This money is diverted from worthwhile research and development that could go to innovation leading to more jobs and economic growth.

The American economy is in critical need of invention and innovation. But if we want intellectual property industries to help invent a way out of the recession, we must put an end to the legal gamesmanship that rewards lawsuit abuse over creativity.

All industries directly or indirectly affected by patents — including finance, automotive manufacturing, high-tech, bio-tech and pharmaceuticals — will benefit from patent reform. It will encourage innovation — from the lone inventor in his or her garage to the high-tech company that files a thousand patents each year, and all businesses in between.

Moral Issues

Economic issues aside, there is a moral and mortal issue at stake too.

Patents as a whole are becoming increasingly controversial. It’s not just about software patents, which happen to be more relevant to Free software in the sense that they harm free distribution. Patents sometimes kill. They get to define who lives and who dies.

Here is a new article that Groklaw aptly labels “Pandemics and Patents”:

Swine Flu Not an Accident From a Lab, W.H.O. Says

As for the use of oseltamivir, the generic form of Tamiflu, the W.H.O. has certified only one drug — Antiflu, made by the Indian company Cipla in both pill and liquid forms — as equivalent to brand-name Tamiflu.

[...]

The move could prompt patent lawsuits by Gilead and Roche, which developed and sell Tamiflu, so Cipla will sell only to countries indemnifying them against such suits, the company said.

There is also more recognition that human rights are being compromised: “Experts Aim To Balance Intellectual Property Rights And Human Rights”

The United Nations human rights framework is being brought to bear on intellectual property law, in the hopes that the weight of expert voices in human rights can lead IP regimes toward a better balance between the needs of industry and the needs of public policy.

The Working Group on the Right to Development, an intergovernmental political body, in August 2008 took on the task of examining two intellectual property-related development partnerships that could influence the work of policymakers in at least two UN institutions.

Europe Awoken

Can Europe stay a haven to FOSS developers at all? Was it ever a haven when threats of embargo were issued across the Atlantic? There is forever a danger that Microsoft tries to legalise software patents in Europe. Since it cannot compete based on technical merits it will try to injure and illegalise FOSS. It is so much easier than producing a better product sometimes. Here is a timely new reminder of the situation:

MEPs locked horns with the Commission again in 2005 over a proposal to harmonise patent protection law for computer-implemented inventions, dubbed the ‘software patents’ directive. MEPs demanded that Charlie McCreevy, the European commissioner for the internal market, revise the draft legislation, but he refused on the grounds that EU governments supported its objective. An overwhelming majority of MEPs voted to reject the proposal in second reading, the first time the Parliament had ever used this power.

One last point: there is growing concern that software patents may arrive at continental Europe through a form of unity with the UK (Charlie McCreevy is Irish), which has already permitted Nokia to do its damage.

Certain computer programs are patentable according to the UK IPO.

[...]

The Patents Act says that something cannot be patented if it consists only of a program for a computer. The IPO has historically been stricter in denying software patents than European patent authorities, despite UK law being based on the European Patent Convention, on which the European Patent Office bases its decisions. The US allows software to be patented. The UK IPO now states that Software that allows programmers to program a mobile phone system remotely from a computer can be patented because it is more than just a software program. The ruling overturns an initial decision that the invention is unpatentable because it consists of nothing more than a computer program.

Watch out for the back door of Europe.

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