EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

06.05.09

Patents Roundup: What Bilski Means to IBM, Microsoft; Patent Trolls Still Win

Posted in America, Europe, IBM, Law, Microsoft at 8:18 am by Dr. Roy Schestowitz

Bill ski

Summary: The latest news about software patents which pose a threat to the freedom of software

AS WE POINTED out a couple of days ago, In Re Bilski goes all the way to the top, potentially to invalidate software patents in the United States. Groklaw has some very extensive text and the software patents-hostile wiki has a new page asking, “should the whole patent system be axed?”

There is clearly a lot of unrest because this bubble is waiting to explode. Reuters published a report about the Microsoft/Lucent dispute a few days ago:

Microsoft, Lucent battle in huge patent case

Microsoft Corp (MSFT.O) argued before an appeals court on Tuesday that its Outlook calendar date-picker tool did not infringe an Alcatel-Lucent (ALUA.PA) patent and asked for a $358 million jury verdict to be overturned.

The lawsuit is the last remaining after Alcatel-Lucent and Microsoft settled other patent fights in December. The case was appealed from a district court in San Diego, where a jury ruled that Microsoft did infringe and ordered it to pay $358 million, or $511 million including interest.

Microsoft too is suffering from software patents, so this is hardly sustainable even for monopolists. As stated over at BusinessWeek the other day, “Businesses come down on both sides of the issue. IBM (IBM), which has obtained a slew of business-method patents, filed an amicus brief in what is known as the Bilski case, stating that the company is now opposed to them. IBM maintains that the patents are not needed to promote innovation; businesses would come up with the products even without patent protection. “You’re creating a new 20-year monopoly for no good reason,” IBM’s top in-house patent attorney, David Kappos, told BusinessWeek last year.”

As someone points out privately, “What is curious is that IBM in Europe filed [PDF] recently an Amicus Curiae Brief to the EPO EBoA defending the approval of software patents.

“Who holds the real IBM position on the matter: IBM US or IBM Europe?”

IBM’s position on software patents is definitely very troublesome [1, 2]. However, “IBM was talking about business method patents here,” points out a person with knowledge in this area. “I read somewhere on the net that IBM was behind the Bilski “machine transformation” test.”

Looking at BNA.com, there is mere speculation about what In Re Bilski might do to software patenting.

Bilski was up for discussion yesterday at the Supreme Court’s private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor’s views are on the patentability of software-implemented business method patents, and I don’t think anyone else does either.

The pro-Microsoft Richard Waters weighs in on the subject and The Prior Art blog quotes some judges of relevance.

CHIEF JUSTICE ROBERTS: I may not be a software developer, but as I read the invention, it’s displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them. I — I might have been able to do that.

[....]

In the patent bar and at the Federal Circuit, software patents are the law of the land. But during oral arguments in the 2007 AT&T v. Microsoft case, which regarded damages for infringing copies of software distributed overseas, it became clear that the at least a few Supreme Court justices haven’t made up their minds about whether software should be patentable.

During oral arguments in that case, Justice Breyer went out of his way to make it clear that despite the fact that software patents were issued widely following the Federal Circuit’s 1998 State Street Bank decision, he had never gotten the opportunity to weigh in, and as far as he was concerned, it’s not a settled issue:

JUSTICE BREYER: “I take it that we are operating on an assumption that software is patentable? We have never held that in this Court, have we?”

Later, Justice Stevens also asked a government lawyer point-blank whether software is patentable. The answer: “Standing alone in and of itself, no.”

He likely said that because as it stands, software has to be tied to a machine to get a patent—not hard to do. But it shows that for Stevens, like Breyer, software patents are up for debate.

The nature of software patents is very troubling because to avoid an infringement (willful or not willful) is virtually impossible. Software is written very quickly, without a rigorous manufacturing process. As are result, the patent trolls and aggressors are still having a field day.

Store Payment Info In Your Online Store? Watch Out For Patent Infringement Lawsuits

[...]

As for the patents in question, they’re all a variation on a “method and apparatus for conducting electronic commerce transactions using electronic tokens.” The specific patents are 7,376,621, 7,249,099, 7,328,189 and 7,177,838. Reading through the claims, this seems like an incredibly typical online system for storing payment info and seeing if the person can actually pay. Since the patent system defenders among our readers get quite upset whenever I say something seems “obvious” to me, let’s flip this around. Can anyone explain how these concepts were not obvious at the time of filing?

More patent trolls in the news:

Patent trolls live under the bridge

Dell, HP, Fujitsu and IBM have been hit by a lawsuit in the Eastern District of Texas Marshall Division – famously known for its ability to expedite patent (chapter 830) disputes. The article linked to points out that it is unfair to describe anyone bringing patent suits to court as “patent trolls” – they have to have a sound case and deserve their time in court. So who exactly are the trolls?

Here is another mighty innovator in the news:

Actus goes patent lawsuit crazy

[...]

The outfit clams that more than 15 companies, including Apple, Amazonmdocs, American Express, Apple, Barnes & Noble, Best Buy, Cabela’s, Citigroup, Ebay, Firstview, Marketing Technology Concepts, Netspend, Officemax, US Bancorp, and Vivotech have nicked its technology.

It’s clearly time to change this system or abolish parts of it. This is not working. It does not increase capacity to innovate, it just makes a welfare system for lawyers.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

2 Comments

  1. The Mad Hatter said,

    June 6, 2009 at 11:29 am

    Gravatar

    Actually it’s time to abolish all of it. The US PTO and the EU PTO are issuing patents for things like:

    1) Optimized location of a switch.
    2) Reactionless Space Ship Drive
    3) Location of a Grease Fitting to prevent water ingress (mount if facing down)
    4) Installing an engine in a machine
    5) Installing a fuel system on an engine (well duh!)
    6) Measuring the level of fluid in a tank

    They literally will issue patents for anything. Some of these things have been done for years (but not documented – who knew that location of a grease fitting needs to be documented) or are scientifically impossible (check the “Dean Drive” entry on Wikipedia).

    Roy Schestowitz Reply:

    I was once taught it would be more constructive to obstruct intellectual monopolies one step at a time.

What Else is New


  1. IRC Proceedings: August 9th, 2015 – August 29th, 2015

    Many IRC logs



  2. “Conservative” Site Responds (Yet Again) to Misguided “Conservative” Efforts to Derail Patent Reform in the US

    Patent trolls throw stones in glass houses, contributing to their own unpopularity, but some influential “Conservatives” continue to defend (conserve) them



  3. Increase in Lobbying for Software Patents in Europe and Its Trojan Horse, the Unitary Patent (UPC)

    The relentless campaigns to bring software patents into Europe have not stopped and so-called 'unification' -- much like so-called 'trade' deals -- serves to support them



  4. Microsoft Technology Crashes Financial Markets, Again

    SunGard, which is a Microsoft shop, is clearly failing to provide what it calls mission-ciriticaal [sic] solutions



  5. Alice v. CLS Bank (Alice/§101) Comes to Squash Software Patents Even in Eastern District of Texas

    The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls



  6. Apple's Patent Cases Against Android Are Falling Apart, as Acknowledged Even by the Anti-Android Lobby





  7. Links 29/8/2015: NetworkManager 1.0.6, Systemd Merges “su” Command Replacement

    Links for the day



  8. Microsoft Loves Linux to Death and Still Tries to Kill GNU/Linux

    Microsoft's relentless attacks on GNU/Linux and Free software in general (even if it runs on Windows) are so evident that claims of 'love' remain laughable at best (if not infuriating)



  9. Censorship, Self-Censorship and Intimidation Now the Modus Operandi at EPO

    The European Patent Office has ceased even trying to pretend that it respects human rights, including the right to free speech



  10. Patent Practitioners: "The Unitary Patent Might be Able to Open the Floodgates for Software Patents in Europe"

    The EPO-backed Unitary Patent scheme threatens to bring software patents to Europe and along with them a lot of patent trolls from all around the world (especially the United States)



  11. Microsoft Lies About Vista 10 and Increases Microsoft Surveillance (Even Beyond Vista 10 and Into Android, Vista 7/8)

    Windows surveillance expands retroactively, making its way into platforms other than Windows and also expanding to predecessors of Vista 10



  12. Another Suicide at the EPO, Fifth by Our Count

    Yet another EPO member of staff has just committed suicide, leading to the inevitable question: how many people need to die before Battistelli and his minions are out of the Office for good?



  13. Links 27/8/2015: ownCloud Desktop Client 2.0, Red Hat Downgraded

    Links for the day



  14. Microsoft-connected Mesosphere Threatens to Eliminate Free Software in the Datacentre

    Hiding behind a misleading 'open' label while actually backed by Microsoft (and based on new rumours may join Microsoft), Mesosphere wishes to eradicate Free and back doors-free software in large datacentres hosting a lot of physical and virtual servers



  15. Microsoft Aggression Against GNU/Linux Amid Vista 10's Failure

    A look at the recent assault on GNU/Linux in Munich and the likely cause for this assault (in such a timely fashion, too)



  16. Message to LinuxCon Regarding Microsoft: “It is Necessary to Get Behind Someone in Order to Stab Them in the Back.” -Sir Humphrey Appleby

    Jim Zemlin, executive director of the Linux Foundation, helps Microsoft gain influence in the Foundation after payments are received



  17. Market Share Estimates Confirm That Vista 10 Failed in a Major Way

    Confirmatory evidence that Vista 10 is failing in the market about a month after its much-hyped (paid coverage) release



  18. When Microsoft, the Master of Patent Trolls, Complains About Trolls

    Possibly the world's biggest patent abuser and monopolist, which also creates many patent trolls (including by far the biggest one), takes on a far smaller abuser in Court



  19. Letter Signed by Two German Officials Becomes a Microsoft Weapon of Propaganda

    Microsoft and its minions refuse to leave Munich alone, even though the vast majority in Munich are perfectly happy with Free/libre software



  20. Links 25/8/2015: Linux Kernel 4.2 Final RC, KDE Ships Plasma 5.4.0

    Links for the day



  21. Sabine Pfeiler and Otto Seidl Should Take Note as Russia -- Like China -- is in the Process of Banning Microsoft Windows for Security Reasons

    A look at a strange suggestion, signed by Sabine Pfeiler and Otto Seidl, who suggest going back to Microsoft which is basically a spyware company now



  22. Microsoft Windows Leads to Espionage and Blackmail: Latest Examples

    Another news overview, detailing high-profile examples of high-cost Windows deployments (including the cost of litigation and settlement)



  23. Links 23/8/2015: BcacheFS Benchmarks, Blackphone 2

    Links for the day



  24. Links 22/8/2015: Chromebook Gains, GNOME 3.18 Clues

    Links for the day



  25. Alice v. CLS Bank (the Alice Case/§101) Continues to Crush Software Patents in the United States

    Patent scope in the United States continues to be narrowed down as more software patents get their wings clipped



  26. Company of Hype and 'Fanbois' Continues Its Patent Attacks on Android/Linux

    Apple's attacks on Android (using bogus patents) may be soon be escalated to the US Supreme Court (SCOTUS)



  27. EPO Corruption of Patent Boundaries: Business Methods and Algorithms Patented

    How the European Patent Office (EPO) not only turns a blind eye to European law while patenting or granting patents on software but also openly advocates this now



  28. Who's Obsessing Over Patent Trolls in Latest 'Reform' Efforts? Larger Patent Trolls Such as Xerox

    Response to claims that the patent problem is being tackled by focusing on patent trolls and their favourite courts in the Eastern District of Texas



  29. Links 20/8/2015: Fedora 24 Plans, Ubuntu Phones in India

    Links for the day



  30. Blackmail and Lies From the Press and the Government of New Zealand Attempt to Sell to the Public a Deal That Broadens Patent Scope

    Corporate conquest or takeover of New Zealand culminates in empty promises from government officials and blackmail against citizens of New Zealand, especially the country's dairy industry


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts