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. Links 24/11/2014: Linux 3.18-rc6, Qualcomm Eyes GNU/Linux Servers

    Links for the day



  2. Boycotting Micro Focus International

    Microsoft's "Partner of the Year" is taking over the patron of SUSE and all of Novell's remains, except the patents (Microsoft has already grabbed those)



  3. Vesna Stilin's Remarks on Željko Topić: Part XI

    Vesna Stilin speaks about her confrontation with EPO Vice-President Željko Topić, who has criminal lawsuits against him in Croatia



  4. Links 22/11/2014: Linux Mint 17.1, Ubuntu MATE

    Links for the day



  5. Links 21/11/2014: Problems at Debian, Jolla Tablet

    Links for the day



  6. Links 18/11/2014: Linux 3.18 RC 5, New DigiKam

    Links for the day



  7. Special Report: Many Criminal Charges Against EPO Vice-President Željko Topić

    The abuses of Željko Topić, who has gained notoriety in his home country, are rapidly becoming public knowledge across all of Europe



  8. Links 16/11/2014: Xfdesktop 4.10.3, GNU Hello 2.10

    Links for the day



  9. Microsoft is Going Into the Anti-Whistleblowing Business, Dodges Criticism Over 19-Year Bug Door in Windows

    With Aorato acquisition Microsoft helps protect the criminals (from whistleblowers) and with lies about .NET Microsoft distracts from a bug that has facilitated remote access into Windows (by those in the know) for nearly two decades



  10. Reaffirming Microsoft's Long-Known Hostility Towards Net Neutrality, Microsoft Crashed Juniper

    Steve Ballmer is ranting against net neutrality and Juniper's business is in trouble after a lot of executives from Microsoft took over most top positions there



  11. Another Massive Step Towards Elimination of Software Patents as Even CAFC Rules Against Them

    After SCOTUS gets involved in the Ultramercial case, the CAFC finally decides to actually serve justice rather than dogma



  12. The GOP's Patent Reform Plan Not Effective Enough to Stop Massive Patent Trolls Like Microsoft/Nokia

    The corporations-serving GOP says that it wants a patent reform, but another reminder is needed of the futility of the suggested changes



  13. How the EPO's Executive Branch (Battistelli and Topić) Banned Scrutiny and Created Authoritarian Model of Control: Part X

    A look at highly dubious moves by EPO President Battistelli and his right-hand man Topić, whose abuses are becoming hard to oversee or even report



  14. Links 15/11/2014: Linux Mint 17.1 Release Candidate, Popcorn Time 0.3.5

    Links for the day



  15. IRC Proceedings: October 26th, 2014 – November 8th, 2014

    Many IRC logs



  16. The Terrible Joke Which is Microsoft 'Loving' Linux: Nightmares With UEFI 'Secure' Boot (i.e. Windows Monopoly Imposed) Continue to Affect GNU/Linux Users

    A reminder of Microsoft's sheer hostility towards GNU/Linux and long-reaching sabotage of GNU/Linux installations



  17. Patent Lawyers Worry About Section 101 in 'Alice' (and Other Patent News)

    A quick roundup of news of interest regarding software patents



  18. Will Write for FUD (Against FOSS)

    Black Duck rears its ugly head again, serving to show that it is in the business of changing perceptions and not in the information or analysis business



  19. Debunking Several Days of Never-Ending Lies About Microsoft and .NET

    .NET is not "Open Source", it cannot be forked (there remains patent threat), Visual Studio is still completely proprietary and it is expected to come to other platforms only because Windows has lost its dominance and Microsoft wants to perpetually control APIs (with software patents) and hence reign over developers



  20. Links 14/11/2014: LibreOffice 4.3.4, Ads Now in Firefox

    Links for the day



  21. Links 14/11/2014: GNOME 3.14.2, PulseAudio 6.0

    Links for the day



  22. Microsoft Windows is Still Designed as a Paradise of Back Doors, Intrusion, Wiretaps, and Interception

    At many levels -- from communication to storage and encryption -- Windows is designed for the very opposite of security



  23. Forget the FUD About Bash and OpenSSL, Microsoft Windows Blamed for Massive Credit Cards Heist

    Home Depot learns its lesson from a Microsoft Windows disaster, but it stays with proprietary software rather than move to software that is actively audited by many people and is inherently better maintained (Free/libre software)



  24. Windows 'Update' and NSA Back Doors, Including a 19-Year Bug Door in Microsoft Windows

    The back doors-enabled Microsoft Windows is being revealed and portrayed as the Swiss cheese that it really is after massive holes are discovered (mostly to be buried by a .NET propaganda blitz)



  25. Revealed: Microsoft is Trying to Corrupt the UK in Order to Eliminate Its OpenDocument Format-Oriented Standards Policy

    Microsoft interference with Britain's preference for ODF is now confirmed, thanks to a valuable news report from Computer Weekly; OOXML lock-in is being unleashed by Microsoft on Android users



  26. Links 13/11/2014: Ubuntu MATE 14.04.1 LTS, New KDE Plasma

    Links for the day



  27. .NET is NOT "Open Source", But Microsoft's Minions Shamelessly Openwash It Right Now

    The openwashing of .NET continues with yet another publicity stunt that is intended to lock in developers



  28. Links 11/11/2014: GNOME Trademark Dispute Settled, Mozilla Embraces Tor

    Links for the day



  29. Patent Reform Subversion After Republican (GOP) 'Win' in US Senate

    The Grand Corporations Party, or the political party which serves large businesses that are funding it, continues to just focus on a mirage of a 'reform' rather than tackle the real issues where culprits include very large businesses such as Microsoft and Apple



  30. Microsoft-Armed Patent Troll MOSAID (Now Conversant) Wants to Sweep up More Patents for Litigation

    Reports about patent trolls and scope of patents serve to show what the foes of Free software are up to right now


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