Bonum Certa Men Certa

Patents Roundup: Microsoft, Danger in New Zealand, and Rise of Opposition

New Zealand flag



Summary: A lot of news about software patents and intellectual monopolies in general

IT HAS been a long time since the last post about patents, so here is a quick summary.

Patents in a Standard and Microsoft



Rambus is an example of a case [1, 2, 3, 4] where so-called standards get contaminated by patents, sometimes secretly. One of the key Samba lawyers (and one who stood up to Microsoft) wrote about patents in standards. He refers to the Rambus case:

We have just heard of a proposed settlement of an EC antitrust action against a private company named Rambus. Rambus has reportedly tabled an undertaking to reduce its royalties for DRAM patents, which would lead, technically, to a decision according to Art. 9 of EC Regulation 1/2003. The Commission has published it for market testing, inviting comments by the middle of July. Although the proposed licenses and royalties still raise questions, it is in the line of successes of EU antitrust activities where USA initiatives have most remarkably failed. But more importantly, it is the first signal to the world of standards that the recent free rides by some players in that field are going to be under vigilant scrutiny of the antitrust authorities.


Law.com wrote about Rambus as well. [via Groklaw]

The move closely follows the U.S. Patent and Trademark Office's rejection of all 41 claims in seven of the nine patents Rambus asserted against Nvidia and 17 of its customers in the ITC case.


Digital Majority has made the observation that Microsoft may be hiding software patents in XPS. To quote from the XPS licence: "There is a requirement that any XPS implementation that is distributed, licensed or sold contain a notice in the source code of the implementation indicating that Microsoft may have intellectual property associated with the implementation and to provide a link to where the license may be obtained from Microsoft."

“The TomTom case was another example where a Microsoft promise regarding patents was suddenly broken.”In reference to this Patently-O article, Pamela Jones wrote: "What he is saying is that it is harder to push through an obvious patent, and more exactly that if your patent is found to be obvious, the appellate court won't help you as readily as it used to, due to the ruling in KSR. To patent lawyers, that is a bad thing. To me, thinking of patents like Microsoft's FAT patents, it's a good thing."

The TomTom case was another example where a Microsoft promise regarding patents was suddenly broken. It is similar to what Rambus did and some might call it an "ambush".

ACTA



ACTA is a global problem [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. Fortunately, some good people took it upon themselves to address it and Glyn Moody shares some of the details.

One of the frustrating aspects about the Anti-Counterfeit Trade Agreement (ACTA) is that it is a cosy club of rich and powerful nations plus a few of their equally rich and powerful chums in select industry. Meanwhile, hoi polloi - that's you and me - don't get a look in, even though we are the most affected.


The EFF too was involved in fighting ACTA using a lawsuit. Someone in Slashdot called ACTA the "Anti-Internet Freedom Agreement," adding that:

ACTA will mandate software patents, criminalization of copyright infringements, censorship lists, data retention. States that today resist such measures due to local democratic pressure will be able to cite "Obligations under International Law" as an excuse to move towards eFascism. The goal is to send 4chan, piratebay, and anyone else who offends the powerful to jail.


New Zealand



The most urgent news comes from New Zealand, where Free software folks have noticed some disturbing developments following similar recent attempts to disrupt copyright law.

Software patents are not currently available in New Zealand, although several companies have tried to get “by the back door”, i.e. by tying the software idea they want to patent to some piece of hardware.

A software patent is a state-enforced monopoly on a idea. They exist in the US and some other countries, but not in many places including New Zealand. We don’t need or want them here. If you want some reasons, here are five good ones:


More information can be found here:

The director of the End Software Patents campaign Ciaran O'Riordan writes to warn of an imminent threat of software patents in New Zealand...


This has just reached the press:

Open source activists target software patents



Open-source champions are pushing to eliminate software patents from New Zealand through a Patents Bill now at the select committee stage in Parliament.

Such patents have been accepted by default for many years, but this is damaging to the software industry, which subsists to a great extent on adapting and including the ideas of previous inventors, says New Zealand Open Source Society president Don Christie.


USPTO



Moving way up north to the United States, the big news is a USPTO appointment which we already wrote about. David Kappos [1, 2, 3, 4, 5, 6] may not be the worst (re)placement, but there is usually room for improvement as Kappos does not oppose software patents. There is some punditry about the subject and the FFII rightly gets upset that the USPTO is already blocking access to Bilski's pending patent application. Whose office is this?

The US Supreme Court will soon hear Bilski on why software and business method patents are so good for the US economy. I was trying to find out where the Bilski's pending patent application was published, and I ended up writing to the new USPTO President and ex-IBM David Kappos. I finally got an answer from a USPTO official that the Bilski's pending patent application cannot be seen by the public.


We'll come back to it in a moment.

Over in South Africa, this article was published regarding the Bilski case, whose absurdity is demonstrated by this older article from IEEE Spectrum.

It is important that the Bilski judgment be understood correctly, and not misinterpreted as meaning the end of software patents in the US. However, there is a lack of clarity as to which kinds of patent claim will satisfy the Bilski test, and it is therefore good news that the US Supreme Court has agreed, on 1 June 2009, to hear arguments in Bilski v Doll to review the Federal Circuit decision. The Supreme Court will deal with two questions: firstly, does the Federal Circuit's decision conflict with the Supreme Court's decision in Diamond v Diehr where the court held that the only non-patentable subject matter is “laws of nature, physical phenomena and abstract ideas”; and secondly, does the “machine-or-transformation” test conflict with the US Congress's intent that business methods are patentable?

The Supreme Court may uphold the “machine-or-transformation” test, may alter how the test is administered, or may adopt another test altogether. Oral hearings will commence in October 2009, so it will be some time before a decision is issued.


More information can be found here:

Since the Bilski patent application has never been published, it is hard to determine from the claims if its commodity hedging scheme requires a computer for any practical use. If the hedging scheme requires a computer for any practical use of the invention, then denying the patent just because it does not recite the hardware is absurdly formalistic. If the invention does not require a computer for any practical application of the invention, then it is hard to see how the invention is novel. In this case, the courts should avoid any overly broad pronouncements about business method patents or software patents and rule the invention is not patentable for lack of novelty.


Patent Baristas covered it as well.

Handicapping Bilski

IP Law & Business laments that when the Federal Circuit issued the landmark Bilski decision, some folks were ready to call it the death of (most) business method patents, or even software patents—that view may be a bit premature. Even if Supreme Court nominee Sonia Sotomayor joins the court and turn out to be strongly pro-patent, those hoping for stronger limits on what can be patented, there are still a number of way to find a majority. Several justices have, in other cases, dropped hints about what’s in their minds on this subject.


Here is a comment which states the absurdity of patents on sharing of photos.

Patents on "organizing and sharing images online"? Surely these are "business methods". I hope the Supreme Court (In Re Bilski) can bring some sanity to this ridiculous software patent mess the lawyers have gotten us into.


EFF's patent-busting project may not be the most effective way to battle this issue at its core, but another little milestone is marked with elimination of the notorious subdomain patent.

San Francisco - The U.S. Patent and Trademark Office has announced that it will revoke an illegitimate patent on Internet subdomains as a result of the Electronic Frontier Foundation's (EFF) Patent Busting Project campaign.

U.S. Patent No. 6,687,746, now held by Hoshiko, LLC, claimed to cover the method of automatically assigning Internet subdomains, like "action.eff.org" for the parent domain "eff.org." Previous patent owner Ideaflood used this bogus patent to demand payment from website hosting companies offering personalized domains, such as LiveJournal, a social networking site where each of its three million users may have their own subdomain.


Here are some more discussions on the subject.

EPO



As we noted earlier, the USPTO denies access to Bilski's pending patent application, but FFII's president (Benjamin) claims that he "got confirmation that EPO publishes pending patent applications, not like in the US." There are barriers however:

EPO website and pending patent applications



Does someone has a link to a webpage of the EPO displaying a pending patent application?

Gauss is for the moment down (once again), it is time to move to make mirrors.


As Benjamin puts it, "things go wrong with the web memory: http://noepatents.eu.org, http://gauss.ffii.org, http://wiki.ael.be all gone."

There seem to be new attempts (by lawyers) to bring software patents to Europe. IP Kitten (a set of lawyers) writes some more about the current situation, mostly by quoting:

The European Patent Office (EPO) does not grant patents for computer programs ("software patents") or computer-implemented business methods that make no such technical contribution. In this respect the granting practice of the EPO differs significantly from that of the United States Patent and Trademark Office (USPTO). [IPKat comment: Although, after Bilski, it appears that the USPTO is now even more strict than the EPO]


The notion that software patents can magically intrude Europe through unification is further substantiated by this.

Step forward for an EU patent?



[...]

The European Union has moved to address a decisive issue key to the creation of the hotly-contested European community patent. At the end of May, European Industry Ministers agreed to ask the European Court of Justice (EJC) whether draft plans to cut the costs of defending patents in a single European patent court would be compatible with EU law. Because the European Patent Office also grants patents that are valid in non-EU member states – such as Norway and Switzerland – the topic is under debate.


The "community patent" is nothing to do with community in the inventors' sense. Community of lawyers -- maybe.

Green Party and Pirate Party



Not everyone has surrendered to this ludicrous idea that software development deserves monopolies. There are at least two political strands in Europe that explicitly oppose the EPO's current practices. One of them is the Green Party, whose position is:

Public documents in open formats Greens want public documents to be written and conserved in an open format, in order to keep public administrations independent from software publishers and patent holders and ensure document accessibility to all citizens, independent of which software he or she uses.


Regarding the EPO:

European Patent Office (EPO) Greens want EPO to become a Community Institution, accountable to the Commission and the EP. The EPO shall be publically funded, in order to discourage their practice of issuing high numbers of patents in order to secure EPO financing, which is detrimental to the quality of patents. Greens propose that 5% of the renewal fees of patents are transferred to an independent research and innovation fund.


Another opposer of what the EPO is doing would be the Pirate Party, which according to Dailykos will continue to gain momentum. The lawyers at IAM are not entirely happy, obviously.

"The Pirate Party wants to fundamentally reform copyright law, get rid of the patent system, and ensure that citizens' rights to privacy are respected." And as of today, the Pirate Party is represented in the European Parliament, having secured just over 7% of the votes in Sweden in the European elections held over the last few days across the EU.


There are people who go even further.

In it, “Newspapers are elephants in a desert of their own making, desperately wandering from watering hole to watering hole, but the revenue flowing from each tributary of their 18th century monopoly on the sale of copies is drying up,” says Crosbie, adding:

“Neither fencing off the copies nor reinforcing the monopoly will help. Their business model faces absolute drought. So they collect, not to commit suicide, but to assemble their graveyard.

[...]

then i realized, i was an artist, and all the articles on ars, /., techdirt and here reminded me of patent trolls, copyright propoganda, ad nauseum.


Despite all that copyright propaganda, ad nauseum etc. it is opposers of such monopolistic abuse who are often described as the "bad people", where "bad" just means "less wealthy" or simply the digital majority. It is largely the same when it comes to pure politics.

"It is not the policy of the EPO to require or examine source codes […]. Moreover, given the length and complexity of source code listings, which can often stretch to hundreds of pages, it would be quite impossible to examine them." —European Patent Office brochure



Recent Techrights' Posts

It Has Cost $215,000 in Legal Costs to Sue IBM for Wrongful Termination
IBM typically settles out of court and demands secrecy (to avoid anyone else benefiting from the very expensive outcome)
The PIPs or 'Voluntary Termination Offers' Help IBM Fake Its Situation
"IBM is not a tech company"
General Assembly Covers EPO Strikes on Thursday, September 17th (2026)
The EPO's staff representation at The Hague has asked people to join an upcoming online session about industrial actions
 
LG Lies to Cover Up Lies About Its Spying TVs (It Records and Transmits Conversations in Rooms)
This is what a lot of "modern" technology is like
Oracle's Debt Continues to Soar (Increase of 60 Billion Dollars in 15 Months, Not Counting the Secret Debt, With Off-balance-sheet Debt Having "Grown Roughly Thirtyfold in Four Years")
Oracle debt continues to grow
Apple's iOS and macOS Measured as Bigger Than Windows in the US, Linux-Based OSes at Almost 30%
Expect the silent layoffs at Microsoft to continue at a rapid pace
Oracle, Like Microsoft, Drowns in Debt and Discards Tens of Thousands of Staff (Microsoft Does the Same More Discreetly)
The main difference between Microsoft and Oracle is that the latter is honest about what's going on
Gemini Links 14/09/2026: First Android Phone, Leaving Sony, and Rant About Gemini-to-HTTP Proxy Providers
Links for the day
Links 14/09/2026: "Scam Altman Now Trying to Gain Control of Electric Grid" and Sweden Moving to the Right
Links for the day
Vista 11 Flunked
Microsoft cannot start a "Vista 12" campaign as it would only make matters worse
Microsoft Urgently Needs Distraction: There's No "Next XBox", But There's a New Boot Screen (Like 'Dark Mode', a Feature That Can be Implemented in Mere Minutes/Hours)
Anything to distract from XBox fiasco
IBM Flying Away to Sweatshops (So Will Red Hat)
Even on Sunday people post about 'leaving' IBM
RFID Ambitions Already Established by Widespread Skinnerbox Adoption
A society that cannot maintain privacy for those who deserve it will not manage to assure dignity of citizens
SLAPP Censorship - Part 183 Out of 200: What Actually Happened Two Months Ago (Based on People Who Attended)
It's dangerous to assert what happened in a hearing you did not attend (there was no video stream or recording, either)
Phil Harvey, an Editor-in-Chief in a B2B Site, Explains Why ChannelFutures (Connected to TechTarget) and Other Sites That Used to Cover Linux Deleted Many Articles
Every old article in channelfutures is gone!
Software Freedom Day 2026 is 5 Days From Now, Fresh Reminder to Boycott Proprietary Software
Let this be a timely reminder of why people should avoid proprietary software
Links 14/09/2026: Slop Hardly Used for Actual Work (Chatbots Are for Lonely People), Slop Bots (Scrapers, Plagiarism) "Are Thirsty for Power"
Links for the day
Gemini Links 14/09/2026: Trip, Hiding, and OCR
Links for the day
IBM PIPs Are Layoffs (RAs Come Later Even If You Satisfy the "Performance" and "Plan")
Notice how "the media" almost never mentions silent layoffs, as if just because they're silent, there's nothing to investigate, nothing to see there
Slop Companies Engage in Plagiarising the Web, Now They Pay People to Contaminate the Web With Their Lies
Remember that the lawfare against us is funded by slop salaries!
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 13, 2026
IRC logs for Sunday, September 13, 2026
Microsoft is Laying Off All Year Long (It's Just Keeping Quiet About It)
The issue here is also the media. It's complicit.
MElon's Twitter Takeover Was Meant to Amplify People Like Himself or David Heinemeier Hansson (Slop Pyramid Schemes and Bigotry)
Social control media is not neutral
Microsoft Lunduke of 'Linux Sucks' (and Microsoft Corp.) Tries to Replace GNU/Linux With Toxic Discussions About Toxic Politics
Poisoning the well people drink from
Links 13/09/2026: Republican Campaign Aide Uses Nazi Photo and Convicted Felon is Wielding Power to Stifle Speech
Links for the day
Gemini Links 13/09/2026: Never Settling, Plain Text Digital Life, and Newsgroups
Links for the day
SLAPP Censorship - Part 182 Out of 200: UK Dockets With Machine-Generated Applications to the Court (From American Slop Companies)
Earlier this year Garrett was using machine-generated output as legal papers and submissions
Efforts to Cancel Matt Mullenweg Have Made Us More Sympathetic Towards Mullenweg and More Sceptical of the People Who Run Automattic (Named After Mullenweg)
Mullenweg, unlike Automattic, is not "in it for the money"
Boosters of Omarchy Are No 'Underdogs'
There are many Arch derivatives that do not rely on "viral" marketing in MElon's child porn-pushing social control media and are instead relying on real development, not slop
PIPs Are a Setup: They Set Workers Up to Fail While Working Their Arse Off Before Getting Kicked (Out) in the Arse
Malicious and exploitative
SLAPP Censorship - Part 181 Out of 200: This is Really More Like Brett Wilson LLP v Schestowitz (Using Money From American Slop Companies, Plagiarism Pushers)
We approach the parts where we explain that the Application to the Court with Garrett's name on it was instead complaining about fair criticism of the combative law firm (irrelevant to any injunctions) as if it was impermissible to explain what it had done - and still does - to my wife and I
It Sometimes Feels Like Slop Companies Are Committing Online/Digital Crimes
"GPT" out of control
Gemini Links 13/09/2026: Why Omarchy is "Plain Disgusting" and "AI Slop" and Why "Plain Text To Do List" Rocks
Links for the day
Links 13/09/2026: Scam Altman Admits Issues (Financial), Rival Says Stop Slop (Plagiarism)
Links for the day
Windows Down to New Lows as Switzerland's Federal Government Abandons Microsoft (Where Feasible for Now)
That's how it starts...
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 12, 2026
IRC logs for Saturday, September 12, 2026
Televisions Have Become Billboards
Bottom line: you get what you pay for
Mass Layoffs at Microsoft as "Voluntary Separation Agreement" (or PIP)
the man who kept lying about the layoffs has just left the company
The Cyber Show on Media Clickbait About Slop as 'Existential Threat' and Derek Thompson's Response to That
Ignore the hype, focus on real news
Links 12/09/2026: "Revolt Is Here" Against Slop and "Top Chinese Court" Cracks Down on Slop That's Fake/Misleading
Links for the day
Gemini Links 12/09/2026: Rants About Slop, Switching From QWERTY, and Why TVs Are 'Cheap'
Links for the day
SLAPP Censorship - Part 180 Out of 200: A Third Act, (Mis)Using Your Client's Application to the Court for Your Own Purposes as a Law Firm (Reputation Management and Censorship)
How much can a lawfare firm get away with?
Canonical Has Withdrawn Ubuntu 24.04.5 Installer Due to a Critical Bug Connected to Microsoft-Controlled Restricted Boot and TPM
already breaking systems running GNU/Linux [...] Who asked for TPM in Linux?
SLAPP Censorship - Part 179 Out of 200: Using One's Clients to Save Face at Their Expense
Who's being served really?
Switzerland's Software Freedom/Digital Sovereignty is Improving as People Move to GNU/Linux
Well done to them
Links 12/09/2026: "U.S. Debt Surpasses $40 Trillion" and "Trump Wants to [Illegally] Bribe Voters."
Links for the day
Gemini Links 12/09/2026: Readjusting, Fighting Sleep, and FreeBSD bhyve
Links for the day
Matt Mullenweg Got the 'Linus Treatment' or 'RMS Treatment'
"back, but not in charge any more..."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 11, 2026
IRC logs for Friday, September 11, 2026