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06.23.09

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

Posted in America, Australia, Europe, Law, Microsoft, Patents, XPS at 5:28 am by Dr. Roy Schestowitz

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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

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