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07.13.09

Patents Roundup: Software Landmines in New Zealand, the US, and Microsoft/Linux

Posted in GNU/Linux, IBM, Kernel, Microsoft, OIN, Patents at 3:59 am by Dr. Roy Schestowitz

Summary: A summary of news about software patents around the world

HAVING just provided an update on the situation in Europe, we now turn our attention to other countries where events are noteworthy.

New Zealand

As a little update on the situation in New Zealand [1, 2], Free software advocates down under have submitted this document [PDF] in opposition of software patents.

United States

The Peer-To-Patent initiative, which we mentioned more recently in [1, 2, 3, 4], is said to be closing silently. [see addendum at the bottom]

And yet… the entire program apparently shut down last month and almost no one noticed (thanks to Eric Goldman for sending this over). They claim that the program is being “reviewed,” but no more patents are being accepted into the program, and the few that are already in are expected to be finished in the next few months.

In our humble assessment, the Peer-To-Patent initiative was looking for volunteers to legitimise software patents. It is an example where the real issue is approached inadequately and handled poorly. Some time earlier this month someone advertised a blog that would list a Microsoft patent per day — one that Linux may infringe on — and then seek to invalidate it. As many people rightly pointed out, this was a tactless approach that only encouraged more uncertainty — not confidence — in Linux. For whatever effect it may have, we have also been critics of "Linux Defenders" and TomTom was proof that OIN may just be a massive toothless tiger.

“As always, Microsoft and its supporters/evangelists must pretend that In Re Bilski has absolutely no effect on software patents in the United States.”In Re Bilski is already invalidating at least one software patent. Being precedence, this is wonderful news and the IPKats share this letter from AmeriKat, which speaks about Bilski. There is also this new Webcast which is more or less about the Bilski test.

As always, Microsoft and its supporters/evangelists must pretend that In Re Bilski has absolutely no effect on software patents in the United States. We are already seeing the familiar Microsoft trolls spreading their disinformation here in Boycott Novell whenever the subject comes up. The same type of thing may also be happening in the press.

Remember the Windows-powered SD Times? No free lunch, eh? Well, this is the journalist whom Microsoft bought lunch. One of his latest articles bears a headline which makes it seem like it’s software patents-hostile, but the article body does the very opposite. We spoke about this pattern a few days ago.

Mark Webbink already chimes in and writes: “Unfortunately, attorney Plotkin’s remarks perpetuate a myth that many patent attorneys would like the rest of us to believe – that software patents are necessary to the software industry to induce innovation. Yet, every empirical study of the impact of software patents on the software industry has shown that they have had no meaningful impact on the industry, either positive or negative. If you think of the software giants of today, such as Oracle and Microsoft, they all became quite successful without the benefit of software patents and only turned to patenting their software innovations when they perceived a need to do so to protect themselves from the threats posed by other large companies. Microsoft alone spends far more money obtaining patents, defending itself in patent litigation, and paying judgments than it ever earns in licensing income from its very substantial portfolio of software patents. Moreover, Microsoft almost never enforces its patents against other parties. No software company in its right mind would unilaterally disarm itself by giving up its patents, but if all companies were forced to do so at the same time, the effect on innovation would likely be . . . nothing.

The writer obviously did not make Webbink so happy (nor did it leave him impressed). Free lunch aside, Worthington’s lip service to Microsoft (regarding ODF, Novell, and open source) is hard to forget because he does the same type of thing to advance .NET at the moment. Here is a response to it from Mark S:

Really? Maybe that’s because Java developers don’t write desktop apps for Linux. If fact, I can’t recall the last time I saw a desktop application written in Java (other than Eclipse itself) for any OS! Java developers basically abandoned the desktop for the server, plus the odd browser applet here and there. But there are tons of server-side apps and frameworks written in Java.

Are there actually any qualifications for being an industry “analyst”, other than an obvious willingness to kiss up to Microsoft at every opportunity? This is a blatant plug for .NET, O’Grady could care less what is running on Linux desktops.

In order to advance Mono and .NET, Worthington contacted O’Grady from RedMonk. We warned about this before. O’Grady’s clients include Microsoft and he uses an iPhone that he loves, so it leaves more room for judgment.

“Patents are a matter of development and economics and even on that basis alone software patents should be rejected.”That’s just a disclosure of possible interests, which ought to be fair. The company deserves credit for being transparent, but caution is deserved because what analysts typically sell is a sellout. They sell opinions that are favourable to their clients. As Microsoft puts it [PDF], “Analysts sell out – that’s their business model…”

Moving on a bit, Gene Quinn, a lawyer and vocal advocate of software patents for quite some time, says that “Software is the New Engine and Must be Patentable.” Groklaw has already tackled this pattern of software patents advocacy from Gene Quinn. Patents are a matter of development and economics and even on that basis alone software patents should be rejected. A study shows, using scientific means, that such patents only impede innovation (but surely they fill the pockets of lawyers like Gene Quinn). The study generally suggests that patents miss their original goal as they have the very opposite effect (compared to how they are presently advertised and sold to the public/lawmakers).

Speaking of lawyers, Business Week has this new article about John F. Duffy. The role played by Microsoft and IBM is mentioned there too.

Critics of the U.S. patent system have high hopes that 2009 might be the year Congress acts to amend it. But their lobbying has failed for years, so John F. Duffy sees another path to change: litigation. “I’ve thought a lot about reform of the patent system through the courts,” says the George Washington University Law School professor. “It’s not like the courts can’t adjust in this area.”

[...]

Today’s debate over patent law generally pits pharmaceutical and traditional manufacturers against high-tech companies. Makers of long-lived products want strong patent protection to ward off copycats. They and such tech powerhouses as IBM (IBM) and Microsoft (MSFT) are backing a Senate bill even though it would reduce penalties that patent infringers might be ordered to pay. But others in the faster-paced tech sector have turned against the measure because it doesn’t cap damage awards enough. Without a concerted push by business, the Senate may once again shelve action to deal with more pressing matters.

Linux (Universal)

In Germany, SCO was fined for false/empty accusations against Linux. A guy over at Raiden suggests that Microsoft should be subjected to similar treatment.

Either way we put MS and other FUD generating companies over a barrel. They either show us what patents, if any, are being infringed, and we simply code around them. Or else we force them to shut their mouths and end their FUD mongering. Either way, we win. And the best part is, once we’re done, if these companies continued their patent threats, the EFF and the FSF could sue those companies for slander.

Steve Stites put it well when he said: “Put your mouth where your money is”

From his message:

Microsoft has spent enormous sums of money to build a huge portfolio of dubious quality software patents. Armed with this immense obsolete weapon they have entered into the patent wars. And lost.

The sums of money extracted by patent trolls from Microsoft far exceed whatever money Microsoft has managed to extract from other companies with software patent threats. So far, software patents are a huge net loss for Microsoft.

A new article from the Financial Times shows that Linux is among the sufferers of patent law.

The internet it still in its infancy, but already we see fantastic things appearing as if by magic. Take Linux, the free computer operating system, or Wikipedia, the free encyclopedia. Witness the participatory culture of MySpace and YouTube, or the growth of the Pirate Bay, which makes the world’s culture easily available to anybody with an internet connection. But where technology opens up new possibilities, our intellectual property laws do their best to restrict them. Linux is held back by patents, the rest of the examples by copyright.

Those in the Linux sphere who do not discuss software patent threats simply do not understand the severity of the subject. This silence serves Microsoft very well because it offers wiggling room.

“Geeks like to think that they can ignore politics, you can leave politics alone, but politics won’t leave you alone.”

Richard Stallman

Addendum: Mark Webbink, who is now at the New York Law School, says that Peer-To-Patent Has not shut down. His statement says: “Peer-to-Patent has not shut down. It is still operating. The only thing that has occurred is that the USPTO has decided to suspend an[y] new applications until they have an opportunity to assess the effectiveness of the program. Meanwhile, Peer-to-Patent still has 70+ pending patent applications under review. Come on over and check it out.

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4 Comments

  1. André said,

    July 13, 2009 at 4:31 am

    Gravatar

    The re:Bilski test is not about software but about business method patents. However, it somehow puts the US patent system in a situation where you can somehow control it, resets it to 1995 in a specific domain.

    The US examination system has these test boxes, and it works like a flowchart. The machine or transformation is now one of them and it was made defunct, which caused severe trouble in the examination process, and so they reconstructed the test with Bilski case law.

    The Bilski test is also backed by large software patent holders. It would not surprise me to find Microsoft in support of the Bilski test. The real issue is how to speed up examination and get rid off the insane backlog.

  2. les said,

    July 13, 2009 at 6:45 am

    Gravatar

    It is not Microsoft or its supporters that say Bilski has no bearing on software. It is the pro Bilski decision U.S. Patent and Tradmark Office that says Bilski has no bearing on software:

    See for example this, which refers to the Bilski court as “the court of appeals”:

    “In any event, the court of appeals emphasized that its
    decision in this case —–does —not—address the application of
    the machine-or-transformation test to computer software—–,
    data-manipulation techniques, or other such technologies
    not involved in petitioners’ risk-hedging claim.
    See, e.g., Pet. App. 25a n.23 (“[T]he process claim at issue
    in this appeal is not, in any event, a software claim.
    Thus, the facts here would be largely unhelpful in illuminating
    the distinctions between those software claims
    that are patent-eligible and those that are not.”); id. at 28a”

    See page 14 of this document from the PTO website:

    http://www.uspto.gov/web/offices/com/sol/2007-1130uspto_opposition_to_certiorari.pdf

    Also note that this document is a petition to the Supreme Court by the PTO begging the court not to review Bilski. Apparently the PTO is concerned that the Supremes will see the none-sense behind the curtain.

  3. André said,

    July 13, 2009 at 1:56 pm

    Gravatar

    Think of a system of corresponding tubes or of flooding. The Bilski test is a floodgate and it addresses the most abusive patent: business methods. Does it rule out software patents? No. But it is an administrative buffer.

    And concerning Microsoft, it is no secret that IBM and Microsoft want the Bilski test. For software patent proponents it makes sense to be in favour of the Bilski test. For software patent opponents it makes sense to be in favour of the Bilski test. For ruthless patent agents it makes sense to expand business.

    A hot discussion topic in the US is expansion to tax advisory scheme patentability!

    Roy Schestowitz Reply:

    They could file for a taxing patent that enables taxing for patents. :-p

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