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

08.31.09

Patents Roundup: Bilski Revisited, FFII Seems Confused, EU Seemingly Hijacked by Large Corporations

Posted in America, Deception, Europe, Free/Libre Software, Intellectual Monopoly, Microsoft, Patents at 10:19 am by Dr. Roy Schestowitz

Death to the King

Summary: Worrying signs of important establishments being captured by higher interests that promote software patents

THERE is quite a heap of material on software patents and other related issues of intellectual monopolisation. We shall start with a recommendation of this excellent writeup which goes under the heading “What Intellectual Property Law Should Learn from Software.”

There are lots of reasons to doubt that this vision of “creation out of nothing” works very well, even in the arts, the traditional domain of copyright law. But whatever its merits or defects in the arts, it seems completely wrong-headed when it comes to software. Software solutions to practical problems do converge, and programmers definitely draw upon prior lines of code. Worse still, software tends to exhibit “network effects.” Unlike my choice of novel, my choice of word-processing program is strongly influenced, perhaps dominated, by the question of what program other people choose to buy. That means that even if a programmer could find a completely different way to write a word-processing program, this programmer has to be able to make it read the dominant program’s files and mimic its features if the programmer is to attract any customers at all. This hardly sounds like completely divergent creation.

According to Patently-O, an important opportunity to abolish software patents in the United States will now involve Kappos personally.

The USPTO has issued a set of interim examination guidelines for determining whether a claim is properly directed to patentable subject matter under 35 U.S.C. S 101, relevant Supreme Court precedent, and Bilski. The instructions begin with a realization that the area is in flux and that more permanent guidelines will be established once the Supreme Court rules on Bilski v. Kappos. In addition, these are guidelines rather than rules or laws. Thus, an examiner’s failure to follow the guidelines is “neither appealable nor petitionable.”

Kappos is an opponent of the Bilski ‘doctrine’, but then again, Kappos came from IBM, whose stance on the subject has been consistent all along. Kappos is now leading the USPTO, so it’s screaming for “conflict of interests”. Here is the accompanying press release.

As we shall show in a moment, this system is gradually made more friendly towards monopolies (or big businesses) and watch this. They are now getting their own special rules that are more favourable to them, as in “the patent system is fine, as long as it’s working for the big players and adds exclusion to forbid/limit counter-action.”

Technology majors Intel, Apple, Cisco and Microsoft have won an appeals court ruling that limits the amount of patent damages they will have to pay for products shipped outside the US.

This relates nicely to the i4i vs Microsoft case [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11], which now has this extensive resources page. The i4i debacle shows that Microsoft has different and special rules to defend itself from patent lawsuits. This system does not work equally for all. It’s imbalanced against the “small inventor” which it originally purported to defend. Patently-O suggests that even reexamination is underway.

Pending Reexamination: Microsoft has submitted its motion for a stay of injunctive relief pending the outcome of its appeal to the Federal Circuit. Oddly, the first sentence of Microsoft’s introduction begins with a statement that the PTO “already had provisionally rejected upon reexamination as anticipated and obvious.” By ‘provisionally rejected’ Microsoft means that a non-final office action has been mailed out in the ex parte reexamination that it requested in November 2008 (the litigation was filed in March 2007).

“Microsoft tries to use the “too big to fail” defense in the i4i case,” tells us one reader. “Smaller companies get wiped out by bogus patents and defending themselves all the time, but Microsoft gets let off so Dell and HP won’t suffer? Give me a break.”

We have also remarked on the role of the corrupted US juridical system in all this. No surprises here [1, 2, 3, 4, 5, 6, 7, 8].

This leads us to a side issue which is nonetheless important. Law.com has this new report about systemic changes that also involve “life sciences innovations”.

An upcoming en banc rehearing before the U.S. Court of Appeals for the Federal Circuit has the potential to reverse a written description requirement for patents that the court imposed a dozen years ago. Owners of broadly written patents such as those covering life sciences innovations are watching closely.

Speaking of these so-called “life sciences innovations”, watch how even cancer genes are now being patented. There is no limit to this insanity.

Breast Cancer Gene Patent Challenge:

* The ACLU, PUBPAT, and others continue their fight against patents covering the breast cancer genes BRCA1 and BRCA2 held by Myriad and the University of Utah. The federal lawsuit argues (1) that the genes should not be patentable as “products of nature” and (2) that the patentee’s use of patent rights to limit scientific research on the genes violates constitutional First Amendment protections.

More patents are standing in the way of medical doctors:

Patent examiner Deandra Hughes decided that all 66 claims of the 6,188,988 patent are, indeed, patentable, despite more than 200 pages of evidence submitted by Shafer and his lawyers. Even though doctors had used databases to help choose therapies to treat various ailments for decades before the first relevant patent application at issue was filed in 1998, Hughes said the ’988 patent should be allowed. Her reasoning: the prior art references didn’t distinguish a system with exactly three “knowledge bases.” And that distinction alone—having three “knowledge bases”—is a patentable advance, Hughes decided. See Notice of Intent to Uphold the Claims of the ’786 patent [PDF].

If that’s not bad enough, even food is being patented. This leads to very serious ethical questions.

Members Of Human Rights Expert Committee At UN Question Patents On Food

[...]

A group of experts working as a think-tank for the United Nations Human Rights Council raised the issue of patents and food at a meeting this week. Meanwhile, a new report by the UN Special Rapporteur on the Right to Food expected to be available at the end of August will focus on the intersection between intellectual property and the human right to food.

Moving over to Europe, there are very obvious conflicts of interests.

The committee on economic and monetary affairs (ECON), responsible for regulating the financial sector, will be chaired by British MEP Sharon Bowles. Bowles was previously accused of having a conflict of interests after pushing for software patents while also being partner in a law firm run by her husband representing clients with a direct interest in software patent protection.

There has also been controversy over the newly-elected chair of the Legal Affairs Committee, Klaus Heiner Lehne. During the previousl administration, Lehne was one of the MEPs pushing strongly for software patents. At the same time he was a partner at Taylor Wessing, a law firm with a large patent department advising clients on patenting strategy in the software sector.

Glyn Moody has just written another post about SAP’s role. SAP is close to Microsoft [1, 2] and it is still lobbying for software patents in Europe.

It’s probably too much to expect a sudden outburst of common sense among SAP’s management, but at least it’s good to see a pro-software patent company learning the hard way that overall, the costs of litigating and licensing patents from others outweigh any income gained from licensing to third parties. It’s not even a zero-sum gain: the only people who win here are the lawyers.

By mere serendipity we’ve come across a little unfinished document from the FFII, which lobbies against software patents in Europe. But there must be some kind of a colossal mistake in this draft of an amicus brief regarding Bilski (written by Reinier Bakels), which states odd things such as, “In U.S. patent law, there is no basis to prohibit software patenting categorically, or to make any other specific exception for software.

What?

This can’t be FFII speaking. What is this? It is the very opposite of what FFII is all about. Is the FFII — just like Europe in general — letting its very own Lehnes grab the podium? If the FFII carries its name and message in vain like this, then it can cause more harm than good. This document will hopefully be mended and the message rectified before it’s finalised.

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this.”

Ante Wessels

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. rbakels said,

    August 31, 2009 at 6:27 pm

    Gravatar

    Would you please remove the draft “amicus brief” for the Bilski case immediately? Being a draft, it is a preliminary text. I have circulated the text in a closed group, obviously not intended for publication. Apparently someone who was not satisfied by my draft text chose to leak it to you, instead of passing suggestions for text improvement to me.
    For you, it was clear that the draft was not intended for publication. If you have not removed the text by tomorrow (1/9) afternoon, I will take legal (criminal) action, either on the basis of copyright or on the basis of fencing.
    I appreciate that you are strongly opposed against software patents, but it does not help the cause to break the basis norms of decency and to try to defame me – instead of proposing a text improvement.
    Incidentally, anyone familiar with American law will confirm what I said – but you choose to “kill the messenger”.

    Roy Schestowitz Reply:

    rbakels,

    I’ve removed the document. My interpretation of the document still stands (I regret my wording though), but if you’re open to debate then you can make sure it omits pro-software patents rhetoric, however subtle this may be. It would be wasteful to throw away this rare In Re Bilski opportunity because IBM, for instance, has been far from helpful. I thought that FFII was as stubborn as it gets on this issue (swpats, not bm pats).

    Best regards.

What Else is New


  1. Microsoft Technology Crashes Financial Markets, Again

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



  2. 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



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





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

    Links for the day



  5. 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)



  6. 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



  7. 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)



  8. 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



  9. 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?



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

    Links for the day



  11. 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



  12. 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)



  13. 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



  14. 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



  15. 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



  16. 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



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

    Links for the day



  18. 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



  19. 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)



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

    Links for the day



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

    Links for the day



  22. 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



  23. 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)



  24. 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



  25. 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



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

    Links for the day



  27. 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



  28. Vista 10 Turns PCs Into Zombies: Microsoft to Remotely Delete Software From Windows, Like Amazon Deleted Books From Kindle

    Microsoft allows itself to remotely delete software from Vista 10 (not just Microsoft's software), as revealed by the mainstream media not too long after the failed launch (poor adoption so far)



  29. Black Duck Still Destroying, Lying, Rewriting History

    Black Duck is still carrying water for Microsoft and pretends to be working for 'Open Source', despite doing it much harm and doing nothing that is actually Open Source



  30. Ashley Madison Disaster Apparently the Fault of Microsoft Windows

    New reports serve to show that Ashley Madison's data which got leaked includes complete dump of corporate Windows passwords


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