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. After Infecting Unity -- Successfully -- Microsoft's Partner Xamarin Wants to Infect Unreal Engine With .NET

    Xamarin continues to spread dependence on Microsoft to more gaming frameworks, not just platforms such as GNU/Linux, Android, and even permanent-state devices



  2. Taking Microsoft Windows Off the Grid for Damage to Businesses, the Internet, and Banking Systems

    Microsoft's insecure-by-design software is causing massive damages ([cref 27802 possibly trillions] of [cref 13992 dollars in damages to date]) and yet the corporate press does not ask the right questions, let alone suggest a ban on Microsoft software



  3. City of Berlin Does Not Abandon Free Software, It's Only Tax Authorities

    A Softpedia report that says the City of Berlin is moving to Microsoft Office is flawed and may be based on a poor translation



  4. Nadella a Liar in Chief at Microsoft, Pretending That His Anti-Competitive Practices Are Unfortunately Imposed on Microsoft

    The nastiness of Microsoft knows no bounds as even its assault on GNU/Linux and dirty tricks against Free software adoption are characterised as the fault of 'pirates'



  5. Reuters Writes About the Demise of Software Patents, But Focuses on 'Trolls' and Quotes Lawyers

    How the corporate media chooses to cover the invalidity of many software patents and the effect of that



  6. Links 24/10/2014: Microsoft Tax Axed in Italy, Google's Linux (ChromeOS/Android) Leader Promoted

    Links for the day



  7. Links 24/10/2014: GNU/Linux History, Fedora Delay

    Links for the day



  8. Links 23/10/2014: New *buntu, Benchmarks

    Links for the day



  9. Links 22/10/2014: Chromebooks Surge, NSA Android Endorsement

    Links for the day



  10. Links 21/10/2014: Debian Fork Debate, New GNU IceCat

    Links for the day



  11. Criminal Microsoft is Censoring the Web and Breaks Laws to Do So; the Web Should Censor (Remove) Microsoft

    Microsoft is still breaking the Internet using completely bogus takedown requests (an abuse of DMCA) and why Microsoft Windows, which contains weaponised back doors (shared with the NSA), should be banned from the Internet, not just from the Web



  12. Microsoft 'Loving' GNU/Linux and Other Corporate Media Fiction

    Microsoft has bullied or cleverly bribed enough technology-centric media sites to have them characterise Microsoft as a friend of Free/Open Source software (FOSS) that also "loves Linux"



  13. India May be Taking Bill Gates to Court for Misusing His So-called 'Charity' to Conduct Clinical Trials Without Consent on Behalf of Companies He Invests in

    Bill Gates may finally be pulled into the courtroom again, having been identified for large-scale abuses that he commits in the name of profit (not "charity")



  14. The Problems With Legal Workarounds, Patent Scope, and Expansion of Patent Trolls to the East

    Patent trolls are in the news again and it's rather important, albeit for various different reasons, more relevant than the ones covered here in the past



  15. Links 20/10/2014: Cloudera and Red Hat, Debian 7.7, and Vivid Vervet

    Links for the day



  16. Links 20/10/2014: 10 Years Since First Ubuntu Release

    Links for the day



  17. How Patent Lawyers Analyze Alice v. CLS Bank

    Breaking down a patent lawyer's analysis of a Supreme Court's decision that seemingly invalidated hundreds of thousands of software patents



  18. Is It Google's Turn to Head the USPTO Corporation?

    The industry-led USPTO continues to be coordinated by some of its biggest clients, despite issues associated with conflicting interests



  19. The EPO's Public Relations Disaster Amid Distrust From Within (and EPO Communications Chief Leaves): Part VII

    Amid unrest and suspicion of misconduct in the EPO's management (ongoing for months if not years), Transparency International steps in, but the EPO's management completely ignores Transparency International, refusing to collaborate; the PR chief of the EPO is apparently being pushed out in the mean time



  20. Links 18/10/2014: Debian Plans for Init Systems, Tails 1.2

    Links for the day



  21. Links 18/10/2014: New ELive, Android Expansion

    Links for the day



  22. Another Fresh Blow to Software Patents (and With Them Patent Trolls)

    Another new development shows that more burden of proof is to be put on the litigant, thus discouraging the most infamous serial patent aggressors and reducing the incentive to settle with a payment out of court



  23. Links 16/10/2014: New Android, SSL 3.0 Flaw

    Links for the day



  24. How the Corporate Press Deceives and Sells Microsoft Agenda

    Various new examples of media propaganda that distorts or makes up the facts (bias/lies by omission/selection) and where this is all coming from



  25. Vista 10 is Still Vapourware, But We Already Know It Will Increase Surveillance on Its Users and Contain Malicious Back Doors

    The villainous company which makes insecure-by-design operating systems will continue to do so, but in the mean time the corporate press covers only bugs in FOSS, not back doors in proprietary software



  26. Links 15/10/2014: KDE Plasma 5.1 is Out, GOG Reaches 100-Title Mark

    Links for the day



  27. With .NET Foundation Affiliation Xamarin is Another Step Closer to Being Absorbed by Microsoft

    Xamarin is not even trying to pretend that separation exists between Microsoft and its work; yet another collaboration is announced



  28. The EPO's Protection Triangle of Battistelli, Kongstad, and Topić: Part VI

    Jesper Kongstad, Benoît Battistelli, and Zeljko Topić are uncomfortably close personally and professionally, so suspicions arise that nepotism and protectionism play a negative role that negatively affects the European public



  29. Corporate Media Confirms the Demise of Software Patents in the United States; Will India and Europe Follow?

    It has become increasingly official that software patents are being weakened in the United States' USPTO as well as the courts; will software leaders such as India and Europe stop trying to imitate the old USPTO?



  30. Links 14/10/2014: CAINE 6, New RHEL, Dronecode

    Links for the day


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