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. Links 27/8/2016: Torvalds and GPL, “DOD Must Embrace Open-Source Software”

    Links for the day



  2. Links 26/8/2016: Maru OS Resurfaces, Android More Reliable Than 'i' Things, PC-BSD Becomes TrueOS

    Links for the day



  3. Good Job, David Kappos, Says the 'Boss' (IBM)

    Responses to the latest call against Alice (eliminator of many software patents), courtesy of the man from IBM (still paid by IBM) who was responsible for the policy that blindly approved a lot of software patents in the US



  4. Being for Patent Quality or Against Patenting Excess Does Not Make You Anti-Patents

    Like IAM, which tries to portray sceptics and critics of software patents as "anti-patents", IP Watchdog (or Watchtroll as we call it) is 'trolling' the Electronic Frontier Foundation, simply because it expressed an opinion that patent maximalists cannot tolerate



  5. Erosion of Patent Quality Enables Patent Extortion With Large Portfolios of Low Validity Rate

    Revisiting the EPO's vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)



  6. The EPO's Francesco Zaccà Presenting in Turin Alongside Patent Trolls (Like the Patent Mafia Sisvel) and Lobbyists/Front Groups for Software Patents, UPC

    Benjamin Henrion (FFII) on seeing the EPO alongside patent trolls and other nefarious actors, doing what they do best, which is undermining public interests and harming patent quality



  7. The EPO, USPTO, and Patent Microcosm Peddle Myths About Patents in Public Universities and Research

    Tackling some of the commonly-spread myths about patents as "saving lives" and "promoting research" (in practice leading to the death of poor people and promoting trolls)



  8. Large Corporations' Lobbyist David Kappos Disgraces Former Employer USPTO by Meddling in Their Affairs on Software Patents, Downplaying the Supreme Court

    The latest lobbying from David Kappos, who blatantly exploits his connections in patent circles to promote software patents and work towards their resurgence after Alice v CLS Bank



  9. Journal of Intellectual Property Law and Practice Calls the European Patent Office “Rotten”, Other Sources Scrutinise Recent Moves

    The patent office which was once known for being the best bar none is rotting under the Frenchman Benoît Battistelli, who made himself and his friends the main clients of the Office



  10. PTAB Emerges as Hero of USPTO Because Quality of Patents Improves, Software Patents Are Effectively Dead (or Dying Once Reassessed)

    With help from the Patent Trial and Appeal Board (PTAB) -- not just patent courts -- software patents drop like flies by the thousands



  11. Creative Technology, Now Operating in 'Patent Troll' Mode, Shot Down by the ITC; Jawbone Too Shot Down

    Some good news from the U.S. International Trade Commission (ITC), which may have put an end to Creative's new war on Android (using old patents)



  12. Corporate Media in India Misrepresents Startups to Push for Software Patents

    A parade of misinformation as seen in Indian (but English-speaking) press this week as questions about patentability of software resurface



  13. Links 25/8/2016: Linux Turns 25, NetworkManager Turns 1.4

    Links for the day



  14. Links 24/8/2016: More From LinuxCon, Uganda Wants FOSS

    Links for the day



  15. Links 23/8/2016: GNOME 3.22 Beta, Android 7.0 Nougat

    Links for the day



  16. The Linux Foundation Gives Microsoft (Paid-for) Keynote Position While Microsoft Extorts (With Patents) Lenovo and Motorola Over Linux Use

    This morning's reminder that Nadella is just another Ballmer (with a different face); Motorola and Lenovo surrender to Microsoft's patent demands and will soon put Microsoft spyware/malware on their Linux-powered products to avert costly legal battles



  17. Not Just President Battistelli: EPO Vice-Presidents Are Still Intentionally Misrepresenting EPO Staff

    Evidence serving to show that EPO Vice-Presidents are still intentionally misrepresenting EPO staff representatives and misleading everyone in order to defend Battistelli



  18. Battistelli the Liar Causes a Climate of Confrontation in French Politics, Lies About Patent Quality (Among Many Other Things)

    Battistelli's lies are coming under increased scrutiny inside and outside the European Patent Office (EPO), where patent quality has been abandoned in order to artificially elevate figures



  19. The Collapse of Software Patents and Patent Law Firms Trying to “Overcome” Alice

    The United States continues its gradual crackdown on software patents (which are viewed as abstract and thus unpatentable), whereas in Europe things are murkier than ever



  20. Apple's Patent Wars Against Android/Linux Make Patent Trolls Stronger

    Apple's insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns



  21. Links 22/8/2016: Linux 4.8 RC3, Linux Mint 18 “Sarah” KDE Beta

    Links for the day



  22. Links 21/8/2016: Apple and Microsoft Down, Systemd Spreading to Mount

    Links for the day



  23. Links 20/8/2016: Android Domination, FSFE summit 2016

    Links for the day



  24. Patents Roundup: Trolls Dominate Litigation, PTAB Crushes Patents, Patent Box Regime Persists, and OIN Explains Itself

    Another roundup of patent news from around the Web with special focus on software patenting



  25. The Cost/Toll of the 'New' EPO and Where All That Money Goes or Comes From

    The European Patent Office has become a servant of the rich and powerful (including large foreign corporations) and even its own employees now pay the price associated with misguided new policies (or 'reforms' as Battistelli habitually refers to these)



  26. Links 19/8/2016: Linux Mint With KDE, Linux Foundation's PNDA

    Links for the day



  27. The End of an Era at the USPTO as Battistelli-Like (EPO) Granting Policies Are Over

    The United States is seeing the potency of patents -- especially software patents (which make up much of the country's troll cases) -- challenged by courts and by the Patent Trial and Appeal Board (PTAB)



  28. Battistelli's European Patent Office Goes to the United States to Speak About the UPC and Software Patents

    The European Patent Office is showing its utter contempt -- not just disregard -- for the very fundamental rules that put it in its place and brought it into existence



  29. Turkey Subjected to the European Patent Convention (EPC) But Benoît Battistelli is Not?

    The ‘constitutional crisis’ at the European Patent Office in the context of Turkey, which has signed "the EPC and as such recognises the competence and the decisions of the institutions which have been introduced in the convention."



  30. Links 18/8/2016: EFF Slams Vista 10, Linux Foundation Makes PNDA

    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