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. Vandana Shiva: “Bill Gates is Continuing the Work of Monsanto”

    A recent interview on what Bill Gates is really up to in that sham ‘charity’ of his



  2. IRC Proceedings: Wednesday, January 22, 2020

    IRC logs for Wednesday, January 22, 2020



  3. Extending Linux With DRM, Azure and exFAT

    An insufficiently 'conservative' Linux ceases to be freedom-respecting



  4. Linux Foundation (LF) Now Dominated by Lots of Microsoft People and LF Chiefs Join Microsoft in Smearing GPL/Copyleft

    We continue to see additional evidence which serves towards reinforcing our view that the so-called 'Linux' Foundation is actually hostile towards many things that are associated with Linux (unlike those looking to exploit/hijack Linux for proprietary ends)



  5. Links 22/1/2020: Wayland 1.18 Alpha, ODF 1.3 Approved

    Links for the day



  6. IRC Proceedings: Tuesday, January 21, 2020

    IRC logs for Tuesday, January 21, 2020



  7. Poor Excuses for Granting Poor (and Often Illegal/Invalid) Patents

    A quick look at some of the latest examples of software patents advocacy (not by actual software professionals, obviously) and why it's deeply misguided (or guided solely by greedy law firms)



  8. A Simple Plan For a Universal Free Software Community

    "For software to be free as in freedom, we need more people to care personally about software freedom."



  9. Links 21/1/2020: Wine 5.0 and Red Hat Enterprise Linux 8.2 Beta

    Links for the day



  10. Startpage/System1 Almost Definitely Pay for People to Lie About Their Surveillance

    A longterm investigation suggests that there are forces in the debate that aren't objective and are being super evasive and dodgy; this typically happens only when somebody has much to hide



  11. The Internet is an Appalling Medium for News and It Has Only Gotten Worse

    Something ought to change in the way people gather and assess news; at the moment — as proper journalism runs out of steam (and budget) — things only deteriorate and quality suffers; this rapidly exacerbates as people come to rely on — and then relay — hearsay, not fact-checked bodies of work



  12. Media Reactions to the EPO Coming to Grips With Fake Patents That It Granted (Spoiler: the Media is Controlled by Lawyers of Monopolists and EPO Partners)

    Appalling quality of reporting and truly awful bias in the media, primarily owing to the fact that it is dominated/manned not by actual reporters but the firms looking to patent life itself; they use their lawyers and operatives who are literally funded by these lawyers (wearing "journalist" badges to mislead)



  13. Links 21/1/2020: EarlyOOM Fedora Decision and AMD Zen 3 Microcode

    Links for the day



  14. IRC Proceedings: Monday, January 20, 2020

    IRC logs for Monday, January 20, 2020



  15. Links 20/1/2020: MNT Reform, Linux 5.5 RC7, KMyMoney 5.0.8

    Links for the day



  16. Mansion of Pedophilia – Addendum: Accessing and Assessing Court Documents

    How anyone out there can do the job the media failed to do (after an apparently unprecedented arrest at the home of Bill Gates)



  17. Mansion of Pedophilia – Addendum: Progress on Police Request

    9 updates from the police department of Seattle but still nothing material/concrete, only promises and major delays



  18. IRC Proceedings: Sunday, January 19, 2020

    IRC logs for Sunday, January 19, 2020



  19. Mansion of Pedophilia – Part VIII: More Than 4 Months of Waiting for Police Department to Send Over the Files They Claim to Have an Issue Opening

    The police department (PD) of Seattle is unable to open its own files about arrest for pedophilia at Bill Gates' home; it has been unable to open these files for several months, it claims...



  20. Starting a GNU Replacement for GitHub, Possibly Based on GitLab

    "It might be easier if we start from the GitLab software," Stallman said



  21. European Commission Pushes for Even Greater Patent Maximalism Instead of Rationality, Patent Zealots' Site Cherry-Picks China as Whipping Boy

    Fear of China is being leveraged to promote an agenda of patent maximalists; the general idea they promote is that granting millions of low-quality patents is the only way to compete, even if in reality that merely handicaps the whole market



  22. CRISPR Patents Disallowed, But Where Are the Journalists?

    The narrative surrounding last week's decision against CRISPR patents may have been virtually monopolised by the litigation think tanks and law firms; it certainly feels like no journalism is left to rebut them, fact-check, and introspect



  23. Links 19/1/2020: Wine 5.0 RC6, Alpine 3.11.3

    Links for the day



  24. Judges Reject EPO Patents on Life as Constitutional Complaints Against the EPO Pile Up in Germany

    EPO judges throw out patents on life (CRISPR at least); there's now growing hope that they'll have the courage to do the same to patents on software



  25. IRC Proceedings: Saturday, January 18, 2020

    IRC logs for Saturday, January 18, 2020



  26. StartPage (System1) Found New Spin Allies. Some Have Been Offered StartPage Jobs. Some Might Already be Working for StartPage in Secret.

    Pro-StartPage voices appear to be paid (or have been promised pay) by StartPage; the key strategy of StartPage seems to be, attack and betray people's privacy while paying people in particular positions to pretend otherwise



  27. IRC Proceedings: Friday, January 17, 2020

    IRC logs for Friday, January 17, 2020



  28. Links 18/1/2020: Mir 1.7 and GNU Guile 3.0.0

    Links for the day



  29. IRC Proceedings: Thursday, January 16, 2020

    IRC logs for Thursday, January 16, 2020



  30. Links 16/1/2020: Mozilla Layoffs, PinePhone Braveheart Shipping, KDE Plasma 5.18 LTS Reaches Beta

    Links for the day


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

Recent Posts