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. The Latest EPO Victim Card (Played by Željko Topić) Should be Treated as Seriously as Those Bogus Claims of Violence by a Judge (Updated)

    In its desperate pursuit of a narrative wherein the staff of the EPO is violent and aggressive the management of the EPO, renowned for institutional aggression, finds (or claims to have found) a little tampering with a bicycle



  2. Links 25/5/2016: Nginx 1.11, F1 2015 Coming to GNU/Linux Tomorrow

    Links for the day



  3. The Media Starts Informing the European Public About the Downsides of UPC While EPO Accelerates Its Lobbying for Ratification

    The EPO's shameless UPC promotion takes another step forward as the European press outlets (even television channels) begin to explore the secret deal that's negotiated by patent lawyers (with corporate clients) and patent offices, not the public or any public interest groups



  4. Some Details About How the EPO's President is Rumoured to be 'Buying' Votes and Why It's Grounds/Basis for “Immediate Dismissal”

    Some background information and a detailed explanation of the systemic financial dependency, created by Battistelli at the cost of €13 million or more, which prevents effective oversight of Battistelli



  5. How the Patent Lawyers' Microcosm Continues to Boost Software Patents Filth by Misdirecting Readers, Relying on Highly Selective Coverage

    Under the guise of reporting/analysis/advice the community of patent lawyers is effectively lobbying to make software patents popular and widely-accepted again, based on one single case which they wish to make 'the' precedent



  6. Documents Show Zagreb Police Department in Investigation of Vice-President of the European Patent Office

    Željko Topić's troubles in Croatia, where he faces many criminal charges, may soon become an extraordinary burden for the EPO, which distances itself from it all mostly by attacking staff that 'dares' to bring up the subject



  7. [ES] Interrumpiendo la Propagánda Distractante de Battistelli: los Empleados de la EPO Protestará de Nuevo en una Quincena

    La exágerada extravagancia (desperdicio de dinero) en la Ceremonia de Premiación al Inventor Europeo de la EPO tendrá que competir por atención de los medios con miles de empleados de la EPO (en todaslas sedes de la EPO) marchándo en las calles para protestar por los abusos de la EPO



  8. Windows and Microsoft's Other 'Burning Platforms'

    It's not just Windows for phones that's reaching minuscule market share levels but also Windows, but Microsoft is skilled at hiding this (cannibalising Windows using something people do not even want, then counting that cannibal, Vista 10)



  9. Links 24/5/2016: CRYENGINE Source Code is Out on GitHub, Jono Bacon Leaves GitHub

    Links for the day



  10. Links 23/5/2016: GNOME 3.22, Calculate Linux 15.17

    Links for the day



  11. 'Celebrity' Patent Trolls and the Elusive Battle Against Patent Trolls (or Eastern District of Texas Courts) Rather Than Software Patents

    Some of last week's more important reports, which serve to demonstrate how the system is attempting to tackle a side-effect of software patents rather than the patents themselves (their irrational scope)



  12. The Circus of Patent 'Reporting' (by Omission) on the Subject of Software Patents in the US and USPTO Bias

    look at some of the latest oddities in the US patent system and much of the reporting about software patenting (more or less monopolised by those who profit from it, not harmed by it)



  13. IP3 Demonstrates That Today's Patent Systems Devolve Into a Conglomerates' Game, Won't Protect the Mythical Small Inventor

    Multinational corporations bring together their shared interests and steer the increasingly-inseparable patent systems according to their needs and goals, but has anyone even noticed?



  14. Disrupting Battistelli's Distracting Propaganda: EPO Staff to Protest Again in About a Fortnight

    The overly extravagant (waste of money) EPO European Inventor Award will have to compete for media attention with thousands of EPO staff (in all EPO sites) marching in the streets to protest against the EPO's abuses



  15. Corrupting Democracy? Growing Frequency of Rumours That the EPO's President Battistelli is 'Buying' Votes of Small Member States

    Several sources suggest that rather than appease the Administrative Council by taking corrective action Battistelli and his notorious 'circle' now work hard to remove opposition from the Administrative Council, especially where this is easier a task to accomplish (politically or economically)



  16. [ES] Los Mitos de la EPO ‘Calidad’ de Patentes y de ‘Creación’ de Patentes: Basados en Ventas de Cafe y Trauma

    La carrera hacia el fondo, o la ridícula asumpción de Battistelli de que otorgar más y más patentenes más rápidamente (e.g. usando PACE) sería beneficióso a largo término, puede guíar al final colapse del valor de la EPO y la pérdida de su lárgamente ganada reputación a nivel mundial



  17. Links 22/5/2016: Systemd 230, Debian Installer Alpha 6

    Links for the day



  18. EPO Patent 'Quality' and 'Patent Creation' Myth: Capsule-Based Coffee Sales and Trauma

    The race to the bottom, or Battistelli's ludicrous assumption that granting more and more patents faster (e.g. using PACE) would be beneficial in the long run, may lead to the ultimate collapse of the EPO's value and demise of its long-earned reputation worldwide



  19. Guest Post: How Vista 10 Imposes Itself on Users of Windows

    A reader's experience being nagged by Microsoft, as documented and explained by this reader



  20. [ES] El Notorio Tirano de la EPO, Benoît Battistelli, Se Reune Con Otros Tiranos, Reportes de Que ‘Limpia’ el Consejo Administrativo

    El régimen de Battistelli, talvez la fuente de verguénza más grande, alegadamente está “cortejándo países pequeños/corruptos para asegurárse de que los delegados que votarón contra él serán remplazados”



  21. [ES] Comentadores Anónimos Debaten Si la EPO de Battistelli Puede Revocar las Pensiones de Empleados Que Se Atreveen — GASP — a Buscar Empleo Alternativo

    Una mirada a las causas de desesperación e imensa presión en la EPO, donde las pensiónes pueden ser cortadas como medio de represália y la gente puede ser negada empleo aún después de dejar la Oficina Europea de Patentes (EPO)



  22. [ES] Otra Casi Vacía Presentación de la EPO en La Hague

    El propagandístico “estudio social” de Battistelli (básicamente un montón de engañosas afirmacionesdisfrazadas como ‘investigación’) ayuda a demostrar que los empleados de la EPO no tiene absolutamente fe en la gerencia



  23. Links 21/5/2016: Manjaro Linux RC, Flock 2016 Schedule

    Links for the day



  24. USPTO Ignores a Lot of Cases Against Software Patents to Justify Resumption of More Software Patenting

    The US patent system (USPTO) is so obsessed with granting as many patents as possible -- even bogus patents in areas that are no longer patent-eligible -- that its guidelines are further perturbed and whose appeals board is massively overwhelmed/overworked/understaffed



  25. Notorious EPO Tyrant, Benoît Battistelli, Meets Other Tyrants, Reportedly 'Cleanses' the Administrative Council

    The Battistelli regime, perhaps the biggest embarrassment of Europe right now, is allegedly "courting smaller countries to make sure the delegates who voted against him will be replaced"



  26. Links 20/5/2016: Purism Tablet, ChromeOS PCs Outsell 'Mac'-Branded PCs

    Links for the day



  27. CAFC Rules Against Software Patents But Witness With Horror the Silence From Patent Lawyers (Bias by Omission)

    In an effort to protect software patents in the United States, where these patents came from in the first place (and continue to spread from), patent lawyers pretend not to see cases where software patents get invalidated and instead focus on the rare exception



  28. It's All Just Artificial Distractions From EPO Management, 'Yellow' Union Comes Under Scrutiny Again

    What's happening inside the EPO these days and what meaningless rubbish the management of the EPO would rather have the media obsessed with



  29. Anonymous Commenters Debate Whether Battistelli's EPO Can Revoke Pensions of Dismissed Employees Who Dare -- GASP -- Find Alternative Employment

    A look at causes for desperation and immense pressure at the EPO, where pensions can be cut as means of reprisal and people can be denied employment even after they leave the European Patent Office (EPO)



  30. Australian Productivity Commission's Research Calls for Ban on Software Patents, Davies Collison Cave Calls for Complaints Against This Finding

    As the push against software patents grows in Australia, much to the chagrin of Australian software developers, Davies Collison Cave (patent law firm) publicly calls for opposition, calling its side "the truth" and pretending it represents "Australian innovators."


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