10.04.09

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Amicus Avalanche Opposing Software Patents in the United States (Novell Still Missing)

Posted in Courtroom, FSF, IBM, Law, Novell, Patents, Red Hat at 6:09 am by Dr. Roy Schestowitz

Avalanche at love land

Summary: Red Hat, the FSF, and the SFLC submit amicus briefs for the Bilski case

NOW there is a real chance of ending software patents. Here is a summary of older Bilski briefs and here is a newer list which can also be found at the ABA Web site.

Bilski v. Kappos, Under Sec’y of Commerce for Intellectual Prop. and Dir., Patent and Trademark Office, Docket No. 08-964

So who are the latest filers to oppose software patents? Not Novell of course; Novell is busy applying for more software patents [1, 2]. Red Hat, on the other hand, wants to put an end to this practice, so let’s start with the amicus brief from them.

Red Hat

The most major submission in terms of impact was the one from Red Hat. The company advanced it with a press release, which was followed by coverage from Brian Proffitt (Linux Foundation) and a variety of other Web sites.

David Neal writes in The Inquirer:

Red Hat argues that “patent trolls” have exploited the current legal system, and are developing lawsuits that make the most of the confusion surrounding the hundreds of thousands of patents that “cover abstract technology in vague and difficult-to-interpret terms”.

Here is the perspective of Red Hat’s CEO:

What if you could develop software without risking a patent infringement lawsuit?

What if open source innovation was unencumbered by lurking patent trolls?

What if there were no software patents?

The United States Supreme Court will be reviewing the Bilski case in the coming weeks. The Court’s decision in this case could help move some of these “what ifs” closer to reality.

IDG writes:

Red Hat is adding its say to the Bilski patent case, filing a brief with the U.S. Supreme Court emphasizing practical problems with software patents.

Red Hat argues that the patent system is supposed to foster innovation, but in software it does the opposite, slowing and discouraging innovation. Software products may involve thousands of patentable components, leaving developers to risk defending costly patent infringement claims.

Groklaw has the brief as plain text.

They stand alone alone so far among vendors, willing to stand up and express what the FOSS community would really say if it could speak with one voice to the Supreme Court. This is certainly what *I* would say if I had that chance. And so I am satisfied. I was going down the depressing list of briefs filed for Petitioner on the ABA’s list of filed amicus briefs, and it was so frustrating to see no one saying anything like what I believe to be technically true about software patents or addressing the specific needs of Free and Open Source software. At last someone has told them what we wanted to say. I just hope the Supreme Court has some techies in the clerk pool!

SJVN is very supportive of Red Hat’s action.

What do Microsoft, Red Hat, and Canonical all have in common? They all dislike software patents. Don’t get me wrong. Many companies that are anti-patent also hold and use patents against their enemies. Microsoft is one of those. But, if you get an in-house corporate IP (intellectual property) lawyer from any company in a bar, he or she will tell you that software patents are awful. So, I’m pleased to report that Red Hat, has filed an amicus curiae brief with SCOTUS (Supreme Court of the United States) asking the Court to adopt the Bilski case ruling and explictly extend it so that software can’t be patented.

Jason from the Mono-Nono Web site brings attention to the following:

Oh and one section in all caps “AN ABSTRACT IDEA DOES NOT BECOME PATENTABLE MERELY BY IMPLEMENTING IT IN COMPUTER SOFTWARE”.

A further note of interest is the references Red Hat draws upon, including thinkers such as Donald Knuth and Richard M. Stallman.

For a laugh, one might like to contrast the vital effort Red Hat is making here attempting to correct what is almost universally recognized as a broken patent system hindering software innovation and personal freedom with Novell’s press release today, “Got Mono?” where Novell takes another opportunity to hawk Mono and .NET.

The next post will deal with this latest Mono promotion from Novell.

FSF

The Free Software Foundation filed a brief, which is available as text too.

The Free Software Foundation (FSF) today submitted an amicus curiae brief calling on the Supreme Court to affirm that software ideas are not patentable. After outlining the positive impact that the free software movement and the GNU General Public License (GNU GPL) have had on computer use, the brief explains how software patents are an obstacle and a danger to software developers.

SFLC

Even the Software Freedom Law Center submitted a brief, which is further analysed and discussed at Groklaw.

The Software Freedom Law Center has now filed its brief in Bilski. You can read it online here, as well as download it as a PDF or as Postscript. It raises three major points: 1) software is just algorithms for computers in human readable terms, and algorithms are not patentable; 2) excluding software from patentable subject matter encourages innovation in software; and 3) the First Amendment prohibits permitting the patenting of abstract ideas. I think you’ll find that last point the most interesting.

It is worth remembering that IBM is not on the good side.

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4 Comments

  1. Jose_X said,

    October 4, 2009 at 8:13 am

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    I especially liked the FSF’s submission. It’s also fairly easy to read.

  2. Jose_X said,

    October 4, 2009 at 8:43 am

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    Excellent submission by the FSF against software patents.

    >> The main conclusion of the analysis was that FOSS software plays a more critical role in the DoD than has generally been recognized. FOSS applications are most important in four broad areas: Infrastructure Support, Software Development, Security, and Research. One unexpected result was the degree to which Security depends on FOSS… Taken together, these factors imply that banning FOSS would have immediate, broad, and strongly negative impacts on the ability of many sensitive and security-focused DoD groups to defend against cyberattacks.9

    >> Free software also is crucial to the business of many modern technology companies, including IBM and Novell. These companies may claim patents are necessary for their software businesses, but in many ways they actually rely on and profit from software produced by those with no interest in patents.

    >> The Foundation asserts that software patents hinder the progress of software development and distribution, are unjust and cause deleterious socioeconomic effects upon the advancement of technology in the United States for society’s benefit. The Foundation further takes the position that computer software patents do not “promote the Progress of Science and useful Arts,” and therefore are not constitutionally justified.

    >> In certain domains, such as the manufacturing of vehicles and pharmaceuticals, product developers are almost always large companies. Because they have the resources for manufacturing, and thereafter attaining the necessary government approval for their product, it is reasonable to assume these companies also have the resources to perform patent searches, get legal opinions and, if necessary, mount a defense when accused of patent infringement. Manufacturing vehicles and pharmaceuticals is inherently expensive, with or without the patent system, so manufacturers can be assumed to be prepared to expend money. The expense of the patent system does not change who can participate, but rather, simply increases the cost. … None of these factors apply for software. Software is developed not just by large companies, but also by small companies, project communities, students, and individuals. Participation in software development has no fundamental need to consume any resource (other than, perhaps, one’s time spent at a computer). Thus, it cannot be assumed that developers active in the field of software have the resources to perform patent searches, nor that they expect to incur expenses for their activity. This leaves many developers in a situation where they cannot afford the legal resources necessary to minimize their risk of infringement, and if accused of violating a patent, they cannot afford to defend themselves. The system is disproportionately expensive, by orders of magnitude.

    >> Because individuals can write software, they can help themselves and solve their own problems. Given that software development includes common activities such as making a webpage, the freedom to use a computer as one sees fit for his or her daily life is a fundamental form of expression, just as using a pen and paper is.

    >> This gives too much power to the holder of a patent on a widely used format. In terms of the proper functioning of the software industry, this power is harmful to competition. In terms of individuals, it translates to banning them from writing useful software for themselves and for others. In some fields of development, the barriers made by patents may spur useful innovation when developers search for a different way to accomplish a patented task. With data formats, this type of innovation is impossible to encourage because by reading or writing the data differently, the software would be failing its compatibility objective.

    >> Due to patents, the popular “MPEG H.264” video format cannot be recommended because it cannot be implemented without permission. The other option was the patent-free Ogg Theora format, but when improving the quality of this format was discussed, Chris DiBona of Google said, “Here’s the challenge: Can [T]heora move forward without infringing on the other video compression patents?”29

    >> If one develops an innovative word processor which doesn’t resemble any existing word processor, it will be difficult for people to use. Software users have certain expectations. Using new design paradigms can be useful, but it adds initial inconvenience for the users, so this change should only be made if the benefits clearly outweigh the annoyance to users. Having a strange interface because of patent problems is not beneficial for computer users.

    >> Taking the one calculation one step further, given the fact that complete GNU/Linux operating systems, often distributed with sets of applications, can contain software with more than 225 million lines of source code, we arrive at the possibility of 13,160 or 15,848 patent infringements per complete distribution.32 The resulting legal entanglements would be simply absurd. This massive uncertainty is what this Court can end by clearly excluding software ideas on computers from patentability.

    >> In other industries, practitioners may know which companies in their field are applying for patents which might be pertinent. In software, the number of practitioners is too great for it to be possible to know which companies or groups one should monitor for applications or pertinent patents. As researcher Ben Klemens, who estimates the cost of software patents to the United States economy to be $11.26 billion per year, points out, “Any company with a web site could be liable for software patent infringement.”

    >> It may be surprising to many people that Microsoft Corporation is an example of a company built without patents… In other words, at the time Microsoft completed its Windows 95 operating system, Microsoft still had only 77 patents. The development of its flagship product was fostered by copyright, not patents. Though copyrights possess their own problems, those problems are more solvable under the current law, and copyrights do not block independent development as patents do.

    >> On February 10, 2009, Microsoft announced that it had been granted its 10,000th patent. Since 1995, the company’s premier position in the operating systems and word processor markets have not changed. More recently, since at least 2006, Microsoft has been approaching distributors of other operating systems and demanding payments of patent royalties. One could deduce that patents didn’t help them compete with others, but did help them entrench the position gained. Also, Microsoft’s current long-standing dominance and its recent use of its patents are strikingly similar to the problems that Bill Gates predicted in 1991 about industry standstill and patents being used to take profits of other software companies.

    >> The GNU/Linux operating system is another example of a top class operating system built on copyrights, not patents. GNU/Linux uses copyright much differently than Microsoft. Before 1995, GNU/Linux was developed by individuals, communities, universities, and those who developed software as a side activity to use for other work. The license used by the majority of free software, the GNU General Public License, does not allow distributors to use patents to require royalties

    >> Bessen & Hunt – MIT: “’Thus the extension of patent protection to software did not generate a relative increase in R&D spending as predicted by the static model; instead, consistent with the dynamic model, R&D spending seems to have remained roughly steady or to have declined.”

    >> Bessen & Maskins: “The very large increase in software patent propensity over time is not adequately explained by changes in R&D investments, employment of computer programmers, or productivity growth. […] We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity.”

    >> U.S. Federal Trade Commission: “The software and Internet industries generally are characterized by five factors: (1) innovation occurs on a cumulative basis; (2) capital costs are low, particularly relative to the pharmaceutical, biotechnology and hardware industries; (3) the rate of technological change is rapid, and product life cycles are short; (4) alternative means of fostering innovation exist, including copyright protection and open source software; and (5) the industries have experienced a regime change in terms of the availability of patent protection. Panelists consistently stated that competition drives innovation in these industries. Innovation is also fostered by some industry participants’ use of copyright protection or open source software. Several panelists discounted the value of patent disclosures, because the disclosure of a software product’s underlying source code is not required. Many panelists and participants expressed the view that software and Internet patents are impeding innovation. They stated that such patents are impairing follow-on incentives, increasing entry barriers, creating uncertainty that harms incentives to invest in innovation, and producing patent thickets. Panelists discussed how defensive patenting increases the complexity of patent thickets and forces companies to divert resources from R&D into obtaining patents. Commentators noted that patent thickets make it more difficult to commercialize new products and raise uncertainty and investment risks. Some panelists also noted that hold-up has become a problem that can result in higher prices being passed along to consumers.”

    >> Lord Justice Jacob, Supreme Court of Judicature: “… If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing the categories narrowly (and indeed for removing them) is made out. But not otherwise.”

    >> Report for the United Kingdom’s Chancellor of the Exchequer: “The software industry in the USA grew exponentially without pure software patents, suggesting they are not necessary to promote innovation. The evidence suggests software patents are used strategically; that is, to prevent competitors from developing in a similar field, rather than to incentivise innovation.”

    >> The decision below should be affirmed, and further clarified or expanded to ensure that no patents are granted for software running on a computer. Beyond that, this Court should recognize how its decisions in Diehr, Parker and Gottschalk have been misapplied in a manner that is no longer acceptable, and acknowledge that patenting software is inconsistent with the Constitution’s mandate.

    Jose_X Reply:

    I thought all of those points above were excellent (and well phrased and tied together).

    However, this one stands out a bit because of the Microsoft connection:

    >> It may be surprising to many people that Microsoft Corporation is an example of a company built without patents… In other words, at the time Microsoft completed its Windows 95 operating system, Microsoft still had only 77 patents. The development of its flagship product was fostered by copyright, not patents. Though copyrights possess their own problems, those problems are more solvable under the current law, and copyrights do not block independent development as patents do.

    >> On February 10, 2009, Microsoft announced that it had been granted its 10,000th patent. Since 1995, the company’s premier position in the operating systems and word processor markets have not changed. More recently, since at least 2006, Microsoft has been approaching distributors of other operating systems and demanding payments of patent royalties. One could deduce that patents didn’t help them compete with others, but did help them entrench the position gained. ***Also, Microsoft’s current long-standing dominance and its recent use of its patents are strikingly similar to the problems that Bill Gates predicted in 1991 about industry standstill and patents being used to take profits of other software companies.***

    The Bill Gates’ prediction was stated earlier in the brief: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today… The solution to this is patent exchanges with large companies and patenting as much as we can.”

    Pretty slick, huh?

    Roy Schestowitz Reply:

    Free software also is crucial to the business of many modern technology companies, including IBM and Novell. These companies may claim patents are necessary for their software businesses, but in many ways they actually rely on and profit from software produced by those with no interest in patents.

    Novell can still prove the FSF wrong by submitting a brief.

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