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11.23.09

Patents Roundup: Bilski, USPTO and Justice for the Rich Only; ‘Community’ Patent and ‘Harmonisation’ in Europe

Posted in Europe, Free/Libre Software, Law, Microsoft, Patents at 1:41 pm by Dr. Roy Schestowitz

Wall in paris

Summary: A large number of reports on the subject which affects Free software at a legal level

THIS is just a quick rundown through some of the patent news impacting Free software.

Red Bend sued Free software some weeks ago and there is a long article about it in LWN.net. It is available to non-subscribers now.

Even for patentese, this language tends toward the impenetrable. But once one realizes that “reference entries that contain reference that refer to other entries” means “addresses,” it starts to become a little clearer. To your editor’s overtly non-lawyerly, not-legal-advice reading, this claim does appear to describe what Courgette is doing.

The article “The Supreme Court v. Patent Absurdity” has been published by the Wall Street Journal, which includes this factoid:

One direct consequence is that “patent trolls” buy up patents so they can sue innovators. Big technology companies pool their patents to reduce lawsuits. For information technology, the costs of litigating patents may be greater than the economic benefits of patents. Real money is involved: The largest patent-case judgment is for $1.67 billion, being appealed by Abbott Labs in a case brought in the plaintiff-happy federal court in eastern Texas.

Here is perspective on the pharmaceutical industry.

The book ends with the perennial question of “would we have got where we are today without patents?” Dutfield points out that it almost goes without saying both that the pharmaceutical industry is crucially important for human welfare since it produces cures (among other things), and that it is considered to be the most dependent of all industries on patents.

This should remind us of two things that a new institutionalist approach leads us to expect. First, changes in property rights structures can never make winners out of everybody. Second, the differences between the gains for some and the losses for others are bound to be great when the biggest right holders have, as they often do, such a firm grip on the regulatory system to the partial or total exclusion of other holders, users and those representing consumer interests.

The Justice Department (and by inference/extension the USPTO) will not make many fans if it permits access only by the affluent. Groklaw complains that this new PACER survey removes/neglects privacy and the following update shows that anonymous access is not really allowed as long as RECAP is treated as too “naughty”.

NOTICE (8/22/09):The court would like to make CM/ECF filers aware of certian security conce rns relating to a software application called RECAP, which was designed by a group from Princeton University to enable th e sharing of court documents on the Internet. Once a user loads RECAP, documents that he/she subsequently accesses via PA CER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether document s are available from the Internet repository. RECAP captures District and Bankruptcy Court doucments, but has not yet inc orporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted o r sealed documents. Please be aware that RECAP is “open-source” software, which can be freely obtained by anyone with Int ernet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sea led documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure t hat documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts wil l continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

Groklaw remarks that the “US District Court for the District of NJ Notices RECAP” and adds: “I think whoever wrote this notice may not be aware that the federal judiciary switched to Linux for its infrastructure back in 2003, so evidently there is no cause for alarm about the flexibility of open source software. I don’t know how RECAP works, but just speaking in general. Because their system works on Linux, they have many, many options to address security successfully, even if there were valid concerns, and likely that’s one reason the courts chose Linux.

Here is an attempt to make money out of the Bilski proceedings.

A webcast of the panel discussion will be available for a registration fee of $15 (government/academic/retired FCBA member), $35 (government/academic/retired nonmember), $65 (private practitioner FCBA member), or $105 (private practitioner nonmember). Instructions for accessing the webcast can be found here. Those interested in obtaining group pricing and university law schools interested in free internet participation should contact Elisabeth Reed at reed@fedcirbar.org.

Bilski was also covered here at Patently-O, which looks at “The Value of Patents in a Major Crisis Such as an Influenza Pandemic.” People like Donald Trump are said to be making a fortune out of Swine Flu.

E.D. Texas Magistrate Judge Love has recommended that H&R Block’s advance-tax-refund patents be held invalid for failing to claim patentable subject matter under Bilski. The claims in question are all directed toward either a “computerized system” or “computer-implemented method.” Quoting Nuijten, the court first held that Bilski controls both system and method claims – since a “court should not be ‘overly concerned with pigeonholing subject matter once the court assures itself that some category has been satisfied.’”

The claimed invention involves issuing a cash-advance to income tax filers and then retaining a right to receive payment from the government.

Stupidity at the USPTO is being put to the test:

Journalists who cover Washington know the drill: top bureaucrats can be very hard to get through to, especially when you need to reach them the most.

So when ABA Journal senior writer Terry Carter got nowhere in his recent effort to reach Patent and Trademark Office director David Kappos through spokesman Peter Pappas for a story he was writing, he decided on a characteristically novel approach: on Tuesday he drafted and posted a humorous patent application for a “method to get an interview with USPTO Director David Kappos.” Edward Adams, editor and publisher of the ABA Journal, wrote in this story at the Journal Web site, “We figured the problem was that Carter was not speaking the agency’s language.”

Glyn Moody passes the message that “[Microsoft] filed a patent for sparklines in Excel, ignoring Tufte and demonstrating that the patent system is a deranged circus” and Amazon scores gift-delivery patent, according to Slashdot.

In May, the USPTO rejected Amazon.com’s patent claims (PDF) for its Method and System for Placing a Purchase Order Via a Communications Network (a 1-Click spin-off). At the time, a USPTO Examiner cited Bilski, explaining that elements of CEO Jeff Bezos’ gift-delivery invention ‘may be performed largely within the human mind,’ coming to essentially the same conclusion a NY Post reporter arrived at in 2002. But Amazon’s attorneys have worked their legal wordsmithing magic (PDF), convincing the USPTO that ‘obtaining delivery information for a gift from one or more information sources other than the gift giver and recipient’ is indeed novel and patentable. A Notice of Allowance for the patent was mailed to Amazon on November 17th, just in time for Holiday Season injunction-giving!”

The EFF has found another ugly patent to swat and it is looking for brains.

Patenting podcasting? You’ve got to be kidding. Yet a company called Volomedia just got the Patent Office to grant them such exclusive rights.

EFF and the law firm of Howrey, LLP aren’t willing to just sit by and watch. This patent could threaten the vibrant community of podcasters and millions of podcast listeners. We want to put a stop to it, but we need your help.

Thought-provoking new article at Against Monopoly: “Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense”

Defenders of patents commonly say they are against innovators’ ideas being “stolen” or “plagiarized.” This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.

Under copyright law, someone who independently creates an original work similar to another author’s original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author’s work. Thus, for example, a copyright defendant can try to show he never had access to the other’s work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one’s original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make “derivative works”.) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1′s copyright, since author 2 did not copy anything.

Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference–one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law–that it simply prevents people from copying others’ ideas.

Glyn Moody adds:

“How to Fix Capitalism” is an insanely ambitious post that ranges over, well, just about everything concerned with business and all it touches. The following proposals give some hint of its deep wisdom:

# Abolish patents. They have not been proven to speed progress: the evidence seems to be to the contrary. They definitely increase costs, are an inefficient way of funding R & D and allow oligopolists to block competition.

Over in Europe, the following articles are worth a glance:

i. Internet-hosted prior art and proof of publication: UK not bound by EPO level of proof

In a recent hearing concerning a UK patent application, Ranger Services Ltd’s application, BL O/362/09, 17 November 2009, Hearing Officer Lawrence Cullen was faced with a question relating to the status of cited prior art which had been obtained from an internet archive. Rejecting the application before him, which was for a system of using an automatic number plate recognition system to detect cloned vehicle number plates, he considered that the current European Patent Office guidelines [see earlier IPKat post here] would suggest that the cited prior art should be taken into account.

ii. QinetiQ mail virus patent attracts barbs

An anti-virus expert has poured cold water on a patent from British technology firm QinetiQ that supposedly offers a new technique for tackling malicious email attachments.

No company should not be able to patent software in the UK, but Nokia is a problem in that regard (because of Symbian [1, 2]).

The ugly “Community patent” is still trying to rear its ugly head and potentially bring software patents to the whole of Europe. Here is the latest update: “EU Community Patent And UPLS: Will There Be A Political Breakthrough Soon?”

The Intellectual Property Expert Group (ipeg) are feeding hopes in their Blog that the Swedish EU Presidency might be lucky enough to successfully forge some sort of political compromise on the EU Community Patent as well as on the Unified Patent Litigation System (UPLS) later this year.

The “Community patent” is an attempt previously characterised as “harmonisation” by Charlie McCreevy and other cronies, including Microsoft lobbyists.

In relation to copyright, Glyn Moody has just explained what “harmonisation” really is about:

I and many others have noted how changes in copyright law only ever work in one direction: to *increase* copyright’s term and to give greater powers to copyright holders. In effect, it’s a ratchet. But until now, I’ve not seen a good explanation of what’s driving all this (although I had a pretty good idea). The motor behind the ratchet (assuming such mixed metaphors are permitted) is harmonisation:

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

As Roger Lancefield points out in the comments,”effectively this is legal imperialism.

“It’s hard not to draw parallels with another manifestation of US legal imperialism, the extradition treaty which has destroyed Gary McKinnon’s life.” Remember what Microsoft did to McKinnon.

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