12.25.09

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Nokia Criticised for Patent Attack, Interim In Re Bilski Rule Does Not Go Far Enough

Posted in Apple, IBM, Law, Patents at 9:00 pm by Dr. Roy Schestowitz

Nokia mobile phone

Summary: Nokia’s patent lawsuits against many competitors lead to high-profile backlash; criticism for the guidance regarding software patents amid In Re Bilski still being rather permissive

Nokia revealed its inner monster when it decided to use its patent portfolio offensively. Apple countersued Nokia and the last thing to be produced from such legal battles is “innovation”. The New York Times, one of the leading newspapers in the United States, has published an article that’s critical of Nokia. [via]

When Nokia, the world’s largest mobile phone maker, sued Apple, Samsung, LG and eight other competitors within six weeks beginning in October, the Finnish technology giant said it was conducting a routine defense of its intellectual property.

But for cellphone makers and suppliers accustomed to swapping valuable technologies, the suits filed by Nokia were far from standard.

Like many cellphone makers, Nokia is fighting the economic downturn. The company has laid off thousands of employees this year to counter falling sales and profit and its slipping share of the global market, which fell to 35 percent in the third quarter from 41 percent in the second.

This is what typically happens when companies with patents decline rapidly. They have an obligation — however selfish and unproductive — to their shareholders, so “defensive” patents suddenly terrorise the industry.

A couple of days ago we wrote about the latest of the Bilski case (our new Wiki page about Bilski provides some more background information) and additional information continues to trickle in. [via]

Although the decision came out in August, it wasn’t until this month that it became precedential, and so applicable going forward to other patent cases. As the decision notes, what this does is provide permission for patent examiners to use this test a new ground for rejecting a patent application. And you can bet that patent attorneys in the software field will be pouring over this.

Heise/The H has a report on that too:

US Patent Office sets up new hurdle for software patents

The US Patent Office has put a further stop to the granting of patents for mathematical formulae and software “per se”. In future, the authority’s examiners in Washington, DC will have to clarify whether a patent application is limited to a “mathematical algorithm applied to a tangible practical application that resulted in a real-world use”. Furthermore, patents cannot be claimed for “every conceivable application” of an algorithm in a specific field of technology or a technology in general.

It seems like a step in the right direction, but this measure is temporary and it does not go far enough. Loopholes remain as well.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

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