Patents Roundup: EFF Defends VoIP; Google, Apple, and Black Duck Stifle Progress; Microsoft Joins RPX
“Fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.”
Summary: A quick look at some patent news from the past week, ranging from defence to offence
Electronic Frontier Foundation (EFF)
The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate patent on voice-over-Internet protocol (VoIP) that could cripple the adoption of new VoIP technologies.
IDG wrote about this too:
The patent, held by a small company called C2 Communications Technologies, is one of 10 that the Electronic Frontier Foundation (EFF) has been trying to strike down for several years through its Patent Busting Project. On Friday, the patent office granted the EFF’s request for a re-examination, the EFF said. The digital civil-liberties organization argued that another applicant had submitted basically some of the same technology to the patent office before C2 did.
The EFF means well, but a better solution would be abolition of software patents as a whole. The problem is that companies like IBM, Google, Novell, and fronts like OIN are proponents of software patents, which makes them far from defenders of Free software.
Do Know Evil?
Google has filed at least four patent applications for technology it’s building into its Chrome browser to try to make the Web a more powerful foundation for applications.
A few weeks ago we explained why Apple too is part of the software patents problem. Here is Apple applying for some more patents and blocking developers’ use of their associated ideas/functions.
Apple this week notified iPhone developers that they cannot use the device’s GPS data to serve location-aware advertisements to users of App Store software.
One patent application described a dynamic home screen that would display specific applications automatically populated based on factors like the current location of the phone. For example, when traveling in San Francisco, a specific “San Francisco” icon could appear on the screen, and give users easy access to local weather, time, maps and contacts.
Apple doesn’t appear to be opposed to location-based targeted advertising in principle. It has filed patents for location-based targeted advertising, especially in relation to offering currently playing songs or videos at a particular location for purchase via iTunes.
Is Apple’s banning iPhone applications that would use location data for displaying advertising not as onerous as anything Microsoft tried–and mostly didn’t get away with?
What about banning the word “Android” from the App Store? Like Apple thinks it can control the flow of information its customers receive? Give me a break.
Back in the dark ages, around 1991, Apple had some pretty cool Macs while PC users were still mired in DOS. Apple was making good money. Meanwhile, on the PC side, just marrying a mouse with DOS was the big thing. However, over time, Microsoft was able to copy what Apple was doing with the WIMP interface (Windows, Icons, Menus, Pointing device).
That was due in part to poor IP protections and a strategic error made by John Sculley who opened the door, contractually, to a GUI for Microsoft back in the 1980s. That resulted in a lawsuit by Apple against Microsoft in 1988, one that Apple eventually lost. (The fascinating saga has been documented at Low End Mac.) Once that GUI door was opened, Microsoft was eventually able to mimic the Mac OS look and feel. Today, many non-technical users are not able to differentiate between Windows 7 and Snow Leopard, and that has to irk Apple.
Black Parasite Software
Bradley Kuhn, the technology director of the Software Freedom Law Center (SFLC) expressed dismay this week after learning that Black Duck Software was granted a patent that covers software methods for detecting and resolving open source software licensing conflicts. Kuhn, who plays a major role in the SFLC’s GPL enforcement efforts, contends that Black Duck’s patent is far from novel and describes techniques that he has been using for licensing compliance analysis for over a decade.
Black Duck was founded in 2002 with the aim of providing automated solutions for tracking the provenance of source code in applications. The company’s first product, called Protex, reached the market at a time when the software industry was being confronted by emerging legislation and high-profile litigation that raised concerns about software licensing practices. At the time, the ill-fated SCO trial was just starting to heat up and there were still unanswered questions about whether the newly-passed Sarbanes-Oxley Act would require more rigorous internal audits of software licensing. Black Duck turned the industry’s fear over these issues into a marketing tool and became one of the leading vendors in the compliance management market.
Black Duck ought to withdraw the patent or be perceived as even more of a parasite to the Free software community. With a Microsoft-tied genesis, Black Duck was always difficult to trust. This brings us to Microsoft.
Microsoft has signed a new patent deal, this time with Webmap Technologies.
Webmap Technologies, LLC has entered into a license agreement with Microsoft Corporation, a developer and licensor of software solutions. Webmap Technologies is a subsidiary of Acacia Research Corporation, through its operating subsidiaries, acquires, develops, licenses and enforces patented technologies. All the companies are based in the US.
Software major Microsoft and Japanese home technology firm Funai have struck an IP cross-licensing deal, granting each other access to agreed areas of their patent portfolios. Set to bolster the companies’ mutual research and development (R&D) efforts in integrated media, the deal reflects the growing popularity of cross-licensing and patent pools in the technology field as key players aim to avoid IP disputes.
The most significant news though is probably to do with RPX [1, 2, 3], a patent pool/racket which Microsoft is entering. It was only a couple of weeks ago that Microsoft signed a deal with Acacia and now it joins RPX with the excuse that it needs protection from “patent trolls.”
Microsoft Corp., a technology giant that wins thousands of patents every year, has joined RPX Corp., a start-up network aimed at aggregating intellectual property to shield its members from what are known as “patent trolls.”
Here is a funny headline (“Tech Giants’ New Plan To Fight Patent Trolls”). It is funny given that Microsoft itself created the world’s largest patent troll, Intellectual Ventures. For Microsoft to complain about “patent trolls” would be nonsensical and hyporitical.
Microsoft has signed up for “patent insurance” with a startup called RPX, which buys up patents that could be used against its clients. Microsoft says this approach can save the industry billions of dollars by thwarting the industry’s controversial “patent trolls” and their litigation. But how much can a firm like RPX do to prevent litigation?
Frustrated by litigation costs, Microsoft, Sony, and Nokia are paying third-party patent acquirers such as RPX to fend off patent lawsuits
Dallas News has this story to tell:
That’s what Melsheimer of Fish & Richardson PC’s Dallas office found in getting a $511.6 million verdict against Microsoft reversed by the U.S. Court of Appeals for the Federal Circuit. Plaintiff Alcatel-Lucent initially sought $50 billion in damages.
The ruling ended a seven-year odyssey featuring seven different cases and three jury trials. One case hinged on the value of a particular feature of Microsoft’s Outlook electronic mail program. Melsheimer and his team convinced the appeals court that the feature wasn’t part of Outlook’s appeal to customers, hence no damages.
We wrote about Fish & Richardson a couple of months ago.
Patents as Barriers
Against Monopoly has something to say about “Common Sense” and the Economist has published an article against patents (essentially monopolies).
DO PATENTS help or hinder innovation? Instinctively, they would seem a blessing, especially for backroom tinkerers. Patenting an idea gives its inventor a 20-year monopoly to exploit the fruit of his labour in the marketplace, in exchange for publishing a full account of how the new product, process or material works for all and sundry to see. For the inventor, that may be a reasonable trade-off. For society, however, the loss of competition through the granting sole rights to an individual or organisation is justified only if it stimulates the economy and delivers goods that change people’s lives for the better.
If truth be told, few inventions are really worth patenting. Time and again, surveys show that in both America and Europe companies rate superior sales and service, lead time and secrecy as far more important than patents when it comes to profiting from innovation. And, although applying for patents is relatively cheap, the cost of maintaining them can be horrendous. If the idea behind a patent has any commercial merit, it will attract imitators—and the inventor must be prepared to defend it in the courts. In a majority of cases, the cost of litigation will far exceed any revenue the inventor may subsequently earn from royalties or licensing.
By and large, the inventions and discoveries worth patenting are those in the pharmaceutical and biotech fields, where the pay-off for blockbuster drugs can amount to billions of dollars a year. Also, because the vast majority of inventions in such areas depend on unique molecular architectures, patents for new products are easier to defend in the courts. A me-too drug that is believed to violate a firm’s patent is either based on the same molecule or not.
An end to frivolous patents for business processes will be a blessing to online commerce. Meanwhile, the loss of patent protection for software could make programmers realise at last that they have more in common with authors, artists, publishers and musicians than they ever had with molecular architects and chip designers. In short, they produce expressions of ideas that are eminently copyrightable.
That could be good news for innovation. After all, who in his right mind would seek a lousy old patent offering a mere 20 years of protection when copyright can provide monopoly rights for up to 70 years after the author’s death? That one fact alone could spur more innovation than all the tinkering attempted so far.
“Adobe pays patent royalties for the h264 codec so that video plays reliably worldwide, across browsers and OS’s,” says the president of the FFII, pointing to this from Adobe:
But in follow the comments from our CTO’s posting “Open access to Content and Apps”, I noticed that there are comments about Flash not being an “open” technology and questions about why we don’t open source the Player, so I thought I’d jump in and provide some details to help clear up some misconceptions and explain how open we are with the Flash Platform.
Another new article shows that one researcher has decided that sharing is better than not sharing (“open-source research”), which probably means that patents too will be affected.
One medical researcher applies generosity of spirit with his open-source research project designed to fight a tropical disease for which medical treatment is expensive and tough to come by.
Now, Scientific American reports that Australian chemist and entrepreneur Matthew Todd is initiating a totally open-source research project geared to the fight against the tropical disease schistosomiasis.
Sharing is better than not sharing. Scientists understand that. Investors don’t care. █