EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.10.10

Patents Roundup: Lawyer Takeover, Failed Reform, and Policy Laundering With ACTA

Posted in Europe, Free/Libre Software, GNU/Linux, Law, Microsoft, Patents at 3:20 am by Dr. Roy Schestowitz

Brussels
Brussels, Belgium

Summary: What the latest news tells us about the use of law — not improved products — to compete in the market

THIS post mostly looks at policy-making around software patents, which are being used by Apple and by Microsoft at the moment in order to stifle their "most potent operating system competitor". That would be Linux, sometimes with GNU. The issue of software patents is far more important than GNU/Linux-oriented Web sites typically indicate.

Question of Bias

The EPO nominates some people for what it calls “European Inventor Award 2010″.

Twelve candidates from nine countries are competing this year for the European Inventor Award 2010, a highly regarded innovation prize presented annually by the EPO together with the European Commission.

The prize, which is purely symbolic and involves no material recompense, is awarded in four categories: Lifetime achievement, Industry, SMEs/research and Non-European countries. The four winners will be chosen by a high-ranking international jury and will be presented with their prizes by EPO President Alison Brimelow in Madrid on 28 April 2010.

Professor Peter Landrock is in that list and it may all seem fine, except for the fact that the president of the FFII points out that the “EPO [is] nominating a software patent proponent and enforcer [by] the name of Peter Landrock (Cryptomathic)”

“FairSoftware is not a software company. The name is deceiving.”This page says: “We have invested heavily in secure, mobile signature solutions based on two-factor authentication which offer high security as well as ease and convenience to the end-user. Our approach is based on research and development carried out over many years, and we feel strongly that we deserve fair acknowledgement from companies and organisations using our patented technology,” said Professor Peter Landrock, Executive Chairman of the Board of Cryptomathic. “This core technology contributed to Cryptomathic earning a nomination as one of the 40 most innovative companies in the world at the World Economic Forum in Davos in 2003. We prefer to resolve such issues through commercial discussions without litigation but have so far been unsuccessful with BBS. Hence we are left with no alternative but to file suit.”

So, it’s another one of those European supporters of software patents. There are also people such as this guy, who describes himself as “the founder of FairSoftware, a venture dedicated to helping entrepreneurs find co-founders for their web or iPhone app.”

FairSoftware is not a software company. The name is deceiving. The company strongly promotes software patents.

Here is something from the news which reminds us that lawyers — not engineers — favour software patents (the more, the merrier to them because it means legal business).

Kimberlee Weatherall, who teaches intellectual property law at the University of Queensland, puts the controversial issue of software patents into perspective.

Here is the new perspective of a software developer:

I’ve considered the arguments by Stallman, John Gruber, and Tim Bray on software patents, and I side with Stallman in that software patents are inherently problematic and are a net loss for society.

The major difference in their arguments is that, while all three mention the realities and dysfunctions of the patent system, Stallman focuses strongly on the difference between what it’s intended to do and what actually happens. He also illustrates the reality of trying to develop any nontrivial software in a patent-filled landscape.

[...]

As a working software developer, the thought of accidentally and unknowingly stumbling into someone’s patent is terrifying. There’s no question that it has hurt our industry in the past and will continue to artificially restrict progress indefinitely, and there’s little convincing evidence that the supposed benefits exist in practice at a large enough scale to maintain the status quo.

Reform

Patent reform in the United States is a subject that we wrote about some days ago [1, 2]. Basically, those in control of the system do not want to truly fix this system. From Senate.gov we now have “Leahy, Sessions, Hatch, Schumer, Kyl, Kaufman Unveil Details Of Patent Reform Agreement”:

WASHINGTON – Leaders of the Senate Judiciary Committee Thursday announced details of an agreement on long-pending legislation to make needed reforms to the nation’s patent system.

This is the third consecutive Congress in which Senator Patrick Leahy (D-Vt.), the chairman of the panel, and Senator Orrin Hatch (R-Utah), a former committee chair, have introduced patent reform legislation. A bipartisan majority of the Committee advanced the legislation last April. In the months since, Leahy, Hatch, and Senators Jeff Sessions (R-Ala.), the Committee’s ranking Republican, and Chuck Schumer (D-N.Y.), Jon Kyl (R-Ariz.), and Ted Kaufman (D-Del.) have continued to work toward an agreement to make the legislation ready for Senate consideration.

“[The] US Patent Reform [is] promoting cheap patents,” argues the president of the FFII, “good rebate for patent trolls, 75% price reduction.” It sure seems reasonable to argue that the patent reform is a lost cause. Those in control of this system are mostly lawyers, not engineers. According to this patent lawyer blog (floridapatentlawyerblog.com), software patents are still (currently) allowed, even post-Bilski.

In one of its last decisions of today, the Board of Patent Appeals and Interferences (BPAI) reversed a Patent Examiner’s 35 U.S.C. §101 non-statutory subject matter rejection of a key Invatron Systems invention. As a Miami Patent Attorney, this case was interesting because I haven’t seen any BPAI decisions regarding 35 U.S.C. §101, much less a decision that invokes Bilski, in a while.

At issue was an Invatron Systems claim pertaining to a scale for weighing items, wherein the scale included a computer that performed a series of steps, such as providing a coupon. The Examiner found the claims recite a method of purely mental steps, not tied to another statutory class. The Appellants contended the claimed method recites steps including providing a coupon to the customer and that these steps cannot be performed purely mentally since there is no way to provide a coupon without the coupon being physically inputted into the weigh station display.

[...]

As such, claim 17 required a specific structure that captures, stores, and displays specific data. This specific structure ties the recited method to a particular machine, in that the method recites how to operate a weigh station with a weigh station display. Since there is a particular machine required, claim 17 satisfies the machine prong of the machine-or-transformation test and the transformation prong need not be evaluated.

[...]

The lesson learned in this case is that although a claim may not explicitly and positively recite a structural element, the claim may require a specific structure to perform the steps of the claim. If that structure satisfies the machine prong of the machine-or-transformation test, an Examiner’s 35 U.S.C. §101 non-statutory subject matter rejection may be reversed under Bilski.

ACTA

The ACTA encompasses patents, as we last showed about a week ago. It’s just policy laundering for the big companies. The “European Parliament reserves its right to challenge ACTA in front of the European Court of Justice,” shows the FFII’s president, who also found out that “DeGucht tries to keep the European Parliament happy on ACTA” [1, 2]. He cites this article from IP Watch about ACTA. Check out the following part:

IIPA drew commentary from internet rights groups and open source software proponents by saying that government procurement policies encouraging or mandating the use of open source software were akin to piracy. The IIPA suggested Brazil, India, Indonesia, the Philippines, Thailand and Vietnam be put on USTR watch lists for policies favouring open source software, saying it limited the ability of proprietary software to compete.

Philip Morris said the increasing number of countries proposing to adopt plain packaging for cigarettes, or having heath warnings covering more than 50 percent of cigarette packaging is worrisome, as it might infringe trademark rights, and encourage “illicit trade in tobacco products.” The cigarette maker called for their IP rights to be protected and enforced in a number of countries, arguing that “these initiatives, which are not based on any solid scientific evidence that they contribute to legitimate public health objectives, would effectively constitute an expropriation of some of the world’s most valuable trademarks without the payment of adequate compensation to manufacturers.”

The Free Software Foundation called for an end to digital rights management software, which they said prevents users from freely enjoying their purchases and are almost always incompatible with free software.

The National Association of Manufacturers (NAM) said that IP rights were wrongly considered to be mainly the concern of sectors such as pharmaceuticals, software, and entertainment. International counterfeiting and piracy is a “mainstream and Main Street issue for US manufacturers,” they said. The specific focus of NAM in 2010 is “four Cs”: counterfeiting, customs, cooperation internationally and China.

Agricultural technology company Monsanto complained about patent backlogs in Argentina and Brazil, which it said delays their ability to enter the market and enforce rights on their products, and about government procurement that favours locally owned or registered IP in China. The European Union’s recent trend to “unduly broaden breeder’s exemptions” will undermine IP rights on plants, Monsanto said. Breeders exemptions are intended to protect plant varieties while not restricting follow-on innovation by people other than the original rights holder.

Watch what Monsanto — with all of its sickening business practices [1, 2, 3, 4, 5, 6, 7, 8] — is doing there. Also see the role of IIPA. It is related to what we wrote in [1, 2, 3]. “IIPA suggested Brazil, India, Indonesia, Philippines, Thailand be put on USTR watch list for policies favouring open source,” writes the president of the FFII.

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

What Else is New


  1. EPO Loses More Than 80% of Cases at the International Labour Organisation (ILO)

    The International Labour Organisation (or Organization) helps show just to what degree the European Patent Office (EPO) violates the rights of workers



  2. To Understand What Battistelli Has Turned the EPO Into Look at Turkey and China

    Battistelli and his notorious Vice-President from SIPO (Croatia) turn the European Patent Office, once the pride of Europe, into a human rights cesspool with SIPO (China) connections



  3. Patent Lawyers Move Closer to Battistelli's Rubber-stamping Office While the Appeal Boards Pushed Away as Collective Punishment Which Masks Decline in Patent Quality

    Urgently sending appeal boards away and urgently granting applicants patents without proper examination will be Battistelli's sorrow legacy at the European Patent Office



  4. Software Patents a Dying Breed, But Patent Lawyers in Denial Over it and Notorious Judge Rodney Gilstrap Ignores Alice (Supreme Court)

    A look at what law and practice are saying about software patents, contrasted or contradicted by the patent industry and trolls-friendly courts (which make business out of or together with patent aggressors)



  5. CAFC Meddling in PTAB Affairs; Unified Patents Fights a Good Fight by Invalidating Software Patents

    A look at how the AIA's Patent Trial and Appeal Board is invalidating software patents post-Alice, with or without involvement of patent courts



  6. Early Certainty That Benoît Battistelli is Dangerously Clueless and a Major Risk to the EPO

    The chaos which Team Battistelli is assured to deliver if it doesn't treat scientists like scientists, instead viewing them as a production line with rubber-stamping duties



  7. OIN Makes Claims About “Open Source Innovation”, But It Produces Nothing and Protects Virtually Nobody

    The Open Invention Network (OIN) reports growth, but in practical terms it does little or nothing to help developers of Free/Open Source software



  8. Links 27/7/2016: New CrossOver, Blackmagic for GNU/Linux

    Links for the day



  9. The Death of Software Patents and Microsoft's Coup Against Yahoo! Made the Company Worthless

    A look at what happens to companies whose value is a house of software patents rather than code and a broad base of users/customers



  10. Munich Attack Mentioned by EPO But Not Ansbach

    The EPO does the usual right-wing thing (exploiting disaster/emergency for domestic crackdowns), but some bemoan the omission of the explosion at Ansbach (also in Germany)



  11. Kluwer Thinks People Are Clueless About the Unitary Patent System and Pretends It's Business as Usual

    Flogging the dead UPC horse at times of great uncertainty (enough to bring the UPC to a standstill)



  12. Almost Everything That the Government Accountability Office Says is Applicable to the EPO

    The Government Accountability Office in the United States produces reports which can serve as a timely warning sign to the European Patent Office, where patent quality is rapidly declining in order to meet 'production' goals



  13. Microsoft Says It Loves Linux, But Its Anti-Linux Patent Trolls Are Still Around and Active

    Highlighting just two of the many entities that Microsoft (and partners) use in order to induce additional costs on Free (as in freedom) software



  14. Links 26/7/2016: Microsoft Growing Desperate, Linux 4.8 Visions

    Links for the day



  15. Links 25/7/2016: Linux 4.7 Final, PostgreSQL 9.6 Beta 3

    Links for the day



  16. Leaked: Boards of Appeal Face 'Exile' or 'Extradition' in Haar After Standing up to Battistelli

    A look at some of the latest moves at the European Patent Office (EPO), following Battistelli's successful coup d’état which brought the EPO into a perpetual state of emergency that perpetuates Battistelli's totalitarian powers



  17. The US Government Accountability Office (GAO) Comes Across as Against Software Patents, Relates to the EPO as Well

    Some analysis of the input from the Government Accountability Office (GAO) with focus on the EPO and software patents



  18. In the US, Patent Trolls Engage in Patent Wars and Shakedowns, Whereas in China/Korea Large Android OEMs Sue One Another

    Highlighting some of the differences between the US patent system and other patent systems



  19. Links 24/7/2016: Elive 2.7.1 Beta, New Flatpaks and Snaps

    Links for the day



  20. Links 23/7/2016: Leo Laporte on GNU/Linux, Dolphin Emulator’s Vulkan Completion

    Links for the day



  21. Links 22/7/2016: Wine 1.9.15, KaOS 2016.07 ISO

    Links for the day



  22. Haar Mentioned as Likely Site of Appeal Boards as Their Eradication or Marginalisation Envisioned by UPC Proponent Benoît Battistelli

    Not only the Staff Union of the European Patent Office (SUEPO) is under severe attack and possibly in mortal danger; the increasingly understaffed Boards of Appeal too are coming under attack and may (according to rumours) be sent to Haar, a good distance away from Munich and the airport (half an hour drive), not to mention lack of facilities for visitors from overseas



  23. EPO Attaché Albert Keyack Viewed as Somewhat of a Mole, Reporting From the US Embassy in Brazil Until Shortly Before the Temer Coup

    Public responses to the role played by Albert Keyack on behalf of the United States inside the European [sic] Patent Office



  24. EPO Insiders Explain Why the EPO's Examination Quality Rapidly Declines and Will Get Even Worse Because of Willy Minnoye

    Public comments from anonymous insiders serve to highlight a growing crisis inside the European Patent Office (EPO), where experienced/senior examiners are walking away and leaving an irreplaceable bunch of seats (due to high experience demands)



  25. Patents Roundup: BlackBerry, Huawei, PTAB, GAO, Aggressive Universities With Patents, and Software Patents in Europe

    Various bits and pieces of news regarding patents and their fast-changing nature in the United States nowadays



  26. Glimpse at Patent Systems Across the World: Better Quality Control at the USPTO Post-America Invents Act (2011), Unlike the EPO Post-Battistelli (2010)

    While the EPO reportedly strives to eliminate pendency and appeal windows altogether (rubberstamping being optimal performance as per the yardstick du jour), the USPTO introduces changes that would strengthen the system and shield innovation, not protect the business model of serial litigants



  27. Blockstream Has No Patents, But Pledges Not to Sue Using Patents

    Blockstream says that it comes in peace when it comes to software patents, which triggers speculations about coming Blockchain patent wars



  28. Links 21/7/2016: Ubuntu 16.04.1 LTS, Linux Mint 18 “Sarah” Xfce Beta

    Links for the day



  29. Links 21/7/2016: An Honorary Degree for Alan Cox, Looks Back at DebConf16

    Links for the day



  30. EPO USA: Under Battistelli, the 'European' Patent Office Emulates All the Mistakes of the USPTO

    Conservative Benoît Battistelli is trying to impose on the European Patent Office various truly misguided policies and he viciously attacks anyone or anything that stands in his way, including his formal overseers


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