05.14.10

Patents Roundup: EmDebian Considers OIN Membership, EBoA Makes the Legal ‘Industry’ Happy, Phones Industry Harmed by Patents

Posted in Antitrust, Apple, Debian, Europe, GNU/Linux, Google, OIN, Patents at 3:16 am by Dr. Roy Schestowitz

Summary: Teams of embedded Debian users/developers may want a shield from software patents; Europe does nothing to stop software patenting; patent lawyers and the patents they crave prove harmful to development of “best” mobile phones

Benjamin Henrion (FFII) says that “EmDebian [is] considering joining the Open Invention Network,” based on this new message:

OIN is the open innovation network, a patent defence group set up in 2005 by IBM, phillips, Red Hat, Novell, NEC and Sony to create a patent pool for defending Linux.

They are now keen to have proper free-software people and projects join up, especially in the Embedded space which is shaping up for a big fight over the next few years as the incumbents realise Linux has eaten their businesses. This could easily get dirty (i.e. have incumbent vendors resort to their patent portfolios to hang on past their natural time – (in the way that SCO did, although they tried to use copyright rather than patents).

Henrion is trying to tell them that “collective patent pools and shields do not work against trolls” (with special exceptions [1, 2, 3, 4, 5, 6]).

Enlarged Board of Appeal (EBoA) Decision Loved by Patent Lawyers

Wednesday’s disappointment from the EBoA is already being covered all around Europe, especially by the legal 'industry'.

Patent attorneys seem pleased with the outcome, which lets them carry on doing what they did before, including the patenting of software using known loopholes.

To be honest, the decision was pretty much expected: the European Patent Office (EPO) has been taking a fairly consistent approach to computer-implemented inventions and has a growing body of learning materials on the subject.

Another ‘IP’ attorney says that “Enlarged Board of Appeal confirms approach to controversial software patents.” More from patent lawyers:

As many in the ‘FOSS’/anti-patent world would undoubtedly say, perhaps it is now time for the legislator to take over. However, I would have very serious doubts about whether it will be possible to come to any sort of agreement among the member states of either the EU or the EPC that would stand any chance of resolving the issue once and for all.

[...]

6. T 424/03, Microsoft does deviate from a view expressed in T 1173/97, IBM, concerning whether a claim to a program on a computer-readable medium necessarily avoids exclusion from patentability under Article 52(2) EPC. However this is a legitimate development of the case law and there is no divergence which would make the referral of this point to the Enlarged Board of Appeal by the President admissible.

Henrion has just uploaded this English version of the video depicting the European Parliament as it rejects the Software Patent Directive (also available in French/original). Here is an Ogg Theora version of this historical video.

It would be nice to have another such high-profile decision annulling all patents on software. In the United States, In Re Bilski will resume very shortly.

Phones a Patent Mess

“Complex Smartphones Are the Latest Patent Battleground,” exclaims Business Week. It seems like nothing but lawsuits is what patents brought to this lucrative section of the industry (where Linux grows fastest and Microsoft diminishes).

The patent wars are raging in the mobile device market, and they could result in rising costs for handset makers and higher gadget prices for wireless carriers and consumers. So far this year, Apple and HTC—two of the most innovative smartphone makers—have become embroiled in more patent-related litigation than in all of 2007, and they are on track to beat their own 2008 and 2009 records, according to Bloomberg data.

Wired Magazine has the following new article:

Investigation: Apple vs Nokia vs Google vs HTC vs RIM

[...]

The struggle that’s broken out between the tech giants has a certain irony; after all, the prizes they’re disputing — patents — were invented to accelerate and encourage invention, not hinder it. The concept is fairly straightforward: a patent is granted if an invention meets a number of requirements, the most essential being “novelty” and “usefulness”. Once granted, a patent typically gives the inventor a limited monopoly of a minimum of 20 years in which he alone can market the invention or license others to take up his protected work.

[...]

In their 2008 book Patent Failure, Bessen and fellow Boston University law professor Michael Meurer show that, since the late-90s, litigation costs for publicly traded companies (except in the case of pharmaceuticals) have consistently outweighed the profits that companies derived from patents. They show that in 1999 alone, $9.3 billion (£6bn) were made in profits from patents globally. Litigation costs alone, however, reached $16 billion (£10.5bn) for the US. In the last decade, this situation has deteriorated considerably: in 1999, there were 2,318 patent litigation lawsuits filed in the US. By 2008, that number had risen to 2,896.

Yesterday we mentioned the HTC vs Apple case. The New York Times has attempted to get a response from Apple but failed.

An Apple spokeswoman declined to comment.

Why didn’t HTC join the OIN and retaliate against Microsoft and Apple this way? Instead, it sold out to Microsoft and harmed the whole of Android in the process.

HTC is using just 5 patents. Had it joined the OIN, it would possibly have hundreds of infringing examples for a more effective artillery in this M.A.D. situation (TechDirt says that a “Patent Nuclear Response [Was] Launched” because it’s the best analogy).

According to the press release, HTC believes Apple infringes upon five of their patents. As to what they are, we don’t quite know. More on this as it develops.

“HTC files patent complaint against Apple, asks for ban on iPhone, iPad, and iPod,” says Engadget. That’s the ITC loophole which often gets abused.

Apple has other problems because of Adobe and invocation of “antitrust”.

Adobe has launched its latest salvo in an ongoing dispute with Apple.

The co-founders of Adobe have published an open letter in which they say that Apple threatens to “undermine the next chapter of the web”.

Actually, it is Adobe which undermines the next chapter of the Web. The Web is about web standards, not proprietary plugins. More companies also need to support Theora, which both Apple and Adobe are a threat to (see the posts below). █