Patents Roundup: Novell’s and Apple’s Latest Software Patents, Ruling in Germany, and Harms to Software Freedom
Summary: News about software patents and other unjust monopolies
System and method for creating and presenting modal dialog boxes in server-side component Web applications, patent No. 7,721,225, invented by Daniel Montroy of Sandy, Micah Gorrell of Spanish Fork, and Matthew Sorensen of Lehi, assigned to Novell, Inc. of Provo.
Today the German Supreme Court (Bundesgerichtshof, BGH) has published the full reasons of the decision in re Xa ZB 20/08 dated April 22, 2010. The decision is related to German patent application DE10232674 filed by Siemens AG on July 18, 2002.
Source code as such (certainly in the case of compiled languages) does not implement an invention — it merely describes an algorithm. As such, I believe that the source code of a Free Software implementation of some patented algorithm (as if it makes sense to patent an idea, but hey, some patent offices hand these things out) cannot infringe the patent even if you accept the validity of algorithmic patents because it’s just describing something that has already been published — the patent text itself! On the other hand, compiled forms of the same do implement the algorithm in a machine and might be covered. I’m not sure if anyone has really dug into the implications of the division between source and object code in this area.
In cases like this, the Open Invention Network might be of use. It’s a patent pool organization for Linux. Since Hugin isn’t part of Linux (as in, the kernel bits) it’s unlikely to be helped out directly. The OIN folks are some of the most pragmatic and sensible people I’ve talked to about the effect (negative) software patents have on us all.
While looking for the SIFT patent, I did find US patent numbers 7,639,897 and 7,711,262 which both cover guiding a user of a digital camera in making a panorama photo. They seem awfully similar to me, although obviously there’s a giant difference (sarcasm doesn’t work in writing unless Penny Arcade does it) between sweeping a scene and then re-photographing it and indicating already-photographed areas as the scene is swept. I guess there’s no patent yet on not helping at all.
For the open source community, it’s worth noting with pride that a substantial portion of the prior art used in the case was identified by community members. Groklaw helped rally support, and drew many prior art contributions. The Open Invention Network’s Linux Defenders program posted the patents on its Post-Issue Peer to Patent page, and drew numerous useful contributions as well. In fact, all of the prior art used as prime examples at trial (Apple Switcher, Commodore Amiga 1000, and Chan Room Model), were identified on both Groklaw and Linux Defenders. Many thanks to all who contributed and showed how open source can help invalidate patents that should never have been granted.
Explaining prior art to a jury is itself an art, and our invalidity expert, Dave Wilson, did a great job. He was smart and engaging, and managed to make some challenging material really interesting. For those interested in the technical details on invalidity, I’m posting his entire testimony, but here are a couples of excerpts that will give some idea of what he did.
• Chien: Recent History Suggests that Supreme Court will Rule Bilski’s Claim Unpatentable [see background/index to Bilski]
Professor Colleen Chien (Santa Clara) has written an interesting new article on the importance of amicus briefs in patent cases. Her article is titled Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System and is available online at SSRN.
Over the last two decades, more than 1500 amici, representing thousands of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them representing landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system. It combines theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of who is interested in the patent system, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers have been instrumental in shaping the courts’ agenda; the Supreme Court was seven times more likely to grant cert, and the Federal Circuit eight times likely grant a petition for en banc rehearing, if urged to by an amicus. However, while certain briefs have been important, overall the balance of briefs on the merits have not had a measurable impact on the courts’ rulings. One exception has been the briefs of the US Government, which have been exceptionally prescient. Over the 20 years studied, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome. That is to say, in almost all cases, the Court affirmed or rejected the lower court holding when the Government told it to, and in one case, dismissed cert as improvidently granted when the Government recommended doing so. In terms of who files briefs and their agenda, the results are somewhat surprising. Although debates about the patent system are usually cast as a fight between the pharmaceutical and hi-tech industries, patent lawyers comprise a powerful interest group, filing the most briefs of any single group. In addition, among companies, what seems largely to determine how they advocate is their business model – non-practicing entities, for example, nearly always weighed in for the patentee and public companies, often against the patentee. These and other results have implications for those seeking to understand the patent system and those seeking to influence it.
• The Suicide Belt [Monsanto strikes again]
He is one of nearly 200,000 Indian farmers, many of them cotton growers, to commit suicide since 1997. In fact, suicide among farmers in India has become so prevalent that officials in New Delhi keep a tally. Hanging and consumption of poison are the common methods of death, and most farmer suicides have occurred in India’s cotton belt, which extends from Hyderabad north to Nagpur, at the geographical center of India, and east to the state of Gujarat.
Cotton seed has historically been among farmers’ lowest expenses. During the harvest, cotton growers would cultivate crop seeds and save them for the following season. As a general practice, they also would swap seeds with neighboring farmers, ensuring through natural selection that subsequent generations of cotton seed would be best suited for the region. Although local cotton did not provide the same potential yields as cotton seed from the Americas, it had adapted to India’s unique climate — an intense monsoon season followed by months of drought.
Monsanto helped to abolish this practice. At the turn of the century, the company introduced a genetically modified cotton plant that produces bacteria known as Bacillus thuringiensis, or Bt, a commonly used pesticide against bollworm. When Bt cotton seed first came to market nationwide in 2002 under the trademark Bollgard, a box recommended for one acre of farmland was 1,400 rupees, about $35, a substantial amount for a farmer who in a good year will earn a few hundred dollars to support his family. Although government-regulated prices have been halved to 750 rupees per box — a predatory pricing lawsuit filed by the state of Andhra Pradesh forced Monsanto and the federal government to lower the prices — the input costs of Bt cotton are still more than the average farmer can afford to spend out of pocket.
• Developing Countries Blast WHO Report On IP, Demand “Credible” Approach [intellectual monopolies always suppress the poor, by design]
A critical report on financing research and development of medicines for the world’s poorest was created without transparency, failed to live up to its mandate, and did not address the potential threat that intellectual property rights can pose to access to drugs, developing countries said today at the World Health Assembly. But a proposal by a group of Latin American countries for a new intergovernmental working group was not accepted by developed countries and others and quick informal consultations began to work out differences before the end of the assembly this week.
Even the United States – generally supportive of the group’s work – said it was “regrettable” that information on process and manner of work was not included in the report itself when published, and that member states did not hear about it until last week’s informal meeting (IPW, WHO, 14 May 2010).