05.26.10
Lawyers Try to Marry Free Software and Software Patents in Maastricht University (Brussels)
Summary: Lawyers in Europe strive to net some extra money by promoting “interoperability” (with software patents) rather than making use of open standards
EUROPEAN lawyers are trying to repeat the mistakes of the USPTO, which is permitting the patenting of business methods, software patents, and other insane things that must never become one person’s government-protected monopoly. Look at the latest numbers from the USPTO. There is clearly a gold rush when everything under the sun becomes patentable and examiners mistake that for “increased innovation” or whatever. From Patently-O:
The USPTO issued more patents during the past two weeks than in any fortnight in history. A primary driver of that upswing appears to be a dramatic rise in the allowance rate.
Lawyers who make a living by granting and managing people’s ‘ownership’ of other people’s lives are concerned about the Bilski case, which may axe many patents and limit their scope in the United States.
Betting on Bilski: The Supreme Court and Biotechnology Patents
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Reviewing Bilski and the Biotech Patent Landscape. Recall that Bilski involves a form of method patent (the so-called “business method” patent) that claims a method of hedging commodities prices by setting up a relationship between a regular seller (a coal mine, for example) and regular buyer (a power company). The question is whether such a method constitutes patentable subject matter—that is, is the Bilski method the sort of “new and useful process, machine, manufacture, or composition of matter” that meets the standards of Section 101 of the Patent Act. In its 2008 en banc decision, the Federal Circuit established—or re-established, since it had been lurking in the case law for years—the so-called “machine or transformation” test for method patents. Under this test, the method must be tied to a particular machine (whatever that means) or transform some article into a different state or thing in order to qualify as patentable subject matter. According to the Federal Circuit, Bilski’s patent failed both branches of the test.
By contrast, in its 2009 decision in Prometheus v. Mayo, the Federal Circuit upheld a patent on “a method of optimizing therapeutic efficiency for treatment of an immune-mediated gastrointestinal disorder.” The method comprises “administering” a specified drug to a patient and then “determining” the level of the drug in the patient. The remainder of the claim specifies threshold levels of the drug’s metabolites (the chemical products of metabolism in the body) in the patient’s blood below which the dose should be increased (because of lack of efficacy) and above which it should be decreased (because of potential toxicity). The court found that both administering the drug and determining the metabolite levels (by withdrawing and testing blood) worked a sufficient physical transformation of the body.
Greed, greed, greed.
Those lawyers are always greedy for more and more patents. They don’t care about the consequences as long as they enrich themselves through filing and litigation.
Obviously, lawyers in Europe want software patents. They don’t actually develop any software, but it’s not software they care about. It’s all about money and Free software supporters stand in their way in Europe*. So what do they do? They have just set up yet another event whose overall message is something along the lines of, “why can’t Free software and software patents just get along?”
Read the following new message (it’s always posed as a series of suggestive questions. as in push polling):
From: Cristina Palomares
Subject: REMINDER: Intellectual Property, Open Source, and Standards: Friends or Foes?
To: [redacted]Intellectual Property, Open Source, and Standards:
Friends or Foes?
Date: Tuesday, 1st June 2010
Time: 9:30-12:30
Venue: Maastricht University Campus Brussels, Avenue de l’Armée / Legerlaan 10, 1040, Brussels
The Institute for Globalisation and International Regulation at Maastricht University Faculty of Law and the Stockholm Network Intellectual Property & Competition Programme are delighted to invite you to a forum and debate on “Intellectual Property, Open Source and Standards: Friends or Foes?
The importance of standards to our societies is growing as technology moves into increasingly complex territories, and competing companies are inclined to establish common ground. This common ground helps to ensure that the assortment of technological possibilities is kept to a necessary minimum, whilst also establishing a widespread level of compatibility and quality. Standards offer a shared language that technologies use to communicate with one another, allowing for greater interaction between products or components. This can mean improved interoperability, interconnectivity, and commoditisation – all buzzwords for a more beneficial market.
“How should we consider the relationship between patents and standards, and what are the implications of not allowing standards to be protected by IPRs?”In the discussion on standards, a distinction (and at times even a dichotomy) is often made between standards based on proprietary efforts – which are to be protected by intellectual property rights – and standards that are based on collaborative or open efforts – such as via an open source. Indeed, there is a heated Europe-wide debate on the nature and characteristics of future technological standards, not least in the context of government procurement and policies in this area (such as the Expert Panel for the Review of the European Standardization System).
This event aims to address some of the burning issues in the standards debate. Key questions to be discussed include: Should standards be based on open-efforts or on proprietary models? Should countries in Europe opt for a more specific model of standardisation? How should we consider the relationship between patents and standards, and what are the implications of not allowing standards to be protected by IPRs? Is the dichotomy between open and proprietary standards at all justified, or are these types of standards in fact complementary?
Speakers include (in alphabetical order):
Ms Helen Disney, Chief Executive, Stockholm Network;
Malcolm Harbour MEP, Chairman of the Internal Market and Consumer
Protection Committee, European Parliament;
Prof Anselm Kamperman Sanders, Director Masters Intellectual Property
Law and Knowledge Management, Maastricht University Faculty of Law;
Dr Meir Perez Pugatch, Director of Research, Stockholm Network & Senior Lecturer, University of Haifa;
Dr Dalindyebo Shabalala, Assistant Professor, Maastricht University Faculty of Law;
Prof Alain Strowel, Universitaires Saint-Louis et Université de Liège;
Prof Damien Geradin, Partner at Howrey LLP and Professor of Competition Law and Economics at Tilburg University.***************
To RSVP please contact Dr Cristina Palomares, Chief Operating Officer, Stockholm Network on T +44 20 7354 8888, F: +44 20 7359 8888 or via e-mail on: cristina@stockholm-network.org
Speakers who are software developers are conspicuously missing. Whose agenda is being served here? See what we wrote about Europe’s Digital Agenda in recent days [1, 2, 3]. The agenda above jives the same way.
People should boycott this event. It’s apparently just a ploy to push for software patents in Europe, quelling those who oppose. A fair event would not be stacked by its attendees. █
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* Small- and medium-sized businesses generally suffer from software patents, but they can tolerate patent encumbrances if they are proprietary software companies.
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