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06.07.10

Patents Roundup: More Regarding Red Hat, Klaus-Heiner Lehne, Patents on Genes, and USPTO Speed Lane

Posted in Europe, Law, OIN, Patents, Red Hat at 2:49 am by Dr. Roy Schestowitz

Motorway

Summary: Further analysis of Red Hat’s policy regarding software patents, new threat from the European Parliament’s legal affairs commission (JURI), and the fast lane to USPTO distortion

Florian Müller, a campaigner against software patents, wrote a response to our post about Red Hat's take on software patents:

Thanks to your story, I saw that eWeek UK report on Whitehurst’s statements.

Following from public policy, Whitehurst re-affirmed Red Hat’s opposition to software patents. “They are detrimental to innovation, and we do not support them at all.”

=> They also don’t fight them at all. And some of their various areas of collaboration with IBM even run counter to a push for abolition. Most of that was started by Webbink, who has meanwhile left, but still…

For now I don’t plan to blog about Red Hat again too soon, but at some point I’ll probably provide an overview of what I consider unhelpful initiatives, besides the OIN.

It’s interesting to note that Red Hat cooperates not only with IBM but also with Microsoft on the “community patent review” project. There’s nothing wrong with them supporting something good if it’s supported by Microsoft, but there can be no doubt that a patent-related initiative supported by Microsoft isn’t a push for abolition to the slightest degree. At best it would be politically neutral, which is what Red Hat is if one focuses on deeds rather than words.

That community review project isn’t bad at first sight: it’s an application of the “to enough eyeballs, all bugs are shallow” idea to the patent granting process. I can’t oppose the idea of throwing out bad patent applications early on, but I do question the efficiency of that approach versus other ways the community could spend time to deal with the problem. The real problem is that it’s a way of supporting the patent bureaucracy not only practically but also politically, although someone really opposed to software patents must understand that the leadership of a patent office will always want a broad scope of patentable subject matter and as much patent inflation as possible. Letting that system implode with respect to software patents and letting the quality problem (which is due to the nature of software, which shouldn’t be patentable in the first place) become as apparent as possible would be much more desirable than giving the (mostly false) impression that community contributions to the review process can improve anything.

I believe that the DPL will, subject to what its final version is going to look like, enable a much more efficient use of community time. Rather than helping the patent bureaucracy, the community should take out its own patents, based on the Fair Troll approach, and assert them against patent holders outside the DPL pool. That would have far more impact than helping the patent bureaucracy with its review process, and if members of the FOSS community come up with really good patents they could even make very significant amounts of money with them, which isn’t possible by contributing to the community review project.

You may quote from this email if you like, but I didn’t mean this to be a “press release”: I’ll blog about those alternative ways for the community to make contributions when the DPL finally gets published. I just wanted you to know in the meantime how I view the situation concerning Red Hat’s action, which I don’t see as a positive contribution on the bottom line…

The FFII more or less succeeded Müller’s initiative and its president says that the “European Parliament’s JURI committee calls for EU patent court, EU software patents via central caselaw” (that’s one of the potential loopholes for legalising software patents in Europe).

According to media reports, the European Parliament’s legal affairs commission (JURI), presided by Klaus-Heiner Lehne, yesterday passed the “Gallo report” in which they ask for more unified and stringent IPR enforcement, in particular a unified crackdown on p2p filesharing but also unified levies, IPRED2 revival, UPLS and more.

We previously showed that Klaus-Heiner Lehne lobbies for software patents because he profits from it. Lehne is a German lawyer and like most lawyers he puts litigation and altercations before advancement of science.

There is a hot debate right now over patents on genes. TechDirt tackles the issue as follows:

This is a very real threat. Venter has long been a strong advocate for patenting genes, so it wouldn’t be surprising to see him try to limit this market quite a bit himself. History has shown time and time again that real innovation happens when there’s real competition in the market, as players work hard to one-up each other. Giving the basic building blocks of synthetic biology to one company can lead to a vast decrease in research and development into this emerging field — exactly the opposite of what the patent system intended.

Last week we mentioned a bunch of PR pieces glorifying GlaxoSmithKline (with Bill Gates connections, as we shall show later) for sharing its patents which pertain to living organisms.

When it comes to infectious diseases, sharing is generally discouraged. But recently, pharmaceutical giant GlaxoSmithKline (GSK) opened up the designs behind 13,500 chemical compounds, which the company narrowed down from over two million, that may be capable of fighting malaria.

The process of determing which compounds could yield a malaria drug is time consuming and complex, but GSK hopes to inspire other researchers to pool their intellectual property and work together to develop new and better medicines to fight the diseases that are rampant in the world’s poorest countries.

Companies without patents probably need not apply. TechDirt has another new piece about patent "promiscuity" as we called it the other day:

Patent Office Proposes Speed Lane (And Slow Lane) For Patents; Treating The Symptom, Not The Disease

[...]

Of course, none of this will help. It just means that companies with more money to spend will jump to the fast lane, clogging that fast lane, and lengthening the wait times for those who don’t want to spend that much money. It’s difficult to see how that helps. The real issue is vastly cutting back on what is considered patentable. Move way from having companies feeling the need to patent anything and everything and get them back to focusing on competing in the marketplace. If there must be a patent system, let it be limited to the rare cases where there is actual proof that the gov’t granted monopoly makes sense (if those exist) and where there’s no likelihood of independent invention coming up with the same thing at about the same time (a key point that should determine obviousness).

Well, as pointed out some days ago, the USPTO had been taken over by lawyers (including its head) who put profit before science. The more patents they issue, the greater “success” they will claim. Sadly, Google is helping them by legitimisation.

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