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08.31.10

Patents Roundup: OIN, Patent Attorney Ignorance, “Ultimate Patent Troll”, the Rambus Submarine Patent, Death Patents, MPEG-LA, and i4i/Microsoft

Posted in America, Free/Libre Software, GNU/Linux, IBM, Law, Microsoft, OIN, Patents at 5:41 am by Dr. Roy Schestowitz

Submarine (patents)

Summary: An overview of patent news from the past few days, ranging from issues that directly affect GNU/Linux to issues that simply show how amoral and dysfunctional the patent systems have become

IT HAS BEEN a long time since the last “Patents Roundup” per se. This post is intended to keep readers abreast of the developments in the spooky world of patents, so no single topic is covered here exclusively.

We wish to begin with Linux, which has OIN protecting it in somewhat controversial ways (fighting software patents with software patents), which is effective only in particular circumstances, e.g. [1, 2, 3, 4, 5, 6].

“Our community—including all developers, distributors and users—owes Keith Bergelt of OIN, and the companies on his board of directors, a round of serious thanks…”
      –Eben Moglen
Groklaw's most recent take on OIN is a good source of information for OIN sceptics. OIN is not the “bad guy” here; not at all. Keith Bergelt of OIN is genuinely interested in protecting Linux from patent litigation by accumulating (hoarding) patents and killing weak ones rather than eliminating the foundations of this whole category which is known as computer-implemented inventions (CII, or software patents). Bergelt says he is in favour of “good” patents. It’s not ideal of course, but the FSF/SFLC accepts the OIN and appreciates its work. Professor Eben Moglen wrote last year that “[o]ur community—including all developers, distributors and users—owes Keith Bergelt of OIN, and the companies on his board of directors, a round of serious thanks for interrupting this arms trade, and calling attention to a bad business practice.”

With that in mind we can approach a new post which says that “OIN seeks to overturn weak patents”:

The tech news industry is buzzing with stories about companies suing each other over patent infringement. Most of the supposed patent infringements come closer to patents representing a concept then an actual invention. As I have said before the conduct of many patent holders is the equivalent of patenting the color blue and suing anyone who wears a blue t-shirt.

This is where the Open Invention Network comes in to play. They have invited the public to review patents, especially patents that are being used to attempt to block open source development. The Open Invention Network is asking for its readers to submit examples of prior art. This is where a company has patented a product or concept that had already been developed by previous companies or individuals. Once evidence is in place of prior art in connection with a patent, that patent can be invalidated.

The Open Invention Network and its sibling projects are not as good as abolishing software patents a la FFII, but an analogy to them would be “pragmatism” in the Free vs. proprietary software sense. The OIN is a temporary fix, a Band-Aid® of sorts.

On we move to an important observation from Patently-O, a popular Web site which mostly attracts American patent lawyers and even — allegedly — SCOTUS (Supreme Court of the United States) appointees. Patently-O points out that not enough computer scientists occupy the USPTO, which implies insufficient knowledge about software patents.

Professors Ralph Clifford, Tom Field, and Jon Cavicchi have published an interesting study on the technical backgrounds of patent attorneys and agents. After the trio submitted a FOIA request, the PTO handed-over 50,000 pages of patent bar registration applications. Using that information, the trio created a database of registered patent attorneys and their associated degrees/schools.

The paper makes the legitimate argument that the PTO should allow folks with a computer science degree to register — especially with the rise in the number of inventions related to computer science. “[A]n institutional bias exists within the PTO that prevents software-savvy individuals from registering with the Office.”

This is a serious problem. A lot of patent lawyers who are proponents of CII simply don’t understand how computational machines work; some ignorantly deny that computer programs (algorithms) can be encoded as mathematical formulae. That patent clerks at the USPTO fail to perceive it is a true travesty, not to mention similar problems among policy-makers, including Justices at SCOTUS.

Law Pundit has published this new post about a patent troll called George Selden. He is a patent lawyer who claimed a monopoly on the automobile. This sounds like some story out of science fiction, but it’s not.

The fix in which modern technology finds itself today as the result of our ill-conceived and smothering patent laws is unfortunately nothing new, but was a battle fought more than a century ago over patent rights to the invention of the automobile.

Thankfully for the future development of the automobile industry, legal common sense only prevailed due to the tenacity of Henry Ford, who prevailed over “virtual” inventor George B. Selden upon appeal, in a story in which the otherwise unknown Selden is the main character.

Rambus, which is a shameful aggressor (greatly loathed by many of its peers in industry), keeps ramming the bus [pun] into just about every technology company in the area, using submarine patents [1, 2, 3, 4, 5, 6, 7, 8, 9]. How destructive. It is now targeting Big Blue again:

Chip designer Rambus Inc (RMBS.O) has sued International Business Machines Corp (IBM.N), seeking to reverse a federal agency finding that its patent for a memory system was not infringed.

Pubpat.org (Public Patent Foundation or PUBPAT for short) offers a glimpse at the fact that, once we depart from the field of technology, patents may also deal with life and death very directly. We call these death patents and HIV/AIDS drugs are invaluable examples of that:

The Public Patent Foundation (PUBPAT) announced today that it has formally asked the United States Patent and Trademark Office to reexamine eight patents held by Abbott Laboratories (NYSE: ABT) relating to the critical HIV/AIDS drug ritonavir, which is marketed by the Chicago, Illinois pharmaceutical giant under the name brand Norvir.

In its requests, PUBPAT submitted previously unforeseen prior art proving that the patents should not have been granted. PUBPAT also cited recent Federal Circuit case law that supports its detailed arguments for nullification of the eight patents.

MPEG-LA, which is spearheaded by a patent troll, has not only a codec monopoly; it has begun forming an equally-despicable strategy in areas such as the above (which makes it a huge threat to life, not just to culture).

Simon Phipps, who recently said that “MPEG-LA is a parasite using standards bodies as its host, whether they want it or not,” addresses the latest stunt from this parasite [1, 2] and heralds that “H.264 Is Not The Sort Of Free That Matters” (same as the argument we made last week). Simon says:

The statement actually takes a lot of unpacking, probably intentionally so. H.264 is the widely-used “MP4″ video format created many years ago by the Motion Picture Experts Group, MPEG. Those “experts” were mostly associated with various corporations and research labs, and the international standard they created was heavily encumbered with patents.

Realising that no-one much would use the standard if each user had to go negotiate patent licensing terms with a large number of separate parties, the patent-holders wisely decided to get together outside the scope of MPEG and create the “MPEG Licensing Authority”, MPEG-LA.

Despite the name, MPEG-LA is nothing to do with the standards group itself. It’s a for-profit company devoted to making the patent problem worse in the name of making it “easier to handle” by creating patent pools for all sorts of other technology areas, beyond the media formats they already police. Go looking for the exact terms under which they are offering “free use” in this case and you’ll find they are not keen for you to know. The best available are summaries that are sketchy about the exact definitions of terms.

Last but not least, yesterday we wrote about the i4i case, noting that Microsoft decided to appeal (again). As Masnick correctly points out in his long and informative headline, “Microsoft, Who Supports Software Patents, Now Asks Supreme Court To Help It Against Patent Holder” (great news if this is indeed going to SCOTUS).

Microsoft, who has become a strongly pro-software patent company (despite Bill Gates’ old claim that patents would have harmed the software industry in the early days), is finding out (yet again) that such a stance can come back to bite you. We’ve already covered the somewhat ridiculous lawsuit that Microsoft faced from a small Canadian company, i4i, who claimed a patent (5,787,449) on an XML editing feature. Microsoft lost the lawsuit, and the court issued an injunction against Microsoft and claimed that the feature was worth an astounding $98 per copy where the feature was used.

Well, it’s even more interesting than that because Microsoft’s infringement was deliberate and it involved stabbing a ‘partner’ in the back. Can Microsoft help abolish software patents right now? Highly doubtful, but this case against Microsoft might contribute towards this goal.

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