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09.28.10

USPTO Receives Overwhelming Opposition to Software Patents

Posted in FSF, Law, Microsoft, Patents, Red Hat at 7:57 pm by Dr. Roy Schestowitz

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Summary: The Free Software Foundation (FSF) successfully encourages many people to voice their opinion on software patents and the USPTO comes under pressure from other directions while unregistered lobbyists heckle those who drive progress

THE FSF’S Brett Smith, along with other people who support the FSF’s cause, has been calling for requests to be sent to the USPTO (first mentioned here), asking politely for elimination of software patents until over 450 submissions were sent:

Last week, we put out an action item asking people to write to the USPTO, and explain to them why software should not be eligible for patents under their forthcoming post-Bilski guidance. To answer the call, you all sent in more than 450 letters, offering the USPTO all kinds of legal and practical reasons why they should stop issuing software patents. This is a tremendous response, and we’re very grateful to you all for participating. Thank you very much!

Of course, we also submitted our own letter written by the director of the End Software Patents campaign, Ciarán O’Riordan. You can read it on the ESP site. We used this opportunity to point out three specific points in the Bilski decision that we believe seriously undermine any legal case for software patents. If the USPTO incorporates even one of these points into its guidance, it will be a big win for opponents of software patents.

The FSF must be doing something right because the hypocrite lobbyist Microsoft Florian, who is spamming journalists in the sense that without consent he sends a huge number of them identical E-mails (personalised for deception), called the FSF “spammer” for recommending that readers independently submit suggestion to the USPTO, which is run with/by their own government. The FSF — unlike the company Florian lobbies in favour — does not send fake letters with slight variations and fake names of dead people. But anyway, let’s digress and not pay too much attention to aggressive lobbyists whose mask has fallen and goals exposed a long time ago.

Here is Red Hat announcing its contribution to this:

Yesterday Red Hat has submitted comments to the U.S Patent and Trademark Office regarding interpretation of the Supreme Court’s Bilski decision.

The submission was made in response to the PTO’s request for public comments to assist it in determining how to apply the Supreme Court’s decision in that case. Although the Bilski decision did not expressly address the standards for refusing to allow software patents, interpretation of the decision will determine whether certain patents are granted. Thus the PTO’s approach to examining patent applications will have a substantial effect on the patent landscape.

Needless to say, the tireless lobbyist is already bombarding Twitter with smears against Red Hat (for working towards removal of software patents).

Over at Groklaw, where the lobbyist is banned, there is publication of another detailed submission to the USPTO [via].

This is more than enough evidence that physical devices and computations have the ability to represent abstract ideas. Their use is essential for human beings to even be able to conceive, let alone use, these ideas. In particular the computations described by algorithms must be carried out physically in order to be used at all. If you patent the physical means to carry out the computation then you may end up patenting the computation itself if you are not careful. This is the mathematical basis for the non-patentability of algorithms as per Benson, Flook and Diehr.

Remarking on a story we covered last week, TechDirt publishes “Patent Office Says Another ‘Worst Patent’ Should Be Rejected As Obvious”

“Groklaw notes that Trend Micro is now at risk of losing the patent monopoly it has been using to attack competitors”While not wasting its time in Twitter arguing with lobbyists for software patents, the FFII drew attention to this good old article about “How two lines of code can infringe on a software patent”

One Twitter user wrote: “Any of your patent practitioners noticing a high level of COURTESY at the USPTO? The “business method” /software examiners impress me!”

Groklaw notes that Trend Micro is now at risk of losing the patent monopoly it has been using to attack competitors [1, 2, 3]. This happened at the USPTO’s order, which sounds like an encouraging improvement.

The USPTO on September 16 issued an order granting Fortinet’s petition to reexamine the validity of the Trend Micro patent on antivirus functionality, the 5,623,600 patent, on the grounds that a “substantial new question of patentability” exists based on prior art now being considered. Fortinet publicly acknowledges the help of the open source community, specifically mentioning the prior art searching you guys did here on Groklaw in June. The ultimate outcome is yet to be determined, of course, and that’s in the hands of the lawyers now, but you guys did your part. It’s a great partnership, techies and lawyers, and I thank you for working hard on this, and I hope it leads to a just resolution.

Lastly, just for laughs, see the new article “Larry King bagel company sued over ‘patented water’” (it’s not a satire).

A new lawsuit answers three great questions:

1. What is TV and radio personality Larry King up to now that he’s bowing to Piers Morgan as host of a nightly CNN talk show?
2. Why can’t we get a good bagel outside of Brooklyn?
3. Can you patent a process for making water?

Obviously, the answers are connected.

In July, King signed on with the Original Brooklyn Water Bagel Co. as a franchisee and brand promoter. The company specializes in selling bagels prepared in water adapted to replicate the H2O of Brooklyn, N.Y. King would promote the brand and help develop the budding chain’s stores throughout the world, including, for those crying “dough” over the lack of tasty bagels in La-La Land, a store opening in Beverly Hills.

Unless the USPTO changes course, it is at risk of losing a lot of the legitimacy it has left. Reviewing the patentability of software patents would be a good start. “Success” is not to be measured in terms of the number of monopolies granted and only ever broadening their scope is a recipe for Water Bagel disaster.

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3 Comments

  1. kozmcrae said,

    September 29, 2010 at 8:44 am

    Gravatar

    Software patents must be about ideas and not software code. If software patents were about software code then there would be no need to “impound” an entire application, just the offending code. I’ve never heard of that happening so I must presume that software patents are misnamed. They must be Idea Patents, or IP for short ;-).

  2. twitter said,

    September 30, 2010 at 4:45 pm

    Gravatar

    Astroturfers can’t pretend to represent free software when so many free software advocates write in like they did. It is also good that the FSF got coppies, so they can verify that the public record is complete. I wrote on, short letter. I wonder how many fake opinions the Microsoft people shoveled into the pile.

    Dr. Roy Schestowitz Reply:

    They usually have the likes of SAP/GE adding to the pile. Speaking of which, bad news:

    http://www.webosroundup.com/2010/09/hp-chooses-leo-apotheker-as-ceo-and-president/
    http://techrights.org/wiki/index.php/SAP

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