EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.23.11

Patent Lawyers Boast New Tricks for Patenting Software

Posted in Patents at 8:15 pm by Dr. Roy Schestowitz

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

Summary: Microsoft is not alone among those who utilise and exploit ambiguities to get patents on software where it is not legal

SOFTWARE patents are very unpopular these days. There is very vocal opposition to them and even patent lawyers shy away from defending the practice of software patenting in public as it invites backlash.

Occasionally we still see firms that try to monetise the broken system. They put out press releases that redefine reality and this nonsense spreads around. Have a taste of this:

“At Chipworks, we help companies outside of the chip market strengthen their patent licensing position by leveraging systems and software patents,” said Terry Ludlow, CEO and Founder of Chipworks.

They even take pride in “leveraging systems and software patents”.

Well, following the Bilski case we have some tests that address the blurring of gaps between hardware and software. Chipworks is trying to hack around it. It latches onto big brands by writing: “It is reinforced by mergers and acquisitions, such as Microsoft and Skype and by high profile court cases including Nokia vs. Apple, and Eastman Kodak vs. Apple and Research In Motion Ltd. (RIM).” There is no need to blur any gaps though. Software is simply not physical. Period. To quote this new post about the ” Bilski Machine or Transformation Test”:

The court granted defendant’s motion to dismiss for failure to state a claim and concluded that plaintiff’s patents did not satisfy the transformation prong of the machine-or-transformation test under In re Bilski, 130 S. Ct. 3218 (2010).

A patent lawyers’ blog speaks of expansion of other tests:

To be eligible, the pending application must not have more than three independent and twenty total claims all directed to a single invention (i.e., not subject to a restriction requirement). To participate, an applicant must electronically file a request for a first action interview at least one day before an Office action is entered into PAIR. An application that does not originally fit within the requirements can become eligible through a preliminary amendment.

What a load of bureaucracy. No wonder there is soaring unrest around the patent system. As one blog explains it, “The US patent system has its own place within the national psyche.” To quote further:

It is timely to examine this now, as the US Congress considers legislation to reform the system in a number of respects, but most controversially to replace the ‘first-to-invent’ principle with a ‘first-inventor-to-file’ approach more closely aligned with the rest of the world. It is said by some that this unique feature of the US patent law finds its origins in the articles of the Constitution upon which the Nation was founded, and that placing the individual at the heart of the system, as the source of all innovation, has contributed to America’s great economic and cultural success.

The criteria for acceptance in general, be these the shallow prior art search (restricted to published patents) or the series of tests that are easy to hack (like Bilski test), make the system prone to abuse and more trouble than a blessing. It probably won’t be long before change is enforced.

Over in Europe, gullible politicians still try to pass “The Single European Patent”, which may sound good (they greenwash software patents with that photo in there), but it actually an intrusion vector for software patents in Europe.

We have also just found out that the UK-IPO is involved with Peer To Patent, which is not necessary a good thing. Webbink might support this conformist approach (it is professionally close to him), but many groups would not. To quite the site:

In my time at the IPO I have visited many Patent Offices around the world. One topic for discussion that has come up on many of these visits is patent quality and what can be done to ensure it. Peer To Patent is one initiative aimed at helping offices in this area. Earlier this year I was in Washington where I had a very useful discussion on the US project with the head of the USPTO, David Kappos and their Peer To Patent Project Leader Jack Harvey. The USPTO is very positive about Peer To Patent. From the figures they gave me about their first pilot, comments provided by the public though their Peer To Patent website were helpful to the Examiner in about 15% of the cases in their pilot. On this evidence they started a second pilot last October.

Back in the UK we’re working with New York Law School towards the 1st June launch of www.peertopatent.org.uk. Over the next 3 months we will be uploading about 200 patent applications in the computing field to the website. The website then allows members of the public (like you) to view these applications and identify documents or leave comments that they think will be useful for the examiner to consider

This only legitimises software patents around Europe. “Legal” people like patents because it means business to them. What we really need is abolition.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Sad State of GNU/Linux News Sites

    The ‘media coup’ of corporate giants (that claim to be 'friends') means that history of GNU/Linux is being distorted and lied about; it also explains prevalent lies such as "Microsoft loves Linux" and denial of GNU/Free software



  2. EPO President Along With Bristows, Managing IP and Other Team UPC Boosters Are Lobbying for Software Patents in Clear and Direct Violation of the EPC

    A calm interpretation of the latest wave of lobbying from litigation professionals, i.e. people who profit when there are lots of patent disputes and even expensive lawsuits which may be totally frivolous (for example, based upon fake patents that aren't EPC-compliant)



  3. Links 15/9/2019: Radeon ROCm 2.7.2, KDE Frameworks 5.62.0, PineTime and Bison 3.4.2

    Links for the day



  4. Illegal/Invalid Patents (IPs) Have Become the 'Norm' in Europe

    Normalisation of invalid patents (granted by the EPO in defiance of the EPC) is a serious problem, but patent law firms continue to exploit that while this whole 'patent bubble' lasts (apparently the number of applications will continue to decrease because the perceived value of European Patents diminishes)



  5. Patent Maximalists, Orbiting the European Patent Office, Work to 'Globalise' a System of Monopolies on Everything

    Monopolies on just about everything are being granted in defiance of the EPC and there are those looking to make this violation ‘unitary’, even worldwide if not just EU-wide



  6. Unitary Patent (UPC) Promotion by Team Battistelli 'Metastasising' in Private Law Firms

    The EPO's Albert Keyack (Team Battistelli) is now in Team UPC as Vice President of Kilburn & Strode LLP; he already fills the media with lies about the UPC, as one can expect



  7. Microsoft Targets GNU/Linux Advocates With Phony Charm Offensives and Fake 'Love'

    The ways Microsoft depresses GNU/Linux advocacy and discourages enthusiasm for Software Freedom is not hard to see; it's worth considering and understanding some of these tactics (mostly assimilation-centric and love-themed), which can otherwise go unnoticed



  8. Proprietary Software Giants Tell Open Source 'Communities' That Proprietary Software Giants Are 'Friends'

    The openwashing services of the so-called 'Linux' Foundation are working; companies that are inherently against Open Source are being called "Open" and some people are willing to swallow this bait (so-called 'compromise' which is actually surrender to proprietary software regimes)



  9. Microsoft Pays the Linux Foundation for Academy Software Foundation, Which the Linux Foundation is Outsourcing to Microsoft

    Microsoft has just bought some more seats and more control over Free/Open Source software; all it had to do was shell out some 'slush funds'



  10. Links 14/9/2019: SUSE CaaS Platform, Huawei Laptops With GNU/Linux

    Links for the day



  11. Links 13/9/2019: Catfish 1.4.10, GNOME Firmware 3.34.0 Release

    Links for the day



  12. Links 12/9/2019: GNU/Linux at Huawei, GNOME 3.34 Released

    Links for the day



  13. Links 12/9/2019: Manjaro 18.1 and KaOS 2019.09 Releases

    Links for the day



  14. EPO: Give Us Low-Quality Patent Applications, Patent Trolls Have Use for Those

    What good is the EPC when the EPO feels free to ignore it and nobody holds the EPO accountable for it? At the moment we're living in a post-EPC Europe where the only thing that counts is co-called 'products' (i.e. quantity, not quality).



  15. Coverage for Sponsors: What the Linux Foundation Does is Indistinguishable From Marketing Agencies' Functions

    The marketing agency that controls the name "Linux" is hardly showing any interest in technology or in journalism; it's just buying media coverage for sponsors and this is what it boils down to for the most part (at great expense)



  16. Watch Out, Linus Torvalds: Microsoft Bought Tons of Git Repositories and Now It Goes After Linux

    Microsoft reminds us how E.E.E. tactics work; Microsoft is just hijacking its competition and misleading the market (claiming the competition to be its own, having "extended" it Microsoft's way with proprietary code)



  17. Links 11/9/2019: Acer in LVFS, RawTherapee 5.7 and Qt 5.12.5 Released

    Links for the day



  18. Linux Foundation Inc. Buys Press About Itself and Media Coverage for Sponsors

    Sponsoring so-called ‘news’ sites is bad enough; it is even worse when such media then covers you and your sponsors, such as Snyk (a Linux Foundation sponsor/member, fancier word for client)



  19. Links 11/9/2019: Django 3.0 Alpha, Sunsetting Python 2

    Links for the day



  20. Web Site Called Linux.com Still Exists Only or Mostly to Promote Anti-Linux Firms and Openwashing

    As the Linux Foundation transitions into the Public Relations (PR) industry/domain we should accept if not expect Linux.com to become an extension of PR business models; the old Linux.com is long gone (all staff fired)



  21. Links 10/9/2019: Krita 4.2.6, Ubuntu 19.10 to Boot Faster

    Links for the day



  22. What the Linux Foundation's Jim Zemlin Really Thinks of Desktop/Laptop GNU/Linux

    Interesting words from Ken Starks resonate well with what we nowadays see in the so-called 'Linux' Foundation, whose dedication to Linux is like that of a circus to a monkeys' sideshow



  23. Links 10/9/2019: Kate Planning and GnuCash 3.7

    Links for the day



  24. The Sad Truth That Linux Foundation Staff is Against GPL/Copyleft and Sometimes Against Linux (Unless It's Run Under Vista 10)

    The Linux Foundation works for whoever pays the Linux Foundation and sadly that usually means companies that aren’t dedicated to Linux, to Software Freedom or even to simple truths and to the Rule of Law



  25. Microsoft Uses the Word “Linux” to Promote Privacy-Infringing Proprietary Software and Spread FUD

    The discussion about “Linux” is being saturated if not replaced by misinformation and marketing of Linux’s competition — owing largely to googlebombing tactics that the Linux Foundation participates in rather than tackle



  26. Patent Charlatans and Frauds Are Doing a Disservice to Europe and to Europe's Patent System

    Tax evasion and UPC lies aren’t going to help the integrity of the patent system; au contraire — those are becoming an existential threat to the system being exploited by law firms (and accountants)



  27. The European Patent Convention (“EPC”) Does Not Allow Patenting of Life Itself

    Unless the underlying rules are respected and Europe's largest patent office actually follows the laws it's governed by, Europe's patent system won't promote innovation; the European Patent Office's decision on Alexion (patent application 3124029 rejected) is good news



  28. European Patent Office's Cooperation and Collaboration With Patent Trolls Instead of Science and Technology

    EPO staff ought to be alarmed by the Office choosing to work with litigation and shakedown 'societies' rather than actual scientists, who may or may not choose patents as part of their strategy



  29. Links 9/9/2019: KStars v3.3.6 and LXLE 18.04.3 Released

    Links for the day



  30. Casual Bribery by Bill Gates Helps Control the Media and Spread Microsoft Lies (Such as “Microsoft Loves Linux”)

    Microsoft's notion of "love" redefines the concept of a corporation and it's reducible to intentional lies that enable a silent, gradual takeover of the competition


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts