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Why Europe Must Prepare to Abolish and Block All Software Patents

Posted in Europe, Microsoft, Patents at 12:26 pm by Dr. Roy Schestowitz

Baroness Wilcox
Credit: Department for Business, Innovation and Skills (BIS)

Summary: In the interest of Business, Innovation and Skills, the EPO (and UK-IPO or other patent offices) should avoid the travesty of allowing patent monopolies on mathematical processes

THERE IS some big news coming out tonight in Europe. Techrights received an embargoed press release (clue at the top) and will therefore post some details today in a preparatory fashion. As many of our readers may know by now, Europe in highly critical in the fight against software patents. If Europe surrendered to the United States (pressure from lobbyists), then it would instantaneously make software patents legal in the majority of the Western nations, which in turn would lead to pressure and coercion, flipping into line all the rest of the world like domino bricks.

Microsoft is by no means a scapegoat when it gets blamed for software patents. Microsoft’s co-founder, just like the other co-founder and his good friend the former CTO (a very bad man), has become a patent troll and thankfully Groklaw continues to keep track of his lawsuits, which also target Android/Linux. From Professor Webbink:

You may recall from our last communication on this case that the judge declined to issue a stay of the case pending the anticipated reexamination of the asserted patents because the USPTO had yet to accept the reexamination request. Well, that worm has now turned.

According to a status report filed with the court by Yahoo! (see full text below), the reexamination requests with respect to three of the four patents have been granted, and we should expect to hear about the fourth any day now.

Allen can help show why the USPTO is broken. When a company that produces nothing sues the whole world, who can possibly benefit?

In other important news found by the Groklaw research Web site (although this time by Pamela Jones, who is still coaching Webbink), the USPTO will “Host Public Discussion on Newly Proposed Process to Streamline Patent Reexamination” (putting lipstick on a pig much?) which leads nicely into this new piece. The problem here is that they polish the wrong bits, failing of course to address the fundamental fallacies of the USPTO.

“Patents are examined and granted by the patent office but their true value is ultimately decided by the courts,” explains the page, “At this conference, officials from the United States Patent & Trademark Office, District Court Judges, academic experts and experienced practitioners will examine the existing contours of the interface between the USPTO and the Courts to discuss proposed improvements that could make patent prosecution and litigation more efficient and effective.” (read: make it easier to sue)

“If that is the case,” remarks Jones, “that the courts are where a patent owner finds out if the patent is valid or not, why aren’t jurors told that, and why then are issued patents presumed valid?” When even a site accommodated by lawyers is unhappy with the US patent system, then something surely is awry.

Over in Europe, the president of the FFII warns that:

Patent lobby wants substantive patent law (software patents) outside of the European Union

He links to this report about globalisation of the patent system (so that nobody can get away from bad laws and corporocracies):

In first discussions with the interested circles and experts the EU Commission announced that it will continue its work for a patent jurisdiction system and is planning amendments of the Draft Agreement of 23 March 2009 (St07928) which shall comply with the Opinion of the Court of Justice of the European Union (CJEU) in order to achieve compatibility with the EU Treaties.

Truly shameful and dangerous. This is the type of loopholes they need for introducing software patents in Europe, as matter of law. “The World Patent and the World Patent Litigation System” is another new piece remarking on “the US judge, who wished to allow patents on business methods and computer programs”:

Imagine: Wouldn’t it be fantastic to have one single patent which you could apply for at the WPO, the World Patent Office? A World Patent, which would be valid worldwide and which could be enforced in each single country of the world with worldwide effect? Decisions of the national local chambers of the World Patent Court (WPC) could be appealed at the WPSGC, the World Patent Global Supreme Court. Wouldn’t this be a major breakthrough in improving IP protection and decreasing patent costs for the industry?

Well as always, the problem comes with the details: Shall the system allow distinguishing between first, second and third World Patents? Will there be an exemption for extraterrestrial use? And what about the language regime?

While Europe is still struggling to establish a unitary patent and a European litigation system, the IP judges of the world already seem to have a much broader perspective.

There is more information from the legal community about the EU patent. It says that:

Under the date of May 26, 2011, the EU Council has published Document 10629/11 titled Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection including a Proposal for a Council Regulation implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements. The text is said to facilitate discussions on political orientation as well as an exchange of views.

Axel H. Horns, who wrote this summary, is actually a good and almost balanced source of information. The above helps verify that the EU Patent is still underway; it must meet scrutiny because it is easier to block bad laws than to withdraw them. The EU Patent would have devastating effects for all software developers, not just Free software developers. Here is a new warning from Europe about software patents. “EDRi said that software patents hamper competition and said that the EU’s push towards a unitary patent protection system would encourage more patent lawsuits,” says this report. It is the only quoted opinion on this matter.

“HP, Quest Sued Over Medical Records Software Patent” says this new headline, so people’s lives are further compromised yet again due to software patents. To quote the report: “Patent holder Medsquire LLC sued Hewlett-Packard Co., Quest Diagnostics Inc., Athenahealth Inc. and others Wednesday in California, alleging they infringe a patent covering software that organizes patient information records.”

“Patent holder” is a kind name for a patent troll. Does anybody wants these patent trolls to enter Europe as well? At present, patent trolls are uncommon in Europe. Also, statistics shown last year showed that the trolls thrive in software patents. There is a strong correlation there.

Suffice to say, Microsoft is a major lobbyist for software patents in Europe although it often operates through other entities which hide this. Jones notes that earlier this month in France we saw yet another case of Microsoft nepotism and string-pulling in France (recall the Ballmer 'Kissinger moment'). “Uh oh,” she wrote.”Here’s one you might like to watch, with EFF’s John Philip Barlow included, so you’ll know what they mean by “a flourishing Internet”. Stay for the questions at the end. Remember when Steve Ballmer and Sarkozy were high-fiving each other and saying, “Win, win”? Is this what they meant? I can’t help but wonder. Yes. Microsoft was a sponsor and Craig Mundie was there, talking about the future of the Internet, which is odd, considering that the company didn’t see it coming, had to play catch up and now is no longer viewed as representing the cutting edge of products people use on the Internet. Where was Apple at this conference, by the way, speaking of the future? Where was Red Hat? The Internet was built with Open Source software, by people who did not patent it, so where were the people who came up with the Internet at this conference? Robert Murdoch was there though, giving a talk, speaking of Internet visionaries. Not. In short a lot of people who have no clue would like to regulate the Internet so they can keep their 20th Century “content” business models alive a little bit longer by strip mining the world’s Internet. Here’s a page on YouTube where you can find many more videos and check to see if I have overstated matters. Or the opposite.”

Regarding the news that ” HTC Pays Microsoft $5 Per Android Phone” Jones wrote: “That was SCO’s dream too, if you recall, a tax on Linux. They collected millions from SCOsource by bullying companies falsely alleging copyright infringement, and analysts predicted a rosy future for SCO and doom for Linux, and yet look at them now.”

One Identi.ca/Twitter user whom we follow says:

#MSFT earns more from #Android than from Windows Phone 7. Awesome. http://ur1.ca/4azkc So, when do we kill #swpats ? /via @tante

Also quite importantly, when will software patents be rejected as a matter of strong principle in Europe? We are not quite there yet. Citing Glyn Moody, Mike Masnick too explains to his large audience why patents are damaging the EU economy and there is also a mention of the EU Patent:

Much of the report is about harmonizing both patent and copyright laws across Europe or creating pan-European infrastructure for patent and copyright laws. I’m of a mixed opinion on those proposals. While I can definitely see the problems of having so many different local patent and copyright laws, historically, attempts to “harmonize” such laws only lead to much more draconian laws with little flexibility. Having different laws in different places allows for countries to experiment with, perhaps, less protectionist efforts, and to show that you don’t necessarily need greater protectionism for the economy to function. On top of that, in my discussions with people throughout Europe, one of the concerns with harmonization was that each market is so different, that a single set of laws would lead to very bad policies in certain countries.

Unification sounds like a positive and constructive idea assuming that the side which expands brings improvement to the remainder. In Europe, however, such treaties would be constructed so as to help the large corporations from overseas. We will have major news about this subject tonight. More people must get involved in the fight against software patents (all of them, not just “bad” ones), which is why Jones stepped out and let someone like Webbink (or Peer to Patent) take the podium. GNU/Linux will win hands down if software patents are removed as all sorts of barriers — including multimedia codecs — will be history.

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  1. Needs Sunlight said,

    May 31, 2011 at 1:12 pm


    M$ has been footdragging since 2004 over patents for its products. Maybe the court will wake up and check the European Patent Convention from 1973 and realize there is no place for software patents in their courtroom or any where else in Europe.

    Dr. Roy Schestowitz Reply:

    I lost faith in the European regulators when I watched this video of Neelie Kroes.

  2. twitter said,

    May 31, 2011 at 5:16 pm


    Unification sounds like a positive and constructive idea assuming that the side which expands brings improvement to the remainder. In Europe, however, such treaties would be constructed so as to help the large corporations from overseas.

    The proper word for that kind of unification is “subjugation”

    Dr. Roy Schestowitz Reply:

    Yes, but they would rather say “unify” or “harmonise”.

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