08.30.11

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More Mainstream Backlash Against Software Patents and Patents in General

Posted in America, Europe, Patents at 8:28 am by Dr. Roy Schestowitz

More and more people want the patent system to stop

Hand on glass

Summary: An overview of articles and posts about the subject which affects GNU/Linux and Free software the most nowadays

THE MORE the corporate press complains about patents, the more involved the public will become and the better informed people will be. It is gratifying to see big publishers voicing scepticism of the current patent system and even lawyers’ site acknowledge that we may be approaching the end of software patents, even in the United States (watch patenting maximalists try to be objective). Quoting Law.com:

A closely watched appellate ruling invalidating broad software patents claims because they covered “unpatentable mental processes” isn’t as straightforward as it seems, Silicon Valley lawyers say.

The Federal Circuit U.S. Court of Appeals’ Aug. 16 ruling in CyberSource v. Retail Decisions, 2009-1358, leaves room for debate about what kinds of business methods can be patented, thanks to one word: practicality.

Business methods that could be performed by the human mind still could be patentable because, as a practical matter, they have to be done on a computer, the court said. Figuring out what processes meet that criteria could lead to heated court battles in the months ahead, lawyers predict.

This court ruling is important and it is likely to be brought up in the future. In the mean time we have bloggers hammering on the system quite hard. Andrew’s highly-cited post, which protests against the patent system, concludes with:

The question is, what do we do when we have to keep playing the game, given the endemic problem of the emergence of strategies that subvert the intent of the game.

Lodsys has been another driver of backlash against the patent system, not just in the US but also in countries where developers make software they sell in the States. Here is Groklaw‘s latest take on the subject:

In the latest filing by Lodsys [PDF] in response to the Apple motion to intervene in the Lodsys v. Combay case, Lodsys gives every indication it is in a panic to keep Apple from intervening. Much of the document is redacted, but despite that fact we can glean the sense that Apple’s entry into the lawsuit spoils Lodsys’s entire theory of the litigation, at least with respect to the Apple (and likely Google) developers.

Meanwhile there is risk that the same rogue system Lodsys is exploiting will spread to Europe, as the founder of the FSF warned last week. Here is a new article on the subject:

EU en route to US-style software patent nightmare

The EU could see the introduction of software patent wars seen in the US if it continues with plans for a ‘unitary patent’.

According to Richard Matthew Stallman, writing at the Guardian, there is a very real danger that software patents could be enforced across the whole of Europe (with the exceptions of Italy and Spain), should the unitary patent system go ahead.

The introduction of such patents would have the potential to be highly detrimental to the development of software, and the recent Hargreaves Report urged strongly against them.

However as Stallman says there are concerns that under EU plans the European Patent Office would be given the green light to issue software patents that would be valid automatically in many European states.

It is important to squash software patents in the USPTO before it spreads like an organism to other continents.

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4 Comments

  1. Needs Sunlight said,

    August 30, 2011 at 9:05 am

    Gravatar

    The Techeye article misses the fact that the EPC explicitly prohibits patents for software. The EPC needs to be brought to the forefront and the unitary patent harmonized with the EPC.

  2. Needs Sunlight said,

    August 30, 2011 at 10:48 am

    Gravatar

    http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ar52.html

    Dr. Roy Schestowitz Reply:

    Thanks for researching this subject.

  3. twitter said,

    August 30, 2011 at 4:58 pm

    Gravatar

    If this is an example of what the mainstream press is filled with, people would be better off getting information from someone else:

    Business methods that could be performed by the human mind still could be patentable because, as a practical matter, they have to be done on a computer

    This piece of sophistry would be a little more plausible if Bilsky had not trashed business method patents. I doubt the judges were trying to say that something that something that does not deserve a patent suddenly does because it is too tedious for humans. The patent lawyers will never quit telling people the same old lies, one after another.

    Such arguments do not deserve a fair hearing, much less repetition. The patent lawyers say the sun rises in the west, everyone else says it rises in the east, the truth is not somewhere in between. It’s time to end software patents.

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