Bonum Certa Men Certa

Patents Roundup: Software Patents, Patent Trolls, Reexaminations, and Apple

"The patent system is all about generating paper." --FFII's president

Books



Summary: An assemblage of news on the subject of software patents, especially with relation to software freedom

Anton Hughes, a Ph.D. Candidate at the University of Tasmania, wrote a good article about the misguided correlation between patents and software innovation, explaining quite clearly and scientifically what software developers know too well based on intuition:



Do patents create software innovation? Computer says no



It’s a question worth asking in the context of Apple’s recent body blow to Samsung, which will see Samsung’s Galaxy Tab 10.1 kept off Australian shelves until a full patent case can be heard.

The patent wars have been raging for the best part of a year and involve some of the biggest companies in technology (Apple, Google and Microsoft for a start). Those watching this instalment might wonder what all that arguing has to do with innovation. Isn’t innovation what patents are all about?

In theory, the patent system is an important mechanism for benefiting society through the encouragement of innovation, not litigation.

To see how the world might look without software patents, you don’t have to look too far.

Those who believe that, in the words of former US Supreme Court judge Oliver Wendell Holmes, Jr, “a page of history is worth a volume of logic”, can look back to the not-too-distant past. After all, software hasn’t been around that long.

The first known use of the word “software” in print was in 1958, and a fledgling software industry only took root in the mid-1960s.

A US President’s Commission looked at the patentability of software in 1966. It recommended Congress pass laws excluding software from patentability. Minimal patenting of software seems to have started in the 1970s, although it wasn’t really until the 1980s that it began in earnest.

In Australia, it wasn’t until 1991 that a court first considered the patentability of software, although the Patent Office had changed its early position against software patents to match the US position the year before.


In a later post we are going to show that the current US president does (or doesn't do) about this subject.

Pressing on a bit, Mr. Pogson is quoting Groklaw on the issue of patents, concluding:

Patenting Words



[...]

This shows software patents are about ideas and not about inventions. They are about words and not deeds. They are not helping promote the advancement of technology.


Groklaw also keeps track of reexamination of the patents of Microsoft's patent troll and co-founder. He potentially sued the whole world (bar Microsoft). To quote:

There has been a bit of reexamination action on the Interval Licensing patents asserted by Paul Allen against everybody and their brother (or sister). As we noted back on August 3rd (Interval Files First Response to Office Action), Interval filed a response to the examiner's office action on U.S. Patent No. 6,788,314 agreeing to the cancellation of claims 5 (independent) and 6 (dependent) but adding 16 new dependent claims. The USPTO is now ready to make those changes final unless it receives a further challenge from the party making the reexamination request by November 14, 2011. (Action Closing Prosecution (non-final) [PDF only]) This notice is just short of making the determinations final.

In a separate action the USPTO has issued a non-final action on U.S. Patent 6,034,652. (Reexam - Non-Final Action [PDF;Text]) The requesting party had challenged four independent claims and five dependent claims in this ex parte reexamination request. After considering the request and all of the cited prior art, the examiner has determined that three of the independent claims and one of the dependent claims are unpatentable. The remaining challenged claims are confirmed.


This can help show that software patents in general cannot pass muster in court. Even though some companies keep celebrating software patents in press releases and modified reprints of this PR, the fact remains that all ideas come from something prior. Innovation is usually the joining of existing strands of research and this one is no exception:

The United States Patent and Trademark Office recently granted ACS a rare “no prior art” patent for their breakthrough technology: Supercomputing Engine Technology or SET.


Supercomputers have been around for a very long time and just saying "no prior art" (in the press release) does not make it so. They did not produce the whole thing from scratch and just because examiners failed to find the inspirations does not mean that no prior art exists. They already have copyrights, so why monopolise this whole family of ideas? It is just one of those myths about a lone researcher having a Eureka Moment and coming up with something completely different that was never attempted before. By that definition, many like myself do this every day, but to claim full credit for what merely extends prior work is silly and even arrogant. Steve Jobs was a lot like this. Academia tends to be very much the opposite. Humility and patent lawyers' greed don't sit too well together. Humility is not a business model.

Check out this new article titled "Software firm wants a piece of the legal pie". If it wants a legal pie, then it is not a software firm; it might be a troll and it might just be an aggressor that shames the software industry as a whole. Software developers want nothing to do with patent lawyers; they want to just code in peace.

A patent troll called VirnetX [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] rears its ugly head again, this time targeting Apple. Based on this one source, patent lawsuits are surging, which means that patent lawyers get to take jobs away from developers. More people review legal documents rather than code and the patent lawyers from London dare to complain:

Some correspondents have been wondering why the IPKat hasn't been able to provide more, and better, coverage of the progress towards the European Union's proposed Unified Patent Court and the Unitary Patent System. Well, you try it! As soon as you start reading one document, along comes another one!


Jeremy Phillips from that blog says in Twitter that "Looking at the mass of paper generated by EU patent reform tinyurl.com/63wq4m2 I think the US approach to pat. reform was easier to follow"

The comeback from the FFII's president is priceless:

The patent system is all about generating paper.


Yes, patent lawyers (special interests) view companies in terms of paper piles, not products ("Patents may not save RIM from a downward slide to acquisition or even bankruptcy," says IAM's headline and "Kodak Patent Sale Could Save Photography Company From Bankruptcy" is another noteworthy headline).

Apple recently managed to write several pages of text on the "slide to unlock" invention, which has basically been around for millennia or at least centuries (but only recently viewed as the "invention" and thus monopoly of Apple). Here is what ZDNet had to say about it:

In last week’s episode of “Can you top this dumb patent?” we discovered that Apple had patented the design element of sliding to unlock a device. Gosh, and I recall my grandpa’s front gate having a slide-to-unlock device in the 60s! Boy those Apple guys had to get up early in the morning to invent that one

Sarcasm aside, does” every Android device now infringe this Apple patent?” Or, for that matter, every Windows 8 device? Well, yes, they probably do. But does that mean that Apple is really going to be using this patent to sue everyone and anyone who uses the slide metaphor in their design? I asked some prominent intellectual property (IP) lawyers about it and this is what they said.


Here is TechDirt's take:

The Real Issue With Apple's 'Slide-To-Unlock' Patent: Double Patenting & Bogus Continuations



Lots of folks sent in variations on the story last week that Apple was able to get a patent on the "slide to unlock" feature. Most of the submissions were outraged that this patent was granted, with many pointing to prior art from before the patent was filed. What most people missed was that this patent, 8,046,721 is actually a continuation patent from an earlier patent, 7,657,849.

The real issue here isn't just that Apple was able to patent something as simple as "slide to unlock," but how it shows the evils of double patenting and the use of continuation patents. We've pointed to problems with continuation patents in the past, in that they have been used to "submarine" legitimate inventions. You could just watch what others were doing in the space, and file a later "continuation" patent on your earlier patent, and have an earlier priority date, despite actually copying the work from others.



Apple is claiming to 'own' tablets with revelled edges and buttons using some ridiculous patents and fake 'evidence' that it tampered with. According to a very new report, this strategy from Apple is failing. To quote: "Spanish computer maker NT-K had its Android tablets impounded, at Apple's request, but has now been vindicated by a local court and is seeking damages from Cupertino for lost earnings and reputation.

"Apple reckoned the A91 tablet, made by Nuevas Tecnologías y Energías Catalá - you must have heard of them - is a rip-off of the iPad design, just like the Samsung Tab, allegedly.

"Since last November NT-K has had shipments of its fondleslab impounded on arrival from China. But in a triumphant blog posting the company has declared victory, with local media reporting that the Valencia court has dismissed Apple's claims - and lifted the ban."

Meanwhile we also learn that Twitter thwarts a patent troll with another ridiculous patent:

Twitter Beats Patent Troll Who Patented Letting Famous People Interact Online



Earlier this year, we covered how an operation called VS Technologies -- really a patent lawyer by the name of Dinesh Agarwal, held patent 6,408,309 on a "Method and system for creating an interactive virtual community of famous people." He then sued Twitter over this patent, though we couldn't figure out how Twitter actually infringed on the claims in the patent itself. While we were disappointed, a few weeks back, that the judge didn't dismiss the case pre-trial, it looks like the trial itself was pretty speedy, and the jury wasted little time in agreeing with Twitter that it did not infringe at all.


The USPTO has become a total embarrassment and even the US courts help show this. Later on we'll write about what can be done about it, as our Guest Editorial Team has already done to a degree. ⬆

Comments

Recent Techrights' Posts

The Register MS Helps Prove the "AI" Frenzy in the Media is Evidence of Compromised Media, Not Legitimate "Revolution"
Ignore the hype and carry on
Microsoft Insiders on "Effectively Being Silently Laid Off From Microsoft"
People are laid off by the thousands without the media uttering a word or the companies confirming anything
Microsoft's XBox CEO Asha Sharma Tells Staff That Many Thousands of Layoffs Are in Fact "Return to Growth"
Get it? Layoffs are "growth".
Gemini Links 07/10/2026: Nostalgia, Neutral Map, and Shorthanding
Links for the day
 
Links 08/10/2026: Slop Scammers (Pushers) Inflate Hosting Bills and "YouTube Testing Everything"
Links for the day
London Became Synonymous With the Royal Courts of Justice
London used to be a place where we go on holiday/retreat/break; nowadays we have only one destination there
Brigading Against Women - Part XXIII - Extremism in the Mix and Getting the Police Involved
In 2012 I was getting heckled a lot for opposing back doors in Linux; it has not stopped since
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 07, 2026
IRC logs for Wednesday, October 07, 2026
Gemini Links 07/10/2026: On Feeling Guilty Leaving the US, Multinet, and Limiting Net Usage
Links for the day
The Cyber Show Explains the Concept of "Data Rape"
a metaphor some might find crude
FREE BEER is Still Online, But Barely Active
25 years ago or even 20 years ago many spoke of open/free beer (or "COLA")
Syria: GNU/Linux Has Surged to 8% "Market Share"
I don't have a convincing explanation for this
IBM Dimming Down the Lights on IBM Consulting, No Knowledge or Experience Required
They just "ride" the (old) brand, that's all
Statement on American SLAPP
Crossposted from schestowitz.com
Today The Register MS Published "SPONSORED FEATURE" and "SPONSORED POST" With "AI" 31 Times in Them
This isn't a "Reality" or "Era of AI", it's a paid-for spam campaign
Links 07/10/2026: Unrest in France and Rumours of Plague in Russia
Links for the day
Brigading Against Women - Part XXII - The Lozza Problem (in Length)
Garrett's case was a waste of the Court's money
JavaScript in Richard Stallman's Web Site
For search he is using CGI, not JavaScript
EPO's Local Staff Committee The Hague (LSCTH) Plans Presentation Next Week (Coinciding With Apparent Coronation of 'Cocaine King' Campinos)
They've outsourced this session to the dictator's spying eye
The GNOME Foundation's Code of Conduct Has Been Misused to Hide Corruption
People who value free speech and freedom of expression won't touch social control media with a 10-foot bargepole
Voting for Freedom of the Press
American elections happen every 4 years
What Brett Wilson LLP and Matt Garrett Don't Want People to See/Read
Book-burning is counterproductive
Book-Burning Mindset Does Not Work
It makes the suppressed voices more widely known
Microsoft's XBox in 'Freefall'
XBox is practically finished
Slop is Plagiarism
Plagiarism is not "theft" and copyright infringement is not "piracy"
IBM is Almost Defunct
IBM is doomed. It just tries to test how much more patience the shareholders have.
Criminalisation of Journalism
"Journalist Derya Okatan arrested in Turkey for allegedly possessing classified material"
Brigading Against Women - Part XXI - Hiding Behind the Veil of "Privacy" After Telling Nazi Things in IRC Channels of Techrights and Physically Threatening People
To merely explain an abuse (or crime) requires naming people; that's a fundamental tenet of reporting
Links 07/10/2026: Quitting Smartphone and "Meta's Muse Is Spying on All Your Friends and Family"
Links for the day
Gemini Links 07/10/2026: Greed, In Praise of Zotero, and The de-Google Path
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 06, 2026
IRC logs for Tuesday, October 06, 2026
Microsoft Hiring Only on the Cheap
Much of the same can be said about GAFAM and IBM
Gemini Links 06/10/2026: Nightfall Express, Shorthanding, and Raspberry Pi Desktop Gets a Debian Trixie Refresh
Links for the day
20th Anniversary Next Month
We are currently trying to agree on a plan for next month's celebrations
Taking Photos With Richard Stallman (RMS)
What's the point?
GAFAM Attack on FreeDesktop
Now they push lots of LLM slop into Linux
EPO Union Bemoans Lack of Social Dialogue as Dictator Wishes to Govern Forever (No Elections, No Rivals), Hide the Many Issues
"Exchange of open letters"
GNU/Linux Has Risen in France Since the Order to Adopt GNU/Linux (in Public Services)
We can expect the same in countries like Denmark, Switzerland, Germany, and The Netherlands
On Microsoft Hiring Freeze or No Permanent Jobs at Microsoft Anymore (Amid Many Silent Layoffs)
Microsoft has changed what it can offer workers
IBM Cannot Hide the Layoffs Forever
we welcome whistleblower to tell us more and send us documents related to that
EPO's Central Staff Committee Asking The Council to Get Rid of Corrupt Campinos
We'll be covering EPO scandals around the time of that meeting
Gemini Links 06/10/2026: EU Kids Act, Practicality of Gemini, and Games
Links for the day
Links 06/10/2026: Data Breaches Epidemic and Turkey Blocking Journalists
Links for the day
The Whole Point of Computing is That Computers Are Deterministic (Speed With Predictable Accuracy)
Unlike stochastic parrots that stochastically utter out lies
It's Not a Linux Back Door If It's an Unpatched Device
"Linux Backdoor" is a glaring misfit, a possibly 'obscene' term
What is a Conditional Fee Agreement (CFA)? When Law Firms Become the Litigants.
And the Solicitors Regulation Authority (SRA) needs to be more serious about tackling this
Brigading Against Women - Part XX - Attempts by Lozza to Deplatform Techrights and Tux Machines Only Days After I Sued Garrett and My Wife Also Sued Garrett (Shortly Before the Serial Strangler From Microsoft Joined)
in 2024
Links 06/10/2026: A Year Since "NSA Whistleblower Reality Winner Released From Prison", World Tries to Deal With El Niño
Links for the day
"SIRIUS CORPORATION LIMITED" as Evidence of the Financial Shell Games in the UK
Rianne and I still have some fond memories of the time the ex-wife of the CEO treated us like human beings
Lots of Silent Layoffs at IBM Last Week, Employees Explain Patterns of Those Impacted
It wasn't just gossip, it actually happened even if the media chose to look the other way (as usual)
Gemini Links 06/10/2026: Fighting for Purpose, Gemlogs, and Gemtext
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 05, 2026
IRC logs for Monday, October 05, 2026