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11.03.11

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

Posted in Apple, Patents at 3:14 am by Dr. Roy Schestowitz

“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.

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3 Comments

  1. Michael said,

    November 3, 2011 at 3:40 am

    Gravatar

    An error in your article: “no prior art” does not mean that nothing even remotely similar has ever existed. For example – the one you use – Apple’s “slide to unlock” patent is not invalidated by the examples you give… and as such your argument fails badly. A better argument might be that the “invention” is quite trivial. If you really want to attack Apple over this patent, that would be the *reasonable* way to do so. Your method, showing you do not get the concept o “prior art” is a bit silly.

    For what it is worth, Apple seeks such patents, I guess, because of the number of companies seeking to out and out copy them (as Samsung has been shown to be doing). The legal system simply does not handle this well, so Apple is using what the legal system does offer.

    In the end, I agree with you that the current patent system is absurd – but you speak out against it very, very strongly without offering any better solution.

    What is a company whose main assets are tied to its innovation supposed to do to protect itself? Should we discourage such innovation? The open source world is a good, real-world example of how such innovations are generally *not* created without proprietary control of their own work. While there are certainly shining examples of excellence from open source, look at how much of it is simply working to copy what Microsoft, Apple and others do. What is the best open source office suite? LibreOffice? What goal does it have other than to catch up to MS Office. And GIMP – is there anyone reading this that does not know what program’s shadow it is sitting in? Even KDE and Gnome (and now Unity) largely copy Windows and OS X, though I think pretty much any consumer focused desktop GUI is going to “borrow” many of the same features.

    You also repeat your unsupported claim that Apple tampered with evidence. Given how you are merely repeating other’s unsupported claims, you might not be technically guilty of libel, but since you have had it explained to you that Apple has not been shown to have tampered with any evidence (they were provided with images they could not verify) you are clearly repeating claims you know to not be true (or shown to be true… they might be, we just do not know). Show I am wrong on this: show the before and after images of the pictures Apple received and the ones it shared. If Apple did more than crop and the like then, yes, they are guilty of what you accuse – but you simply have not shown that.

    And I bet you will not. Evidence and support are not important to you – as long as you bash the companies you admit you “envy”.

  2. walterbyrd said,

    November 3, 2011 at 1:52 pm

    Gravatar

    Samsung did not copy Apple. None of Apple’s ideas are original.

    http://www.reddit.com/r/apple/comments/kr14a/samsung_have_not_copied_apple_here_is_the_proof/

    Did KDE copy Windows, or was it the other way around? Isn’t Windows itself a copy of the Xerox GUI?

    http://digg.com/news/story/Windows_7_copies_look_and_feel_from_KDE_3_5

    “Apple Tampered with Evidence in German Apple v Samsung Case”

    http://www.osnews.com/story/25065/Apple_Tampered_with_Evidence_in_German_Apple_v_Samsung_Case

    Michael Reply:

    Samsung did not copy Apple. None of Apple’s ideas are original.
    http://www.reddit.com/r/apple/comments/kr14a/samsung_have_not_copied_apple_here_is_the_proof/

    LOL! You pointed to a sarcastic claim that points to this:
    http://i.imgur.com/TmUj2.jpg
    Which clearly shows Samsung did copy Apple – showing Samsung using Apple’s icons in their stores, making their USB adaptors to look like Apple’s, copying Apple’s product boxe and connectors etc.On and on and on. What an amazing self-nuke by you!
    But there is more:
    http://maypalo.com/wp-content/uploads/2011/08/Samsung-Products-vs-Apple-products.jpg
    http://gdeluxe.com/wp-content/uploads/2011/09/tablets-before-after-ipad.jpg
    http://www.appleinsider.com/articles/11/10/14/samsung_lawyer_couldnt_tell_ipad_and_galaxy_tab_apart_from_10_feet_away.html

    Did KDE copy Windows, or was it the other way around? Isn’t Windows itself a copy of the Xerox GUI?
    http://digg.com/news/story/Windows_7_copies_look_and_feel_from_KDE_3_5

    Anyone who does not know Apple was the one to create what we consider the modern desktop UI needs to read up on tech history. Seriously, this is not even worthy of debating. As I said, though, this is pretty much how all GUIs are made and each "borrow" from the others.

    “Apple Tampered with Evidence in German Apple v Samsung Case”
    http://www.osnews.com/story/25065/Apple_Tampered_with_Evidence_in_German_Apple_v_Samsung_Case

    If this was all the information you had, sure, you might come to the conclusion that there is evidence Apple altered the images. But note the article shows no evidence of this. Now see if you can find any evidence that Apple is the one who altered the images. Remember: they were provided with images they were not allowed to verify. If Apple knew these images were altered they should face penalties – and if Apple actually did the altering then they should face even bigger penalties. But to conclude they are guilty without evidence is wrong.

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