09.27.12
Posted in Europe, GNU/Linux, Google, Microsoft, Patents at 12:23 pm by Dr. Roy Schestowitz
Summary: Patent law in New Zealand and in Europe starts showing some resemblance, with similar loopholes being put in place
THE patent law in New Zealand (NZ) has been subverted to enable granting of software patents.
“IBM and Microsoft successfully rewrote NZ software patent law,” says the FFII’s president, Benjamin Henrion, quoting a source about “replacing an exclusion in clause 15(3A) (which relates to computer programs) with new clause 10A. Rather than excluding a computer program from being a patentable invention, new clause 10A clarifies that a computer program is not an invention for the purposes of the
Bill (and that this prevents anything from being an invention only to the extent that a patent or an application relates to a computer program as such). This approach is considered to be more consistent
with New Zealand’s international obligations (the TRIPS agreement, in particular, contains restrictions on the ability to exclude inventions from patentability). This approach is also more consistent with
overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection. Under the Bill, a patent may still be granted for an invention that meets all of the criteria for patentability (for example, novelty and an inventive step) despite the fact that the relevant invention involves a computer program in some respect…”
“This is a real shame,” he noted.
Here is further commentary on it: “Last week we reported the last minute backtrack by the New Zealand government, deleting a controversial provision in its new Patents Bill stating that ‘a computer program is not a patentable invention’, and replacing it with a controversial provision which still says that ‘a computer program is not an invention’, but only to the extent that it is ‘a computer program as such’. (See NZ Government Backtracks – to Europe – on Software Patents.)
“The basic idea behind this change is to import about 30 years of European and UK jurisprudence on what it means for something to be a computer program ‘as such’, in the expectation that this will allow – amongst other things – inventions implemented using embedded software systems to be patented.”
Clare Curran responded to this abomination in NZ. Prior to it, wrote the FFII’s president: “Patent law in New Zealand will be voted tomorrow, with or without the as such provision, but I was wondering if the exclusion proposed here by opponents was enough to shield software developers from lawsuits:
http://no.softwarepatents.org.nz/
“”10A(2): Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.”
“I find it a bit odd as a clarification.
“Software developers should not care about patent law, even if they develop “embedded software”, whatever that means.
In response, wrote another knowledgeable activist against software patents: “It’s not a great amendment. (I didn’t write it.) But it might still
work.
“Unclear law is a big problem in Europe because it was all written before software became commonplace, so judges can’t be sure if the author (of the EPC for example) really wanted to exclude software patents.
“In NZ the situation will be better because they have a law that allows software patents, and then the politicians said “no software patents”, and now the law is getting changed. When a judge has to interpret it, she should take into account that this law is supposed to have different effects to the previous law, and the intention was to reduce or abolish software patents.
“(That said, I haven’t been able to confirm that this is how NZ judges work.)
“The other good thing is that the petition has helped to get people organised. If the petition is a success and the politicians listen, then it means the anti-swpat camp is in control and maybe some slight changes can still be made, for this reading or for the subsequent reading. Maybe a few words can be added to the end to clarify that it means inventions controlled by an embedded computer.
“But the short answer is yes, the text does contain a loophole, but it’s too late to change it so we have to look for ways to bring the campaign back to the right direction.”
These are the words of Ciarán O’Riordan who worked with FSFE. The FSF highlights similar problems that go on in Europe and the FSFE does the same by noting: “Now the European Parliament is about to decide on setting up a single patent for Europe, known as the “unitary patent”. This is a chance to get rid of software patents. But if we don’t manage to achieve a real change in the current proposal, software patents will become even more entrenched in Europe.”
Glyn Moody says that “MEPs are back at work, and the Unitary Patent rears its misbegotten head again.”
After TomTom gave up in Europe and Microsoft had its FAT patents upheld in Germany we already see the serious consequences of software patents in Europe. Microsoft bans Motorola devices in Germany and to quote Murdoch’s press, “Google has suffered yet another defeat in its overseas patent battle with Microsoft.
“A German court ruled Thursday that a number of tablets and smartphones made by Google’s Motorola Mobility division infringe a Microsoft patent, and granted the software giant a ban on their sales in Germany. Microsoft must pay a bond of $61.4 million if it wants to see the ban implemented.”
There is more coverage of this and some background: “A court in Munich ruled on Thursday that Google-owned Motorola Mobility (MMI) must recall all the Android tablets and smartphones it has shipped in the country which infringe Apple’s “rubber band” scrolling patent, which was key in its billion-dollar lawsuit win against Samsung in the US.
“The dramatic decision, the latest in an escalating war between Apple and the smartphone and set-top box company MMI, follows earlier cases in which Apple had to disable automatic “push” delivery of email to its iPhone and iPads after MMI won a separate patent fight in Germany.”
Microsoft is getting desperate because “HP has already decided to halt development of Windows RT tablet PCs, while Dell reportedly may also back away from the segment, according to sources from the upstream supply chain.”
Moreover, Intel is not impressed by Vista 8, so despite large-scale patent battles we expect Android to carry on thriving.
Thankfully, people across Europe fight back against inane patent laws. April, a French group advocating software freedom, says: “On September, 13th, 2013, over 460 companies from all over Europe got involved to demand the improvement of the proposal for a unitary patent, following the call for action launched by April and by signing the resolution proposed with StopSoftwarePatent.eu and FFII.”
There is more from April [1, 2] and other groups or individuals who say that “a patent does NOT protect the innovator. It protects the one that filed the patent. It’s called the first-to-file doctrine and is used almost everywhere on this planet now.”
In NZ, this has been a subject of much debate. One person writes:
“Queen’s Counsel Andrew Brown has today written an article in which he confirms that the “as such” proviso added to the Patents Bill in its second reading will allow software patents to continue to be granted in New Zealand.”
Chuan-Zheng Lee has been “[r]eading lots of interesting blogs on #NZPatentsBill #swpats “embedded” vs “as such” debate” and Moody writes that “New Zealand capitulates to the #swpats lobby (see second clause) – http://bit.ly/TmW6Lp sad; #NZ will live to regret this” (background here).
There is even a whole new blog about it, called “No Software Patents in NZ“; it is protesting against software patents n NZ.
So the good news is, as was mentioned before, the public is starting to realise what happens and it gets involved. █
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Posted in Free/Libre Software, Law, Patents at 12:02 pm by Dr. Roy Schestowitz
Summary: Github comes under patent attacks as debates about US patent law intensify
THE past few weeks have been rather crazy on the patents front and as scholarly work in the area gains traction we just know that this whole debate is important; it helps determine winners and losers.
Free software took a hit when some parasites attacked Rackspace over Github. As LWN put it, “Personalweb Technologies and Level 3 Communications have filed a lawsuit [PDF] against Rackspace, alleging that Rackspace’s hosting of GitHub infringes upon a long list of software patents.”
Here are the patents in question and a response from Rackspace which calls the attackers “patent trolls”: “Rackspace has been subjected to yet another patent lawsuit by a patent troll looking for a settlement. In this case, the plaintiff is called PersonalWeb Technologies. This particular lawsuit is not much different than the others, except that it highlights why software patent litigation suppresses innovation, and why Congress and the courts need to improve the system. If it wasn’t such a serious issue we might want to laugh at the irony of it all.
“Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it’s suing over.”
–Rackspace“To explain, this suit claims that Rackspace infringes the PersonalWeb patents “by its manufacture, use, sale, importation, and/or offer for sale of the following products and services within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting Service.” It’s apparent that the people filing the suit don’t understand the technology or the products enough to realize that Rackspace Cloud Servers and GitHub are completely different products from different companies. By now, it’s widely known that GitHub is hosted at Rackspace, but beyond that, there is no other connection between the two.”
TechDirt pokes fun at the troll: “Last year, we wrote about the somewhat random confluence of events that brought together two ex-file sharing industry execs (one associated with Kazaa and the other with Morpheus) and made them extreme patent trolls, suing a ton of internet companies under the ridiculous brand “PersonalWeb.” Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it’s suing over.”
As we showed before, trolls favour software patents; it is why they are so common in the United States. Professor Lemley has an idea for closing the loophole: “In broad terms, functional claiming refers to writing patent claims that cover the broader function enabled by an invention rather than writing claims to the specific embodiment developed or contemplated by the inventor. In other words, instead of erecting a signpost that points others directly to the invention, functional claiming is akin to building a wide fence to surround the invention in an attempt to claim as much territory as possible. Lemley gives us the colorful example of the Wright brothers to illustrate both how functional claiming works and how it can cause problems/”
“As one expert noted in the Times story, patents “are supposed to be an incentive for innovation.” That’s not the way they’re working in the smartphone wars.”
–Rob TillerThe OSI’s head Mr. Phipps says that this “paper from legal researcher suggests a fix for the software patent mess has been lurking in the statute all this time” and Red Hat’s Rob Tiller uses the recent blow to Android to make his point. To quote: “Does the Apple-Samsung case have a silver lining? For the open source community, the large damages verdict is disturbing, but at least it is drawing public attention to some of the deep problems of our patent system. This week the New York Times ran a front page story on the jury’s verdict that said, “The case underscores how dysfunctional the patent system has become.”
“The definition of “dysfunctional” is relating to “abnormal or impaired functioning.” (Merriam Webster) The word fits well here. As one expert noted in the Times story, patents “are supposed to be an incentive for innovation.” That’s not the way they’re working in the smartphone wars. Instead, entrenched players are using them to tax competitors, or even to block them from the market. To the extent patents block competitors and reduce competition, innovation is likely to suffer.”
Even the FT is displeased with US patent law. Time to end software patents; with that, many patent trolls will also be eliminated. If companies like Apple can get their way using patents alone, then we simply cannot ignore the matter. █
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Posted in GNU/Linux, Google, Microsoft at 11:51 am by Dr. Roy Schestowitz
Summary: Nokia is reportedly looking at the option of kicking out the Microsoft mole and going ahead with Linux instead
Android is all over the place and even Techrights’ site articles are now being composed in Android ICS. According to reports, even Nokia might soon turn to Android and kick out the Microsoft mole. As one site put it, “Magnus Rehle, a senior partner at telecom advising firm Greenwich Consulting, tells Reuters in an interview, “Elop has not been able to attract customers and that is what counts. You can say that he has not had enough time, but he has been there for two years. Time is up.”
“The alter-ego which is Microsoft did irreparable damage to Nokia.”“He’s referring to Nokia Oyj. (HEX:NOK1V) CEO Stephen Elop, the former Microsoft Corp. (MSFT) executive who now leads the embattled Finnish phonemaker.”
If Nokia turns to Android, it will have a lot of explaining to do after feeding patent trolls, leading to antitrust complaints from Google. The alter-ego which is Microsoft did irreparable damage to Nokia. It never pays off to partner with Microsoft. Only one side (or none) is set to gain. █
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Posted in Microsoft, Open XML, OpenDocument at 11:43 am by Dr. Roy Schestowitz
Summary: Microsoft makes it abundantly clear that its closed formats and Fog Computing will be used to deny people choice
In its corrupt pursuit for OOXML standardisation Microsoft ensured that real standards get suppressed. We covered many such stories about four years ago. Mr. Pogson found a new blog post where Microsoft implicitly admits failure to implement ODF support for a long time. As Pogson puts it: “The following statement was released 2012-08-13, promising finally to implement an open standard M$ foisted on the world but did not follow since 2007, five years ago. Deliberately choosing to break an open standard is reprehensible and possibly illegal restraint of trade. The means M$ used to impose that open standards was also questionable. Why bother with a company that offers future standardization when you can have it now with LibreOffice?”
In other news, Microsoft is now forcing users into an even worse lock-in, leading even Microsoft boosters into a mode of dissent. And in Germany, as in several other places, Microsoft tries to halt adoption of ODF. Advocacy groups complain and to quote one report: “The board of the German city council of Freiburg should disclose the analysis that underlies its move back to proprietary office software, say the Open Source Business Alliance, the Free Software Foundation Europe and the Bundesverbands Informations- und Kommunikationstechnologie. In an open letter published this morning, the three organisations also call on the city board to keep the Open Document Format as the default.”
Microsoft used German public institutions to promote OOXML. Wherever there is real choice there is no Microsoft. █
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Posted in Microsoft, Mono at 11:31 am by Dr. Roy Schestowitz
Summary: Yet more evidence that Team Mono is in Microsoft’s pocket
Miguel de Icaza’s latest rantings against GNU/Linux have gotten so much attention. Even CNN covered it, via Wired magazine. Our daily links contain links about it and these include good rebuttals. But many were missing some context; de Icaza was never much of a friend of GNU philosophy; he was more into the Microsoft mindset and his current company is no exception.
Xamarin recently announced yet another Microsoft collaboration. Quoting The H, “Microsoft has announced that it is open sourcing the software development kit (SDK) for its Azure Mobile Services backend for Windows Store applications. The company has also said that it will partner with Xamarin to expand the SDK to support the iOS and Android platforms.”
Xamarin got cash from former Microsoft executives, so this makes business sense. Eventually, the main beneficiary is Microsoft. █
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