EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

12.13.12

Stop Fighting Software Patents the Way Lawyers Say We Should

Posted in Patents at 9:39 pm by Dr. Roy Schestowitz

With few exceptions…

Carlo Piana

Summary: So-called ‘moderates’ or ‘realists’ (usually lawyers and law professors) obscure the permanent solution to software patents

Eric Goldman, a lawyer talking about a conference stacked with law professors, says this about software patents, offering no end to software patents as though a compromise can somehow resolve a problem that most countries in the world already recognise. Here is another go at it. He says:

Software patents play a huge–and controversial–role in our economy. In a recent post, I explained some of the unique problems that software innovations pose to the patent system. This post extends that discussion by exploring two structural hurdles to addressing those problems: (1) the challenge of defining “software,” and (2) which regulatory institution(s) can implement any fixes. In the near future, I will conclude this three-part series of posts by exploring specific ideas to fix software patents.

[...]

In theory, we can distinguish software from physical devices (e.g., “hardware”). Even if we do, innovators can often replicate software functionality by designing hardware to incorporate the functionality directly. In this sense, hardware and software are partial substitutes for each other. In fact, before patent law clearly allowed software patents, innovators (especially IBM ($IBM)) routinely obtained “software” patents by patenting hardware designed to perform the software-like function. So any special rules for software patents will just push innovators and their patent lawyers to seek patent protection for hardware that achieves the same outcome, obtaining the synthetic equivalent of a software patent. In that case, we aren’t making much progress.

[...]

So, fixing software patents is tricky. It may not be possible to define software patents precisely, it may be easy for patent applicants to game any software-specific rules, and we have to find a way to remain in compliance with our treaty obligations. On the other hand, if we avoid software patent-specific fixes and instead try to make changes across all patents, that would dramatically increase the number…

Hold on there. The problem with where this argument goes (again!) is that it is leading to the “bad” patents or “bad” lawsuits line of reasoning. It is taking us nowhere, just like the effort to squash one patent at a time — a strategy famously used by the EFF some years ago, under the “patent busting” banner. The EFF now calls for the end of all software patents. It is the real solution.

Consider this news about a one-patent-at-a-time approach:

‘Steve Jobs’ iPhone patent used against Samsung/Motorola invalidated by US patent office, could affect lawsuits

In October, as pointed out in Samsung filings with U.S. District Lucy Koh, we told you that the U.S. Patent and Trademark Office issued a non-final decision that declared 20 claims related to Apple’s rubber-banding patent invalid. While Samsung and Apple were back in court yesterday regarding post-trial motions, today FossPatents reported (via MacRumors) the USPTO has issued another non-final ruling declaring yet another Apple multitouch patent invalid.

This time it’s a touchscreen patent, commonly called “the Steve Jobs patent,” that courts previously deemed valid in cases against Samsung and Motorola in the past…

It will not derail entire cases, only weaken them. The lawsuit against the market leader, Samsung, carries on and Pamela Jones says: “Judge Koh has also ruled on the various requests for sealing. For Samsung, it’s two granted, including the HTC one, and another which asks for something Apple asked for too and four denied, with one partly granted; for Apple it’s 2 granted and 1 partially granted. It’s been like that every time I check who gets the most motions denied.”

Here is a link shared by Jones:

In response to some questions posed by the United States International Trade Commission (USITC), wireless baseband supplier Qualcomm has torn into Apple in a court filing, saying that apple “should be embarassed” at the length and depth of the iPad makers’ patent infringement. The move is curious, as Apple has been Qualcomm’s largest customer for three years.

“That’s not vitriol,” remarks Jones. “It’s just true. Apple revealed it is NOT a willing licensee in the Wisconsin case that got dismissed because it refused to commit to obey a judge’s royalty rate unless it liked and agreed with it. Qualcomm is just pointing that out.”

Apple is now guided by lawyers because its engineers are unable to catch up with Android, technically.

Stop listening to lawyers if you want the problem to end; there are exceptions like Carlo Piana (Samba lawyer) or Eben Moglen (law professor), but in general, the vast majority of lawyers, including Red Hat’s, have a view and agenda different from everyone else’s. To them, litigation is like war for a weapons contractor. Lawyers, like bankers, also like to complicate things with complex legalese (terminology) which makes them seemingly necessary, totally barring the debate so as to shut out everyone not of their occupation. This develops cult-like, self-preserving corrupt institutions which seek to justify their own parasitic existence. We must recognise this institutional issue and openly talk about it. Politicians too are mostly lawyers.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 21/12/2014: China and Linux, GNOME Shell 3.15.3

    Links for the day



  2. The New Age of Games for UNIX/Linux But Not for Windows, Microsoft is Openwashing Windows-Only Games

    The world is moving to GNU- and Linux-powered platforms, so Microsoft withdraws GNU/Linux support from games it buys and starts openwashing its Windows-only games



  3. Microsoft Essentially Sends Malware to Windows and Bricks It

    Microsoft is once again bricking Vista 7, demonstrating lack of reliability or very low quality programming



  4. Microsoft Lays Off Staff, Cheapens Labour as More Companies Are Dumping Microsoft's Lock-in, NSA-Friendly Services, and Windows

    A look at some of Microsoft's latest woes, including an appeal for cheaper labour amid decrease in business



  5. Links 19/12/2014: Robolinux 7.7.1 LXDE, Red Hat Thriving

    Links for the day



  6. Another Microsoft Partner Markets Linux FUD Using Logo, Name, and Lies

    Microsoft's partner Alert Logic is trying to label a feature of Linux a security flaw and even makes marketing buzz for it



  7. Redmonk is Spreading Black Duck's Anti-GPL Talking Points After Payments From Black Duck, Microsoft

    CBS' ZDNet spreads the GNU-hostile narrative which comes from Redmonk, funded by Microsoft and Black Duck, citing Black Duck, which also comes from Microsoft and is a partner of Microsoft



  8. 'Good' Software Patents From EA Show Cases Where DRM is a Patent Infringement

    Where two evils collide the public benefits, or how some software patents discourage the use of DRM



  9. Richard Stallman: What Does It Mean for Your Computer to Be Loyal?

    New article from Richard Stallman



  10. Links 18/12/2014: LinuxQuestions.org Polls, Fedora for POWER

    Links for the day



  11. Links 16/12/2014: Google and ODF, Civilization: Beyond Earth Comes to GNU/Linux

    Links for the day



  12. Bill Gates' Pet Troll Intellectual Ventures is Collapsing as Founder Quits

    Intellectual Ventures founder leaves after an exceptionally large round of layoffs, despite [cref 77299 recent subsidies from Sony and Microsoft]



  13. Keeping Software Patents Out of Europe Following the Demise of Software Patents in the US

    Instability in the EPO seemingly prevents further expansion of patent scope, which is the subject of scrutiny of EPO staff



  14. Links 15/12/2014: OSI 2014 Annual Report, GPLv2 Court Test

    Links for the day



  15. Links 14/12/2014: Calligra 2.9 Beta, Krita 2.9 Beta

    Links for the day



  16. Software Patents Are Dying in the US, But Patent Lawyers Refuse to Admit It

    Patent lawyers continue to distort the reality of software patents' demise in the United States



  17. Links 13/12/2014: Android Wear “Lollipop”, European Commission and FOSS

    Links for the day



  18. Time to Take Microsoft Out of British Aviation Before Planes Crash Into Buildings

    London's mighty Heathrow Airport among those affected by a Microsoft-reliant air traffic control system which is not being able to properly recover from an outage, and not for the first time either



  19. News From France and Germany: Battistelli Under Fire, But Not Fired Yet, Just Firing His Opposition

    The régime headed by Benoît Battistelli and his criminal deputy continues to overthrow or pressure out everyone who is not 'loyal' to the régime



  20. Links 12/12/2014: Linux++, KDE Frameworks 5.5.0, Calligra 2.8.7

    Links for the day



  21. The USPTO is Broken: New Evidence Presented

    The scope of patents, as evidenced by some statistical figures and individual patents, shows that the USPTO is broken and must be reformed or dismantled



  22. US Patent Reform (on Trolls Only) More or Less Buried or Ineffective

    An update on efforts to reform the patent system in the United States, including the possibly imminent appointment of Michelle Lee to USPTO leadership role



  23. Software Patents in Canada Not Dead Yet

    Canada's patent status quo increasingly like that of the United States and Canadian giants like BlackBerry now pose a threat to software developers



  24. Dreaming of a Just Christmas: When a Third of EPO Walks Out to Revolt and European Judges Attack the EPO Over Abuses

    Information about the abuses of Battistelli et al. at the EPO are finally receiving wider coverage and increasing the strain on Battistelli's authoritarian reign



  25. Links 11/12/2014: Red Hat Enterprise Linux 7.1 Beta, Firefox 35 Plans

    Links for the day



  26. Ubuntu Core Announcement is Not About Microsoft and Hosting Ubuntu on Azure is Worse Than Stupid

    The power of media spin makes the idea of hosting Free software under the control of an NSA PRISM and back doors partner seem alluring



  27. France Gets Involved in Battistelli's Abuses in the EPO - Part XII (Updated)

    The EPO scandal has officially spilled over to France, where a French Senator got involved and starts asking serious questions



  28. Rolling of Heads Likely Imminent at EPO

    The European patent system is shaking as management breaks the rules, staff is protesting against the management every week, and charges of corruption resurface



  29. Links 11/12/2014: systemd 218, Empire Total War

    Links for the day



  30. Links 10/12/2014: Fedora 21, Ubuntu Core

    Links for the day


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts