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. White House Intervention Harms Android and Every Software Developer on the Planet

    US Solicitor General Donald Verrilli urges the Supreme Court (SCOTUS) to let APIs be covered by copyrights, rendering almost every program a potential copyright violation



  2. Microsoft Lobbying in India Shoots Down or At Least Weakens Free/Libre Software Policy

    Microsoft's covert efforts (lobbying with the help of public partners like NASSCOM) to eliminate an India-leaning software policy in India is finally paying off



  3. Propaganda Mode for UPC Agreement Whilst EPO Increasingly Grants Patents on Software

    In order to make the Unitary Patent a reality (towards a 'no place to hide' patent approach) misleading claims are being made



  4. Patents Are Not Source Code

    Ford is once again misleading regarding Open Source, mischievously associating a patent pledge with Open Source



  5. Links 29/5/2015: ALT Linux 7.0.5, Google I/O 2015

    Links for the day



  6. Links 28/5/2015: SourceForge Hijack, RIP Marco Pesenti Gritti

    Links for the day



  7. Censorship on Reddit Has Gotten (Condé) Nasty and Silent, Even Actively Silenced

    Condé Nast has turned Reddit into a platform of censorship after the acquisition



  8. The Supreme Court of the United States Helps Patent Trolls

    In an unforeseen kind of ruling, the same court which slapped down a lot of software patents last year is now legitimising the actions of a patent troll



  9. Patent Lawyers Fight Hard for the Future of Software Patents

    Media that is dominated by patent lawyers and targets an audience of patent lawyers refuses to accept the post-Alice reality



  10. Fortune Glorifies Patent Troll Jay Walker (Patent Utility)

    Jay Walker, a patent troll, creates a Web-based trolling/'licensing' service and the corporate media helps him



  11. Stealing Android's Thunder, Making It All About Apple and Microsoft During Google I/O

    Misleading articles and conjoined media/analyst attacks on Android coincide with Google's event where major Android announcements are being made



  12. British Government May be a Step Closer to GNU/Linux (on the Desktops, Not Just Servers)

    The British government stops paying the criminal company that blackmails its members, thereby increasing the possibility of complete escape from proprietary software



  13. Microsoft's Patent Allies LG and Sony Agree to Put Microsoft Inside Android

    LG and Sony (of Rockstar Consortium) follow Samsung and Dell in Microsoft's campaign to turn Android into 'Microsoft Android' using patents-induced pressure/leverage



  14. Yet Another Major Security Deficiency in UEFI

    UEFI is inherently insecure, more so than the alternatives which it strives to replace, including Free/libre ones



  15. Links 27/5/2015: Fedora 22 is Out, Mandriva Liquidated

    Links for the day



  16. Patent Scope at the EPO is Totally Out of Control, UPC Will Make Things Worse

    A look at the practical issues with the EPO, where patent scope and litigation scope have been vastly extended so as to benefit multinational corporations and possibly patent trolls



  17. Links 26/5/2015: Reviews of Kubuntu 15.04, Linux 4.1 RC5

    Links for the day



  18. Süddeutsche Zeitung Says Talking Helps While EPO Management Back-stabs Other Side of the Table

    German media gives the impression that there is peace and harmony now that Benoît Battistelli and his circle of power speaks to staff, but nothing is said about simultaneous (albeit covert) attacks against that staff



  19. Large Corporations Call the Shots in US Patent Reform

    A reminder of where we stand on the issue of patent 'reform' in the US and who is controlling or shaping it



  20. Microsoft Puts Proprietary Windows and Hyper-V Inside the Free Software-Centric OpenStack

    OpenStack, which celebrates rapid growth in this month's event in Canada, is facing a proprietarisation threat from Microsoft



  21. Microsoft's Secret Lobbying, Bullying, and the Long History of Blackmailing Politicians Around the World

    British media covers Microsoft's abuse in the UK, but there are many similar incidents, and not just in the UK



  22. Frankfurter Allgemeine Zeitung on Benoît Battistelli and Four EPO Suicides

    German press article from April 2015 (with translations)



  23. Links 24/5/2015: CrossOver 14.1.3, NTFS-3G Vulnerability

    Links for the day



  24. Links 23/5/2015: Fedora 22 to May 26th, Netflix in SteamOS

    Links for the day



  25. The Patents Production 'Industry' (Patent Lawyers) Still Fights Hard to Salvage Software Patents

    A review of recent writings about software patents and patents on business methods in the United States, demonstrating that patent lawyers have gotten very vocal and sneaky (trying to evade the rules)



  26. Patents as a Marketing Strategy: USPTO Now Part of the Advertising Industry

    The existence of publicity patents, or patents whose sole purpose is to advertise some products, serves to discredit the US patent office, which was originally set up to promote science and technology



  27. Microsoft Blackmails and Extorts British Politicians Over Open Standards and Free Software-Leaning Policies

    Microsoft's digital imperialism in the UK getting defended using blackmail, reminding a lot of Brits that Microsoft is just as evil as ever before



  28. Microsoft Gives Another Bug a Name, This Time Logjam™

    The Microsoft crowd is good only at marketing, even when it comes to small bugs in software



  29. Links 22/5/2015: Fedora 22 Final Release is Near, Canonical IPO Considered

    Links for the day



  30. More Utter Shame Unveiled at Battistelli's EPO: Intimidation Tactics With Help From 'Control Risks'

    The unaccountable thugs who run the EPO have hired London-based spooks to help silence their opposition and their critics


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