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Software Patents Reality Distortion Field

Posted in America, Europe, Patents at 2:45 pm by Dr. Roy Schestowitz

Media coverup allegedly helps shelter the train wreck which is software patents


Summary: How press coverage of software patents in the EU and New Zealand (NZ) varies depending on the source; allegations that the US press tries to dismiss end of software patents by twisting an outcome of a major trial

THE EU, NZ, and the US: are software patents actually really banned there? It’s all about perspective, or so we may be led to think by the corporate press.


First of all, software patents in Europe are not an impossibility due to the “as such” loophole. As software patents continue to creep into the continent the German government steps in to stop the potentially illegal practice. “Siemens tried to enforce a software patent against a German webshop owner in 2007 http://ur1.ca/du5ku #swpat threat in Europe is real,” writes the FSFE’s founder, Georg C. F. Greve. The FSFE has just published a “response to German Parliament on #swpat ur1.ca/dtypk (German) Today @kirschner in Parliament hearing #endswpat” (here it is from the current head of the FSFE).

New Zealand

In Europe, the loophole which facilitates software patenting is virtually the same as in New Zealand, where software patents are still possible albeit officially denounced (we wrote about it twice before).

The patent lawyers’ sites which are more inflammatory (yes, IAM again) deny that software patents are banned in NZ and the NZ press focuses on domestic reactions like this one (ignore US press to dodge talking points of US-based corporations). One NZ-based site (not US site with NZ localised version like IDG’s) says: “The Government has announced a change to planned new patent rules today which has put an end to fears that computer software might be covered by new patent protection.”

There are “no patents on computer program “as such”,” says one person who is familiar with these matters. It’s not perfect, “but better than nothing,” says Glyn Moody ‏ in Twitter. Here is some other coverage of interest. NZ is in the same position that Europe is in. Software patents are not “officially” legal, but in practice one can get them anyway, defying the law using loopholes (characterising software as an inseparable part of a general-purpose, programmable computing device).

United States

Over in the US, the corporate-dominated USPTO, SCOTUS and even CAFC (to a lesser degree) call the shots. These people don’t know how to use computers or program them. They know just the very basics. As one person puts it: “Out of touch Fed Circuit judges? Two are over age 75. None under 60. I’m guessing none ever wrote a line of code, or use Instagram.”

Another says: “Computers Compute i.e. do Maths. Maths isn’t patentable therefore Software shouldn’t be patentable – Simple”

And moreover from the same person: “Surely it can’t be difficult for the Patent Office to recognize that a Computer Computes Maths; says what it does in the name :(”

Lastly: “The problem with most lawyers IMO is that they don’t have a clue about Programming & think it’s all Innovative when it’s not”

So the US press has been trying to decipher or spin the CAFC’s latest decision on this subject. Will Hill writes: “No matter what happens, the Microsoft press will say the results are unclear or favor software patents. Bilski seemed to be a rejection of software patents.”

Here is Crouch’s response, which we cited before. He insinuates that many but not all software patents may be dead given this decision and some allege that all software patents are dead in the US now. Another legal site calls it a “nightmare”. The business press dismisses this as a game changer. We wrote about it twice before, initially calling this a missed opportunity to reform the system. The British press is more optimistic than that, insinuating that software patents died in the US. Compare that to US news sites with headlines like “Mixed Ruling In Software Patent Case Raises More Questions Than Answers” (prevalent headline) and Australian perspective which focuses on the Australian company. A fairly independent US-based site summarised it all as follows: “Ten judges, seven opinions, 135 pages, zero legal precedent.”

Not everyone agrees. Rupert Murdoch’s influential corporate press continues to entertain this discussion in comments and polls at WSJ. Its coverage of the trial came under the headline “Long-Awaited Patent Ruling Yields Few Answers” (prevalent talking point in US sites).

Meanwhile, report some Russian journalists: “The United States Supreme Court ruled Monday in favor of biotech giant Monsanto, closing the door on a patent case that has pitted a smalltime farmer from Indiana against a titan of the agriculture industry.”

The US report was quick to dismiss claims that this may be applicable to software (here is AOL). The SCOTUS almost always rules in favour of large corporations. Justices are appointed by politicians that those corporations are bribing.

In the post “Diagnosis From USA Federal Circuit – Software Patents Are Sick” Canadian blogger Robert Pogson alleges software parents were crushed. He adds: “Isn’t that a hoot? Can you hear the patent-FUD rushing out of M$’s collapsing balloon? Can you hear the “partners” who have signed up to pay M$ per Android/Linux smart thingy calling their lawyers and accountants? Can you see the small cheap computers becoming even less expensive? I can.”

Who can be trusted? Legal sites that say software patents are affected (completely dead or partially dead) or corporate press which almost uniformly argues that there is no change whatsoever? The confusion or the mixes signals sure serve the status quo.

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