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


The World’s Craziest Patent System (USPTO) Now a Serious Threat to Free Software, But So is Copyright

Posted in Intellectual Monopoly, Patents at 4:35 am by Dr. Roy Schestowitz

Privatising everything, even vague ideas


Summary: Patents on everything that’s conceivable are being granted and even APIs are being monopolised, due to overzealous copyright lawyers

YESTERDAY we wrote about Amazon‘s latest crazy patent, using it as an example of how crazy the USPTO has gone. It’s not even an examination centre, it is approving almost everything that comes through, rendering it just a rubber-stamping pipeline like ISO. Ars Technica says that “Amazon’s latest patent is sillier than the peanut butter sandwich patent”, or to put it another way: “Thought the peanut butter sandwich patent was a joke? That one doesn’t even register a chuckle compared to a patent recently granted to Amazon.com. The e-commerce giant now can claim a legal monopoly on the process of photographing people and things against a white backdrop.”

The USPTO is starting to look more like a hoax. Sun employees, whose patents got passed to Oracle, said they had joked about how silly a patent they could get past the USPTO. They even competed over how ridiculous a patent they could slide through. And watch what Oracle is doing with such patents right now. Copyright may be essential for copyleft licences such as the GPL, but what happens when patent attacks on Android are coupled with copyright on APIs? To quote the EFF: “We’re still digesting today’s lengthy decision in the Oracle v. Google appeal, but we’re disappointed—and worried. The heart of the appeal was whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringed that copyright. According to the Federal Circuit today, the answer to both questions was a qualified yes—with the qualification being that Google may have a fair use defense.

“Quick background: When it implemented the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google relied on Java APIs. Application Programming Interfaces are, generally speaking, specifications that allow programs to communicate with each other. So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.”

Copyright, patents and even trademarks in the US need revisiting. There are many examples where each of those three get misused to censor, to crush competition, to impede innovation, and ban sharing where it’s clearly beneficial, collectively. The waning dominance of the West may, in some awkward way, one day weaken all those artificial barriers that ACTA, SOPA, TPP etc. are trying to prop up. Right now it’s too damn clear that progress is not the goal; protectionism for the top 1% of wealth holder is the goal.

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


  1. NotZed said,

    May 10, 2014 at 8:31 pm


    So I read through the google/oracle decision and I see nothing in there that would affect free software developers.

    In this specific case all the code in question is available under GNU GPL (version 2 + classpath exception), meaning that at least in part this is a GNU GPL violation by google – which oracle is defending. i.e. if google used the GNU GNPLv2+classpath exception version of the openjdk, Oracle could not sue them.

    Secondly the interface was simply copied – akin to taking a good chunk of the header files in /usr/include and stripping out the comments and license headers (and if you don’t think that is copyrighted material, why do they all have copyright headers?). This was not a clean-room re-implementation.

    And lastly although the question of fair use was not decided it was discussed. The defence of using it for interoperability has some pretty glaring problems as google clearly did not create an interoperable implementation – and have said as much. The intention was instead to to leverage the language’s familiarity with external developers for the commercial benefit of google. Basically google pulled an embrace/extend/extinguish move, and somehow gets lauded for it by those who should be most aware of them.

    But the most alarming revelation comes in the last 3 pages. Google was apparently arguing that copyrights shouldn’t even apply to computer software and it should only be covered by patents. Quite rightly the court rejected this wholesale but this line of thinking is about as ‘evil’ as you can imagine. It would essentially end all commercial software development by individuals and SMBs too small to employ eye-pee lawyers, and greatly affect non-commercial software development – free software or otherwise.

    I recommend reading it, it’s not that long and much of it is well written and shows a good understanding of the technical issues involved and explains each decision clearly and succinctly.

    The basic gist seems to be that google could have created another programming language runtime (possibly with the same language syntax) to perform the same function, but instead intentionally created a direct copy of an existing one. This is the source of the copyright infringement.

    It also seems to hint that the fair use defence of ‘interoperability’ should fall flat because google explicitly stated android was intended not to be java. They were simply utilising it’s popularity and familiarity and the existing tools in order to accelerate their own commercial interests.

    Dr. Roy Schestowitz Reply:

    I don’t share these views and in a post later today I will explain why. For now, here’s another interpretation:

    Appeals Court Doesn’t Understand The Difference Between Software And An API; Declares APIs Copyrightable


    We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn’t actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.


    As for the ruling itself… well… it’s bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup’s ruling, thinking that he’s mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup’s ruling. He very specifically noted that the “command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.” The CAFC panel doesn’t seem to understand this at all.


    It seems fairly clear that the CAFC judges don’t understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it’s entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it’s just software.


    Note that “[software]” thrown in before interfaces? Google is talking about whether APIs — “application programming interfaces” — are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn’t even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google’s argument about APIs. It honestly doesn’t realize that it’s comparing two totally different things. What lots of people agree on: software shouldn’t be patentable and APIs shouldn’t be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.

What Else is New

  1. The Latest EPO Spin: Staff Protesters Compared to 'Anti-Patent Campaigners' or 'Against UPC'

    Attempts to characterise legitimate complaints about the EPO's management as just an effort to derail the patent office itself, or even the patent system (spin courtesy of EPO and its media friends at IAM)

  2. The Serious Implication of Controversial FTI Consulting Contract: Every Press Article About EPO Could Have Been Paid for by EPO

    With nearly one million dollars dedicated in just one single year to reputation laundering, one can imagine that a lot of media coverage won't be objective, or just be synthetic EPO promotion, seeded by the EPO or its peripheral PR agents

  3. EPO: We Have Always Been at War With Europe (or Europeans)

    The European Patent Office (EPO) with its dubious attacks on free speech inside Europe further unveiled for the European public to see (as well as the international community, which oughtn't show any respect to the EPO, a de facto tyranny at the heart of Europe)

  4. What Everyone Needs to Know About the EPO's New War on Journalism

    A detailed list of facts or observations regarding the EPO's newfound love for censorship, even imposed on outside entities, including bloggers (part one of several to come)

  5. EPO Did Not Want to Take Down One Techrights Article, It Wanted to Take Down Many Articles Using Intimidation, SLAPPing, and Psychological Manipulation Late on a Friday Night

    Recalling the dirty tactics by which the European Patent Office sought to remove criticism of its dirty secret deals with large corporations, for whom it made available and was increasingly offering preferential treatment

  6. The European Private Office: What Was Once a Public Service is Now Crony Capitalism With Private Contractors

    The increasing privatisation of the European Patent Office (EPO), resembling what happens in the UK to the NHS, shows that the real goal is to crush the quality of the service and instead serve a bunch of rich and powerful interests, in defiance of the original goals of this well-funded (by taxpayers) organisation

  7. Microsoft Once Again Disregards People's Settings and Abuses Them, Again Pretends It's Just an Accident

    A conceited corporation, Microsoft, shows not only that it exploits its botnet to forcibly download massive binaries without consent but also that it vainly overrides people's privacy settings to spy on these people, sometimes with help from malicious hardware vendors such as Dell or Lenovo

  8. When the EPO Liaised With Capone (Literally) to Silence Bloggers, Delete Articles

    A dissection of the EPO's current media strategy, which involves not only funneling money into the media but also actively silencing opposing views

  9. Blogger Who Wrote About the EPO's Abuses Retires

    Bloggers' independent rebuttal capability against a media apparatus that is deep in the EPO's pocket is greatly diminished as Jeremy Phillips suddenly retires

  10. Leaked: EPO Award of €880,000 “in Order to Address the Media Presence of the EPO” (Reputation Laundering)

    The European Patent Office, a public body, wastes extravagant amounts of money on public relations (for 'damage control', like FIFA's) in an effort to undermine critics, not only among staff (internally) but also among the media (externally)

  11. Links 27/11/2015: KDE Plasma 5.5 Plans, Oracle Linux 7.2

    Links for the day

  12. Documents Needed: Contract or Information About EPO PR/Media Campaign to Mislead the World

    Rumour that the EPO spends almost as much as a million US dollars “with some selected press agencies to refurbish the image of the EPO”

  13. Guest Post: The EPO, EPC, Unitary Patent and the Money Issue

    Remarks on the Unitary Patent (UP) and the lesser-known aspects of the EPO and EPC, where the “real issue is money, about which very little is discussed in public...”

  14. Saving the Integrity of the European Patent Office (EPO)

    Some timely perspective on what's needed at the European Patent Office, which was detabilised by 'virtue' of making tyrants its official figureheads

  15. A Call for Bloggers and Journalists: Did EPO Intimidate and Threaten You Too? Please Speak Out.

    An effort to discover just how many people out there have been subjected to censorship and/or self-censorship by EPO aggression against the media

  16. European Patent Office (EPO) a “Kingdom Above the EU Countries, a Tyranny With ZERO Accountability”

    Criticism of the EPO's thuggish behaviour and endless efforts to crush dissenting voices by all means available, even when these means are in clear violation of international or European laws

  17. Links 26/11/2015: The $5 Raspberry Pi Zero, Running Sans Systemd Gets Hard

    Links for the day

  18. EPO Management Needs to Finally Recognise That It Itself is the Issue, Not the Staff or the Unions

    A showing of dissent even from the representatives whom the EPO tightly controls and why the latest union-busting goes a lot further than most people realise

  19. Even the EPO Central Staff Committee is Unhappy With EPO Management

    The questions asked by the Central Staff Committee shared for the public to see that not only a single union is concerned about the management's behaviour

  20. The Broken Window Economics of Patent Trolls Are Already Coming to Europe

    The plague which is widely known as patent trolls (non-practicing entities that prey on practicing companies) is being spread to Europe, owing in part to misguided policies and patent maximalists

  21. Debunking the EPO's Latest Marketing Nonsense From Les Échos and More on Benoît Battistelli's Nastygram to French Politician

    Our detailed remarks about French brainwash from the EPO's media partner (with Benoît Battistelli extensively quoted) and the concerns increasingly raised by French politicians, who urge for national or even continental intervention

  22. The Sun King Delusion: The Views of Techrights Are Just a Mirror of EPO Staff Unions

    Tackling some emerging spin we have seen coming from Battistelli's private letters -- spin which strives to project the views of Techrights onto staff unions and why it's very hypocritical a form of spin

  23. Links 25/11/2015: Webconverger 33.1, Netrunner 17 Released

    Links for the day

  24. United They Stand: FFPE-EPO Supports Suspended Staff Representatives From SUEPO

    An obscure union from the Dutch side of things at the EPO is expressing support for the suspended colleagues from SUEPO (more German than Dutch)

  25. Censoring WIPR Article About Censorship by EPO

    A testament to how terrified journalists have become when it comes to EPO coverage, to the point of deleting entire paragraphs

  26. Censorship at the EPO Escalates: Now We Have Threats to Sue Publishers

    Having already blocked Techrights, the EPO's management proceeds to further suppressions of speech, impeding its staff's access to independently-distributed information (neither ordinary staff nor management)

  27. Response to Bogus Accusations That EPO Staff Protests Are Really an Attempt to Derail UPC

    Common myths about staff protests in the European Patent Office (EPO) debunked, with some additional background and general perspective on recent events, the unitary patent (UPC) and so on

  28. New Heise Article Makes It Clear That 'Nazi'-Themed Accusations Against the Suspended Board Judge Were Insufficiently Substantiated

    The personal attacks on a judge who was illegally suspended (a so-called 'house ban') increasingly look like the management's own campaign of defamation, mostly intended to marginalise and punish a judge who spoke about serious charges against VP4 (Željko Topić)

  29. Links 24/11/2015: Asus Chromebit CS10, Second Linux 4.4 RC

    Links for the day

  30. European Central Bank Staff Committee Adds to Growing Pressure on Abusive EPO Management

    The staff representatives of the European Central Bank E-mail their colleagues -- with European Central Bank managers' approval -- regarding the European Patent Office and its attacks on staff unions


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


Recent Posts