Summary: British members of parliament (MPs) outsourced their communication to the number one PRISM company and they are paying the price for it; The US Navy’s systems continue to be unbelievably insecure (Windows XP), despite access to the world’s biggest nuclear arsenal
ONLY months after Microsoft blackmailed British MPs [1, 2, 3] we learn that “Microsoft disrupted British MPs’ parliamentary email system”. According to Linux Veda, “a third of MPs in the UK lost access to their email, hosted by Microsoft. The downtime occurred between Monday and Wednesday last week.” Why on Earth has our government put sensitive mails about the public and from the public in Microsoft’s hands? Are we giving up our digital sovereignty altogether? This is an espionage heaven as Microsoft works very closely with espionage agencies that even blackmail politicians (just like Microsoft does). Some folks have pointed this out to us as there is more coverage of this right now in the British press. Will they finally dump Microsoft and securely self-host their E-mail using Free/libre software, as any technically-proficient person would? Who decides on IT for Parliament anyway? Microsoft lobbyists? Moles? Bribed staff? We previously named such people who were deep in Microsoft’s pocket. These decisions are usually political rather than technical.
“These decisions are usually political rather than technical.”In the US, the nuclear arsenal and those who can physically access it are still using Microsoft's Swiss cheese OS, Windows XP. This shocked a lot of people and hacked.com wrote: “Windows XP was notoriously insecure even when it was in normal usage, but now that it’s ancient, the details on how to hack into an XP network are easy to get. Worse, the Navy insists on keeping this system even as this is public knowledge. It would take time and money, but an upgrade to either a newer version of Windows or to some Linux or other open-source option would make things vastly more secure for the sections of the Navy that are subjected to this policy.
“Now, there will always be those who argue that it’s mostly the behavior of users that influences the security of a given network. This could be true, but there are exploits on XP systems which just aren’t possible on newer systems, or on Linux.”
Anything other than Free/libre software should be assumed not secure. It cannot be proven otherwise. █
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Agenda disguised as professional advice
Summary: Naming and shaming those who are trying to reshape the consensus despite a rather consistent pattern of software patents being rejected
THE subject of software patents profoundly affects Free software, which is still under attack from software patents. The recent collapse of many software patents (not all) has been catalogued here for quite some time [1, 2, 3, 4, 5] and we continue to see more confirmatory evidence of this trend. The media which is run by or is at least influenced by patent practitioners does not like to cover this subject and it’s truly a shame that activists against software patents have gone so quiet in recent years. The patent lawyers’ press selects (or cherry-picks) cases that are exceptional and help reinforce software patents, even this month, leaving the public with the false impression that nothing has really changed after the Alice case. We oughtn’t let this case go to waste.
“That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court.”Earlier this month we found some of the latest revisionism from lawyers. Proskauer Rose LLP pushed it by apparently paying (as a press release) for coverage, injecting a pro-software patents piece into lots of lawyers’ sites [1, 2, 3], including The National Law Review, which also went with the typical headline: “Job Applicant Software Patents Not Terminated for Invalidity”. These are the publications that a lot of patent lawyers follow and the intent of Proskauer Rose LLP is probably to give them tips on how to game the system (which is basically what they all do, trying to bypass rules using common tricks). Here is a quote from the analysis: “Although the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank, one Massachusetts court recently declined to invalidate a trio of patents directed to job applicant software. Plaintiff Kenexa had asserted infringement claims against three defendants, and two of the defendants—including HireAbility—subsequently moved for judgment on the pleadings that Kenexa’s patents recite unpatentable subject matter under § 101.”
So, they do acknowledge that “the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank,” but then they go on to just covering one exceptional case where software patents managed to survive in court. That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court. It’s subjective by design. That’s just their job. The clients, and hence the lawyers, have an agenda to push. This is the transaction, but clients deserve an honest, objective advice. It’s not journalism but more like advocacy (what the UK calls “barristers” are literally advocates). Just watch Mr. Quinn trying to sell his ‘services’ while advertising for the Patent Trial and Appeal Board (PTAB). These people openly promote as broad a patent scope as possible (inclusive of software patents) for the same reasons arms and surveillance contractors want war and instability. The more problems the world has, the more business these people receive and the more money they make. It’s the broken windows theory. █
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Wonderland may be on the horizon now
Summary: Courts in the United States are rapidly eliminating many software patents, but the media, (mis)informed by patent lawyers and other patent practitioners, is slow to report it if it ever reports this at all
PatentBuddy says that “ABA [American Bar Association] Alice Task Force found that Dist. Ct. judges invalidated patents wholesale, citing Alice, without any evidence, 66% of time.” Separately it claims that “ABA Post Alice Task Force Found that USPTO Rejections of Claims under 101/Alice Relied upon Boilerplate only, no evidence, 64% of time.”
Whichever figure is taken (with a grain of salt of course), it is clear that a lot of software patents are being invalidated and patent lawyers (and by extension barristers or judges) are expectedly worried. Lawyers are trying to discredit courts’ decisions to invalidate software patents because it’s basically their livelihood — preying on programmers who are actually creating something, not just printing lots of pages and fighting in courts or sending threatening letters at the rate of approximately $300 per hour.
“Whichever figure is taken (with a grain of salt of course), it is clear that a lot of software patents are being invalidated and patent lawyers are expectedly worried.”PatentBuddy also shares this PDF and writes that this is “Amicus Brief in Support of Ultramercial’s Petition to S.Ct. Seeking 101 Clarity Post Alice” (for the uninitiated, 101/Alice alludes to invalidation based on how abstract a patent is).
Techrights is of course delighted to see some software patents diminishing in the US, for their demise in the US might, in turn, lead to their global demise (even in Japan and maybe China).
Scott Graham, a writer for The Recorder, says that the “Federal Circuit Tightens Squeeze on Software Patents”. He writes (behind a paywall of some esoteric kind): “En banc ruling Tuesday in ‘Williamson v. Citrix’ means more patents will be subject to statutory requirements for means-plus-function claims.”
This is again good news, especially coming from the Federal Circuit despite its notorious biases.
Obviously, software patents are still celebrated in the corporate media. Even the so-called ‘Guardian’ does it. Language of lawyers can be found in Science Magazine (behind paywall), saying that “IBN has generated more than 300 patents, 80 licenses” (as if patents are “generated” and licences are “generated”), but we have come to expect that from media that large corporations are controlling, irrespective of what courts are ruling. Here is a prominent blog of patent lawyers speaking about patents being sold like a commodity, sometimes to trolls (at the behest of corporations even). It says: “The chart above shows the percentage of U.S. patents issued to Inventors and not (reportedly) assigned to any organization or government. The data comes from the PTO. While this chart shows a dramatic drop, the actual number of inventor-owned patents has stayed relatively stable over the past decade — the dropping percentage is due more to a rise in the number of patents granted to corporate owners. The drop here does not necessarily mean that independent inventors are being squeezed-out — just that the rise in patent grants is not due to independent inventors.”
The term “independent inventors” is in itself a form of propaganda. It seeks to promote the old myth that patents exist to protect the “small guys” rather than massive corporations with a gigantic library — perhaps weighing at millions of pages — of patent monopolies (to be wielded like a weapon).
All in all, things appear to be improving with each ruling on software patents in the US. Don’t expect patent lawyers to acknowledge that. It would be like Microsoft publicly stating that proprietary software is doomed. █
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The lobbyists are evidently and demonstrably working behind the scenes
Picture from FFII
Summary: The growing risk of an ‘export’ of patent trolling through increasingly corporations-leaning globalisation (e.g. trade agreements) in Europe
IN THE UNITES STATES there is plenty of talk about patent reform (it’s everywhere in the media), but the existing reform is pretty weak if not altogether bogus as it’s designed to discourage participation by small patent aggressors for large corporations’ sake [1, 2, 3, 4]. It’s already weakened by lobbyists of these large corporations, as always.
IAM’s patent maximalists, as we last mentioned a day ago in light of glorification of patent aggressors, is all for it. “There is a reason US patent owners with infringement issues like the German system,” it wrote, “look forward to the UPC” (see what we previously wrote about the UPC in relation to Europe; it is helping patent trolls expand to Europe). Rather than a reform it’s a revolution, exploiting the merger of European member states to launder some laws on behalf of large corporations. We should definitely keep an eye on this. As Richard Stallman warned some years ago (well before the Benoît Battistelli era), EPO staff “went on strike accusing the organization of corruption: specifically, stretching the standards for patents in order to make more money. One of the ways that the EPO has done this is by issuing software patents in defiance of the treaty that set it up.”
“Rather than a reform it’s a revolution, exploiting the merger of European member states to launder some laws on behalf of large corporations.”The capital of patent trolls, Texas, where software patents run like water, must be licking its lips in anticipation for this long-promised European expansion (taking their racket to another wealthy continent). As the EFF’s article “Judges in Texas Unfairly Impose New Requirements on Patent Defendants” serves to show, Texas has high hopes for patent trolls. It’s all about profit (a hoard at programmers’ expense) for some opportunistic lawyers. Engadget, for example, wrote: “Federal courts might have made it harder for patent trolls to sue over vague ideas, but the Eastern District of Texas (the trolls’ preferred venue) just put the ball back in their court. Some judges in the region now demand that the targets of these lawsuits get permission before they file motions to dismiss cases based on abstract concepts. If the defendants don’t show “good cause” for needing those motions, the lawsuits go ahead — and historically, that means that the trolls either win their cases or extract settlements from companies unwilling to endure the costs of a prolonged legal battle.”
These parasitic creatures — patent trolls — are already causing huge financial damage in the United States. Financial organisations are reportedly taking action. To quote one new report: “Financial services organizations are continuing to urge Congress to pass legislation that combats patent abuse. They’re claiming demand letters from so-called “patent trolls” signify a great and growing threat to financial service organizations.
“NAFCU, CUNA, the Independent Community Bankers of America, the American Bankers Association, the American Insurance Association, The Clearing House, Financial Services Roundtable, NACHA and The National Association of Mutual Insurance Companies have asked Congress to adopt needed legislation to stop abusive practices from law firms representing patent assertion entities.”
“These parasitic creatures — patent trolls — are already causing huge financial damage in the United States.”On the other hand, a venture capital trade group defends the trolls. As Fortune put it: “The latest attempt by Congress to curb the problem of “patent trolls” is on the ropes yet again, and this time the opposition is coming from an unlikely source: The National Venture Capital Association, a trade group which is taking steps to water down patent reform legislation, even though many of its members are vocal advocates for it.”
Andy Updegrove, a lawyer for the Linux Foundation, has meanwhile spoken to a European trade group (OFE), discussing the US patent ‘reform’ and software patents here in Europe. Below are some of the relevant parts of this interview:
MB: I would like to talk about patent reform. I know you have done quite a lot of work on this and so I was wondering if you could give our readers – particularly those in the EU who might not have been following the debates so closely – a top-level view of the current state of patent regulation in the US.
AU: Patent reform suffers from several challenges. One of which is the concept of the patent as a one size fits all, legally speaking. In software there is little doubt that the engineer would create an invention with or without patents and indeed in the US until the late 1990s, software was not even recognised as being patentable. And yet there was an enormous amount of software written in the golden age of software. You could even say that the first golden age of Operating System development occurred when patents were not available for them at all. And indeed in Europe the ability to patent software is very limited and yet innovation continues. So my personal belief is that there would be just as much innovation in software if patents were to become unavailable today….
MB: And what has the US Government and US Congress done to address this? Can you talk a little bit about the policy and legal rather initiatives that have been put forward to address concerns around “patent trolls”.
AU: There is a lot of lobbying in the US on this, especially from large patent holders. But you have to understand that these companies are both patent owners and patent consumers. So they have a very schizophrenic relationship as well. In fact, many of the companies with the most patents comparatively rarely actually sue anyone for infringement. They worry as much about being sued by other owners of patents, so at the same time as they invest enormous amounts of money in patents they also want to have a patent system where they can defend themselves successfully when they think that they are being sued unfairly. So there is something of a check and balance and it would be wrong to assume that most high-tech companies necessarily campaign against reform. They in fact are in favour of legislation that would curtail trolls….
These fragments of text about software patents and the so-called ‘reform’ ought to remind us of the great dangers posed by the corrupt EPO, where expansion of patent scope has been a strategic focus. We have written about this for nearly a decade now.
Expect the secretive trans-Atlantic ‘agreements’ (between rich people on both sides of the ocean) to deal more and more with patents, blurring the continental gaps that currently guard many European businesses from an abundance of patent trolls in north America. Actors who do this are usually lobbyists or front groups that also paved the way to software patents in Europe. █
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Summary: Corporate media continues its obsession with a so-called ‘reform’ that simply is not; it’s an accelerated passage of wealth to large corporations
THE so-called ‘PATENT Act’, as we have explained before [1, 2, 3, 4], won’t tackle the big abuses but only solidify them. The biggest abusers will become more powerful.
“These are not reforms. These are reminders that corporations still get whatever they please in Washington.”US politicians, who are funded by the biggest abusers, happily let nothing substantial change (definitely not scope of patenting at the USPTO). The House Committee lets through the so-called ‘Innovation Act’, another misleadingly-named output of lobbyists and corporations that they work for. There are news headlines that mention the corporations-leaning brand ('Innovation Act') by name [1, 2, 3, 4, 5, 6, 7, 8, 9] and many more that do not [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22]. Having reviewed these, we discourage our readers from wasting time on these. What we have here is fee shifting (legal costs) to the smaller entities that already struggle with such fees, unlike large corporations (they have full-time staff for that). If there’s any ‘reform’ here, it’s just the empowerment of large corporations. “America Invents Act Cost the US Economy over $1 Trillion,” says this alarmist headline from Patently-O. It’s a propaganda piece from “President of New England Intellectual Property, LLC” (legal firm) and we are surprised that even Dennis Crouch, who runs the site, let in such sensationalist BS. The ‘reform’ is more about passage of wealth. More to the billionaires, less to the rest of us. The farcical claim of “Cost the US Economy over $1 Trillion” reminds us a great deal of anti-Snowden propaganda with similar kinds of headlines (alluding to estimated ‘costs’ or losses incurred bt the NSA leaks).
The PATENT Act (not Patent Reform) has been reduced into something which everyone is happy with, except the public. Corporate coup is what it really is and as TechDirt correctly points out, it has “basically been watered down to nothing”. Apart from this good article from TechDirt (the corporate media and lawyers’ sites are largely off point) there is also this piece from Brian Fung, who wrote: “The head of a powerful House committee faces a potential revolt from fellow lawmakers — some of them from within his own party — who believe a bill targeting abusive patent lawsuits is being watered down.”
Really? It took them this long to realise that lobbyists have hijacked and diluted every meaningful change that does not aid corporations?
Whether these so-called ‘reforms’ pass or not isn’t all that important. These are not reforms. These are reminders that corporations still get whatever they please in Washington. The system is rigged. █
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Comprehensive review of reports about the PATENT Act
Summary: Mega-corporations from the US have turned patent reform attempts into a self-serving pseudo-reform effort, whose outcome bears little or virtually no impact on the vast majority of people
THE Protecting American Talent and Entrepreneurship Act (PATENT) Act, which we wrote about before, is about protecting mega-corporations, not “American Talent and Entrepreneurship”. It protects them from smaller companies, especially from patent trolls. There was a lot of coverage about it last week [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28], some coming from lawyers’ sites [1, 2, 3, 4]. Proponents of software patents, such as Gene Quinn and Steve Brachmann, would say that “Vocal minority cannot keep PATENT Act from passing Senate Judiciary” among other things, but the matter of fact is, this so-called ‘reform’ achieves almost nothing of real use. It’s a bit like the so-called ‘Freedom’ ACT, which got diluted to the point of uselessness. Even some of its original backers have withdrawn support for what it ended up like. An article titled “Could Patent Trolls Be Harder to Defeat Than the NSA?” said: “Silicon Valley lobbyists were feeling pretty good on Tuesday. Several gathered at Bobby Van’s, a downtown D.C. bar, to celebrate their successful campaign to curb the National Security Agency’s mass surveillance practices, after a two-year effort.
“But two days later, it was an entirely different story as Senate lawmakers debated a patent bill that’s supposed to curtail patent trolls — companies expressly designed to sue other companies for use of patents they own, a practice some liken to extortion. It wasn’t the bill it once was, tech lobbyists lamented, as Senate leaders approved language that was meant to placate Silicon Valley; the pharmaceutical and biotech industries; and universities that don’t want their patent portfolios devalued.”
“The bill, as initially presented, garnered a good deal of support from traditional reform supporters [...] amendments or revisions to the bill, nearly all of which could diminish (or even extinguish) the enthusiasm of current supporters and endanger the bill’s chances to move forward.”
–The HillIn both cases, laws are being passed to benefit large corporations. They totally hijack reform attempts, too. If not directly, they do it through lobbyists and proxies like trade groups (see “Trade group CEO warns patent trolls may chase tech companies out of U.S.”). Based on this statement from Grassley, he seems not to mind this distortion of his effort and political media is largely supportive of this distortion, calling it a “light at the end of the tunnel” (in headline plus body!).
“After nearly three years of patent reform discussions,” wrote The Hill, “there appears to be some light at the end of the tunnel. On Thursday, the Senate Judiciary Committee plans to mark up their Protecting American Talent and Entrepreneurship Act (PATENT) Act, which at present is a package of patent litigation reform measures aimed at making the business of frivolous litigation less attractive to those who like to game the system for financial gain. The bill, as initially presented, garnered a good deal of support from traditional reform supporters, including small businesses, hotels, banks, retailers and the tech industry. Even universities, who dislike the House’s Innovation Act, have expressed tepid support for the PATENT Act.
“But what if that light is not the other side of the tunnel, but an oncoming train?
“Last-minute negotiations have unlocked a Pandora’s box of possible amendments or revisions to the bill, nearly all of which could diminish (or even extinguish) the enthusiasm of current supporters and endanger the bill’s chances to move forward. And almost all of them are focused on changing procedures established just a few years ago in the last round of patent reform.”
Whether this passes or not, there’s not much of a solution in it. In a sense, it may prove to be only a waste of effort. These people don’t speak about patent scope but about the scale of the plaintiff and who pays litigation costs.
Don’t waste much time watching this PATRIOT Act debate; it’s not part of the solution, except perhaps to issues of mega-corporations. Eventually, they always get what they want, just like in so-called ‘free’ ‘trade’ agreements. Revealing their collusion is means for garnering public opposition and backlash. █
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Insecure-by-design systems a misfit in any democracy
Summary: Microsoft is interfering with efforts to put Free/Open Source software in voting machines, ensuring that these machines continue to have back doors (Windows)
THE presence of Microsoft lobbyists is global/universal. We recently wrote about how Microsoft had successfully squashed Free/Open Source software-leaning rules in India, just like in Chile last year. Microsoft lobbying was done also by proxy and in the UK we found out that Microsoft was blackmailing British politicians, as recently as weeks ago. Microsoft is just a bully like that. Given its influence in the United States government, we expect much of the same in the US, if not more and worse.
“Microsoft lobbying in this area is a scarcely explored topic.”Microsoft wages war on politics in all sorts of ways, sometimes through lobbyists, sometimes through ‘former’ staff, pseudo ‘charities’ like the Gates Foundation, and pressure groups like the Business Software Alliance.
Today we present information given to us courtesy of the California Association of Voting Officials. They complain about Microsoft lobbyists and they have expressed an interest in aligning for global issues, for they too realise that Microsoft cannot be ignored if society wants fair elections and ultimately pursues voting machinery that can be trusted.
Microsoft lobbying in this area is a scarcely explored topic. There is very little information about it out there, hence we hardly ever covered the topic. It is widely known, however, that voting machines in the US use Windows, which has back doors and therefore can never be trusted, with or without tampering by a human operator. Putting Windows in voting machines gives plenty of leeway for mischief, especially by those with simpler access to the back doors. Consider, for instance, how Korean spies (the KCIA) famously meddled in South Korea’s elections.
At the early stages of research for the article we were trying to see or at least understand the relation Microsoft lobbyists have to voting machines. We have hardly heard of that before. There is a lot to it other than today’s proposed solutions being “open source”, which is probably where Microsoft lobbyists come in. Somehow, despite public will to induce transparency, accountability, audits etc. on the process, decades later we are still so heavily dependent on a proprietary, secretive system (or set thereof). Politics being determined by such a system (secret formula) won’t inspire public confidence. It breeds abuse and corruption and leads to reminiscing of the events in Florida 15 years ago (when George Bush got ‘elected’).
“We put open source language into voting system legislation,” told us someone from the California Association of Voting Officials, “and the Microsoft lobbyists have it removed.
“This must be stopped as OS voting systems are a preferred security environment for vote tabulation… the alternative being Diebold/ Dominion / Microsoft etc.”
We asked for additional information so that we can present it in an article, specifying what they have done and who has done it. Here is what we got:
The head attorneys for President Obama’s election report ( which omitted open source voting system solutions even though the information was gifted to them ) work for firms that lobby and / or represent Microsoft / Bob Bauer of Perkins Coie and Ben Ginsburg of Pattons Boggs /Jones Day
Nate Persily was tasked with presenting the President with all information.. but inexplicably failed to include any reference to open source in the report. When asked about this omission – and possible steps to remedy ( addendum etc ) Persily went silent.
No members of the Presidential Committee were responsive..
In California — which is the frontline of the battle for open source voting systems in the USA — the lobbyist for the California Association of Clerks and Elected Officials
Barry Brokaw- http://sacramentoadvocates.com/brokaw.html is also the lobbyist for Microsoft . –This may explain why the CACEO has been blocking efforts toward publicly owned General Public License voting system in California
US congressman Rush Holt’s bill 811 https://votingmatters.wordpress.com/from-rep-rush-holts-website-about-hr-811/ had open source included .. but it was mysteriously taken out – apparently at the direction of MS lobbyists and Verified Voting . Verified Voting is headed by David Dill – a Stanford Professor with Silicon Valley / Microsoft ties .. Verified Voting also employs Sarah Grootius Vilms from Patton Boggs as a lobbyist
A few days ago Secretary of State Hillary Clinton announced she was filing a lawsuit in Ohio to challenge their voting laws .. but her legal team is again led by attorneys from Perkins Coie — and there was no mention of tabulation or software. We have again contacted them to request their attention to that part of proper election reform
Also a bit more of the story– There is a group called OSET ( Open Source Election Technology ) that is attempting to sell bogus software that is NOT open source as it purports to be.. per the Open Source Initiative standards,, They call it ‘ open Public license “– It is ” open -washing ” and very dangerous — They are trying to sell it to US jurisdictions
Mitch Kapor is the owner of OSET — He previously owned Lotus – KC Brandscomb was Mitch Kapor’s CEO at Lotus — and is married to IDEO’s Kelly IDEO recently received a 15 million dollar sole source contract from Los Angeles County , CA for a design that Alan Dechert and Open Voting Consortium gifted L.A. for free years back ( a ballot printing system.)
KC’s brother Harvie is now heading up efforts toward election reform in Colorado– Colorado is going toward a uniform system . and Harvie would appreciate OSET ” kinda sorta ” OS being used.. especially since Colorado is being heralded as the model by CA
This is “all public info,” explained our source, but “attribution should be given to the California Association of Voting Officials — not for the information provided — but rather for our efforts toward open source voting solutions.”
We have meanwhile noticed new efforts to exclude Free/Open Source “In Many Situations” , based on Wikileaks’ disclosure of the TISA Agreement (in current form). Forbes has just explained that it is “clearly something that the many lobbyists from the likes of Microsoft will have wanted to see included.” 
“Legislative capture via government mandates would be great,” explained our source, “but that is the holy grail and not presently considered achievable in the USA, so this is no shock. Secret agreements are certainly bad though.”
If any of our readers are aware of Microsoft intervention in Free/Open Source voting legislation in any other country, please let us know. It is almost definitely done elsewhere, but finding evidence of it is the hard part. Mirosoft itself has been rigging votes, not just voting systems. █
Related/contextual items from the news:
Now, this is nowhere near complete — it is “bracketed text” which is still being negotiated, and Colombia already opposes the text. Also, some may argue that the second bullet point, which says it only applies to “mass market” software and not “critical infrastructure” software solves some of these issues. Finally, some might argue that this is reasonable if looked at from the standpoint of a commercial provider of proprietary software, who doesn’t want to have to cough up its source code to a government just to win a grant.
But, if that language stays, it seems likely that any government that ratifies the agreement could not then do something like mandate governments use open source office products. And that should be a choice those governments can make, if they feel that open source software is worth promoting and provides better security, reliability and/or cost effectiveness when compared to proprietary software. That seems tremendously problematic, unless you’re Microsoft.
But another section also caught my eye, and indeed it seems that it could make things very difficult for governments that are prioritizing open source.
The offending paragraph, proposed by Japan, reads: “No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.”
This is clarified with: “For purposes of this Article, software subject to paragraph 1 is limited to mass-market software, and does not include software used for critical infrastructure.”
This certainly makes some sort of sense. It means countries can’t require companies based abroad to hand over their source code, and is clearly something that the many lobbyists from the likes of Microsoft will have wanted to see included.
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“Distrust any enterprise that requires new clothes.”
–Henry David Thoreau
Summary: Analysis of recent articles from patent lawyers, highlighting their bias and disregard for facts in this system which has become increasingly intolerant toward software patents
TECHRIGHTS has very serious concerns about media coverage of patent matters. The corporate media is still stuffed with lawyers, acting as experts despite a conflict of interests or vested interests (informing versus profiting). Asking patent lawyers about patent law is like asking oil and coal executives about global warming and preferable energy sources.
We have closely watched patent lawyer’s Web sites, blogs, and news sites ever since the Alice case was concluded (one year ago at SCOTUS level). It wasn’t quite over because then, almost immediately, there was a trial in the media, whereupon opinions on the outcome were publicly distributed and consensus was being shaped, mostly by biased lawyers. The comical thing about it is that lawyers twist the truth or distort the truth in order to defend their business, which involves bending the system or finding loopholes for getting around the rules (that is what people often pay lawyers for).
We were hardly astounded to learn that yet more software patents have died because of the Alice case. As Akin Gump Strauss Hauer & Feld LLP put it: “To determine whether the asserted patent fails to claim patentable subject matter under § 101, the court applied the Federal Circuit’s two-step Alice test.”
This is an example of coverage which is rare because patent lawyers rarely cover legal cases where software patents get eliminated. As we have demonstrated many times before, they would rather emphasise cases where software patents withstand a court’s scrutiny. It’s lie by omission. It’s worse than half-truths.
“Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists.”Another site, a lawyers’ site called Law 360, says that “co-founder of an online diamond sale facilitator wants the startup’s lawyers tossed from a case accusing him of stealing its proprietary software, arguing in New York federal court Wednesday that one lawyer represented him for 16 years and the other is bound to be a witness.” The phrase “stealing its proprietary software” serves to remind us that lawyers view software as a property that can be stolen, not merely copied. Another article from Law 360 focuses on Alice , turning to the software patents-friendly Court of Appeals for the Federal Circuit (CAFC). Titled “A Look At Everything The Fed. Circ. Has Said About Alice”, the article serves to echo the pro-software patents arguments rather than remind us of the findings of the Court it got escalated/elevated to (the highest court in the US), by means of an overruling appeal.
The National Law Review says that “Another Sequenom Patent Appeal Heads To The Federal Circuit” and we are assuming that everything will be done by this court, as always, to legitimise the patent and by extension many like it. If only more lawyers’ sites were sincere enough and objective enough to cover the many known cases where software patents are dropping like flies…
McDonnell Boehnen Hulbert & Berghoff LLP, another law firm, has just published “Software Patents Are Still Very Useful Despite Alice, But Are Business Method Patents?” What a loaded headline. Actually, software patents lost in a very big way, much more so than after the Bilski case.
Gene Quinn, a vocal proponent of software patents, went the furthest (among the patent lawyers). In no effort to come across as professional or polite (or even moderately diplomatic for the courts’ sake), he starts a long series of personal attacks on the intelligence of SCOTUS Justices as if he, a patent lawyer, is all that technical himself. “Naked Emperors” he calls them, stating:
Given that we live in an age of software innovation, where 50% or more of all innovation is in one way, shape or form related to software, why are many Article III and Administrative Judges declaring that software is not patent eligible? Perhaps a more important question is why is Congress letting these Judges get away with what they are doing? There is no legislative support for the existence of any so-called judicial exceptions to patent eligibility, yet Article III and Administrative Judges are striking down patent after patent in this economically vital area.
His arguments are clearly flawed and are easy to debunk (for instance the poor assumption that expansion of scope must follow digitisation of existing processes), but what we wish to highlight is the rudeness, arrogance, and poor attitude from some patent lawyers who view themselves as flag-bearers.
Another lawyer, a good lawyer (fighting for ethical software and against patents on software), expresses concern about a new ruling regarding willful or unwilling infringement of patents, noting: “Most engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”
“As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers…”
As a lawyer for the Linux Foundation, Andy Updegrove analyses the threat this poses to Free/Open Source software and he reminds of the injustices in current patent law, be it because of patent scope or the definition of infringement. Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists. A reset of this who system is well overdue, but large corporations won’t permit it. Nor will patent lawyers who make a career out of this sordid mess… █
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