Summary: A roundup of news of interest regarding patents, especially software patents whose impact on Free/Open Source software is exceptionally profound
THE NEXT couple of weeks will be quiet for this site because we’re taking a two-week break. Before we go, however, here are some important news from around the world.
There is an EPO demonstration tomorrow. It tackles issues that relate to human rights, not to software patents or the UPC, but nonetheless, those latter issues too are a growing threat to European interests. According to a lawyers’ site, UPC’s “new regime will sit alongside rather than replace the existing patent system and will therefore require businesses to make careful choices about how they intend to protect their inventions and enforce their patent rights.
“The decisions they take could affect their patent litigation strategy and exposure to risk for years afterwards.”
All one needs to know about it is that it is going to empower international/multinational companies and their patent lawyers. For everyone else it’s a slap on the face.
We have been writing a lot about India as of late, in relation to software patents. Dr. Glyn Moody has a good article on this subject, comparing what India is doing right now to what Europe has been doing in recent years (since the Alison Brimelow days). To quote Moody: “These are very similar to the exclusions listed in Article 52 of the European Patent Convention (EPC), which governs patent law in Europe. And where the EPC uses the phrase “as such” when it comes to computer programs, the India exclusions contain the equivalent phrase “computer programme per se”. As Techdirt readers know, the inclusion of “as such” as a qualifier to the exclusion of computer programs from patentability has opened up a huge loophole through which clever lawyers have driven many thousands of software patents. The fear — quite justified — is that exactly the same will happen in India because of the new guidelines’ interpretation of what that “per se” phrase means…”
Indians will hopefully stand up and fight this injustice. It’s a form of colonialism in the patents sense, akin to what large pharmaceutical companies are trying to do in this vast market (many potential ‘customers’).
A few days ago we learned about yet another defeat for software patents in the United States.”Five Blue Spike Patents Killed by Alice/101,” Patent Buddy wrote the other day, linking to this decision
[PDF]. Notice the defendant; it’s a common target of Microsoft.
The patent maximalists from IAM are meanwhile reporting that ZTE, an Android player which we mentioned here recently for patent assaults on it (from Microsoft and its trolls), wants to “develop high-quality patent assets” (complete nonsense expressed using the language of patent propagandists). To quote the maximalists: “The average US consumer might not be familiar with the ZTE brand, but the latest figures from global intelligence firm IDC show that it has moved into fourth place in the American smartphone market, behind Apple, Samsung and LG. The Chinese company grabbed an 8% share of sales in the second quarter, up from just 4.4% at the start of 2014. ZTE has not exactly consolidated its gains yet, but its impressive growth offers a tentative success story for other would-be market entrants from China.”
The last thing ZTE needs in the world, including the lucrative US market, is more patents. Let’s hope that the US system will be healed over time, obviating the perceived need for such wasteful strategies that artificially elevate the price of products (lawyers’ tax).
“Let’s hope that the US system will be healed over time, obviating the perceived need for such wasteful strategies that artificially elevate the price of products (lawyers’ tax).”Reporting from the AAMA webinar, AAMA Info wrote: “The patent troll itself admitted that less than 3 percent of such lawsuits ever make it to trial,” adding that “97% settlement rate suggests a very good return on investment for the patent troll!”
Matt Levy wrote that he “was on a panel the other day discussing patent reform, and a funny thing happened. While we disagreed about a number of aspects of patent reform, basically everyone on the panel agreed that it’s ridiculous for one district (i.e., the Eastern District of Texas) to host so much patent litigation.
“Even those on the panel who didn’t like the current venue provision in the Innovation Act felt that it just needed some small tweaks in the language. They agreed with the basic approach of venue reform.”
We are still hopeful and very much positive about the US patent system because it seems to be moving more in the direction of hostility towards software patents, whereas India and Europe go the other way. █
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Summary: Microsoft continues its long journey towards ‘Linux tax’ (or Microsoft tax on Linux) as the ‘standard’ while trying very hard to derail Android and prevent nations from moving to Free/libre software
THE bubble of ‘good’ Microsoft is being burst on a daily basis because the company keeps — and sometimes even enhances — its hostile behaviour, having just taken away software from Android [1, 2], engaged in yet more “embrace, extend, extinguish” tactics against Android, and then started recording Android users remotely (always on), as reported by Mary Jo Foley and other Microsoft propagandists (Microsoft’s special relationship with the NSA notwithstanding). Based on this new article from IAM, there is also a monopoly being shielded here, with the prospect of litigation against Google and others (for royalties or product removal). “A new study by technology consulting and litigation support firm iRunway,” says IAM, “has analysed the patent landscape around speech recognition technology, finding that Microsoft and specialist company Nuance lead the way. The report highlights the growth in patent filings over the last 10 years as companies have made significant strides in the development of technology in this area.” Just watch how Apple has been suing Samsung. It is still pursing high royalties through a settlement. It wants “hundreds of millions of dollars”, as an Apple proponent/Android foe put it. Much of that is for software patents and it is the same strategy Microsoft has been sticking to for much longer than Apple.
Make no mistake about it. There is no 'new' Microsoft except a Microsoft that engages in patent racketeering against Linux and Android. There are only faceplate changes, site changes, logo changes, etc. The company is as aggressive as ever before.
“Make no mistake about it. There is no ‘new’ Microsoft except a Microsoft that engages in patent racketeering against Linux and Android.”Several years ago we noted that Microsoft had promoted Horacio Gutierrez, who is now a Microsoft Vice President. Microsoft was emphasising a litigation route, making it abundantly clear that patent extortion against Linux was a growing strategy. Anti-Linux patent men are once again being promoted inside Microsoft as Smith becomes President. Recall all the anti-Linux rhetoric from him and mind the “astroturf in the comments,” as noted by our reader iophk. Smith is an aggressor, so the way we interpret the news is, anti-Linux litigation is only further promoted (not demoted) as the strategy. Watch what Microsoft has been doing with Tuxera, putting and reinforcing patent tax as part of the ‘standard’ inside Linux. Here is a new press release from Tuxera and partners — a statement which says:
iWedia, a leading provider of software solutions for TV devices to service operators and Consumer Electronics manufacturers, today announced that it has integrated its Linux-based Teatro-3.0 Set-Top Box (STB) software solution for IP-connected zappers with the AllConnect streaming technology of Helsinki-based Tuxera, the market leader in embedded file systems, network storage and streaming technologies.
Well, Tuxera is a Microsoft partner and it pays Microsoft. This is the sort of GPL-hostile future Microsoft is after. Microsoft is trying to make Linux its own cash cow. Yes, cash cow! It’s an assault on the very heart of Free software. It impedes distribution rights.
Speaking of underhanded tactics such as these, the Gates Foundation is being used as a Trojan horse by Bill Gates, who is now an integral part of Microsoft’s management and according to this report China’s “President Xi is set to also have a private dinner with Microsoft co-founder Bill Gates before leaving Seattle for Washington.”
Another report says “President Xi will also be visiting and meeting with Microsoft founder and philanthropist Bill Gates, even before he visits Obama in Washington.”
“That makes Xi look very weak,” iopkh wrote to us. It’s not the first time that this happens. The same kind of story was reported here almost decade ago, back in 2007.
“Yes,” iopkh noted, “it’s happened with other presidents of China. It makes them look very foolish, to keep it polite.”
Our worry is that China will lift its ban (in government) on Office and Microsoft Windows, maybe after some ‘sweet’ (behind closed doors) deal with Gates, who is now officially back at Microsoft (in functional terms). At the moment, China is rapidly moving to GNU/Linux at many levels, not just when it comes to mobile devices but also when it comes to servers and desktops. We wrote a lot about it. China not only explored Free software, but also began moving to it en masse. It’s the world’s largest market and trend setter.
Don’t believe for even a moment that Microsoft has changed for the better. It’s just more discreet about its constant attacks on Free software. █
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From the Campaign for Document Freedom
Summary: India’s move towards software patents already encounters opposition from the Free Software Movement of India (FSMI) and China’s new obsession with software patents is addressed
SOFTWARE patents are truly a menace. Virtually no software developers would ever defend these, except maybe their ‘pioneer’. These are hurting even proprietary software companies, not just Free software developers. As the Microsoft booster Tim Anderson put it yesterday, “[l]egal woes (and cracked licence keys) cause dev favourites to throw in the towel”. He wrote about “Iron Speed, a firm which provided a rapid application development tool for creating .NET apps [which] is shuttering itself thanks to “litigation with a patent troll”, according to a letter sent to customers by co-founder and chairman Alan Fisher.”
The fight against software patents ought to be a common cause among proprietary and Free/Open Source software developers. Conglomerates such as Microsoft and IBM, which are not run by developers, want software patents in order to merely cement their monopolies, which they acquired only because of lack of software patents (back when they were small). Companies that focus on software can only succeed and thrive in the absence of monopolies on algorithms.
“The fight against software patents ought to be a common cause among proprietary and Free/Open Source software developers.”India’s policy on algorithm monopolies has been sound for a number of years, especially given the large number of software developers in India (both proprietary and Free/Open Source software developers). We were therefore rather stunned to learn that India is making a terrible, suicidal move. The Indian Patent Office sells out, causing huge issues for everyone, based on patent-centric sites. There is a panic among everyone except patent lawyers. Some rightly ask: “Will It Stifle Innovation in the IT Industry?”
Of course, it has been repeatedly shown in practice and in theory. India is making even more impact in the media (even international networks like Reuters [1, 2] by giving Pfizer the finger again. As PTI put it, “India rejects Pfizer’s patent application for arthritis drug”. Pfizer just wants another monopoly and India, realising the ethical impact, denies/declines. Why can’t the Indian Patent Office realise that patents on software too are unethical, irrational, and damaging to India? Who is this patent office working for? As one site put it: “The Indian Patent Office (IPO) has addressed limitations on patents for computer-related inventions to clarify the Patents (Amendment) Act 2002.”
It didn’t just address limitations; the word “limitations” has a negative connotation, as if patent maximalism is a good thing.
“Free Software activists against changes to patent norms” is the headline of this new article in English, which shows that the Free software types are already responding to this crisis. To quote the opening paragraph: “The Free Software Movement of India (FSMI) has alleged that the new Guidelines for Examination of Computer Related Inventions are illogical. It argues that they violate the spirit and law contained in the amended Patents Act of 1970 and could pose a grave threat to innovation in our country.”
There are meanwhile reports also from China, the other Asian technology giant. “Last year,” said this article, “for the fourth year running, China topped the patent league with 928,000 patent applications compared to 578,800 patents filed in the USA.”
This is not because of increased innovation but due to patent maximalism. As this new article indicates, software patents are becoming widespread in China (we wrote about this trend before). To quote the lawyers’ site:
Patenting computer software inventions makes sense for the Chinese e-commerce industry for three reasons. First, the Chinese government wants more businesses to patent their technological innovations. This policy is supported at the national level and the central government pays for inventors to apply for patents. Second, e-commerce is very important in China. One quarter of all consumer purchases in China are done on-line. And that number is unlikely to get smaller. Third, today’s Chinese consumers have many options and they have grown to expect quality products, quick service and reasonable prices.
For most active businesses, the third reason is the key. Finding an edge in meeting those consumer expectations has made for a fiercely competitive marketplace. Protecting process innovations that involve software improvements is, as it is everywhere, problematic. How are computer software inventions protected in China as a matter of law?
China would not gain any advantage by allowing patents on software. It would just be wasting time and other resources composing documents in Mandarin. A lot of these so-called ‘innovations’ are not innovative at all; they can be found in existing patents (maybe in other languages) and refer to ideas that got implemented a very long time ago. These patents are good for nothing, except maybe serve as trophies (although the higher the number of such ‘trophies’, the less impressive each becomes).
Business hawks in the US are not resting [1, 2]. They still lobby against patent reform in the US, pretending it would “hurt innovation”, “weaken patent laws”, and the usual nonsense about hurting businesses, which is exactly what patent law does at the moment (hence the need for reform). To quote the latter example, here is why the hawks have just resumed this lobbying (it’s about timing): “Toward the end of each summer lawmakers travel back to their home states and districts for the August recess. This time away from our nation’s capital allows elected officials to reconnect with constituents and hear which issues matter most to folks back home.”
US officials will hopefully work towards a real reform, not the diluted one which had been tabled before they went on holiday.
It is rather worrisome to see software patents spreading to large parts of the global economy (India, China, and even Europe if the corrupt EPO management gets its way) while the US itself, the original source of these patents, is coming to grips with the harms of these patents and cutting down accordingly. █
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Software patents comeback shows that protests in India are needed again
Summary: The disease which is software patents keeps trying to spread while its home country, the United States, is gradually ending software patents
THIS WEEK begins with some bad news. IAM, despite its biases, was right to suggest that patent proponents that push for software patents in India are trying, with some success in fact, to gain legitimacy and change the law.
“Even the highest court in the US ruled against these, by extension.”Based on today’s new article from the corporate media in India: “The Indian Patent Office’s recent guidelines, declaring that software and business methods are patentable in India, has set off alarm bells across the software product industry.
“The patent office for the first time made a clear interpretation of the Patents (Amendment) Act, 2002 to mean that if a software has novelty, is inventive or tangible, and has proper technical effect or industrial application, it can be patented. The guidelines serve as a reference for officers in granting patents. Software product industry experts are against modifying the law to make computer programs easily patentable, arguing that innovation in the area is often incremental and programs are built on top of other programs.”
This is disturbing as it seemingly came out of nowhere. It’s due to lobbying that never stops, for instance in New Zealand this summer [1, 2, 3].
India’s patents and policies on granting any is not as lenient as in Western nations and in fact earlier this morning the same paper (as above) wrote: “The Indian Patent Office has denied American drugmaker Pfizer patents for certain isomers and stereoisomers of tofacitinib, a product it markets globally as Xeljanz for the treatment of rheumatoid arthritis, in the latest example of a foreign company finding it difficult to patent incremental innovations in the country.”
If India can (famously) grasp the evils on patents like these, why can’t it see that software patents are inadequate? Even the highest court in the US ruled against these, by extension. It makes absolutely no sense for patents like these to spread from the US elsewhere when the US itself is now questioning (and invalidating en masse) software patents.
There is currently some European analysis of Apple‘s software patents in Europe (EPO-steered policies made these possible) and it’s noted that:
It is only in the U.S. — in California, Apple’s home state – that Apple has been able to score wins when it comes to the slide-to-unlock patent. In any case, the scope of the patent is quite limited (it only covers the slide-to-unlock where an image is moved across the screen) and can be worked around (it has been implemented into a multitude of Android devices). It’s hard to ignore the suggestion that Apple made this feature “famous” and most likely forced other smartphone makers to implement distinguishable slide-to-unlock mechanisms. Now people know instinctively what to do to unlock a phone but, at the end of the day, in this case it was not considered that their innovative capabilities were a sufficient reason to limit consumer choice.
Well, on the basis of it being a software patent, this patent ought to have been immediately thrown out. But after Brimelow’s “as such” nonsense (notorious loophole) it often seems as though Europe only pretends to be banning software patents. There are further plans to further legitimise software patents in Europe.
India, New Zealand, and Europe should all fight back against the software patents lobby and make it explicitly clear (without exceptions) that software patents are forbidden. Failing to do this would cause enormous damage to these economies, and moreover welcome patent trolls. █
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Assocham (or ASSOCHAM) has been fronting for Microsoft’s interests for nearly a decade (if not much longer)
Summary: Assocham is showing its true colours yet again, lobbying for the interests of foreign companies and endorsing serious abuse or compromise of India’s national sovereignty
MICROSOFT, which suffers big financial losses, layoffs, and cancelled products, must be rather nervous right now. It even appointed a new CEO with Indian roots, as part of its desperate, shallow effort to change the company’s image. More than seven years ago we showed how Assocham had become somewhat of a lobbyist for Microsoft's interests in India (effectively aiding Microsoft corruption of international scale). Now that India is moving towards Free software we see a lot of lobbying from Microsoft again. Microsoft still exercises far too much influence against the interests on India, often relying on proxies and front groups that it is closely connected to. We covered it earlier this year in articles such as:
In lobbying for Microsoft et al. Assocham now uses the same propaganda as for software patents, using almost exactly the same words, mainly “fair” and “non-discriminatory” (remember what FRAND and RAND stand for, uttering in quite an Orwellian fashion the very opposite of what they are). Microsoft’s India lobby wants back doors, spying, and strong foreign lock-in in India. Anything else would be “unfair” and “discriminatory”, or so Microsoft would have us believe.
“Given Assocham’s past actions it would be hard for it to deny rogue play.”India’s corporate media and paid-for press wires are now clogged up by at least a dozen English language bits of propaganda from Assocham, e.g. [1, 2, 3, 4, 5]. It’s pure nonsense and it is consistent with what Microsoft has been doing in recent months, both directly and indirectly, e.g. through NASSCOM, which is connected not only to Microsoft but also the Gates Foundation.
Given Assocham’s past actions it would be hard for it to deny rogue play. It’s easy to see why propaganda is needed here. Assocham should be asked by our Indian readers, “are you that corrupt?” We urge for action, perhaps some petition, questioning the integrity of this 95-year-old body, which was either corrupted or was always inherently corrupt.
Vista 10 is totally unacceptable for use by any government. It is definitely unacceptable for use in Munich, which is now under attack by Microsoft boosters yet again (report from CBS), amid many reports about NSA espionage inside Germany (vindicating Munich). Microsoft is a spyware company and no nation in Europe, especially a nation’s government, should let Microsoft possess any data, yet in Italy, based to Microsoft boosting sites [1, 2], there is a retreat to the huge costs of lock-in and OOXML. They say it’s done “to Save Money” as if selling citizens’ data without their consent to some foreign company that cooperates with the NSA more than any other software company is some kind of achievement.
India ought to fight for its digital sovereignty. It has many talented software engineers who can build and maintain the country’s infrastructure using Free software. Assocham may continue to prove itself to be a parasite, a mole, and a sellout. It’s time to shut it up. █
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“People naively say to me, ‘If your program is innovative, then won’t you get the patent?’” —Richard Stallman
Software development is NOT writing English sentences
Summary: Dealing with some of the hard (but soft, or invisible) issues in the US, where patents on abstract things are commonly misused for trolling/blackmail and abstract ideas have state tax associated with them
THE political landscape in the United States makes it increasingly unlikely that the patent system will be reformed in anyone’s favour, only in corporations’ favour (and corporations are not people). It is abundantly clear that the current proposals/bills on the table are unfit for purpose if the goal is really fixing the patent system. We already wrote over a dozen articles about this and today we present some of the latest finds.
“Patents threaten access to vital medicine” says a headline from South Africa, part of BRICS. It looks like South Africa is starting to view things like India does (I is India and S is South Africa in BRICS). Populist nations realise that many patents are unjust or even evil because monopoly is not more important than lives. South Africa and India both disallow patents on software, too.
“Populist nations realise that many patents are unjust or even evil because monopoly is not more important than lives.”What about the US? Well, as we showed three days ago (“GOP Media Deception, Healthwashing Patents”), the healthwashing tactics are being used to curtail and eliminate any potential of a reform. It’s the “PEOPLE ARE GOING TO DIE” sort of blackmail (if patent reform is passed).
GOP media (i.e. corporations) has played a big role in lobbying against patent reform, but oddly enough, someone called Mytheos Holt, writing in a GOP-leaning site, tackles what’s titled “The Three Dumbest “Conservative” Objections to Patent Reform”. To quote the key argument: “You have to give the enemies of patent reform credit: They do love to hide behind the idea that they’re defending the free market. To hear them tell it, in fact, they’re the only thing standing between America and a lawless jungle where Google and Apple can step on inventors with impunity and then laugh in their faces as the courts’ hands are tied.”
Here is a useful and long list of reform supporters: “Patent reform enjoys a long tradition of intellectual support from a wide range of right-leaning think tanks and advocacy groups. Conservative and libertarian groups that have advocated for patent reform in one form or another include Americans for Tax Reform, the Heartland Institute, the Cato Institute, the Heritage Foundation, the Competitive Enterprise Institute, the MercatusCenter, Americans for Prosperity, Frontiers of Freedom, the Independent Institute, the Manhattan Institute, the Mises Institute, Institute for Liberty, Hispanic Leadership Fund, the Institute for Policy Innovation, the Latino Coalition, Independent Women’s Forum, Lincoln Labs,the American Enterprise Institute, the Center for Individual Freedom, American Commitment, Taxpayers Protection Alliance, the Discovery Institute, Generation Opportunity, Citizen Outreach and others.”
With so much support from so many groups, how come there is still no change? See Think Progress with its new article “Why Patent Trolling Is So Hard To Fix”. As Think Progress puts it: “Software developers could have a hard time getting their next big idea patented thanks to new rules the U.S. Patent and Trademark Office (USPTO) issued, making some inventions, particularly innovative software and medical devices, unpatentable. ”
Think Progress makes it sound like a bad thing. We wrote about this an hour ago and it is definitely good news. It’s why so-called ‘reform’ might not matter after all. It’s already happening owing to the SCOTUS (Alice and § 101).
“It’s a fantasy, and just like all fantasies, sooner or later it will get shattered by reality.”Meanwhile, as revealed by Accounting Today, lobbyists’ media [1, 2], and Wall Street media [1, 2, 3, 4], the US want to introduce a ‘lower’ tax on invisible things, as if that makes any sense at all. The US is taxing immaterial things, ‘stuff’ like mere thoughts. A much later article from lawyers’ media framed this as “Tax Breaks”, stating that “proposed legislation would enable a company to deduct 71 percent of income derived from qualifying IP or 71 percent of their taxable income, if less.”
This helps prove how crazy a system we’re dealing with here, where mere ideas (misleadingly names “property”, the P in “IP” or “IPR”) are treated as taxable and the corporate media now celebrates tax “discounts” on ideas. The Alice case, which tackles a lot of these abstract patents, justifies the common reference to the case: “Alice in Wonderland”. It’s a fantasy, and just like all fantasies, sooner or later it will get shattered by reality. No country in the world deserves such a rubbish patent system. █
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SCOTUS changed everything
Summary: A comprehensive look at the past week’s news, including new cases that serve to weaken software patents in their country of origin
THE very existence of software patents is troubling. Not everyone can understand that because not everyone is a software developer. If the notion of a global patent system ever becomes a reality, then we must ensure that this system does not have any software patents. Therein lies the importance of the fight in the United States, by far the most influential country in international politics.
A couple of days ago some Microsoft-friendly media (paid by Microsoft for a lot of advertising) published the post titled “Copyright is enough for software”. It is not a bad post and it helps echo the feelings of many software developers. To quote the opening part: “Now I will fully admit that software patents are getting more restrictive, and the patent office, working with members of the community, has offered up a few ideas to make software patents less offensive and broad. This is a good thing, as in the past we’ve had some truly horrendous software patents issued for utterly mundane things that every developer uses every day.”
As we are about to show later in this post, the US patent office is indeed narrowing down scope in some areas (such as software) and courts support such a move, which they quite likely motivated in the first place.
Patent lawyers are, quite understandably, nervous. They try to lure people into conducting patent searches and fall into the wasteful trap which is software patenting. See this new article from the technical press, suitably titled “Patents: Exercises in Futility and Incomprehensibility?”
They are a waste of time and they achieve nothing but collective fear, which slows down development. “Learning anything from patent documents has to be one of the world’s least productive endeavors,” explains the author. “But there are a few techniques by which you can squeeze out what useful information may be hidden there.”
Better yet, never look at any patents at all. It only increases liability in case of infringement. This isn’t an act of civil disobedience but a matter of setting priorities correctly. Software developers should write code, not read patents. Imagine patents on recipes and cooking, leading chefs to endless reading of patents (instead of cooking), whereupon some forms of cuisine will be deemed too risky to do, making food more expensive and stale. Who benefits? Certainly neither chefs nor the public. Such a system would result in cooking ‘conglomerates’ and hoarding by their facilitators like lawyers.
In BRICS nations there is resistance to software patents, although based on this new article, China is allowing patents on software in some cases. China has been trying to artificially elevate the number of its patents for quite some time, even by lowering the threshold/bar of what’s patentable. It is, in part, a PR exercise. It’s part of the national agenda, seeking to rid this growing economy and great nation of the “knockoff” reputation.
Not many Western companies bother patenting their work in China (unlike, say, Korea and Japan, where companies also love to patent their stuff in Europe and the in US). Not many people or companies in China get sued over patents, at least not based on what we can see. Western companies very rarely get sued in China (over patents or anything else for that matter); there are only few cases that are seldom covered (on very rare occasions), usually involving some big brand like Apple because such stories ‘sell’ better.
Quoting the above: “The first [patent] is from the Chinese State Intellectual Property Office (No. 200880126543.0) entitled “Method, System and Computed Program for Identification and Sharing of Digital Images with Face Signatures”, while the second patent is from the Canadian Intellectual Property Office under the same title (No. CA 2711143).”
It is interesting that Chinese patents are sought by companies for the same ideas that are patented in Canada. Depending on which application was made first, we may be able to deduce or at least guess the intention. Not too long ago Apple was sued over patent infringement in China, where Apple is clearly losing to Android players like Xiaomi (now exceeding Apple in terms of sales). Before China was fighting back against patent aggressors like Microsoft Chinese companies like ZTE surrendered to Microsoft without a fight. It helped demonstrate the role of software patents in China. Microsoft can try to ban imports from China until or unless products are castrated (features removed), money gets paid to Microsoft, or Android is dumped in favour of Windows (or a Microsoft-centric version of Android, with a lot of Microsoft malware preinstalled). Overall, China has nothing to gain from software patents. It merely suffers from these. Thankfully, China isn’t falling for all these horrible ‘trade’ deals (misleadingly marketed to the public as “against China”), where increase in patents and their scope/range of applicability is paramount.
According to a new article from IAM, China’s ZTE is now fighting a battle with a US-based troll. It’s the Microsoft-backed Android/Google-hostile Vringo. Patent Buddy called this “ZTE’s Plan to Disparage Vringo and Change US Patent Law (to make it anti-patent)” (so again, US patent law is relevant here).
Over in India, another BRICS nation that does not in principle allow software patents, Google has just received a software patent. “Google has secured an Indian patent,” said the Financial Express, “for an invention regarding a method and system for transferring annotations associated with video files. ”
There seems to be some kind of confusion when Western companies come to BRICS nations and attempt to patent software. Are patent examiners aware at all of the fact that software is ineligible for a patent where they are? Perhaps we need to focus more on the source of this influence, which fools examiners into granting patents on software, gradually taking these global, even against the law.
USPTO Guidance ‘Reform’
The US patent office, the USPTO, is trying to keep up with the courts. It plays catchup with the law, keeping abreast of big judgments more than a year later (because the USPTO, like the court system, is far too slow). Here are the concerns of Barnes & Thornburg’s Intellectual Property Law Department (i.e. patent lawyers), among others. It’s about Alice and software patents (§ 101). This is again input from patent lawyers (Finnegan, Henderson, Farabow, Garrett & Dunner LLP), also echoed here. What we basically see here is a lot of responses from patent lawyers to changes that are happening at the USPTO, based on new guidelines for patent examiners. Snow Christensen & Martineau (more lawyers) chose the title “New examination guidelines from the USPTO on subject matter eligibility: what it means for the patentability of your inventions” (the most desperate headline came from the most shameless promoters of software patents).
For the uninitiated, software patents are gradually dying in the US, for the courts repeatedly rule against them, invalidating a lot of patents in the process (even by extension, through precedence). The USPTO is just trying to keep abreast here and refrain from granting more patents that would later get invalidated because 1) it damages the credibility/reputation of the USPTO (granting patents in error) and 2) it lowers, in due course, the incentive to file/apply for patents at the USPTO, for they may not be honoured by the court system, deeming them a massive waste of time and money.
Courts Continue to Crush Software Patents
As another week goes by, another case serves to show that software patents are not potent enough for winning a case, not even in the US. Invaliding patents on invisible things (like algorithms) is the big trend these days and here again is a reminder of that in lawyers’ media. “It is very important to provide adequate disclosure when using “means-plus-function” claims in a U.S. patent,” says the author, “particularly in the field of software.”
According to this same publication, more software patents are about to get invalidated. To quote the opening paragraph: “On July 9, a judge in the district of Oregon granted two motions for summary judgment finding that the claims of United States Patent Nos. 7,346,766 and 6,728,877 fail to state an inventive concept sufficient to satisfy the Supreme Court’s test for patentability of an abstract idea under Section 101, and are therefore invalid. The patents-in-suit involve technology related to the migration of user configuration settings from a source computing system to a target computing system. In granting defendant’s motions for summary judgment, the court followed the Supreme Court’s guidance in the landmark Alice Corp. Pty. Ltd. v. CLS Bank, Int’l, 134 S. Ct. 2347 (2014) decision.”
No wonder patent lawyers worry. Alice has been doing this time after time. “The Supreme Court has made changes to patent law and how it’s interpreted, he says, which makes the interpretation of patent laws more uncertain, particularly where software is involved,” corporate media wrote the other day.
Here is another new article about this. “To be granted a patent for software,” it says, “the patent application had to overcome objections based on a 2014 US Supreme Court case holding that the mere computer implementation of a business method is unpatentable. The US patent examiner has judged Arria’s “Method and Apparatus for Configurable Microplanning” to be an innovation that contributes to the field of computer science. The innovations underlying this and Arria’s two other US patents enhance the quality and authority of the plain English narratives being written by the Arria NLG Software Engine without human intervention.”
We gradually get to the point where most software patents are worth $0 and no new ones (or very few ones) actually get granted. In this trend broadens in the US, then software patents will be universally (globally) dead. It’s only a matter of time.
The USPTO has been changed and perturbed over hundreds of years, with scope expanding to millions of patents on mere ideas (not physical, no mechanics), but some people live in the past and pretend that no correction is required. Martin Goetz, who has been making a career out of speaking in favour of software patents, is now enjoying support from patent lawyers who give him their platform. The man who started software patents (Martin Goetz got the first one) wants us to stop saying “software patents” as if trying to just dodge the debate by changing words will make these patentable again. CII? Computer-implemented inventions? That term never caught on. Just like “NPE” for trolls, or formerly patent sharks.
Patent lawyers are having an ‘ACTA moment’ right now, realising that what they tried so hard to defend has got a very bad name, so they try to rename. This basically means they lost.
It is going to be interesting to see how the rest of the world responds to the post-Alice status quo in the US. Software patents are in the process of rapid demise, but it may take half a decade for this plague to be totally eradicated. These systems are very slow to adapt to change. █
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Summary: Wipro cements its obsession with a proprietary mindset by putting patents — not sharing — at the centre of its strategy
IT HAS been quite a while since we last wrote about Wipro (see some posts from 2010, 2009, and 2008), but we have little reason to believe that the company changed its ways, despite using the term “Open Source” every now and then in the media (because the Indian government starts to require it and Microsoft must therefore pretend or lobby, even by proxy sometimes).
Based on numerous news articles [1, 2, 3, 4], patents hype and glamourisation is on the agenda at Wipro, so we seriously doubt Wipro will ever change. To quote one article: “Country’s third largest software services firm Wipro aims to significantly increase its rate of patent filing over the next three years.”
“Wipro must seriously think whether it wants to go down with Microsoft (as Nokia did) or join the future with Free software, meaning that patents should not be a priority at all.”I spoke to Simon Phipps, who now works for Wipro (they have hired him to boost some “Open Source” perception or change their actual strategy). I asked him about this in Twitter. He referred me to another department which did quite poorly at convincing me that this is benign. We already know what the likes of Wipro are doing to promote software patents in India and lobby the Indian government.
Wipro must quickly evolve in preparation for a post-Microsoft world where sharing, not patent monopolies, is paramount. Microsoft layoffs, which culminated earlier this month, show that Microsoft cannot be an eternal ‘partner’ to Indian IT firms. Redmonk’s take on this concluded that: “There’s the human cost of telling almost eight thousand people that they need to seek employment elsewhere, and there’s the public relations cost of telling the market the company you lead had effectively made a $7 billion dollar mistake.”
Wipro must seriously think whether it wants to go down with Microsoft (as Nokia did) or join the future with Free software, meaning that patents should not be a priority at all.
Here in the Indian corporate media we now see the World Bank’s propaganda being used to pretend that India needs more patents. What an utterly shameful lie. To quote this plutocratic piece: “Even official records of the Indian Patent Office cast a gloomy picture—while patent grants for foreign inventions increased by almost 300%, grants to Indian inventions grew by a mere 45%. In 2013-14, while as many as 42,951 patent applications were made, only 10,941 were made by Indian applicants. The Indian government spends less than five times of what China spends on R&D and the country attracts a mere 2.7% of the global R&D spend (China attracts 17.5%). India scores poorly in commercialising R&D from its universities, and its regulators often create antitrust and taxation hurdles in the effective exploitation of foreign-owned patents on Indian soil.”
They are basically trying to shame India based on some nonsense like patents. India is known worldwide for standing up against unethical patents, such as those that seriously harm life (medicine for example). It’s obvious why all sorts of oligarchs would want to disrupt India’s patent policy. In other news, published by the Washington Post three days ago, “Patents are a terrible way to measure innovation” (this is the headline).
“On the surface,” says the author, “patents provide an easy way to measure innovation. After all, patent statistics are readily available, they are objective and they are quantifiable, so you can quickly tally up the number of patents by company, city or nation, and immediately have a sense of how innovation varies by geography, industry or even time period. It’s no wonder patent data is often used as a leading indicator of innovation.”
It’s an indicator of how rich a country is, or how much time and money a country can spend on paperwork rather than real innovation. India shouldn’t be distracted by collection of patents — a practice which has become akin to amassing trophies in some Western (non-BRICS) nations. Wipro too would be wise to withdraw from these dumb statements which it made to the media the other day. Patents are not what Wipro needs. █
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