When competition is becoming lawyers’ business, generally unhinged from science and technology
Summary: A roundup of news of interest with a special focus on software patents, which severely affect one’s ability to liberally develop software and are potentially being expanded to countries outside the United States, where the Supreme Court may have already, in effect, put an end to them anyway
RETUNING to our main focus again, this post brings together all the news we were able to find about software patents towards the end of the week. It’s sub-divided into four parts.
Software Patents in India
As readers probably know by now, as we wrote half a dozen articles about this subject alone, India’s political system, which has a lot of power in the world, is surrendering to the lobbies of multinationals and offers them patents on software, effectively stomping on India’s massive population, software developers in particular. Here is a new “[t]ime-line of Software Patent Law in India” which explains the latest development as follows:
August 21, 2015: Guidelines for Examination of Computer Related Inventions released by IPO. Provide that:
– Mere use of mathematical formula in a claim to clearly specify the scope of protection being sought would not render the claim a mathematical method. Eg. Method of encoding, decoding, encryption
– While business methods are non-patentable, if the claimed matter specifies an apparatus or technical process for carrying out invention even in part, the claims to be examined as whole
– So long as a computer programme is not claimed in itself, but in a manner so as to establish industrial applicability and fulfils all other criteria of patentability, the patent should not be denied.
These loopholes are even worse than what we have in Europe (similar to New Zealand’s loopholes). If Narendra Modi and his colleagues fail to stop this, India will suffer from inflated pricing and many software houses (local) will shut down. Nothing has actually changed in India which justifies this latest change to guidelines. It probably boils down to lobbying and corruption. We know which companies want software patents in India; they’re not Indian companies but companies that exploit Indian labour for cost-savings, ensuring that India stays dependent on foreign-made systems with imperialistic back doors.
Software Patents in the US
SCOTUS, the US Supreme Court, has emerged as somewhat of a hero in the fight against software patents. We are grateful for Alice as it’s a huge game-changer. Patent lawyers are plotting to patent software nonetheless, even after the Supreme Court banned many of them. How typical. Expect a major war of words between people who actually produce software and patent lawyers whose role is parasitic at best (as well as their very rich clients and patent aggressors, i.e. companies like Microsoft).
Microsoft’s Dubious Software Patents
PatentVue, a patents glorification site which even celebrates Microsoft’s patent troll Intellectual Ventures, has just published the article “Microsoft Has a Diverse Software Focused Patent Portfolio”.
“If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed.”Microsoft needs such patents so that it can attack, extort, and blackmail Android/Linux. Microsoft has been pressuring in favour software patents in Europe (often via lobbyists and proxies, e.g. Association for Competitive Technology, which keeps changing its name in order to dodge negative publicity). This year alone Microsoft attacked Samsung, Kyocera, Dell, and ASUS using software patents, forcing them — by means of patent blackmail — to put Microsoft spyware inside Android. If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed.
Quoting the patent maximalists from PatentVue: “Earlier this month, Microsoft and Google announced a settlement to end nearly 20 patent-related lawsuits in the U.S. and Germany. The deal brought to close years of patent litigation surrounding various technologies, including gaming systems, mobile devices, and multimedia streaming.
“Envision IP analyzed Microsoft’s US patent portfolio to understand where the company has focused its patenting efforts, as well as to determine emerging technologies which Microsoft may be developing. At a high level, we identified 31,209 in-force, unexpired US patents owned by Microsoft and its subsidiaries. According to the company’s annual 10-K filed in July, Microsoft owns “over 57,000 US and international patents”. Also, according to Microsoft’s Patent Tracker Tool, the company owned 29,235 patents as of December 11, 2014.”
“It’s Microsoft’s utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place.”Rather than produce software Microsoft has been busy bullying the EPO into granting it patents as soon as possible (many of these are on software), even without proper prior art search, checks for inventive step/s, suitability based on European patent scope and so on (there is a fast track now, so an even sloppier examination process is clearly inevitable). Speaking to patent maximalists with a Microsoft Windows Web site several years ago, Microsoft’s Marshall Phelps said that Microsoft would have 50,000 patents within two years. The EPO, as he explained it, “can’t distinguish between hardware and software so the patents get issued anyway” (more so if Microsoft pressures the examiners to do their job at a rush).
For those inside the EPO who don’t understand Microsoft’s insidious (uniquely so!) role in the EPO, including the pressure for a V.I.P. lane, we can humbly suggest a quick read though the TomTom case. It’s Microsoft’s utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place.
Shooting the Mark Cuban (Messenger)
Mark Cuban, an influential person in the US, has expressed his opposition to software patents on many occasions and even put money where his mouth was (investment in Vringo notwithstanding).
“This isn’t what the patent system was supposed to be about.”Patent lawyers and nasty (at times exceptionally rude) proponents of software patents resort to an ad hominem attacks on Mark Cuban, still (ongoing smear campaign). Here is the latest such attack. Patent examiners (technical people) and software developers alike ought to know that their enemies are often patent lawyers and lobbyists, not just their main clients (cash cows), i.e. companies like Microsoft. These people have made a mockery of the patent systems with all sorts of loopholes and corporate/V.I.P. queues. This isn’t what the patent system was supposed to be about. At the beginning it was advocated to the public as the mechanism by which a lone inventor can protect himself or herself from a corporate raid on ideas. Now it’s all reversed. It’s protectionism for the world’s billionaires. Fix it or abolish it. █
“People that use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us.”
–Steve Ballmer, Microsoft
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Summary: Indian proprietary software and Free/libre Open Source software (i.e. everything except for large multinationals’, such as Microsoft or IBM) is at great danger after terrible changes were proposed to Indian patent law
TECHRIGHTS spent a lot of time writing about software patents in India, especially recently. These have not been legal, but Modi’s government threatens to change this. Does Modi work for patent lawyers and multinationals, or will he keep his promise (like many vacuous election promises) to defend the people of India from such corporate, colonialist occupations? Recent trips to software giants in the US don’t serve to inspire much confidence in Modi right now.
Patent lawyers in India go where the money is: protecting the companies that profit from Indian deaths. Many of these patent lawyers (essentially profiteers) lobby for stronger protectionism of foreign pharmaceutical giants (driving up prices of medicine), but to make matters worse, there are those who want software patents in India because they can profit at the expense of Indian programmers. Are lawyers and their big clients (foreign companies) winning this battle?
“It is unthinkable that India can in any way benefit from software patents.”“New patent guidelines may spell trouble for Indian software developers” was the other day’s headline from Legally India, a site which correctly states that: “Every city or town, big or small, is seeing a spurt of startups that do path-breaking work in the area of software products, mobile apps and embedded products. However, these firms could soon be threatened by the dark-clouds looming large over the technology horizon of India in the form of software patents.”
It is unthinkable that India can in any way benefit from software patents. The Hindu, a large Indian news site, published “Tying up innovation in legal knots”. It said that: “While law-making in Parliament seems to have come to something of a halt over the last couple of years, the executive branch of government, in contravention of its constitutional role, is busy passing regulations that are, in essence, amendments to laws. The examples of executive overreach over the last few years are numerous — for instance, the notification of the Information Technology (Intermediaries Guidelines) Rules, 2011, which, inter alia, expanded the scope of offences under the Indian Penal Code in the context of the Internet by criminalising activities such as blasphemy.”
“If Modi and his government don’t choose to stop this madness, India will definitely shoot itself in the foot, all for multinationals’ sake (trying to attract foreign businesses at the expense or mortality of local companies).”What is happening to India? No sane person (except perhaps lobbyists of software patents) can deny that software patents would be a terrible thing for software powehouse like India. Programmers don’t want patents, they already have copyrights (instantaneously obtained and easily enforceable by law).
“Software patents back to the fore” was another news article that got published early this week. To quote: “Successive governments have supported open source software. The earlier Open Standards Policy and the recently released Open Source Software for E-Governance, are all welcome measures in this direction. How, then do we explain government’s sudden shift towards software patenting, that too through executive action and in violation of the will of the Parliament?
“Software patents are like the “living dead” in the zombie film genre that Hollywood has made popular. They just refuse to die. As many times you kill them, they revive again and keep coming back.”
If Modi and his government don’t choose to stop this madness, India will definitely shoot itself in the foot, all for multinationals’ sake (trying to attract foreign businesses at the expense or mortality of local companies). Recall what we wrote about this government earlier this year in relation to Free/libre Open Source software.
Indians should consider taking action, and not just public protests. Maybe if enough politicians, who never wrote or even saw a computer program in their entire life (not at code level), became better informed, things would quickly change, much like the debate in the media. Indian politicians need programmers to explain to them the stark difference between patent protection and copyright protection. If programmers don’t speak out, only lobbyists of companies like Microsoft will. We already saw how Microsoft worked to derail India's Free/libre Open Source software policy, behind the scenes (with help from front groups that pretend to represent India's interests). Never underestimate Microsoft’s influence in the Indian government. █
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More profit for the Office, so what’s not to like?
Summary: A short notice regarding the EPO’s verboten involvement in European politics and European policy-making; comparing the situation in Europe (with the EPO) to that of India, where highly discreet and notoriously intensive lobbying by foreign corporations led to the apparently-irrevocable phasing in of software patents, to the detriment of locals
THERE is a very clear and widely-recognised reason why the EPO must stay out of patentability criteria debates, especially now that the EPO operates like a business whose sole (or at least primary) goal seems to be maximising profit, not encouraging/fostering innovation. The fox must not be left to guard the hen house. Nevertheless, as we showed just one day ago, the EPO is intervening politically in UPC-related debates. This is just wrong. It should not ever be done, but then again, for the EPO to step out of line with the law would not be unprecedented. The EPO enjoys impunity (no clear jurisdiction due to ambiguity) and immunity from European laws. It’s like a cancer at the very heart of Europe (hence the photo signifying a potential tumour above), always seeking to expand its sphere of influence and power, even if by expanding patent scope beyond what’s necessary and tactful (not a facts-based analysis), lowering the patent bar (e.g. by rushing examiners whose goal is to identify duplicates), and raising fees by asserting that applicability — border-wide — is further broadened for injunctions/embargoes/sanctions, higher damages, and so on. One can easily see how this relates to TPP, especially if one is already familiar with TPP (and/or the likes of it).
“It should not ever be done, but then again, for the EPO to step out of line with the law would not be unprecedented.”The “EPO admits,” said the FFII’s President this morning that “[t]he Unitary Patent is about software patents after all” (as he warned all along). IP Magazine is quoted by him as saying that the EPO’s “G[rant] Philpott [said] UPC to provide strong harmonisation in ICT applications that will play a dominant role in patent world” (remember what ICT means). Guess whose system they hope to integrate with, eventually? Also recall that TPP pushes for software patents, requiring signatories to phase them in, in due course. It means software patents in Europe. According to this page about CeBIT 2016, Grant Philpott (shown to the right) is “Principal Director of the main ICT area at the European Patent Office, managing the EPO’s operational areas of Computers and Telecommunications and responsible for nearly 700 examiners in The Hague and Munich.”
It sounds like he is highly regarded, but remember that his systems are also blocking Techrights. Too gory a Web site? Gross censorship is what this really is. Techrights is safe for work (SFW) and it provides plenty of references to support its allegations. Techrights was never censored before; not until it covered the EPO affairs. This culture of censorship and self-censorship at EPO has truly become a disease, as we last explained about 6 weeks ago. Then there is mass surveillance (the perfect blunt instrument for inducing self-censorship) just as well — a topic we remarked on in posts such as the following:
Philpott’s computer systems should focus on helping to grant well-earned patents, not replicate the Stasi in a ‘public’ building in Munich (further enhanced with keyloggers and remote screen grabbers).
India Too Experiences Assaults on Software Patents Exclusion
Watch out as not only Europe is having software patents injected into it, using all sorts of secret treaties like TPP and the UPC. Recall the recent efforts to officially introduce software patents in India, after giant corporations (like those which Modi recently visited aplenty in the US) lobbied the Indian government, as always beforehand. There has been a very strong push from the likes of Microsoft and even IBM to do so.
There is now a response to all this, composed by Mishi Choudhary, a famous Free software proponent from India and Director of International Programs at the Software Freedom Law Center (SFLC). She says that “Section 3(k) of the Patents Act, 1970 excludes mathematical methods, business methods,” but she also reminds readers of what gave Indian startups their edge. It’s the lack of software patents, not saturation of them, contrary to what some lobbyists are misleadingly claiming right now (we named some of them last week and they include IAM 'magazine'). Choudhary says that “[e]very city or town, big or small, is seeing a spurt of startups that do path-breaking work in the areas of software products, mobile apps and embedded products. However, these firms could soon be threatened by the dark clouds looming large over the technology horizon of India in the form of software patents.”
The same goes for European software firms, irrespective of their licensing method/s, be it proprietary-leaning or Free software (copyleft). There is a coordinated attack by software conglomerates against any challenge from small firms anywhere in the world. It’s protectionism for the already-affluent and it shouldn’t be tolerated by the public. People should protest; the more vocal and the louder the public becomes, the harder it will get for politicians to sign such atrocious deals (or new laws) in secret, usually at the behest of their shady corporate masters. █
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Summary: India’s famous skills, which revolve around software services and software development, are under attack by new laws which strive to grant foreign corporations de facto monopolies on software, even inside India
GROUPS in India continue to fight back against what’s correctly perceived as distortion of law and betrayal of Indians. It’s regarding India’s patent policy, which has come under attack from foreign multinationals for as long as Techrights existed. India moves closer to officially endorsing software patents, despite the US cracking down on many of them (Alice/§101 [1, 2]), and the media-shaping IBM is happy about it. Microsoft patents software in India even when it's not legal.
The Indian media did not always give space (and a voice) to large foreign corporations. See for example this article titled “How the Patent Office is Intent on Killing Innovation in India?”
“Newsclick interviews Venkatesh Hariharan,” says the author, “Outreach lead for the Open Invention Network and a member of the Ispirits expert group on software patents, to discuss the issue of software patenting, the effects this can have on society, as well as the specific guidelines issues by the IPO.”
Well, the Open Invention Network (OIN) is not against software patents, so it’s baffling that they chose to speak to OIN, a de facto front group of IBM et al..
“Software Patents Refuse to Die” was a better article from the same publication (Newsclick). It said that “Software patents are like the “living dead” in the zombie film genre that Hollywood has made popular. They just refuse to die. As many time you kill them, they revive again and keep coming back. In India, we thought we had killed and buried software patents with the Amended Patent Act in 2005, and again in the Patents Manual, 2011, both of which effectively deny software patents. The recent Guidelines on Computer Related Invention (CRI) issued by the Indian Patents Office last month, has brought them back again, with an interpretation that not only violates the Act, but also the English language.”
Perhaps the best response that we found in recent weeks is this joint letter to the PMO. Here are some quotes from this letter:
This concerns the “Guidelines for Examination of Computer Related Inventions (CRIs)” issued on August 21, 2015 by the Office of the Controller General of Patents, Designs and Trademarks. We, the undersigned, wish to share with you some of our concerns over this document, particularly in context of its potential repercussions on Indian industry and innovation. The Guidelines in their current form, by providing for patenting of software, could place the Indian software industry, especially software product companies and startups, at the mercy of Multinational Corporations and patent holding entities who have amassed many patents in the area and continue to do so. The Guidelines by allowing for software patents will make writing code and innovating in the area of software a dangerous proposition due to the chance of infringing on the patents held by big corporations.
The stated intent of the document is to provide guidelines for the examination of patent applications relating to CRIs by the Patent Office so as to further foster uniformity and consistency in their examination. However, we submit that the Guidelines in their current form run counter to the object of Section 3(k) of the Patents Act, 1970, which is to unconditionally exclude mathematical and business methods, computer programs per se, and algorithms from patentable subject matter.
Well, more actions may be needed in order to stop the plutocrats because their lobbyists have a lot of influence in India, which has notoriety for political corruption. The conglomerates in India (not even Indian) are conspiring against software developers, including Indians, trying to essentially destroy any chances of software independence in the country where programmers are renowned for their skills and sheer number. To keep Indian software companies marginalised (unable to effectively compete with Western software corporations) one needs to threaten and occasionally sue, e.g. with software patents.
Sadhana Chathurvedula wrote an article in a few places — an article that proponents of software patents (like IBM) like to cite. “Revised guidelines say software that demonstrates a technical application or improves hardware may also be patented, widening the scope of patents,” the article says.
It seems likely that unless some very major backlash disrupts the political system, foreign corporations will cement their occupation of India (in the software sense), bolstered by monopolies on algorithms. Activism is sorely needed now. █
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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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