Europe stops illegal Microsoft-leaning ‘tenders’, US should follow suit (SCOTUS hallway imaged below)
Summary: Microsoft cannot bypass public tenders, based on a ruling from a court of law in Europe
Microsoft’s many offences are diverse in their nature. Just about any imaginable offence Microsoft has committed or is still committing. Right now Microsoft is offering lock-in in exchange for some gifts/cash, in liaison with Forbes. This, however, does not qualify as a bribe like this one which bypasses the public and uses politicians. As the Gates Foundation certainly knows, the best way to assure annual profit (or bailout) is to lobby politicians to hand over taxpayers’ money to corporations you have investments in (the Gates Foundation is a tax-exempt investment instrument). This has rendered many corporations political in nature and heavily reliant on lobbying. Microsoft is no exception.
“To Microsoft, anything that’s non-Microsoft is unfair.”On the one hand, what Microsoft does when it comes to government contracts is not so unique. On the other hand, notes ESOP, Microsoft has been engaging in several other illegal activities in Portugal. And the latest ESOP press release is titled “Court Annuls Public Tender for MS Software in Municipality of Almada” (there are usually incentives for officials who play along, i.e. bribes). The press release says: “Following a legal action brought by ESOP to the Administrative and Fiscal Court of Almada, public tender no. 31A2012 regarding licensing and maintenance of Microsoft software costing up to 550.000,00 EUR was annulled. The tender, now deemed illegal, was launched by the City of Almada and prevented all the competing solutions from being supplied.
“It is the first court decision of this type in Portugal. The court confirms that, according to the Portuguese Law, public tenders must include functional requirement and must NOT include specific brands.”
Moreover, says the text: “Compliance with public procurement rules will enable the City of Almada to receive more and better proposals for the supply of software, including solutions based on Open Source.”
Fair competition is not a term that Microsoft understand. To Microsoft, anything that's non-Microsoft is unfair.
If only more countries, including the UK, had the guts and the activist spirit to do what ESOP did in Portugal… █
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Doing laundry in Paris, by LWY
Summary: How the so-called ‘free’ trade agreements help spread patent policy which favours software patents
The subject of software patents in Europe returned to the headlines in light of the Unitary patent, which this new paper calls a matter of playing with fire. Basically, the EPO’s overreach may prove counter-productive, not just contradictory to law (the EPO already disregards the law). Here is the EPO promoting the Unitary patent and Unified Patent Court, which are basically mechanisms for overriding the legal mechanisms of over a dozen nations (the UK already prepares for this policy laundering). It’s micro-globalisation, or the first stage of a broader assimilation all around the globe.
“It’s micro-globalisation, or the first stage of a broader assimilation all around the globe.”Ante from the FFII writes about cross-Atlantic treaties that have a similar effect of policy laundering. He writes: “With the software patents directive the Commission told us it was only about computer implemented inventions, not about software patents. Looking at the text, we knew that was not true.”
It seems like patent system globalisation is taking place (as we covered here many times before), jeopardising laws that ban software patents quite explicitly. In NZ (c/f software patents in New Zealand), for instance, the TPPA is believed to have impact on software parents policy. From the introduction of this very detailed post: “But how come the TPPA is connected with intellectual property (IP) and copyright law? The fact is that free trade and investment agreements have almost nothing to do with trade as we understand it. Their rules are designed for, and indirectly by, the most influential corporations in the countries involved. And guess who dominates? Major American corporations ranging from the world’s biggest drug companies and banks to Hollywood comprise almost 600 cleared advisors that get to see the secret text and lobby for their interests. Getting their demands into trade agreements is part of a general move towards “forum shifting” and “policy laundering” which refer to moving debate away from places where there is at least some requirement for public input and transparency, such as elected parliaments. Librarians, artists, writers, Internet businesses, schools, universities, museums, scientists and Internet users in general are all concerned about what the IP provisions of the TPPA will do to New Zealand’s copyright law.”
Scroll down to the following part: “Extending Patents To Software
“Ante from the FFII writes about cross-Atlantic treaties that have a similar effect of policy laundering.”“Another major issue is software patents. In New Zealand software is currently patentable merely because the Patents Act 1953 predated the widespread existence of software, and therefore does not specifically exclude it. In 2010, following submissions from a large number of software developers during the review of the Patents Act, the Commerce Commission Select Committee, recommended unanimously to the then Minister of Commerce, Simon Power, that software be specifically excluded from patentability in the resulting updated Patents Act. He and his successors have publicly supported this recommendation. New Zealand software developers saw this as a huge victory for common sense and for the future of innovation in New Zealand. But despite multi-partisan government support, the Patent Bill with its software patent exclusion has not yet been passed into law. Although the Government has made assurances to the contrary, many in the software industry wonder if the delay in passing the Patents Bill into law is due to the IP chapter in the TPPA being incompatible with a software patent exclusion.
“It is worth noting that IP claims are infecting other “non-IP” chapters of the TPPA. In fact a lot of the public health concerns relate to pharmaceutical patents blocking access by generic companies to their products, thereby delaying their availability on the market.15 This is part of the plan for undermining Pharmac. It was interesting to hear intellectual property being invoked as the basis of the case for Phillip Morris’ challenge to the New Zealand and Australian governments about their proposals for plain packaging of cigarettes.16In a completely Orwellian turn of events/phrase it seems that even the most corrupt of businesses – in this case Big Tobacco – are able to claim some weird moral ground through claims of IP and copyright.”"
So now we know that those ‘free’ trade agreements may actually be cross-continental bridges for patent policy. █
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Summary: OpenForum Europe (OFE), which helps IBM’s turf wars in Europe, releases a new book filled with its talking point
OpenForum was named here many times before, and not always in purely positive context. Contrary to its name, OpenForum is not backed by many Open Source companies, but much of the time it does promote Open Source (and sometimes Free/libre software ) ideals. It should be treated not as grassroots but as corporations-controlled lobby,
“It should be treated not as grassroots but as corporations-controlled lobby,”IBM, a strong proponent of software patents, helped create OIN (led by its own staff originally), which is a case of using patents versus patents. IBM also helped form OpenForum, which helps its lobbying in Europe in particular.
Andy Updegrove at
ConsortiumInfo.org writes about a book from an academy “affiliated with Openforum Europe” and here is the direct link. Updegrove is in it and it is called “open innovation”. I have not read the book, but it is worth noting that IBM believes open source relied on patents for innovation. The backer of this book probably helps weaken its impact. When it comes to patents, IBM is not on our side. Hopefully some new (future) leadership in IBM will help bring fresh change. █
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Summary: How widespread coverage and talking points from the tiny minority which is patent lawyers have contributed to biased and at times utterly distorted reporting on the subject of software patents around the world
Skewed coverage is not so exceptional. Depending on one’s background and peers one shapes his or her views of the world. A programmer likes to develop software. A patent lawyer loves turning ideas into a formalised description of a process, sometimes acquiring a state-imposed monopoly on these ideas. In certain states (or continents) the patent lawyer may have to cheat a little in order to bypass limitations on the scope of monopoly. Not many places grant a monopoly on the process of computation for instance. It is about as concrete as one’s brain, where the brain is the equivalent of computation machine and the programming the equivalent of neural signals. In recent years patent lawyers have sought to solidify a loophole whereby all programming ‘recipes’ get accompanied by a computation device, even though a computer program can be run in one’s brain, perhaps with the aid of pen and paper. When the law on patenting excludes patents on software “as such” it generally means that patent lawyers just need to disguise software patents as something which they are not. This leaves plenty of room for battle over interpretation and therefore there is a multitude of views, where nobody quite agrees if software is patentable or not. It is the role of real journalists to distinguish between the views of patent lawyers (or their clients who are often managers of large corporations) and the views of software professionals. Since most judges are former solicitors it is expected that the former group will appeal to them, so where does it leave the press? Who is left to listen to the latter group? Certainly not the business press, whose interests are more closely aligned with those of large corporations. This post is a complete (not selective) summary of all the articles we saw generated by key events in 3 continents, showing that: 1) patent lawyers dominate the media on these matters and 2) the views of patent lawyers are very consistently in favour of software patent, as one ought to expect. This reduces certainty over the impact of rulings, bills, and parliamentary actions which clearly limit or altogether ban software patents.
“It is about as concrete as one’s brain, where the brain is the equivalent of computation machine and the programming the equivalent of neural signals.”The EU has much greater problems than patents at the moment, so not many people pay attention to software patents in Europe. These defy the law and they increasingly hurt software developers who are based in Europe. Interestingly, many of these patents are not even granted to European entities.
The government in Germany recently took steps against defiance of common patent law, so patent lawyers’ sites like IAM tried to portray those who reform/uphold the system as “pirates”. This type of characterisation continues, demonstrating to us just how venomous an element patent lawyers can be. They can be rude, not just deceitful for an agenda. Some of IAM’s stuff, as we covered it before, percolates onto other lawyers’ sites, helping to portray NZ’s exclusion [1, 2] of software patents in the relatively small island as some kind of illegitimate move. Other law-themed sites like Lexology asked about the NZ Patents Bill, “how will it effect software patents in NZ?”
The Bill is clear about it. It is not equivocal about it, the loophole that remains in the law set aside. Another article from the same site of patent lawyers helps shed doubt about the CAFC’s criticism of software patents in the US [1, 2, 3].
“The bottom line is, in the EU, NZ, and the US the patent lawyers continue to be instrumental in reality distortion field.”The headline says “Federal Circuit fails to clarify software patent eligibility” and this influences the business press which goes with headlines like “Patent Court Torn on Whether Software Deserve Patents”. Another pro-’IP’ site asks, “How CLS v Alice affects software patents” (the content deviates from the openness of the question).
Other lawyers who lobby for software patents say in their headline that “Federal Circuit deals blow to software patents, but fails to provide cohesive rationale” (criticism for expressing such a view).
A site that calls itself “Law Review” goes further than all the above by rushing ahead with the pretentious, poorly-thought out headline “Massive Growth in Software Usage the Real Reason for More Software Patents, Not Abuse” (very illogical statement of course, something along the lines of “many cockroaches give reason for breeding them,” as if quantity implies desirability).
The bottom line is, in the EU, NZ, and the US the patent lawyers continue to be instrumental in reality distortion field. We should take with a grain of salt what’s the result of seeding disinformation; think afresh based on the actual evidence. Software patents have been dealt a large blow and if this trend continues, patent lawyers’ spin aside, we might see them going away some time in the foreseeable future. Popular view is strongly against them, suggest polls even in the US. █
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Media coverup allegedly helps shelter the train wreck which is software patents
Summary: How press coverage of software patents in the EU and New Zealand (NZ) varies depending on the source; allegations that the US press tries to dismiss end of software patents by twisting an outcome of a major trial
THE EU, NZ, and the US: are software patents actually really banned there? It’s all about perspective, or so we may be led to think by the corporate press.
First of all, software patents in Europe are not an impossibility due to the “as such” loophole. As software patents continue to creep into the continent the German government steps in to stop the potentially illegal practice. “Siemens tried to enforce a software patent against a German webshop owner in 2007 http://ur1.ca/du5ku #swpat threat in Europe is real,” writes the FSFE’s founder, Georg C. F. Greve. The FSFE has just published a “response to German Parliament on #swpat ur1.ca/dtypk (German) Today @kirschner in Parliament hearing #endswpat” (here it is from the current head of the FSFE).
In Europe, the loophole which facilitates software patenting is virtually the same as in New Zealand, where software patents are still possible albeit officially denounced (we wrote about it twice before).
The patent lawyers’ sites which are more inflammatory (yes, IAM again) deny that software patents are banned in NZ and the NZ press focuses on domestic reactions like this one (ignore US press to dodge talking points of US-based corporations). One NZ-based site (not US site with NZ localised version like IDG’s) says: “The Government has announced a change to planned new patent rules today which has put an end to fears that computer software might be covered by new patent protection.”
There are “no patents on computer program “as such”,” says one person who is familiar with these matters. It’s not perfect, “but better than nothing,” says Glyn Moody in Twitter. Here is some other coverage of interest. NZ is in the same position that Europe is in. Software patents are not “officially” legal, but in practice one can get them anyway, defying the law using loopholes (characterising software as an inseparable part of a general-purpose, programmable computing device).
Over in the US, the corporate-dominated USPTO, SCOTUS and even CAFC (to a lesser degree) call the shots. These people don’t know how to use computers or program them. They know just the very basics. As one person puts it: “Out of touch Fed Circuit judges? Two are over age 75. None under 60. I’m guessing none ever wrote a line of code, or use Instagram.”
Another says: “Computers Compute i.e. do Maths. Maths isn’t patentable therefore Software shouldn’t be patentable – Simple”
And moreover from the same person: “Surely it can’t be difficult for the Patent Office to recognize that a Computer Computes Maths; says what it does in the name ”
Lastly: “The problem with most lawyers IMO is that they don’t have a clue about Programming & think it’s all Innovative when it’s not”
So the US press has been trying to decipher or spin the CAFC’s latest decision on this subject. Will Hill writes: “No matter what happens, the Microsoft press will say the results are unclear or favor software patents. Bilski seemed to be a rejection of software patents.”
Here is Crouch’s response, which we cited before. He insinuates that many but not all software patents may be dead given this decision and some allege that all software patents are dead in the US now. Another legal site calls it a “nightmare”. The business press dismisses this as a game changer. We wrote about it twice before, initially calling this a missed opportunity to reform the system. The British press is more optimistic than that, insinuating that software patents died in the US. Compare that to US news sites with headlines like “Mixed Ruling In Software Patent Case Raises More Questions Than Answers” (prevalent headline) and Australian perspective which focuses on the Australian company. A fairly independent US-based site summarised it all as follows: “Ten judges, seven opinions, 135 pages, zero legal precedent.”
Not everyone agrees. Rupert Murdoch’s influential corporate press continues to entertain this discussion in comments and polls at WSJ. Its coverage of the trial came under the headline “Long-Awaited Patent Ruling Yields Few Answers” (prevalent talking point in US sites).
Meanwhile, report some Russian journalists: “The United States Supreme Court ruled Monday in favor of biotech giant Monsanto, closing the door on a patent case that has pitted a smalltime farmer from Indiana against a titan of the agriculture industry.”
The US report was quick to dismiss claims that this may be applicable to software (here is AOL). The SCOTUS almost always rules in favour of large corporations. Justices are appointed by politicians that those corporations are bribing.
In the post “Diagnosis From USA Federal Circuit – Software Patents Are Sick” Canadian blogger Robert Pogson alleges software parents were crushed. He adds: “Isn’t that a hoot? Can you hear the patent-FUD rushing out of M$’s collapsing balloon? Can you hear the “partners” who have signed up to pay M$ per Android/Linux smart thingy calling their lawyers and accountants? Can you see the small cheap computers becoming even less expensive? I can.”
Who can be trusted? Legal sites that say software patents are affected (completely dead or partially dead) or corporate press which almost uniformly argues that there is no change whatsoever? The confusion or the mixes signals sure serve the status quo. █
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Software patents may be imported by the United Kingdom (UK) via the Unitary Patent
Summary: The UK is modifying its law to accommodate takeover of national interests by foreign interests which may usher in software patents among other nasty elements of protectionism (primarily exported by multinational corporations from across the Atlantic ocean)
Treaties and so-called ‘free’ trade agreements are an effective tool for large-scale policy laundering. EU economies have been hurt by such deals that serve the super-rich (heads of corporations) at the expense of everyone else. It’s time to do something about it. Activism is desperately needed.
The German government has spoken out against the EPO's disregard of the law. Gérald Sédrati-Dinet (of APRIL, based in France), who has been watching software patents in Europe, says “the only beneficiary from #UnitaryPatent and #UPC is the #PatentMicrocosm” which of course includes the EPO. The patent lawyers are a parasitical element which impedes innovation and taxes everything.
“EU economies have been hurt by such deals that serve the super-rich (heads of corporations) at the expense of everyone else.”What we need is for people to start speaking out against the parasites, that’s all. Citing this article, “Danes may well have a referendum on the European Unitary Patent Court as it’s been judged as giving up sovereignty,” writes Loz Kaye, Leader of Pirate Party UK. Here in the UK, a new bill is being passed and a fellow Brit, Dr. Glyn Moody, cites the Open Rights Group while showing (in his own words) “New powers to enable the UK to implement the Unitary Patent Court Agreement” (not just in the UK, either).
Unless people know that this is happening, activists remain weak in opposing these moves. We must really do more to drive away the Unitary Patent as an initiative or even a concept/idea (it keeps coming up with different names/brands). It is not even constitutional, some argue (in previous incarnations when it was known as Community Patent), or simply adverse to the treaty upon which the continental union is based.
Opposing patent law is not illegal; it’s not even qualifying as civil disobedience, not yet anyway. Patents are all about protectionism; the less of them we have, the less power those already in power (and their assistants) will have. In a world where consensus or public opinion endorses software patents it will be harder to reform the system; right now the issue is mostly compartmentalised (in the US). At the very least we should keep it compartmentalised (i.e. prevent it from expanding/spreading) and ideally we should work to reform the misaligned compartment (USPTO) with its cross-border lobbies. █
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Summary: BT starts sending out nastygrams to companies which facilitate secure and standards-based communication
I have been having serious disputes with BT recently. It’s not the first time, either. I am currently speaking to managers there about their poor service that has gone on since January. My Internet connection’s socket being an utter disaster is not my sole reason for disliking BT though. The company has been attacking Linux using FUD and patents [1, 2]; now it goes after free protocols for secure communications using patents, based on this report from the British press which says:
VoIP-to-PSTN termination providers and SIP vendors will be watching their inboxes for a lawyer’s letter from BT, which has kicked off a taxing licensing program levying a fee on the industry, based on a list of 99 patents.
As noted in Australian telco newsletter Communications Day, the move seems to have caught the VoIP industry by surprise, with SIP Forum chair Richard Shockley saying the move has shocked the industry and is already frightening smaller players.
BT is a dangerous giant which seems to have aligned with Microsoft a little too often in recent years. Who is BT trying to defend here, Skype the spyware? Its overpriced landline business? This is an attack on the customers. If BT cannot be reformed by criticism, then hopefully it will suffer consequences for its behaviour. We really need secure communication in the age of Big Brother states. In the news today we have articles such as:
In a CNN interview about the Boston Bombings investigations, a former FBI counterterrorism agent admitted a startling (yet unsurprising) fact: “all digital communications” are recorded and stored. All of them. All phone calls, all e-mails and all social media interactions. According to him, there is definitely a way of retracing and listening to any phone call made on US soil. While most Americans ignore or deny this reality, the shaping of the USA into a heavily monitored police state is complete. Here is part of the CNN interview.
Skype is spied on and so are cellphones and landlines. So what’s left for secure long-distance communication? This is a privacy and civil rights issue, not just a matter of software freedom and open standards. █
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Summary: ESOP has successfully stopped illegal Microsoft deals that make a nation dependent on Microsoft at the expense of this nation; UK still too slow to respond to such state-sanctioned corruption
EUROPE continues to suffer from a large-scale passage of wealth (from the middle and lower classes to the super-rich, sped up by false panic and austerity) and many continue to ignore the causes as well as the symptoms. I tried to explain this to some younger people today, but most are distracted by fashionable consumption and the daily struggle for survival; studying and activism are luxuries to them. Some cannot even find or keep a job.
At the end of last month there was a Web riot over the UK’s broken sites which require those in a tough position (usually unemployed) to use old Microsoft Windows. As Glyn Moody framed it: “Remember the bad old days when the UK government forced people to use Microsoft software in order to interact with it online? Remember how we thought the UK government had finally moved on, recognising that it should use truly open standards allowing citizens the freedom to adopt whatever software they wanted, not least through the fine, open standards-based Gov.uk site?”
“At the end of last month there was a Web riot over the UK’s broken sites which require those in a tough position (usually unemployed) to use old Microsoft Windows.”Well, “Benefit Claimants Must Use Ancient Microsoft Software,” as Moody’s headline clearly states.
The situation in South Korea is even worse due to ActiveX.
How did they end up in this position in the first place? Well, one component of it is corrupt procurement which specifies Microsoft brands rather than technical requirements (we gave examples before). There has been a “9% increase in no-bid contracts since 2009,” says the corporate press and of course it involves the public sector:
At the start of his first term President Obama asked federal agencies to cut back on noncompetitive contracts, calling them “wasteful” and “inefficient.” Things didn’t work out as planned.
Over in Portugal, which suffered a lot of Microsoft bidding/no-bid corruption, these practices are being challenged now [via] and ESOP is behind it again:
Straight from the press release, ESOP, a Portuguese association of open source companies, challenged in the Fiscal and Administrative Court of Almada, a public procurement, 31A2012 for licensing and maintenance of Microsoft software, launched in September, last year, costing about 550.000,00 €.
The court decided it was indeed illegal and decided in favour of the accusation.
We need to do the same thing in the UK, but Microsoft has far too much political power here, as we showed in dozens of posts. What’s needed is a movement with capacity to pressure the government over rigged bidding, unfair pricing, neglect of national sovereignty, and so on. We need a British ESOP. █
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