Summary: The rise of the junk patents and what we are taught about them by the news, including some news about the unitary patent in Europe

THE UNITARY patent [1, 2, 3, 4, 5, 6, 7] drew opposition in several countries and also among some British MPs. Despite all that we know about the harms of patent maximalism, patent lawyers in Europe keep promoting it and argue for the inevitability of this looting of public knowledge:

It certainly is a sign of progress (although some would say in the wrong direction) that the Secretariat of the EU Council is about to finalise the Regulation for implementing the Unitary Patent (see Document CM 1068/12). Apparently, the dice is cast with respect to the Unitary Patent and, thus, with respect to the highly controversial question as to whether or not Articles 6 to 8 (effects of patents) should remain in the proposed Regulation so that substantive patent law will be subject to review by the Court of Justice of the European Union in future.

We have not heard about the unitary patent in a while, which either means that the public is left out or that no significant progress is being made. Lawyers have their own interests here and therefore a bias too. Over in Australia we see a similar type of crowd doing something similar. Patent boosters in Australia argue in favour of software patenting. It’s from a pro-patents blog that says:

The US Supreme Court has established three exceptions to the broad principle that all machines, processes, manufactures and compositions of matter are patentable under 35 USC §101 – laws of nature, physical phenomena and abstract ideas.

In Australia, it is settled law that the ‘manner of manufacture’ test for patent-eligibility excludes laws of nature, mere discoveries, ideas, scientific theories, schemes and plans. Mathematical formulae and algorithms are also excluded, to the extent that claims are not meaningfully limited to their use as part of a patentable practical application.

It can therefore be seen that, while the precise terms used differ in the two countries, there is a broad similarity between the fields of excluded subject matter in Australia and the US.

As we showed last year, there was some lobbying in Australia and a perpetual attempt to spread the venom of the US patent system to another continent (just like in Europe). It’s not about innovation, it is about greed. When multinationals are calling out the alligators with some more litigators (new hirings) they do nothing to promote innovation. Usually they merely impede it. Here is an example of another software patent being granted. Some of them are so embarrassingly trivial and CNET catches up with old news about Microsoft withdrawing one such embarrassing patents among several that it uses to extort Linux/Android (this one in the B&N case). To quote:

Microsoft withdrew a patent from the list of ones that it claims Barnes & Noble violates with its Nook e-readers in the software giant’s case against the bookseller before the U.S. International Trade Commission.

The ITC is not done looking at the anti-competitive patent misuses by Microsoft. Microsoft lobbyists, however, try to change the story. █

Summary: Warning signs about the looming threat of the Unitary Patent — a cross-Atlantic gateway for software patents

THE president of the FFII carries on tracking what can possibly serve as a bridge to software patents in Europe.

British politicians recently opposed the unitary patent based on rational grounds and British patent lawyers have this to say about their views:

He also stated that the value of the patent has the potential to be diminished if SMEs do not have the funds to be able to enforce the patent. Such a loss in the ability to enforce a patent and benefit from the revenue streams otherwise associated with the enforcement of the patent and the corresponding market share, would mean that SMEs and other companies may not have the funds to reinvest into research and development. Essentially, the proposed system may result in a chilling effect on innovation.

Indeed. Microsoft is meanwhile employing lobbyists to pretend to speak of behalf of SMEs, promoting policies that would only harm SMEs. Other patents boosters write that;

Unitary patent on agenda for EU Council meeting, happening now

We could not follow this link, but it does seem like something is happening behind closed doors and other boosters of patents say:

Member States commit to reaching at the latest in June final agreement on the last outstanding issue #patent package.

This so-called “patent package” or whatever they wish to call it this year (they rename it to evade criticism or use new euphemisms) is trouble for all Europeans. It is good for multinationals though and they have enormous political power. Think along the lines of SOPA/PIPA/ACTA. █

Summary: Loophole for software patents in Europe meets opposition from some politicians in Great Britain

THE BRITISH parliament, comprising lawyers for the most part, debates patent monopolies and expresses concerns over the unitary patent which we wrote so much about [1, 2, 3, 4, 5, 6, 7]. To quote:

The European Scrutiny Committee said some of the draft plans for a single EU-wide patent system could disadvantage UK small businesses.

Plans to allow inventors to gain cost-effective unilateral patent protection across the EU have been under negotiation for years. In recent months 25 EU countries have moved closer to establishing a new framework around how that system would operate, however

Negotiations over the workings of a new unitary patent court system are of “particular” concern, the committee said in a report on the enforcement of patent rights. Current plans under discussion suggest that national courts will hear cases involving disputes over the validity of unitary patents, but that the European Court of Justice (ECJ) would deal with cases involving the infringement of rights to do with the same patent, the committee said. Such a framework could lead to expensive legal battles and “inconsistent” decision making, the report said.

For all we know, Italy and Spain still oppose this, with Italy reportedly (based on one article) surrendering.

A new article by Jonathan Corbet (at LWN) expects the patent issue to get worse this year. Quoting his now-public op-ed:

On the political front, it is a fairly safe bet that the mobile patent wars will get worse. The participants in this battle appear to be tooling up for an extensive and protracted fight, and there seems to be a steady supply of new companies (British Telecom, for example) piling on in the hope of gaining a piece of the pie for themselves. Things may reach a point where it becomes impossible to market handsets or tablets in some parts of the world. One could hope that a paralyzed mobile market would suggest to lawmakers that the patent system is broken, and that those lawmakers would respond by reforming said system. Alas, a more likely outcome (though not in 2012) is the formation of a patent pool under strong “encouragement” by governments that ends the fights and establishes the positions of a small number of large players at the expense of new entrants. How free software will fare in such a world is far from clear.

In the next post we shall look at how this affects GNU, Linux, and Free software in general. █

Summary: The appointment of more people whose stance on the subject of patents leaves little room for objectivity

THE EPO is losing its credibility as the unitary patent seems closer to being imposed on the public against people’s will and arguably against the rules [1, 2, 3, 4, 5, 6, 7].

The EPO sets up a biased board:

Using studies and analyses supplied by the EPO and external partners, the board will also provide early warnings on sensitive issues, and make policy recommendations.

As the FFII’s president put it:

By nominating such people, the EPO fails to think outside of the patent microcosm

Watch the list of those people, it’s quite telling. The EPO is in the business of granting patents, and therefore it is naturally biased and inclined to grant more of them. The unitary patent would mean more business for the lawyers and a global patent system seems like a scary destination, which is further exacerbated by the realisation that patent lawyers start thinking global:

The firm’s advanced IP services include access to 11 million Japanese patents and 4.9 million Chinese patents, both searchable in full English texts.

What would the point of that be if not to pollute one country’s monopolies with another’s? Patents are a taxing mechanism, they in no way serve the public. Scholarly findings on this subject are clear. █

Summary: The president of the FFII to appear in FOSDEM 2012

THE past week has been relatively quiet on the parents front, but this does not mean that behind closed doors there are no attempts to legalise software patents in Europe, for instance.

The president of the FFII will explain the patent situation in Europe, so those who attend FOSDEM might want to go to this talk. In his own words:

Will talk about the EU software patents via a central patent court at FOSDEM 2012, Saturday 6pm ur1.ca/7h5j8

Slides (if any) will hopefully be put online.

Based on some other new tweets of interest:

Costa Rica does not accept software patents as valid bit.ly/xrvob9 via @oscarretana

New Zealand is currently grappling with this question as well, quite notably in fact. The problem is that loopholes often exists for patenting software where it is not legal to do so. █

Summary: A roundup of patent news about Android/Linux and some of the latest events that relate to it

THE decline of Windows Mobile and all of its other identities (Microsoft keeps Sevenwashing it) has been so rapid that Windows is now a 1% player in a market that keeps growing and growing.

“Windows Phone reaps what it sows” says one journalist who explains it as follows:

Misunderstood, mocked by its competitors, blocked from the market, and little used by the average user.

Ten years ago, this would have been a harsh but fair description of Linux. Today, however, it’s seems perfectly apt to use these labels to describe a completely different bit of technology: the Windows Phone operating system.

Even Nokia cannot save Windows (on mobile phones), so all that Microsoft can do now is become a leech through patents, e.g. via MOSAID and its patent extortion operations (notably Android “licensing”). In this age of many lawsuits that we find in the news all the time we realise that this problem is systemic too. After all, Apple too uses a similar strategy.

Looking at the USPTO for a moment, Matt Asay notes that:

2011: new record in patent grants, tied to Obama’s PTO chief not increased filings zite.to/y1nABx <Cue Talking Heads “Road to Nowhere”

Glyn Moody’s remark on the same report is sarcastic:

because what the world needs is lots more intellectual monopolies

James Love (of KEI) says:

During patent reform legislation, WH claimed low quality patents are problems. But USPTO just issued a record number.

The FFII asks James: “How do they measure patent quality in the US?”

Here is the report they all link to. It’s from a pro-patents circle, known to many as Patently-O (Dennis D. Crouch), and it says:

The USPTO issued more utility patents in calendar year 2011 than in any year in history. The 2011 total – just shy of 225,000 issued patents – is only a small increase over 2010, but towers above all other historic figures. The previous record was set in 2006 with about 173,000 issued utility patents. The dramatic rise in issuance rate is not tied directly to an increase in filings (although there has been a small increase in new application filings). Rather, the two-year increase appears to be the result of regime changes instituted by USPTO Director David Kappos who took office mid-year 2009 after being nominated by President Barack Obama.

the USPTO is a bubble and a sham. The sooner people realise this, the sooner it will be toppled. It serves a conspiracy of monopolies, parasites, and patent lawyers who drive up the price of everything and deny the entry of new competition into the market.

When in the news we see searching as a patent and even business methods as a monopoly we cannot help feeling that one productive response would be to expose the system, not just pertinent companies that exploit it to the extremes and harm Free software more than anything else. The USPTO is very dangerous at all levels because there are lobbyists who use the “USPTO model” to expand this same model to other countries. This include the UK-IPO that we have here in England. As one person puts it, “All in the American mind? US and UK take different approaches to assessing mental act exclusions”; if the unitary patent is passed through, the US may have the whole EU (EPO) assimilate to the USPTO. Already, some software patents are being approved in the UK. This is a new example from the news:

Image processing software not excluded from patentability, IPO rules

An IPO examiner had previously ruled that the invention was excluded from patentability on the grounds that the invention consisted solely of a computer program. Hewlett Packard, the company trying to patent the invention, appealed against the examiner’s ruling and the hearing officer has now upheld that appeal on the basis that the invention uses mathematical techniques that are sufficiently technical in nature to avoid being excluded from patentability.

Under the UK’s Patents Act inventions must be new, take an inventive step that is not obvious and be useful to industry in order to qualify for patent protection. An invention cannot be patented, according to the Act, if it is “a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer … as such”.

Henrion from the FFII writes that:

The problem with the patent system at the moment is that it’s being applied to intangibles: software and user interfaces­

Here is one new example of it:

Lakeside Software, a leader in business intelligence solutions for IT professionals, today announced that the company has expanded its patent portfolio with the granting of a patent for the management of data across multiple computer systems.

Data too has patents on it now? How far will this go? And how abstract a computation is going to be deemed patentable? Oracle pushed copyrights and patents to the edge when it suggested that APIs too can be patented, which they probably can in the US.

We already know that the age of bankruptcy is an age of patent wars and Sun’s sale to Oracle had its “defensive” parents turn into hostile. Novell’s patents were sold to Microsoft and Apple, too (both companies are FOSS-hostile and litigate against Linux/Android). Here is the new story of another company that ran to the courtroom amid its demise: “The newspaper quoted unidentified people as saing Kodak could seek protection in the next few weeks if an effort to sell a collection of digital-imaging patents falls through.

“Kodak has sold patents valued at millions of dollars over the last several years in a bid to shore up its ailing finances.”

It’s actually a strong case against patents because companies become just a pile of orphaned patents (Novell included), and in turn this fuels wars, not sparking any innovation at all. Disregard the pro-patents propaganda from lawyers’ Web sites and instead watch why they like patents (starting 2012 with patent lawsuits). As one columnist in IDG put it:

When Netscape went public in the fall of 1995, few of us understood that we were entering an era of constant and accelerating change. Since then, 16 years of Moore’s Law has given us powerful and cheap hardware. The open-source software movement has made software that’s worth millions of dollars freely available to anyone who can click a mouse. As one can see, reducing these natural barriers to entry has made it easier to start a Web services business. These same trends have had an interesting effect on intellectual property strategy.

[...]

Open hostility toward patents from the open-source community and 10 years of judicial infighting over the patentability of “business methods” and other Web 2.0 technologies didn’t help matters. Many Web 2.0 companies underinvested in patents, when they should have increased their efforts to secure legal barriers to entry to offset the reduction in natural barriers to entry.

Actually, patents do not work for small players. That’s just the lie sold to us by the 1% (or less) who benefit from patents. Here is some more London-based propaganda dressed up as a press release:

The Decision Model is revolutionising Enterprise Decision Management by modeling the business logic (rules) behind key operational and strategic business decisions (http://www.azinta.com/Services/the-decision-model-solutions.html). The recent award of a US patent for The Decision Model to Knowledge Partners International (KPI) triggered an intense debate resulting in some commentators claiming that The Decision Model patent is an IP trap. Suleiman Shehu, the CEO of Azinta Systems – a KPI Consulting Partner, analyses the reasons for this debate and presents the evidence why The Decision Model patent is not an IP trap.

Decision-making as a patent. How about that, ladies and gents?

Moving back to the impact on FOSS, although Apple gets sued for patent violations, the company persists with its support for that same rotten system. “Last week,” says one article, “Apple applied to the US patent office to register facial recognition software…”

This affects me personally and professionally, too. “So instead of sliding to unlock the iPhone, iPad, or iPod Touch, one could simply point it at one’s face,” notes this article, among others that we mentioned in December. The point they are missing is that Apple gets a monopoly here. It is not good for anyone. Microsoft’s identity change to “patent aggressor” is on route as well [1, 2] (software patents). They are goodwill-washing it through gullible Web sites. With phrases like “patent helps”, there is clearly not a realistic expectation. And in the face of infographic propaganda from taxmen of technology (lawyers) we fortunately see some infographic sanity and we are able to see to what degree Android is the victim here (victim of Microsoft, Apple, and some of their allies). Google does not get patents anymore; in fact, “Google stopped submitting patents to the USPTO” because it’s pointless. To quote: “Software patent wars have always existed: companies fought them (or paid up), sometimes quietly, sometimes making a big fuss. However, something has changed over the last year or so: people started getting directly affected by software patents (ask anybody wanting a Samsung Galaxy Tab in Australia for Christmas 2011…). Lately, two things came to my attention: Google acquired 200 patents from IBM. But, more interestingly: Google hasn’t filed any patents over the last several months.”

Google does not apply for patents; it buys/gets them instead, usually from IBM [1, 2, 3, 4] under secret terms. An article for background can be found here:

Last year, IBM sold Google 2,000 or so patents ranging from mobile software to computer hardware and processors.

As other reports put it:

Google’s quest to build a strong patent portfolio continues with IBM assigning a further 222 patents to the search and advertising company. Details of the transaction have not been disclosed by either party, but the USPTO database shows the patents being transferred on 30 December 2011. This is not the first time Google has acquired IBM patents; over one thousand IBM patents were transferred to Google in both July and September 2011.

Some say that IBM is trying to defend Linux/Android in this case. “A trial date has been set in Oracle v. Google, or more accurately, an earliest trial date has been set,” writes Mark Webbink, who remarks on this bit of news:

SAN FRANCISCO (Dow Jones)–Google Inc. (GOOG) and Oracle Corp. (ORCL) have been scheduled to go to trial over an intellectual-property dispute related to Google’s mobile phone software in March, a development that could start to draw the lengthy spat between technology giants to a close.

There is a theory that Google’s new patents from IBM are capable of helping in this case (IBM is an Oracle competitor), but as the FFII points out, “Arms trading is a sustainable business but still mere economic efficiency waste.”

We shall assume that IBM’s interests in this case are in alignment with Linux interests. As we explained some days ago, there is apparently also an Android lawsuit (if not several) brewing against Microsoft and Apple. It’s getting rather interesting. █

Summary: 2012 starts with more Microsoft failures at Royal Mail

SEVERAL weeks ago we wrote about the bitter experiences that Royal Mail was having with Microsoft Fail. The British mail service faced massive embarrassment after it had chosen to work with Microsoft. it’s still as embarrassing as before at the start of the year. From IDG:

Royal Mail has confirmed that it is still suffering from website glitches that began more than a month ago following a migration of online data to new servers.

The issues caused some customers to be overcharged, and many services, such as the Royal Mail SmartStamp and Online Postage applications, were knocked offline over the busy Christmas period.

Maybe it’s time to get back to something which is widely used and actually works. █

Summary: Bad Apple is doing bad things in HADOPI land using blackmail (allegedly claiming it “it would pull its business out of France” unless its demands were met)

According to the following Cablegate cable, Apple uses a baclkmail tactics (threatening withdrawal) to affect — for the worse of course — copyright law in France. Quoting the relevant parts: “In press statements, Apple said that the French copyright law amounted to “state-sponsored piracy” and that it would pull its business out of France. This declaration had an unfortunate impact. It heartened claims by free-software advocates and politicians who said that the opening up of DRM would benefit makers of DRM systems by enabling them to prosecute competitors as facilitating piracy. U.S. Secretary of Commerce Carlos Gutierrez’s press comments saying that while he needed to take a look at the legislation, he supported protecting intellectual property rights were widely interpreted to be supportive of Apple, and French pro-interoperability groups reacted disapprovingly. The Odebi League, a citizen’s action group defending the rights of Internet users, told Apple to “mind its business and not meddle into the French legislative process” and pointed out that “if Apple wishes to do business in France, it has to respect the rights that the French enjoy.” Some senators said they regretted that Apple did not appeal to them directly and interpreted it as a lack of interest.”

Shame on Apple.

Here is the Cablegate in ite entirety:

UNCLAS SECTION 01 OF 03 PARIS 003153 

SIPDIS 

SENSITIVE 

DEPT FOR E, EB, EB/IPE, EUR/WE
DEPT PLS PASS USTR FOR JSANFORD/VESPINEL/RMEYERS
COMMERCE FOR SJACOBS, SWILSON
DOJ FOR CHARROP, FMARSHALL, RHESSE
COMMERCE PLEASE PASS USPTO 

E.O. 12958: N/A
TAGS: KIPR ETRD PGOV FR
SUBJECT:  FRANCE'S DIGITAL COPYRIGHT BILL: SENATE VOTES TO SOFTEN
INTEROPERABILITY BUT LOW PENALTIES REMAIN UNCHANGED 

REF. PARIS 01847 

¶1. This is an action request. See paragraph 13 

¶2. (SBU)  SUMMARY.  The French Senate approved in the early hours of
May 11 the GOF draft law on digital copyright, in a format which
leaves unchanged the National Assembly's decriminalized penalty
regime, the principle (if not the requirement) of interoperability,
and the so-called "Vivendi Universal Amendment" criminalizing
peer-to-peer software publishing.  The draft law adopted by the
Senate largely takes the sting out of interoperability by laying out
general guidelines -- which no longer require Digital Rights
Management (DRM) vendors to divulge industrial secrets to their
competitors -- and creating a new independent authority to decide on
the scope of interoperability and the "right to the exception for
private copy." The newly adopted text, known as the Law on Author's
Rights and Related Rights in the Information Society, generally
abbreviated as DADVSI in French is a step that would bring France in
line with the 2001 EU Digital Copyright Directive.Over the next
month, the text will likely go to a reconciliation conference at the
end of the month, and be signed into law before the summer. END
SUMMARY. 

Senate Approval And Next Steps
------------------------------
¶3.  (SBU) The DADVSI draft law was adopted by the French upper house
on May 11, with 164 votes in favor, 128 against, and 37 abstentions.
 All the votes in favor came from representatives of the right of
center government UMP party.  The text will now go before a joint
committee of both houses of the French Parliament to be reconciled,
and for final approval under the current Government "fast-track"
emergency procedure, which requires only one reading by both houses.
 Upon completion of the legislative procedure, the draft bill will
be submitted to President Jacques Chirac for signature some time
before the summer.  France, which had tabled implementing
legislation in November 2003, is the last country, with Spain, to
transpose the EU Copyright Directive. 

Exceptions to Exclusive Copyrights:
----------------------------------
¶4.  (SBU) Exceptions to exclusive copyrights, for public libraries
and archives, will now have to fulfil the "three-step test," i.e.
that they be confined to special cases, not conflict with a normal
exploitation of the work, and not unreasonably prejudice the
legitimate interests of the right holder.   Education and research
have been added to the restrictive lists of exceptions in the
Senate, following the threat of a campaign of civil disobedience "in
any way they deemed useful and relevant" by over 2000 members of the
French scientific community. 

¶5.  (SBU) The more traditonal exception for private copy, an
essential feature of French "droit d'auteur," which allows French
residents to freely make copies of works (except software) for their
private use (and that of their family and friends) has also been
refreshed. The number of copies allowed as part of that exception
will now be decided by a new high regulatory authority, in charge of
outlining the contours of the private copy exception as well as the
new interoperability principle.  The new authority will also work
hand-in-hand with the already existing Copyright Commission, which
sets the rates and conditions for the "tax on private copy" meant to
address the losses incurred by copyright holders. This tax is levied
on blank media (audio and video cassettes, CD, DVD, as well as
memory and hard drives in portable media players).  While most of
this tax goes to rightholders, a quarter of it, representing some 40
million euros a year (USD 50 million), is used to finance cultural
events and festivals throughout France. 

Penalties Remain Unchanged
--------------------------
¶6.  (SBU)  The system of "gradual sanctions", i.e. decriminalized
fines, has been confirmed by the Senate as "fair and balanced" --
despite efforts by one Senator and former Minister of Trade and
Industry, Gerard Longuet, to switch from what he described as
"organized indifference" to stiffer sentences.  Culture Minister
Donnedieu de Vabres reiterated on this occasion that the purpose of
the bill was not to go after offenders but to ensure the protection
of works.  As a result, non-commercial downloads are subject to the
lowest fine in France's Penal Code (38 euros), the equivalent of a
traffic ticket,  instead of the original three years' imprisonment
and 300,000 euro fine proposed earlier by the GOF.  These heavy
penalities in the first GOF draft bill created a major outburst in
the National Assembly, eventually leading to the adoption of the
radical "global licence."  In the words of one Socialist and
technologically savvy member of the National Assembly, it would be
wrong "to describe the eight million people who have downloaded
music from the Internet as delinquents."  On May 11, the Culture
Minister announced that an "index" of all protected works would be
set up to enforce the three goals of the bill: respect of copyright,
private copy and interoperability. 

Softening Interoperability
--------------------------
¶7.  (SBU)  The Senate has proposed largely weakening the National
Assembly's radical ideas on the DRM technology.  Two amendments in
the National Assembly's version had stated that providers of DRM
systems should provide the necessary technical documentation to ANY
party needing it to ensure that interoperability, including the
source code.  This was interpreted as a direct attack on Apple's
iTunes platform and their iPod players. 

¶8. (SBU)  In press statements, Apple said that the French copyright
law amounted to "state-sponsored piracy" and that it would pull its
business out of France. This declaration had an unfortunate impact.
It heartened claims by free-software advocates and politicians who
said that the opening up of DRM would benefit makers of DRM systems
by enabling them to prosecute competitors as facilitating piracy.
U.S. Secretary of Commerce Carlos Gutierrez's press comments saying
that while he needed to take a look at the legislation, he supported
protecting intellectual property rights were widely interpreted to
be supportive of Apple, and French pro-interoperability groups
reacted disapprovingly.  The Odebi League, a citizen's action group
defending the rights of Internet users, told Apple to "mind its
business and not meddle into the French legislative process" and
pointed out that "if Apple wishes to do business in France, it has
to respect the rights that the French enjoy."  Some senators said
they regretted that Apple did not appeal to them directly and
interpreted it as a lack of interest. 

Creating A New Regulatory Authority
-----------------------------------
¶9.  (SBU)  The Senate bill proposes a new regulatory authority to
examine the question of private copies and interoperability.   This
new seven-member High Authority, modelled along the lines of
France's independent regulatory bodies in the electricity and gas
sectors (CREG), and in the telecoms and electronic commerce sector
(ARCEP), replaces the much-decried "college of mediators" initiated
by the National Assembly.  Its responsibilities, much like its
guidelines, have been left as open as possible to allow for the fast
pace of technological change.  At the same time,  prodded by
embattled Culture Minister Donnedieu de Vabre and Villepin
administration, the Senate Cultural Affairs Committee developed a
text designed to meet as little opposition as possible from the
National Assembly once in the joint committee for conciliation.
These considerations explain the current text's willingness to pass
the difficult decisions on to the new authority. 

Previous Support For Interoperability and Copying
--------------------------------------------- ----
¶10. (SBU)  Public discussion of DRM and its effect on the private
copy exception have been particularly vivid in France.  French
consumer associations initiated and often won court cases where DRM
restricted private copying -- a sacrosanct exception under French
copyright law.
Over the past three years, French consumer organizations have
initiated a number of court cases dealing with complaints of
consumers about CDs and DVDs that could not be copied and ripped
because of technical protection measures in place. In dealing with
the cases, French courts had developed the argument that the ability
to play a CD or a DVD on different devices constituted an essential
characteristic of a CD or DVD, and that producers of such devices
could be held liable for misleading the consumer in case of
incompatibilities.  This first step towards establishing the right
to interoperability was confirmed earlier this year, when a Paris
Court of Appeals concluded that DRMs must respect the private copy
exception. 

NEXT STEPS
---------- 

¶11. (SBU) Next steps include the drafting of implementing
regulations, which would also give the GOF (and stakeholders) an
opportunity to tweak the legislation, particularly regarding
penalties and sentencing.  This is expected to take place over the
summer.  The GOF will draft and implement these by decree. Other
possibilities for modification, according to lawyers, include a
constitutional challenge, which could come on any number of
articles. We understand that the Commission will eventually examine
all the EU member-states' transpositions of the directive at some
point over the next year.  Finally, the GOF notes that the law has a
"review clause" of 18 months, requiring the government to provide
the Parliament with an evaluation of its efficacy.
COMMENT AND ACTION REQUEST
--------------------------
¶12.  (SBU).  France is one of the last countries to fulfil its
obligation to transpose this 2002 EU Directive.  In making only a
minimal effort, many Senators seemed to be acknowledging how quickly
technology had moved since then 2002, and during the debates, French
Parliamentarians underscored the irony of a belated implementation
of a directive which the EU Commission is reportedly already in the
process of re-examining.   In our conversations over the last weeks
where we raised our serious concerns over the quality and direction
of this controversial bill, French government officials and
observers had sought to reassure us and other stakeholders. We were
told (see reftels) that the Senate version would address many if not
most of industry's concerns. Senate legislative staff was thought
more pro-business, more technologically savvy, and less ideological.
Industry observers, many of whom where involved in a low-profile but
intense effort to reshape the bill with key amendments were
optimistic as well. Working with French industry allies, they
proposed close to 300 amendments. However, with the President and
Prime Minister under political siege, the government and the
majority party were in a hurry to get this complicated and
troublesome bill off their to-do list. By placing the bill on a
legislative fast-track, the government could be assured that the
conciliation conference would be over quickly. This political
pressure resulted in some improvements, such as interoperability,
where industry analysts are somewhat relieved at the results, but a
number of crucial elements remain unchanged, notably the lack of
deterrent penalties. 

¶13. (SBU) COMMENT AND ACTION REQUEST.  The next six months will
provide some limited opportunities to fine-tune the bill, notably in
the drafting of implementing regulations, which the GOF can issue by
decree.  Other options would be to raise examination of the
legislation in light of other EU member state transpositions as well
as WIPO and TRIPS commitments.  Post would appreciate Washington's
cleared interagency guidance, including any legal analysis regarding
the legislation's impact.   End Comment. 

Stapleton

If there was threat that Apple “would pull its business out of France,” let them. Better yet, boycott the company in France. █

Summary: Naming the leading culprit among European politicians that let Europe be contaminated by foreign monopolies

TECHRIGHT wrote quite a lot about Commissioner Barnier because he took a leading role in the push for unitary patent, which ushers in software patents. Currently, Barnier is the main politician threatening to indirectly bring software patents to Europe. He is an enemy of science and technology, but then again, he is neither a scientist nor a technologist. Almost no politician is really aware of those disciplines. Watch Michel Barnier saying: “A few more days needed to cross the finishing line. 22nd December: I am confident we’ll be able to sign final agreement then.”

What a clown. This is the ‘gift’ he wishes to give people for Christmas? The loss of their sovereignty? The patent lawyers love him and quote him: “#Barnier: Spain and Italy still don’t support #unitarypatent”

Utter nonsense. We wrote about this before. He says what he wants to be true, not what is true.

The president of the FFII says:

a central patent court means EU software patents. Patent judges will do the job, as they did in the UK and DE.

Later he wrote that the “Unitary Patent gives a free ride to the patent microcosm, it will die on its own once it will be tested in front of the ECJ”

“EU Patent policy is cursed. Always the same stupid mistakes,” writes the FFII and the “European Patent Court – Disaster before Christmas” is one suitable headline. The president of the FFII rants that:

When it comes to patents, the EU finds itself a way not to respect the Fundamental Rights written in the Lisbon Treaty

Here is what lawyers are saying and what ceptics are saying: “FICPI Says “Go Slowly” on Unitary Patent and Unified Patent Court”

“Software patents are not even for the “one percent”; those benefiting from them are far fewer than one percent of the population.”Sooner or later we might see some US-based patent trolls coming to Europe, assuming we cannot hold back the tide of corporate power. People who help companies gain patents do not seem to care if they end up abused even by patent trolls/lawyers. As Masnick puts it: “There was a recent post on the Patent Examiner blog about yet another patent troll who’s been suing a ton of companies with a variety of patents. Among recent lawsuits there was one against General Motors, Ford, Mercedes-Benz, BMW of North America, Rolls-Royce, Hyundai, KIA and ATX Group for using GPS systems to track cars, and two more against AT&T, Verizon, Sprint Nextel, MetroPCS, T-Mobile and others over patents 7,852,995 and 7,860,225, titled “Method and apparatus for selectively providing messages in telecommunications systems.”

At stake when it comes to the unitary patents are not just software patents but also patent trolls. There is absolutely no reason for European citizens to support this thing, unless they are patent lawyers or CEOs at one of the multinationals. Software patents are not even for the “one percent”; those benefiting from them are far fewer than one percent of the population. █

Summary: Response to erroneous claims that the back door to software patents has been successfully set up

ATTEMPTS were made to pass the unitary patents before Christmas. Did that succeed? Well, let us see what people are saying.

A critic calls it an undone “done deal” because:

Unitary patent: an undone “done deal”

On December 1st 2011, the Committee on Legal affairs of the European Parliament has published a press release welcoming with pride that negotiations about the unitary patent have succeeded in reaching a « final agreement » between the Council of the European Union and rapporteurs of the European Parliament. However, issues already raised by April, including questions on the legality of the adopted solution1, are not solved yet. Concerns about powers left to the European Patent Office, which is well-known for its attempts to legalise software patents2, have neither been addressed.

April wrote a press release on the subject (English version). To quote:

Members of the Committee on Legal Affairs (JURI) of the European Parliament have given a rubber stamp1 on an agreement, negotiated behind close doors2 with the Council, about the introduction of a unitary patent and a unified patent jurisdiction. Unfortunately, today’s vote has failed to address major legal issues surrounding this project, which are likely to make the regulation voided by the Court of Justice of the European Union (CJEU). Moreover, the architecture of the unitary patent as voted today betrays the withdrawal from European Union (EU) legislators in deciding about EU policy on innovation for the profit of the European Patent Office, a self-governed non-EU agency, which is notably known to favour software patents against the letter and the spirit of European Patent Law.

This is thus far failing to materialise and JURI vote is all they have. There is silly talk about “green light”, but do not be confused by it. To quote:

The EU came a step closer to getting a single patent system on Tuesday, when a deal struck by European Parliament representatives and the Polish Presidency of the Council was backed by the Legal Affairs Committee. The new EU patent would be substantially cheaper and thus more competitive than current ones. Parliament succeeded in adapting the proposed regime to small firms’ needs.

As the FFII’s president noted at the time, “JURI or EP can give as many green lights as they want, their legal construction is unstable…”

Gérald Sédrati-Dinet says: “gonna love this council doc on compatibility of #upc with opinion 1/09″

Well, the results of the JURI vote on the unitary patent can be seen here and reactions are telling:

I got a depression after reading the results of the JURI vote on unitary patent

“If Unipat was getting as attention as ACTA, it would be dead already,” he wrote later. But this is far from a “done deal” and we shall keep an eye on it. Now more than ever we need to fight back and pressure politicians. █

Summary: A deeper look at the lobbying for software patents in Europe and more from Marty Goetz

THE unitary patent is the back door for software patents in Europe, so patent lawyers are rallying for this extra business in their blogs, using dogma and drama (“Are EU ministers driving us towards a European patent disaster?”). This one blog post says: “The AmeriKat encourages all members of our very large “interest group” (a.k.a patent litigators, attorneys, users, academics, judges, etc) to keep up the pressure on and conversations with their national governments and MEPs. Its not too late to change this for the better and to work to achieve the original aim of creating a user-friendly and efficient unitary patent system.”

How shameful. These are just a parasitical element of society. One tweeter user says that the “patent microcosm unhappy with #unitary #patent: they do not want not-patent judge to put her nose into patent law” (source: Gérald Sédrati-Dinet)

The lawyers say that the “Polish Presidency hopes to obtain agreement today on the location of the Unified Patent Court.”

” These are just a parasitical element of society.”Yes, the money-grabbing patent lawyers will cling onto anything to pass laws that harm European citizens, just so that they — the lawyers — can extract another tax from the population. Those who grow a meta-industry at the expense of producers rely on continued expansion of their taxing mechanism, which requires litigation, paperwork, and legal complications that necessitate advice. “Chairman W Pawlak (PL) said EU Council has reached an agreement on EU patent package but didn’t disclose any details,” Oh, really? That smells wrong. As put by some like Rui Seabra over at Twitter, the “panel is filled with filthy people, straight from the patent regimes. So sick…”

Here is an alternative view from a different type of lawyers, ones like Carlo Piana who recognise that software patents need to go.

The president of the FFII points out “Yet another patent lawyer spamming programmers with patent claims, talks about “certainty”, but for who?”

Patently-O keeps pushing its pro-software patents agenda as one would expect and contrariwise, in a magazine with Microsoft connections there is a more balanced coverage with counterparts doing the same. Now that we see new patents on geometry/math we must really decide on whether laws of nature should be patentable. Software patents booster Marty Goetz is back to his boosting, only to be tackled by weakness of his arguments, such as: “Goetz mentions the software industry being an industry, so is the music industry, that’s why music is patentable”

“On objective grounds of reason and also based on economic studies, software patents haven’t a place in society.”Here is another very inane statement from the mouths of proponents of software patents: “Dirk Elias from Fraunhofer told me that “MP3 patents were possible to obtain because they’re algorithms, not software, which is allowed”.”

Hilarious.

On objective grounds of reason and also based on economic studies, software patents haven’t a place in society. But can we beat the interests of greed? Can we push back against the parasitical element which made up the lobby for software patents? Can its expansion into Europe be impeded? It’s up to us because passivity will ensure the parasites get politicians’ ears and eventually get their way. At stake: the software industry. █

Summary: A look at support for software patents in Europe and where this is coming from

AS the unitary patent was rushed (while people were preparing to leave for vacation) we kept accumulating news about it. Pro-patenting circles said:

Learn the latest news on the Unitary Patent and Patent Court with Marcin Korolec (PL) along with his counterpart The Baroness Wilcox (UK)

Wilcox [1, 2] is once again doing a disservice to the public. Such people operate under the assumption that the more patents society has, the better off it will be. Gérald Sédrati-Dinet says:

#unitary #patent Negociators of #EU Parliament, Council & Commission have found an agreement

He also notes that: “#unitary #patent pb: some provisions are illegal => the #unitary #patent is already dead before having been voted!”

And “despite propaganda,” explains Gérald Sédrati-Dinet, “Spain & Italy still oppose unitary patent”

Some similar speculative propaganda comes from patent lawyers who ask without basis:

ksnh::law updated posting: Will Italy Join #UnitaryPatent and Ask for Seat of Central Division of #UPC in Return?

Here is more alleged “propaganda” that says:

Agreement by EU ministers today (5 December) on outstanding issues surrounding a unified EU patent would pave the way for the Polish presidency to claim success in the venture at a signing ceremony in Warsaw on 20 December, amid mounting optimism that the new regimes in Spain and Italy could drop their opposition to the idea.

In May, Italy and Spain complained to the European Court of Justice against the use of the so-called ‘enhanced cooperation’ procedure for the patent, which allows a group of countries to go ahead without the approval of all 27 EU member states. They claimed the move went against the spirit of the EU single market.

The proposals recognise English, French and German as the patent’s official filing languages but Rome and Madrid feared this would give an unfair advantage to companies from the ‘big three’ jurisdictions.

This site habitually quotes Microsoft lobbyists as though they are grassroots/independent. The president of the FFII, Benjamin Henrion, says:

With the Unitary Patent, the patent lobby got software patents for free, without having to justify themselves again

Here is what lawyers are saying: “Battistelli: The EPO doesn’t have substantive patent law competencies, but that doesn’t mean we can’t have influence [...] we can influence patent harmonisation through projects such as translation, classification, PPH”

“Look at those EPO examiners granting software patents,” writes Henrion, pointing to EPO videos. The EPO blog is rooting for it very blatantly. To quote a noteworthy remark:

Seems that the EPO has censored my comment over this article

So the EPO is silencing opposition. So much for public service, eh? Henrion adds that:

The EPO deliberately avoids rejecting patents because they are “computer programs”, they keep spamming programmers with patent claims

Some of the vocal patent lawyers from Germany (clearly proponents of software patents) say that the “EPO President #Battistelli still confident on agreement on Unified Patent Court this year” (more on the outcome later) and here is a followup. Watch this funny remark from the FFII in the face of lawyers who try to hack/break the law with help from corruptible politicians whom we wrote about before (many politicians are themselves lawyers). It is like a form of entryism and Henrion writes:

The EU patent system is now fully captured by the patent lobby: Executive: captured; Legislator: captured; Judiciary: captured. CQFD

He also notes that “Software patents was not a victory, EU Parliament was remote controlled by big firms” (including Microsoft).

The system is controlled by lawyers and it shows in just about every country, They are easily influenced by software patents proponents like Philips [1, 2, 3, 4], whose employees help control public debates. There is also IBM, whose former employee is now heading the USPTO (IBM is in favour of software patents). IBM is associated with this company which is patents-dependent. To quote this new announcement,”Software LLC, an IBM Business Partner and proven leader in innovative, integrated solutions for IBM Cognos software, announced today that the United States Patent and Trademark Office (USPTO) has issued patent number 8,073,863 for its MetaManager(R) technology.”

There is more here and IBM PR can be found in Watson form, as usual. “The insight platform uses data mining, natural-language processing and analytics to pore through millions of patent filings and biomedical journals to look for chemical compounds used in drug discovery.” That’s just whitewash. IBM is really just looking more business that it advertises for promotional coverage. It’s advertised as a fight against trolls (courtesy of IBM), which promotes software patents and can itself be classified as a troll at times. Here’s more of that PR line (“to battle patent trolls”):

IBM’s Watson is made of many parts: speech recognition, natural language processing, machine learning, and data mining. All of these factors were perfectly combined to beat Ken Jennings in Jeopardy, and now each of these components are slowly finding their way into other applications. Health plan company WellPoint, for example, is using Watson to investigate patient records to improve diagnosis, and in a self-referential, possibly universe-destroying twist, IBM itself is using Watson to help sell Watson (and other IBM products) to other companies. Now, using Watson’s data mining and natural language talents, IBM has created the Strategic IP Insight Platform, or SIIP, a tool that will revolutionize medicine — and perhaps patent trolling, too.

IBM has been part of the problem as even in Europe it supported software patents. With IBM’s support, software patents in Europe continue to be a problem. IBM is not on the public’s side, that’s just boring PR. █

Summary: New examples of the Commission serving as guardian of corporations, not the public

EARLIER this year we demonstrated that the European Commission had lost its way [1, 2, 3, 4, 5]. Linking to this whitepaper, the FFII’s president writes that “The Commission has apparently sacrificed its function as the guardian of the principles, values and policies of the EU…”

André Rebentisch from the FFII shows that the “EU Commission explains how they slapped their citizens in the face”. It’s said in relation to OOXML:

Document Exchange – EU Commission explains how they slapped their citizens in the face

[...]

It seems to me the Commission had good reasons to keep this offensive document confidential for so long. Many persons I know are simply outraged when they think back at the OOXML standardization process.

As the FFII’s folks point out in the NO-OOXML Web site: “The preferred document exchange among European Institutions is OOXML”, this is the summary of an awful document produced by the “Inter-Institutional Committee for Informatics” of the European Institutions. Basically the document says that European bureaucrats use Microsoft Office everywhere on their desktop, and this is not gonna change.”

It’s the same in the UK pretty much. “The Great Betrayal of 2012″ calls it Glyn Moody, with others noticing that the BSA, a Microsoft front group, “tears UK policy to shreds”:

Cabinet Office scrapped its open standards policy before opening it to consultation last month, opening the way for a major policy U-turn.

It issued a procurement policy edict on 30 November that erased a standards policy that had been in place since 31 January. It was revoked after a period of lobbying by powerful companies lined against its open standards policy that included Microsoft and the Business Software Alliance.

Who is left then to stand up for the public? “Polititcians are gonna change the EU treaties once again without referendums. It is really time for a change in politics,” wrote the FFII’s president. But it gets worse. It’s not just about OOXML. This extends to patent policy to a degree. Pierre Delsaux of the Commission takes a troubling stance which jumps in line with patent lawyers. “Italy, which now has a new government led by Mario Monti, is considering joining the system, said Delsaux” (according to this report).

Regarding this article, the “tensions between EU Member States,” claims Gérald Sédrati-Dinet, “unitary patent could be dead before being born” and also:

Spain is not changing its opinion on #upat afaik

The FFII asks: “Would #Almunia prolong EUnuch rules for #patent trolls?” This one official page gives a grim outlook.

Mind the article “It’s now or never for EU patent reform – Commission” because it says that:

It’s now or never for EU patent reform – Commission

If EU member states ever want to get a deal on the patent reform package they need to put their negotiating cards on the table, a senior Commission official said today

Does the Commission think it is really helping by supporting it. Some members of it tried rushing everything and amid delays the patent lawyers became more passionate about batting for this mess and one lawyers’ site said: “As discussions over patent and trade reforms in Europe reach a critical stage, the departure of key staff could cause more delays”

There is no reason to rush into this thing and there is no reason to ever pass it until the patent systems in other continents become more sane, Over in the US media companies like CBS are being sued by patent trolls, which gives hope for reform there (the media controls public perception). To quote Masnick:

Of course, while media companies aren’t quite as used to dealing with patent lawsuits, and also don’t have patent portfolios of their own should they be sued by practicing entities, the one thing they do have is the ability to sway public opinion. It will be interesting to see, as this keeps up, if it backfires on the trolling firms by simply calling more and more attention to some of their practices.

The unitary patent can extend the reach of patent trolls and cause enormous damage to the European economy, The Commission should strongly oppose it, especially Commissioner Barnier, whose role we will write about separately. We we mentioned him not so long ago, as well as here, here, here, here and here. █

Summary: The first part of a series about the unitary patent and its attempted last-minute passage

CONVENTIONAL wisdom says that when corporations accumulate joint desire to have a new law, sooner or later they will get it, some time, somehow.

Over the years we have covered the many attempts to legalise software patents in Europe. More recently, politician were 'pulling an ACTA' and using the same tactics they use to pass ACTA to also pass software patents (although not explicitly so). This one propaganda page is titled: “A unitary European patent and a unified European patent litigation system – political agreement by the end of 2011?”

“More recently, politician were ‘pulling an ACTA’ and using the same tactics they use to pass ACTA to also pass software patents (although not explicitly so).”Well, guess who that page is from? “David Sant, software patent representative of the EPO, now works for TaylorWessing, the Lehne company,” claims the FFII’s president. For those who do not know the scandals of Lehne, see previous posts such as this.

Here are some instructions for those wishing to contact politicians who are less corrupt. “The European Union is rushing to impose,” says the author, “with as less discussion as possible, a unitary patent, despite the risk that this project could introduce software patents in Europe by giving away a lot of powers to the democratically uncontrolled extra-EU European Patent Office (EPO), and despite all warnings that the legal basis of the regulation on the unitary patent is likely to not comply with EU Treaties. In such a situation, only a massive citizen rally could prevent the unitary patent to end up as a stillborn project, in the detriment of the EU innovation policy. In order to inform Members of the European Parliament (MEPs), here are some guidelines and concrete suggestions to act by contacting them.” It is probably not too late for reasons we will show in later parts.

Here is a post on the subject which says “it seems that we head now to the meeting of the Competitiveness Council on 5 December with a danger that these bad agreements might be agreed at a political level; and with the prospect of them being formally adopted during the Danish Presidency in the first half of 2012. Such agreements should be a cause of celebration. But they would not be. There is a groundswell of opinion in industry that the proposals must be looked at again afresh. Likewise at their annual Venice meeting at the end of last month, the European patents judges voted unanimously against the current form of Court agreement. Hence, it is to be hoped that even at this late stage, the politicians will listen to the users and Judges. No doubt regardless of whether agreement is, or is not reached, the Polish announcement will be triumphal. Hence we must look carefully at precisely what is said. Hopefully the announcement from Warsaw will be pure rhetoric, and no agreement will have been reached. We await the announcement with baited breath.”

The outcome of this we are going to cover later. The press release of the Polish Presidency says self-serving things and the observers say that “the Polish presidency has “hit a wall” because of the opposition over the location of the central patent court ”

One news site claims frustration at the presidency. To quote:

Poland’s European affairs minister said the “biggest disappointment” of his country’s EU presidency, largely seen as successful under the difficult circumstances of the eurozone crisis, was the failure to take on board Bulgaria and Romania in the EU border-free Schengen area.

We wrote about the Polish presidency in [1, 2, 3, 4].

In the next few posts we shall continue covering the unitary patents from more angles. It is depressing news, so we preferred not to cover it during Christmas (and yesterday was unsuitable because we had made the front page of Slashdot , so the site was generally slow and fragile). █

Summary: Europe’s transition to Free/Open Source software is stifled by the existence of Microsoft’s fake ‘open’ format

THE SUBJECT of OOXML/ODF was covered here thoroughly in 2007 and 2008. We showed a great deal of lies, corruption, and cover-up.

Putting aside the corruption behind OOXML, the anticompetitive aspect of it returns to haunt Europe. Ryan says that “they should get rid of it and use ODF” and notes that the “Open Source Business Alliance” has created a new working group – “Office Interoperability.”

“Business Alliance,” notes Ryan, is similar to the BSA and many times before we explained that interoperability is just a weasel word used to marginalise open standards. “I smell Ballmer,” Ryan says, but the report is not so amusing. To quote:

IT authorities from Germany and Switzerland have announced that they are working together, under the auspices of the Open Source Business Alliance, to improve the way that LibreOffice and OpenOffice.org display and process OOXML-formatted documents. The authorities involved include the IT groups from the cities of Munich, Jena and Freiburg im Breisgau, the Swiss canton of Waadt, the Swiss Federal Court and the Schweizer Informatikstrategie Bund (Swiss IT Federation) whose representatives met at a workshop in Zurich in October to launch the “Precise reproduction of OOXML documents in Open Source Office applications” project. Slides for the workshop provide more details of what was discussed.

This was the purpose of OOXML all along — throwing users back into the same loop and the same lock-in/trap. █

Summary: A quick catchup with patent news, emphasis persisting on the situation in Europe

PATENT rants have become abundant and over the coming weeks we shall cover several that we missed over the past week or two (yours truly was absent).

Granting of software patents can be influenced by the proposed patent harmonisation in Europe and the “EPO can influence patent harmo[nisation] through translation, classification, PPH,” notes one person. This matter is especially sensitive because software patents in Europe are the bridge for US monopolists (including Apple and Microsoft) to take their abusive behaviour global, i.e. their embargo war becomes indisputable. In some cases even access to life-saving drugs is at stake.

Glyn Moody, a Brit, wrote about the danger earlier this month and pointed out that:

Aside from the general issue of transparency and accountability, there is also a more particular concern for readers of this blog. Despite the fact that in Europe patents may not be given for software “as such”, patents are being issued for software using a variety of legal tricks (mostly involving extremely dubious redefinition of key terms to avoid the ban on software patents.)

Just watch what happened in Germany where Apple tried to embargo Linux-powered tablets:

A German court has ruled in Motorola Mobility’s favour in a patents dispute with Apple.

The Android smartphone maker had complained that Apple failed to license one of its wireless intellectual properties.

As the FSFE’s Karsten Gerloff (in Germany) put it, there is a “Good summary of #Apple ban in Europe ur1.ca/6jiri (DE) Can we all agree now that #swpat are silly?”

In the United States, Apple cannot get its way all the time. Based on leaked documents, Apple is more vicious than its followers realise. To quote: “A person within Apple has leaked the company’s ‘Retail Blogging and Online Social Media Guidelines’ which explain that employees cannot use blogs, wikis, social networks, and similar online tools to communicate about their employer internally.” This means no complaining about Apple’s patent aggression presumably. What a lovely company, eh? In separate posts we are going to tackle what Microsoft is doing as well. Antitrust regulators get increasingly involved in what constitutes racketeering, proxy wars, and anti-competitive collusion. There are even those who say that “Patents violate the constitution in discouraging innovation”.

A more comprehensive coverage of the situation in Europe will be posted soon. Now is the time to fight back for elimination — not proliferation — of software patents all around the world. █

Summary: European Advocate General and a UK government report get involved in the debate

FOLLOWING the embarrassing news about the EU Patent, sane lawyers such as Carlo Piana point out that the “Advocate General @ ECJ says that monopolize an idea is detrimental to technological progress and industrial development. #swpats torpedoed”

It is too premature to say that they are torpedoed because patent lawyers work hard to change practices in Europe, along with their clients and their lobbyists. Here is more about that and some thoughts from Dr. Glyn Moody, who writes: “One of the many hopeful signs that the Hargreaves team knew what they were talking about was the recognition that patent thickets were an increasing danger in many fields, notably that of mobile technology. One of the actions flowing from the report was to investigate this area further, and now the UK government has released its report”

Here is a good summary from Slashdot:

bhagwad writes “The EU continues to ooze common sense as a court insists that software functions themselves cannot be copyrighted. Drawing a box or moving cursor are examples. To quote: ‘If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development.’” Note that this is a “non-binding opinion by Yves Bot, an advocate-general at the Luxembourg-based EU Court of Justice,” and that the court “will rule on the case next year.”

Over at Reuters, it is stated that “[t]he case is seen as crucial for the European computer industry and could determine how companies create products that can work with rival services without breaching copyright rules.

“The non-binding opinion by Yves Bot, an advocate-general at the Luxembourg-based EU Court of Justice (ECJ), is in line with a verdict reached by the High Court of England and Wales in July last year. ECJ judges will rule on the case next year.”

The remark from the FFII is that:

Copyright puts software authors in the driving seat. Why do others drop bricks on the highway?

Here are some remarks on the reports [1, 2]. █

Summary: Despite seemingly democratic structures, the EPO and its ilk manage to sneak in a restructuring of the patent systems in Europe

Early in the week we found some troubling news about software patents in Europe. Gérald Sédrati-Dinet says about the unitary patent that “approval is planed for Dec 5, Dec 22 is the ceremony”

“Even worse,” Ben jamin responds. He thought it was something more benign in comparison:

Unitary Patent to be approved by the Council next 22 December with a signature ceremony.

He carried on arguing [1, 2, 3, 4] while patent lawyers from Germany got baffled: “Why does the #EU webpage showing the time schedule for agreement on Unified Patent Court not work any more?”

There is a discussion about software standards inside patents [1, 2] and the lawyers’ powwow [1, 2, 3, 4] gravitates towards the position that within a few days we may have a rather troubling presentation:

EPO presentation about the Unitary Patent, the patent system designed outside Europe and its institutions ur1.ca/66vqa

December 5^th is named as the big day and it is the same day that I fly away for a week (for vacation). Hopefully there are many European activists out there who will inform others and do something to stop this. █

Summary: Secretly and without honour for the rule of law, politicians and lawyers (sometimes the same thing) are bringing software patents into Europe, via the back door

NOW that Linux/Android devices come under embargo attacks by the ‘patents army’ in Germany, we must take the patent question very seriously. In Germany we are told that the Green Party (not the Pirate Party which takes funds from software patents supporters) is taking action against software patents.

Germany has a lot of impact over the EPO and via Glyn Moody we discover that “Coming To Plates In Europe [are] Patented Vegetables, Produced By Conventional Breeding” — the same thing that Germans protested against in the streets some years ago. “The European Patent Organization (EPO) is a strange entity. Despite its name,” explains Masnick, “it has nothing to do with the European Union. Instead, it was set up on the basis of the 1973 European Patent Convention to grant patents under that Convention.

“But things are getting worse as British patent lawyers quietly try to overhaul the patent the system in Europe, tilting it further in their advantage.”“As an independent body whose only reason for existing is to oversee the issue of patents, it has a natural tendency to widen their reach. One of the most hotly-contested areas where that is happening is software patents, which are not granted in Europe “as such” (you can imagine what fun the lawyers have with those two words).”

But things are getting worse as British patent lawyers quietly try to overhaul the patent the system in Europe, tilting it further in their advantage. The only article we have found about it says:

An Anglo-German tug of war is developing over the site of a new European patents court that could generate hundreds of millions of pounds of business for UK lawyers and scientists.

The Chartered Institute of Patent Attorneys (Cipa) has written to the prime minister and will on Tuesday lobby the government’s intellectual property office for the European patents court to be established in London.

Germany has proposed that Munich, where the EU’s patent office is already located, should become home to the court that will adjudicate in disputes over ownership of industrial designs and inventions.

Glyn Moody, who recently mentioned Lehne (politicians who at the same time serves a lawyers’ firm, mushrooming a conflict of interest), also wrote about the latest patent scandal:

It’s those last points that are particularly worrying. The European Patent Office has nothing to do with the European Union, and is essentially a completely independent body. Worse, it’s entire raison d’être is to issue patents, and so it is only natural that it will want to issue more of them, and in more fields. Its rulings have already pushed software patents closer to acceptance, and there can be little doubt that the unitary patent will make software patents the norm throughout Europe.

This is a disaster waiting to happen, and already we are seeing the political machine swing into action to make sure that it does happen. That such an important change in the European patent system should be decided by a few people behind closed doors is an utter outrage, and symptomatic of the deeply dysfunctional approach that is routinely adopted.

The only way we can hope to change this culture is by protesting about it whenever we encounter it until the politicians realise that even if we can’t see what they are doing in secret, we do at least know they have something to hide.

This oughn’t escape the attention of the European Commission as not only does the above illustrate democracy fracturing (a form of corruption) but it is also the invitation of more patent wars of greater magnitude. Given that the EU can see the negative effects of patent wars, it musn’t stay idle. To quote: “A funny thing has happened to patent law in the 21st century. Instead of protecting intellectual property rights, patents have been hijacked by rich companies to take control of a market — and the problem is particularly acute in the mobile space.
“Reuters reported last week that the EU is beginning to think companies are using patents unfairly to harass market rivals.”

There is more on that in a new article which says:

In recent times, an increasingly competitive and litigious smartphone industry has spawned a patent arms race, and the need for participants to bulk up their proprietary patent portfolios.

Specifically, an eruption of patent lawsuits has occurred between almost every major developer of smartphone hardware and software in the industry. In many respects, companies are buying insurance against future legal action, injunctions, etc.

Early in 2011, a consortium led by Apple and Microsoft paid an astounding $4.5 billion for more than 6,000 patents owned by the now defunct Nortel Networks.

For anyone without a calculator handy, that equates to roughly $750,000 per Nortel patent. To put the intensity of competition for Nortel’s patents into context, Google opened the bidding at just $900 million (Nortel’s creditors will be happy), and was ultimately shut out completely.

Not to be without a dance partner, Google recently purchased Motorola and its 17,000 patents for $12.5 billion in cash, as well as a thousand or so patents from IBM for an undisclosed sum. This may work to put a lid on the patent race/bidding frenzy in the near term, because Google was really the one driving it.

Mark Shuttleworth said that “The Whole Patent System Is A Sham” (going by the headline from Muktware). To quote: “Mark Shuttleworth, the charismatic founder of Ubuntu, slammed the patent system as broken. He also said that Microsoft’s biggest mistake was to think that they could use patents against competition and wasted most of a decade.”

Ubuntu is based in the UK, so the patent question matters a lot and the EU needs to turn away software patents. Over in the US, we still see new examples of patents on compression, games, and just about everything someone can explain in words. Regarding compression, Canonical already pays a patent tax on it. To quote that latter example: “Full Tilt Poker’s unique “Rush Poker” innovation, which allows a pool of players to play quickly and to continuously be rushed to a new table upon folding their cards at their previous table, is a concept that is neither exclusive nor patentable, according to Per Hildebrand, chairman and vice president of sales at InstaDeal Poker Network.”

Of course this is not novel, but when systems permit any digitised equivalent of real-life processes to become a patent, there’s chaos. This chaos is profitable for lawyers and it hurts small companies the most. █

Summary: An interlude about what software patents are doing and why they need to be abolished or at least not spread any further

PATENT systems were created to encourage publication, but given that source code can be published or withheld for good, what is the point of software patents when it comes to publication? One site specifically explains how to get them in the US. “I promise myself not to use any Oracle Database, their patent aggression against Dalvik is insane and should be punished,” writes the FFII’s president, who helps find much of the news about patents, especially in Europe. There is always an attempt to extend US patent law to Europe, which would be good for US multinationals and atrocious for European businesses. We shall write about that separably. The Bilski case helped show that the system in the US is quite incapable of ridding itself from software patents and this analysis from a fortnight ago says that:

Internet and entertainment companies should rejoice. The U.S. Court of Appeals for the Federal Circuit fit a square patent peg into a round cyberspace hole. In Ultramercial v. Hulu, the Federal Circuit reversed a decision of the U.S. District Court for the Central District of California and held that a process for monetizing the transmission of data over the web using advertisements does not qualify for the abstract idea exception to patentability. Many legal scholars were concerned that the Supreme Court’s decision in Bilski v. Kappos – upholding the rejection of a business method patent to hedge energy markets because hedging was an abstract idea – would eviscerate business method patents and potentially leave services in cyberspace without patent protections. However, the Federal Circuit’s decision fits service innovations in cyberspace within the business method patent category.

The goal to strive for is elimination of software patents in the United States. Failing that, we must ensure that software patents do not spread to other continents and nations. █