Summary: A real-yet-outrageous struggle between public will and the subculture of patent lawyers or law-practising bureaucrats
THE patent systems decline in credibility around the world. The one percent or less which holds patent monopolies is no longer taken for granted and therefore left alone. In New Zealand, for instance, the public took amazing action against corrupt politicians (or dumped ones who serve hostile interests) and there’s no escaping the scrutiny:
After a hiatus of more than two years, software patents were thrust back into the limelight recently when the government finally announced the second reading of the long languishing Patents Bill.
Those who follow such things will remember the Bill was reported back from the Commerce select committee in 2010. Following detailed consideration of all the issues, the select committee had unanimously recommended that software be excluded from patentability.
This got some massive media exposure, so older articles we have not cited yet are worth noting in their large numbers and full glory [1, 2, 3, 4, 5, 6, 7, 8].
“Notice that dissociation from reality in patent lawyers’ circles.”In the US, patents on software are collapsing in the courtroom, so patent maximalists like Dennis Crouch write on the subject, trying to oppose the 99% who are not patent lawyers as well as the more vocal FOSS proponents such as Dana Blankenhorn.
Robert Stoll, former Commissioner for Patents at the USPTO, does some patents promotion at The Hill. He is in deniability mode, saying: “In fact, the verdict is a sign that the system is far from being broken and is actually working as intended to help ensure innovation and competition for the benefit of consumers.”
What utter nonsense; he contradicts evidence-based studies and articles. Other pro-patents circles weigh in, only to be constantly rebutted by the majority. ECT gave a platform to Raymond Van Dyke, “a software patent attorney, educator and consultant in Washington, D.C.” He says:
In time, software patent controversies will diminish as the major players learn to coexist, e.g., through cross-licensing. We are now in the midst of a cutthroat time when major players fight. The U.S. patent system is not evil. Software patents are not evil or unjustified. If a software patent is dubious, the patent system provides many avenues to invalidate it.
Notice that dissociation from reality in patent lawyers’ circles. They don’t care about what’s true and false, or even what the public wants and does not want. It’s all just a business built upon a big lie, a lot of lobbying, and political games which serve few powerful corporations.
Timothy B. Lee quotes the top Rackspace lawyer as saying: “We’d love to get rid of software patents” (not taken out of context).
“Once you reach a certain size, you become more of a target,” Alan Schoenbaum told us in a recent interview. Schoenbaum is the general counsel of Rackspace, which achieved $1 billion in revenue for the first time last year. He said that patent litigation against the San Antonio company has “accelerated over the last two years.”
Lee says that financial patents too are under fire. Lee goes further by noting:
I missed it when it came out, but the libertarian legal theorist (and my fellow Cato scholar) Richard Epstein had an article last month defending software patents.
Isn’t it funny that all the ‘legal’ folks support more patents? It is how they make money at other people’s expense. This was also the case of NZ, as we showed repeatedly in recent years. Patent lawyers are not part of the industry, they are the parasite. Their opinions should not be factored in. All they contribute to is disinformation in the press, totally disproportional to their minuscule numbers among the whole public. More people, especially journalists, should start speaking about this problem. It’s like giving “equal time” to weapons contractors in debates about politics, especially wars. █
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Summary: Licensing used as an anti-competitive and law-annulling tool; UEFI hardware demands a primary new example
THE controversy surrounding UEFI has been getting a lot of attention. GNU and Linux distributions that require access to Windows partitions have in some sense helped Windows and one of them adds UEFI support (SystemRescueCd). To quote Softpedia: “François Dupoux proudly announced a few hours ago, September 3rd, the immediate availability for download of the SystemRescueCd 3.0.0 Linux-based operating system for rescue and recovery tasks.”
“It is worth noting that Microsoft once tried several other ways to prevent or discourage Linux from booting, using a EULA.”UEFI in the case of this distribution is different; it is not just a case of being able to run on new hardware. Different distributions
adopt different approaches to tackle this problem.
It is worth noting that Microsoft once tried several other ways to prevent or discourage Linux from booting, using a EULA. It’s not a novel concept [1, 2].
Last month two Microsoft boosters reported that “Microsoft forbids class actions in new Windows licence” and “Windows 8 EULA Prohibits Class Action Lawsuits Against Microsoft”, to quote the headlines. Legal tricks are nothing new when it comes to serving as a waiver of rights. █
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Summary: Github comes under patent attacks as debates about US patent law intensify
THE past few weeks have been rather crazy on the patents front and as scholarly work in the area gains traction we just know that this whole debate is important; it helps determine winners and losers.
Free software took a hit when some parasites attacked Rackspace over Github. As LWN put it, “Personalweb Technologies and Level 3 Communications have filed a lawsuit [PDF] against Rackspace, alleging that Rackspace’s hosting of GitHub infringes upon a long list of software patents.”
Here are the patents in question and a response from Rackspace which calls the attackers “patent trolls”: “Rackspace has been subjected to yet another patent lawsuit by a patent troll looking for a settlement. In this case, the plaintiff is called PersonalWeb Technologies. This particular lawsuit is not much different than the others, except that it highlights why software patent litigation suppresses innovation, and why Congress and the courts need to improve the system. If it wasn’t such a serious issue we might want to laugh at the irony of it all.
“Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it’s suing over.”
–Rackspace“To explain, this suit claims that Rackspace infringes the PersonalWeb patents “by its manufacture, use, sale, importation, and/or offer for sale of the following products and services within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting Service.” It’s apparent that the people filing the suit don’t understand the technology or the products enough to realize that Rackspace Cloud Servers and GitHub are completely different products from different companies. By now, it’s widely known that GitHub is hosted at Rackspace, but beyond that, there is no other connection between the two.”
TechDirt pokes fun at the troll: “Last year, we wrote about the somewhat random confluence of events that brought together two ex-file sharing industry execs (one associated with Kazaa and the other with Morpheus) and made them extreme patent trolls, suing a ton of internet companies under the ridiculous brand “PersonalWeb.” Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it’s suing over.”
As we showed before, trolls favour software patents; it is why they are so common in the United States. Professor Lemley has an idea for closing the loophole: “In broad terms, functional claiming refers to writing patent claims that cover the broader function enabled by an invention rather than writing claims to the specific embodiment developed or contemplated by the inventor. In other words, instead of erecting a signpost that points others directly to the invention, functional claiming is akin to building a wide fence to surround the invention in an attempt to claim as much territory as possible. Lemley gives us the colorful example of the Wright brothers to illustrate both how functional claiming works and how it can cause problems/”
“As one expert noted in the Times story, patents “are supposed to be an incentive for innovation.” That’s not the way they’re working in the smartphone wars.”
–Rob TillerThe OSI’s head Mr. Phipps says that this “paper from legal researcher suggests a fix for the software patent mess has been lurking in the statute all this time” and Red Hat’s Rob Tiller uses the recent blow to Android to make his point. To quote: “Does the Apple-Samsung case have a silver lining? For the open source community, the large damages verdict is disturbing, but at least it is drawing public attention to some of the deep problems of our patent system. This week the New York Times ran a front page story on the jury’s verdict that said, “The case underscores how dysfunctional the patent system has become.”
“The definition of “dysfunctional” is relating to “abnormal or impaired functioning.” (Merriam Webster) The word fits well here. As one expert noted in the Times story, patents “are supposed to be an incentive for innovation.” That’s not the way they’re working in the smartphone wars. Instead, entrenched players are using them to tax competitors, or even to block them from the market. To the extent patents block competitors and reduce competition, innovation is likely to suffer.”
Even the FT is displeased with US patent law. Time to end software patents; with that, many patent trolls will also be eliminated. If companies like Apple can get their way using patents alone, then we simply cannot ignore the matter. █
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Rep. Peter DeFazio and Rep. Jason Chaffetz give us Saving High-Tech Innovators from Egregious Legal Disputes (“SHIELD”) Act
Summary: An existential threat to the #1 foe of Free (as in freedom-respecting) software
THE EFF, which fights against software patents this year (targeting the whole lot, not busting them one at a time), is excited to see a bill that’s intended to stop software patents or at least make a start by flagging them as distinct. As news spreads about this bill in almost every technology site we learn that the target is “[p]eople who sue technology companies over patents when they’re really only trying to win big settlements [and] have earned themselves a nickname: patent trolls.
“Unlike the fake ‘reform’, this one is real, but Glyn Moody won’t believe it until it’s passed, he states.”“Thanks to the Saving High-Tech Innovators from Egregious Legal Disputes Act, or SHIELD Act, their days may be numbered.
“The SHIELD Act would require anybody who files a lawsuit related to a computer hardware or software patent to pay his or her opponent’s legal bills if a court finds the lawsuit “did not have a reasonable likelihood of succeeding.”
“Oregon Rep. Peter DeFazio introduced the bill in the House to protect innovators from superfluous lawsuits.”
Unlike the fake ‘reform’, this one is real, but Glyn Moody won’t believe it until it’s passed, he states. The EFF’s words are “Can You Believe It? Legislation that Would Actually Help Fix the Patent System” (link).
To quote: “Finally, a moment of sanity. Today, Rep. Peter DeFazio, along with co-sponsor Rep. Jason Chaffetz, introduced legislation (HR 6245) in the House of Representatives that would actually help make the patent system work better for innovators and innovation, and make life more difficult for patent trolls.
“Well, if we wish to impede Microsoft proxies, then this bill can make an enormous contribution.”“We have written time and again about just how broken the system is and how, thus far, the courts and Congress have failed to fix it. Which makes us even more excited about the new bill, the Saving High-Tech Innovators from Egregious Legal Disputes (“SHEILD”) Act. The idea behind the SHIELD Act is simple: if you sue someone, you better have a reasonable and good-faith belief that you are entitled to relief. In other words, a plaintiff needs to believe that a defendant actually infringes a valid patent before it sues. If it doesn’t, that plaintiff could be on the hook for the costs of litigation and for the winning party’s attorneys’ fees (which can cost hundreds of thousands of dollars in some cases).
“Fee shifting, often called “loser pays,” is not a new idea. It’s long existed in copyright law, for instance, allowing a court to award a winning party costs and fees in certain cases. In patent litigation, this type of provision would help tilt the playing field slightly more in favor of the good guys. To understand, think about the patent troll business model: making broad claims of infringement based on patents of questionable validity is the troll’s favorite move. It’s no wonder that many defendants choose to pay up rather than take the time, energy, and especially the money to fight in court. Fee shifting would empower innovators to fight back, while discourging trolls from threatening lawsuits to start.
“Trying to understand the recent patent licensing deal between Microsoft and Amdocs is like watching a poker tournament, where you never know whether players are bluffing or if they have pat hands. In this case, it appears that Microsoft is bluffing when it comes to Linux. An inspection of the facts, as they are known, indicates the “Linux licensing” element of the story is only more Microsoft FUD–with Amdocs being a willing participant.
“This isn’t the story of an underdog being pressured by the Redmond giant into paying a bounty on some patents Microsoft claims are being infringed upon by Linux servers in Amdocs’s data centers. In fact, it appears as if Linux licensing isn’t really a part of this deal at all.”
“Lodsys got some patents from IV (Intellectual Ventures).”The OIN, in the mean time, is growing a team behind a portfolio of software patents (latest statement), perhaps refusing to accept that abolishing patent trolls and software patents is an achievable goal. Timothy B. Lee, one of the leading people in the fight against software patents, has this to say: “A new bill introduced in the House of Representatives attempts to deter frivolous patent litigation by forcing unsuccessful patent plaintiffs to cover defendants’ legal costs. Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT), the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act is limited to patents related to computer hardware and software.
“”Patent trolls don’t create new technology and they don’t create American jobs,” DeFazio said in a news release. “They pad their pockets by buying patents on products they didn’t create and then suing the innovators who did the hard work and created the product.”
“While DeFazio portrays the SHIELD Act as anti-troll legislation, its provisions don’t seem to be limited to non-practicing entities. Any plantiff who a court finds “did not have a reasonable likelihood of succeeding” could be on the hook for his opponent’s legal bills, regardless of whether the plaintiff is using the technology in question.”
Mark Webbink keeps track of one such troll with Microsoft connections and a case against Android developers. To quote: “Lodsys has been hit with another declaratory judgment action, this one by Creative Mobile, O.U., an Estonian company, filed in the Eastern District of Wisconsin. (Complaint [PDF; Text]) There is nothing particularly new about this complaint when compared to earlier declaratory judgment actions filed against Lodsys other than the fact that it provides a useful synopsis of where the case stands. [See paragraphs 17 through 51]
“With so many suits in play it will be impractical to follow all of them, but that really shouldn’t be necessary anyway. There are three critical parts that merit our attention: (1) the pending reexaminations before the USPTO; (2) the intervention by Apple; and (3) the declaratory judgment action by Oracle with its attendant invalidity contentions.”
Lodsys got some patents from IV (Intellectual Ventures).
Well, if we wish to impede Microsoft proxies, then this bill can make an enormous contribution. To quote one of the better reports: “The bill is limited to patents that cover hardware or software for computers and other IT systems. It defines a software patent as a patent that covers “any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent.” This also includes systems that can be programmed to perform such a process. The bill expressly omits the highly controversial question of whether “computer-implemented inventions” should be patentable at all, stating that it does not aim to amend the substantive patent law.”
Excellent stuff! █
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Summary: Microsoft snubs authorities, breaking the law after it was penalised for breaking the law
A lot of publications have already covered the news about Microsoft not obeying orders, essentially by not making it possible to install alternative browsers as easily as mandated after Microsoft broke the law. To quote one report:
Brussels’ competition commissioner has opened a fresh investigation into Microsoft’s practice of using its Windows operating system to push people into using its Internet Explorer browser, following allegations of non-compliance with an EC settlement deal the software giant agreed to in late 2009.
Microsoft, under the legally-binding agreement, was supposed to display a choice screen to its European Windows customers allowing them to pick between IE, Firefox, Chrome and other browsers on the market until 2014.
“On Tuesday, the commission accused Microsoft of omitting a screen that gives users easier access to rivals’ Web browsers,” claimed IDG. This shows the sheer arrogance of Microsoft. It leads to another probe, which is unlikely to achieve much as Microsoft cannot understand any language other than force.
Microsoft Corp. (MSFT) risks European Union penalties for failing to comply with a settlement to give users a choice of web browsers, more than two years after it tried to end a decade-long clash with antitrust regulators.
EU Competition Commission Joaquin Almunia said Microsoft may have misled regulators by failing to display a browser choice screen to users of the Windows operating system since February 2011. The world’s largest software company blamed a technical error for not showing the screen to some users and offered to extend its commitment until March 2016.
Jan Wildeboer says that:
[T]he EU case v Microsoft should also ring the alarm bells in Cupertino AFAICS. The main claim seems to be that there is no browser choice on Windows 8 on the ARM platform (where one can only have IE, just as iOS onyl allows it’s own engine)
That’s not the point though. It was not Apple that used illegal tactics to get a browser monopoly.
Here is another report about this antitrust failure:
The European Commission and Microsoft have been tangled in a long and drawn out legal battle that has now spanned almost 20 years. The EC reacted to accusations that the software giant was using its position as market leader to stifle competition by leveraging a $1.1 billion fine on the company. In a related case it also ruled that Microsoft should include a “browser ballot” with its operating systems. Now, a new dispute appears to be brewing, once again hinging on browser choice in Microsoft’s OSes. The Redmond-based company failed to include the required ballot screen with its Windows 7 Service Pack 1 update, and has also drawn criticism for preventing browser choice with its upcoming ARM-based operating system, Windows RT.
Our contributor iophk says that “‘browser choice’ was an ineffectual remedy anyway. It’s rather telling about the corporate culture there that Microsoft got caught trying to dodge out of even such a weak punishment. After all, it does zero to address the original problem of illegally tying/bundling MSIE with all Windows systems sold.”
We covered the subject in posts such as:
- Cablegate: European Commission Worried About Microsoft’s Browser Ballot Screen Being Inappropriate
- Microsoft’s Browser Ballot is Broken Again and Internet Explorer 8 is Critically Flawed
- Microsoft’s Ballot Screen is a Farce, Decoy
- A Ballot Screen is Not Justice, Internet Explorer Still Compromises Users’ PCs
- Microsoft Not Only Broke the Law in Europe, So Browser Ballot Should Become International
- Browser Ballot Critique
- Microsoft’s Fake “Choice” Campaign is Back
- Microsoft Claimed to be Cheating in Web Browsers Ballot
- Microsoft Loses Impact in the Web Despite Unfair Ballot Placements
- Given Choice, Customers Reject Microsoft
- Microsoft is Still Cheating in Browser Ballot — Claim
We have covered most points before, so there is no point doing that again.
The corporate press gave this issue a lot of coverage, but iophk notes that “[f]ines have no effect. Other remedies are necessary.” iophk recommends a “2-year ban on sales of Microsoft products in the EU,” insisting that it “would be a start.”
Remember that the only language Microsoft understands is force. We saw Microsoft refusing to obey orders many times before. █
“Microsoft and its employees now think it is indeed the Master of the Universe.”
–Stewart Alsop, Fortune
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On June 1st 2012, Go Transit in the Greater Toronto Area started to phase out anonymous 2 ride and 10 ride paper based tickets. These 2 ride and 10 ride tickets would get stamped in a machine and it didn’t require giving Metrolinx your name and address or other personal information. You can still buy anonymous single ride and day passes but if you ride the bus every day this is a huge inconvenience and the price is higher. If you ride the bus every day you’re likely to opt-in to the PRESTOCARD system. The PRESTOCARD system is dangerous to your personal privacy because it collects personal information that was never previously required to ride the bus. Personal information collected by the Government of Ontario is stored on computers running Microsoft Windows Server and is a blatant security risk.
Personal information that may be collected by PRESTO in connection with your use of the PRESTOCARD is recorded information that identifies individuals and may include:
a) information relating to financial transactions in which you have been involved or will be involved with PRESTO, including your credit card number and your bank account information;
b) any identifying number, symbol or other particular identifier assigned to you by PRESTO;
c) your address or telephone number;
d) correspondence sent to PRESTO by you that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence; and/or
e) your name where it appears with other personal information relating to you or where the disclosure of your name would reveal other personal information about you.
The claim from Metrolinx (whom owns Go Transit and Metrolinx) is that the information will only be used for a list of purposes although it says ‘among other things’ meaning the list is not complete:
PRESTO’s primary purpose for collecting your personal information is to provide the services and/or products requested by you. In addition, you agree that your personal information may be used, among other things, to:
a) open and set-up your PRESTO Account;
b) verify your identity and/or your eligibility for certain PRESTO Services;
c) mail to you your PRESTOCARD and other such items or communications;
d) operate the PRESTO Services effectively;
e) administer loyalty programs associated with the use of the PRESTO Services;
f) protect you and PRESTO from error and fraud
g) better understand your needs and eligibility for products and services offered by PRESTO or the Service Providers;
h) communicate to you those products and services that may be of interest to you;
i) improve the products and/or services offered to you; and
j) comply with legal and regulatory requirements.
What they do not list is the fact that the GO Transit system uses “tap on” and “tap off”. What this means is that you get on the bus, you tap your card and it makes a record that you boarded the bus. When you leave the bus you are required to “tap off” which makes a record that your trip ended. From a billing standpoint this means they keep track of your trip. They know where you get on the bus, and where you get off. This means the government (who owns Metrolinx) has your name & address, and can attach your trip information to their records and more readily build a personality profile on you.
The PRESTOCARD itself is RFID based and is read by an RFID reader on every bus. At some point the reader talks to head office, I suspect using WiFi communications. If anyone knows more about Presto and Wifi please leave a comment. I’ve discovered the Wifi prestocard client while on the bus using tools from the Aircrack-ng suite of utilities. My only guess is that this is how they update the billing records on the road.
Since Metrolinx is owned by the Government of Ontario, there will be no third party disclosure issues when handing the information over to the police, or other government agencies. When CCTV exists on Go Transit buses, facial recognition technology will get help via a list of names of people riding the bus since the trip is tracked for billing purposes. If you use your PRESTOCARD on Mississauga or Brampton Transit, it will already “out you” to CCTV. Not to mention the fact that the government will have information on your entire trip from start to finish. This information is valuable to the government and there are many uses. One of the more pragmatic things I can think of would be to give the government statistics it can use to market its incumbent political party to demographics more likely to vote for them.
What ever happened to the right to travel anonymously? Metrolinx, Go Transit and PRESTOCARD are all services that will remove this right and people will simply adapt before complaining. Those of us who don’t want to be tracked will stand out, we’ll get evil looks from bus drivers when we don’t tap on, and disgruntled looks from people waiting in line while people like me pay cash.
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Pressure is mounting
Summary: A collection of items from the past month, all of which show the need and desire for a serious patent reform
THE USE of patents against software products is getting very widespread, especially in the lucrative mobile arena (lawsuits en masse with multiple defendants). Julie Samuels from the EFF urged SCOTUS to do something (we already covered the nonchalance of the SCOTUS) and so did CATO, which wrote:
In his famous essay “The Use of Knowledge in Society,” Friedrich Hayek argued that the socialists of his day falsely assumed that knowledge about economy could be taken as “given” to central planners. In reality, information about the economy—about what products are needed and where the necessary resources can be found—is dispersed among a society’s population. Economic policies that implicitly depend on omniscient decision-makers are doomed to failure, because the decision-makers won’t have the information they need to make good decisions.
In a new paper to be published by the NYU Annual Survey of American Law, Christina Mulligan (who drafted a recent amicus brief for Cato) and I argue that the contemporary patent debate suffers from a similar blind spot. A patent is a demand that the world refrain from using a particular machine or process. To comply with this demand, third parties need an efficient way to discover which patents they are in danger of infringing. Yet we show that for some industries, including software, the costs of discovering which patents one is in danger of infringing are astronomical. As a consequence, most software firms don’t even try to avoid infringing peoples’ patents.
There is more and more scholarly work pointing out the obvious (e.g. newest study from Bessen and his co-workers), but decisions to permit patenting of algorithms are not fact- or evidence-based, they are lobbying-based.
A month ago someone wrote this essay which says:
Impractical Software patents
Software patents are utterly impractical to promote innovation. Here are a few American articles that we recommend you to read to broaden your clear understanding of numerous and inextricable software patents issues. The multiplication of insane litiges is an additional proof that software patents are an inadequate tool. In reality the patent establishment is the main pushing force towards software patentability in Europe with the support of some major IT companies. Their main and sad aim is not to promote but to impede technology and distort markets.
Yahoo employees were furious at the time as “Aspiring Patent Troll Yahoo Shakes Down Facebook” with patents from engineers who never wanted software patents anyway. Yes, even many of those who earn software patents are fundamentally against it; their employers prod them for it. Why are those patents legal in the first place? Who are they really for? There is "institutional corruption" at play — a disparity between reality and practice, public opinion and existing law. █
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Summary: New Zealand is still under US pressure to change its laws for US corporations (protectionism at the IPONZ)
THE sizeable stack of Cablegate cables helps teach us about the role government plays in promoting the agenda of domestic corporations overseas. We saw that in action when NZ (New Zealand) patent law came under siege by US corporations (which control their government through campaign contributions). There was a persistent attempt to pollute NZ law with software patents, serving in no way the interests of NZ residents (except patent lawyers). The press in NZ speaks of a “US attack” but the headline is deceiving. The article says:
The US Government has taken aim at a planned overhaul of New Zealand patent law that would prevent the patenting of computer software.
It has also taken a swipe at the fees that movie studios and recording companies must pay to haul internet pirates in front of the NZ Copyright Tribunal under the controversial three-strikes ”SkyNet” copyright regime that came into effect last year.
The Office of the United States Trade Representative (USTR) said in an annual report on ”foreign trade barriers” that New Zealand generally provided for strong intellectual property rights. It said the NZ Patents Bill, which has been awaiting its second reading in Parliament for more than a year, would improve the system.
However, it said the US had concerns about the clause excluding software, which ”departs from patent eligibility standards in other developed economies”.
We cover a lot of USTR owing to Cablegate (e.g. [1, 2, 3]). It’s imperialism by corporations, ushered by so-called government representatives (corporate servers in practice).
The collective of patent lawyers speaks of “[t]he importance of including algorithms in software patents” and to quote:
The U.S. Court of Appeals for the Federal Circuit recently issued its second decision in the past month in which it found a software patent to be invalid for failure to disclose an algorithm that the software uses to perform its function. In each case, the patents’ claims involved “means plus function” language such as the phrases “control means” and “access means”.
Another pro-patents site says:
A software patent means-plus-function claim is indefinite where the specification fails to disclose an algorithm that performs the recited function. The Federal Circuit has now held that where a means limitation is associated with multiple functions, a claim is indefinite where the patent specification discloses only one of the functions. Noah Systems, Inc v. Intuit, Inc., No. 2011-1390 (Fed. Cir. April 9, 2012).
It seems realistic an expectation that software patents will be eliminated in the US before they manage to spread to other countries, such as NZ. We just need to work on it, always watching what government officials are doing and putting the limelight on it. █
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