Posted in Europe, Law, Patents at 3:48 am by Dr. Roy Schestowitz
Klaus-Heiner Lehne / Source: Europa.eu
Summary: Various updates about the patents situation across Europe
LAST year Apple decided that it could not compete fairly against HTC, which now sells more phones (running Android/Linux) than Apple in the United States. Apple dropped to third, trailing Samsung.
So Apple sued HTC and found favour in its home country, as expected. In Europe it has been a different story and Apple is failing to block Linux/Android-powered devices from Samsung. Even the regulators get involved right now, which ought to make Apple worry. But Europe has had some elements in it that are dangerous in the sense that they play ball for US-based multinationals. They also try to legalise software patents by harmonising US- and EU-based patent regulations. Anne-Cat Lorrain writes: “European Commission: “the creation of a EU patent court is on a good track”. Audience not so “optimistic”… #ictsp11″
The EU patent “package” moved a step closer to final approval on Tuesday, when the Legal Affairs Committee approved a mandate to open formal negotiations with national governments to agree to create unitary patent, so as to cut costs for firms and boost the EU’s competitiveness. Parliament will strive to adapt the proposed regime to small firms’ needs.
The European Parliament’s rapporteurs, who will negotiate with national governments, will treat the three proposals (unitary patent, language regime and unified patent court) as a package, meaning none will be agreed without the others. According to the mandate, approved by the committee with 16 votes in favour and 3 against, the MEP negotiators will also ask that the three laws enter into force at the same time.
The aim of creating an EU patent is twofold. First to reduce current patenting costs by up to 80%, so as to improve the competitive position of EU firms vis-à-vis their counterparts in the US and Japan, where patents are substantially cheaper. Second, it should help to avoid the legal confusion created when dealing with differing national patent laws.
MT @zoobab @VisaePatentes OUTRAGEOUS: #JURI mandates #Lehne to negotiate #unitarypatent with Commission/Council behind closed doors>>shame
Zoobab also notes that the “Polish Presidency turn its coat for software patents through a central patent court,” according to this post which says:
Polish Prime Minister Donald Tusk sent a letter to the presidents of the EU institutions, on 18 November, pressing for an agreement on adoption of the harmonised European patent system. “This is one of the most important projects for the common market, to which the latest Council Presidencies have devoted considerable work and attention,” said Tusk. “In a context of increasing competition at global level, we cannot afford to keep the current system, which is one of the world’s costliest and which limits both innovation and the competitiveness of our enterprises.”
We wrote about this stance of the Polish Presidency in [1, 2, 3]. The president of the FFII (Zoobab) argues that the “European Parliament JURI committee [is] against ban of software patents, so pushing for them via central caselaw, was to be expected”
He also points out that the “EU patent draft introduces joint Member States liability for any failure of the patent court to apply EU law”
Anyone who has encountered the AmeriKat in the past two weeks will have been subjected to a “what are you doing to help get the Unified Patent Court to London” style of questioning. During and outside of her workday she is still doing a fair amount of London cheerleading, so much so that she has failed to pick up the recent House of Commons Select Committee on European Scrutiny’s report on “Enforcement of Patent Rights”. In May of this year the IPKat reported on the Scrutiny Committee’s scrutiny of the unified patent system and Baroness Wilcox. More recently, on 9 November 2011, the European Scrutiny Committee considered a recent, but not the latest, Draft Agreement on a Unified Patent Court and draft Statute. The European Scrutiny Committee does what it says on the tin/can – they scrutinize draft EU legislation on behalf of the House of Commons and determine which proposals are of political or legal importance. Good news – the UPC ticks both boxes! The Committee flags up these proposals to the House through their weekly Committee Reports and by recommending that some draft legislation be debated – either by the European Committees or by the House of Commons. For a list of members of the Scrutiny Committee click here.
Summary: Some bits of news that seem relevant to the patent wars which affect Linux and Free software in general
THE US patent system is as broken as it has been since the start of this year (and probably more broken than ever before).
Lodsys the patent troll extorts a company, proving just how ridiculous things have become and The Economistsays: “The number of patent applications in the world rose from around 800,000 in the early 1980s to 1.8m in 2009, according to the World Intellectual Property Report 2011, newly published by the World Intellectual Property Organisation (WIPO).”
This is not a good thing and it also shows that patents are not indicative of innovation. Innovation did not just double in a couple of decades. What we see here is a world that gets increasingly troubled and disturbed by patent monopolies.
When patent trolls like Intellectual Ventures are the ones rising while other companies — real companies that make products — declare bankruptcy, then innovation is truly doomed.
Apple secured a patent yesterday on software to create and identify 3D models of faces, animals, aircraft, military vehicles and tumours in one of the more unusual tech patents to be awarded in recent months. This came to light after the US Patent and Trademark Office published a series of newly awarded patents.
Shame on Apple for claiming monopolies on mathematical methods. That’s what Computer Vision is about, mostly manipulation of matrices. There is no excuse for granting exclusive rights on use of geometry. Whose laws of nature are these anyway?
Party president Tommy Fergusson said the key issues for the party were the “three strikes” copyright regime that came into force in September, under which people can be fined up to $15,000 for downloading copyright material, software patents and a filtering system set up by Internal Affairs to block access to child pornography sites.
The part relevant to us is about software patents. Other parties do not talk about it. Over in Europe, regulators get involved and one source says that “The European Commission ‘s vice president for competition, Joaquin Almunia, has for the first time publicly voiced his concern about how certain high-tech companies may be using intellectual property rights unfairly to thwart rivals and distort competition, reports Reuters.
“Almunia’s decision to speak publicly could signal that an official investigation is in the works.
“In particular, the European Commission is looking into the spate of smartphone patent battles between Apple Inc. (Nasdaq: AAPL) and Samsung Corp. , but it has not yet launched an official probe. The EC requested information from Apple and Samsung, but Almunia said he has not received answers. (See Euronews: Vodafone Guns for UK Govt Deals.)”
How does any of this patent confrontation which Apple started benefit the European buyers? Here is what Murdoch’s press quotes in relation to this:
“The patent system is very seriously screwed up,” says Ed Black
Ed Black was paid by Microsoft and even he is able that the patent system lost its way.
Some of the better examples of the patent system being broken come from the smartphones sector. Here is a new article about this which says:
Smartphone sector in a patent arms race
[...]
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.
Microsoft is currently using Nokia as a patents weapon, probably against Android (through MOSAID). The president of the FFII writes: “Nokia patent lawyer gives no solution for SMEs attacked by trolls, left them in the cold by dark software patent system”
The Pirate Party in New Zealand has also just stepped in (yes, again) and gotten involved in the news again. No other party seems to be doing anything substantial about it. Those who do simply struggle to get funding and those who do (like the German Pirate Party) sell out by taking money from supporters of software patents. Here is what happens in New Zealand:
Internet users in Hamilton East and Wellington who are concerned about the “Skynet” copyright regime will have a chance to make a protest vote at the election tomorrow.
The Pirate Party failed to garner the 500 members it needed to contest the party vote in the election, but is fielding candidates in the two constituencies.
What we desperately need in all nation is a political presence that realises what patents are really about. Not some online petitions which give a shallow impression of the public being listened to; we need real action. The Against Monopoly Web site cites a new article that tackles an issue related to software patents and remarks as follows:
The New York Times ran a surprisingly long and tough piece from Reuters titled Making Sense of Patent Law link here. It opens, saying “The United States Supreme Court has a chance to reverse the mission creep in patent law. The system is supposed to reward inventors but not stifle innovation. Fuzzy and overly broad concepts like thought processes generally are not protected. Yet one company, Prometheus Laboratories, reckons it owns a method for interpreting how patients react to a drug.”
It then traces the history of patent law covering ideas which consistently forbade such patents but by 1994, was patenting “any software with a practical purpose.”
What example can be cited of a software patent bringing real progress and lowering costs? Innovation is supposed to be about benefits, not the hoarding of paperwork and legal fees that accompany this. █
Posted in Europe, Law, Patents at 9:35 am by Dr. Roy Schestowitz
ಠ_ಠ
Summary: Lawyers hijack people’s laws (for their own financial benefit) and the FFII issues an announcement of sorts
THE PATENTS ‘industry’ is one of patent lawyers and elevated lawyers (aka judges), who are extracting a lot of money from a real industry, essentially raising the prices of everything to justify their own parasitical existence. “Patent judges wants [sic] the last word over patent law in Europe,” writes the president of the FFII, “afraid of “unspecialized” European Court of Justice” (in IRC he told us that “patent judges wants EU monopoly over patent law”).
Here is the Microsoft Word document that shows this. We pulled the text out of this binary enclosure that requires Microsoft code/patents:
Introduction
The European Patent Lawyers Association (EPLAW), comprising lawyers with many years of experience in European patent litigation, has been following closely the preparatory work for and the legal discussions regarding the creation of a European patent court system. In cooperation with the EPO Academy EPLAW has been organizing since 2005 the Venice Judges Forum, and several of its board members who are also members of the EU Commission’s Group of Experts have participated in shaping the texts of the relevant international documents. EPLAW members represent both large multinational corporations in all fields of technology as well as SMEs with very small patent portfolios.
As a result of discussions on the Draft Agreement on a United Patent Court and the Regulation on a Unitary Patent at the 7th Venice Judges Forum on October 29, 2011 which was also attended by the representatives of the Polish Presidency and the EU Commission EPLAW has concluded as follows.
Regulation on Unitary Patent Arts 6 – 8
EPLAW had requested in its Resolution of 27 September 2011 urgent amendments of the Agreement on a United Patent Court and the Unitary Patent respectively which has been explained and discussed in Venice in detail. Judges and litigators all agreed that what in EPLAW’s Resolution under par. II.f) had been described as the most serious drafting error, namely including Arts. 6 – 8 of the Regulation into the text of the Regulation on the Unitary Patent, must be corrected.
Supported by a legal opinion of Prof. Krasser, one of the most prestigious German scholars of patent law, EPLAW referred to the extremely negative consequences of the insertion of Art. 6 to 8 in the Regulation for the users which Prof. Krasser has explained in detail. The EPLAW Board has confirmed in Venice that its members fully approve also Prof. Krasser’s interpretation of Art. 118 TFEU. The following citations and key conclusions from the Opinion highlight the arguments which the judges and attorneys who are members of the Commission’s Expert Group had unanimously concluded already in their first discussion on this question in April of this year in Brussels.
3. The minimum requirement for the application of the authorisation is, according to Art. 118 (1) TFEU, merely that an intellectual property right is created by Union law. This itself achieves the necessary minimum harmonisation at least if the subject matter and core effect of the right in question is established identically in the law of the (participating) Member States….
..For this reason, the proposed Regulation can be restricted to creating the basis for the grant of unitary patents for the participating Member States….
..It is sufficient for the uniform protection required by Art. 118 (1) TFEU and the “same effect” of Art. 3 (2) of the proposed Regulation that the aforesaid core effect is unitary..
5. To date, it is undisputed that Art. 118 (1) TFEU, in the event that a unitary patent under Union law is created, does not require the preconditions for the grant to be regulated under Union law. On the contrary, the provisions of the EPC will continue to apply, and the EPC is not part of Union law…
..It would be logical to word the Regulation … in such a way that questions of the content and limits on the effect of such patents cannot give rise to a submission to the Court of Justice.
EPLAW is of the opinion that even if there may be legal reasons why one could come to the conclusion that including rules of substantive patent law into the Regulation, such rules are not required. Their rejection by the great majority of member states and practically all users results from the promise by the Commission and the Council that only judges with the highest qualification and experience in patent law should deal with patent litigation between private parties, so that an involvement of the ECJ beyond the EU legal order as it exists today should be avoided, otherwise the entire project could be endangered. Users request an efficient and predictable procedure before highly experienced judges which they would not get in proceedings which would include referrals on substantive law to the ECJ.
The bottom line is, the legal system in Europe does not serve its citizens. It seems to be serving either the patent lawyers or the multinationals whom they make money from (to distort the competition). Klaus-Heiner Lehne is a good exampleof that. █
THE WORLD’S biggest patent troll, created largely by Microsoft folks (including funding from Bill Gates), is lobbying the government on patent laws. And guess whose side the government is choosing? Dvorak speaks of the “Gates PR machine” in his very recent article which reminds us to get back to coverage about Gates Foundation. Dvorak writes:
The Gates PR machine, which is always waiting in the wings to pounce if needed, was apparently called into action.
Writers recognise that Gates not only employ many lobbyists (for profit at others’ expense); he also stole the press and it shows. Just because he smiles and wears a sweater does not make him harmless. There is a new headline in Boing Boing and it says ‘James Murdoch, “the first Mafia boss in history who didn’t know he was running a criminal enterprise”‘.
Here we have a new video where Gates’ attempts to privatise schools and influence them for profit gets criticised but only gently. Watch this:
With a lot of influence over the government, Gates has probably been able to defuse Microsoft oversight and months ago we found out that he was lobbying for more outrageous patent laws in the United States (not just in other countries). It is new stuff like “OnePatont” trolling big companies [1, 2] that serves as evidence of how broken things really are. It’s business as usual at the patent offices of north America and the government refuses to listen to the people; it listens to its private rich funders instead, resulting not just in boguslawsuits but also an elevated cost for everyone. Well, at least patent lawyers are happy. To quote just one new example:
In a verdict that could have significant implications for the Internet software industry, a federal court jury in Central Islip, N.Y. found AOL liable for infringing the patent of BASCOM Global Internet Services, Inc., a Long Island Internet software company. The jury also found that BASCOM’s patent, which covers remote filtering of adult or other inappropriate content, among other things, is valid and enforceable. The jury awarded BASCOM $10 million dollars in damages as a royalty for AOL’s infringement.
If this is “innovation”, then innovation is dead. To quote another new article of interest:
The White House weighs in on software patents, doesn’t say much
[...]
So, what does this mean? It’s difficult to say. There isn’t a lot of substance to examine in this statement. In a nutshell, the administration is a big believer in the new patent legislation the President just signed (to be expected), and it seems to have an affinity for “open source energy.” On the issue of what can, or should, be done to address people’s concerns over software patents in the US, the White House isn’t saying much.
So the government does not listen to the people and, quite importantly, it ignores what developers want. What would be the best course of action then? Here is another new perspective from a developer:
MIME creator: Developers face patent trap
Patent infringement lawsuits have become a very real concern for independent developers and big companies alike, a situation highlighted by the growing number of high-profile courtroom battles over intellectual property.
In order to resolve the copyright issue (Hollywood driving policy against the people) Professor Lessig decided to leave aside Creative Commons and embark on a political crusade about unjust influence that corrupted his government. To remove software patents from the USPTO, a similar strategy may be necessary. The answers in both cases are simple and obvious. It is clear what citizens prefer. But it’s not them who decide, it’s that “1%” that calls all the shots. The illness is systemic and we know who controls the system. They are public figures and the real economy does not depend on them; it suffers from them every single day because they squeeze it like a squeegee to get richer and richer, hoarding whatever capital/property is left. Patent law today is an instrument for legalised looting. █
The White House still has a petition against software patents, but will it be answered? There are yet more new articlesabout it. One latest example says:
The petition has more than 12,000 signatures, which puts it among the top 10 petitions on the White House website.
In August HP started the process of acquiring Autonomy for $US10billion; the fourth largest ever software/services acquisition in history. Its interest in the company “says a lot about what our competitive strengths are, as well as our intellectual property”, says Autonomy’s Australia/NZ managing director Dean Maher. The company has 170 patents across advanced knowledge management and search of structured, unstructured and semi-structured data, he says – casting a sidelight on the local debate over the value of software patents.
Not a pleasant thought. In the next few posts we’ll show the relevance to Free software. █
Summary: After Novell lost its business and its soul to Microsoft all that remains is the WordPerfect case
THE ROTTING of Novell at Attachmate is reminiscent of Sun’s fate inside Oracle.
Dave Kearns looks back at this history lesson, writing: “He then goes on to tell about the great Novell-Microsoft networking rivalry in the 1990s — when Novell released NetWare Directory Services (NDS) in 1994, Microsoft vowed to have its own directory service in Windows NT 5 (later released as Windows 2000). Kemp relates that Novell countered again saying that not only does a NOS need a directory today, but it needs one that is cross-platform.”
“SUSE is considered a separate entity and it is now sponsored by Microsoft.”Novell used to be a massive company. Now it is not even a company. Some other companies are hiring former Novellers at all levels because there is not much left in Novell and Tom Harvey, who has covered Novell very extensively over the years, writes: “After six years in an out-of-state jurisdiction, a lawsuit by Provo’s Novell that accuses Microsoft of anti-trust violations involving WordPerfect has returned home to Utah, and with it a bygone era of technology history is about to come back into view.”
Maybe that’s the only thing left of Novell now that SCO’s case seems to be over. SUSE is considered a separate entity and it is now sponsored by Microsoft. █
Posted in Europe, Law, Patents at 10:58 am by Dr. Roy Schestowitz
Legal failure
Summary: A look at several new items of interest and what they can teach us
TECHRIGHTS does not expect to be read by many patent lawyers. It would seem too insulting to them, not because of strong language but because patent lawyers have a different reality in their minds — one where they are necessary and even guardians of innovation.
We always see patent lawyers pretending to be part of the industry rather than parasites to those who drive the industry (the producing industry, not meta-industries). To monopolists, those patent lawyers do serve an important role. They are a guardian against competition. Their role is to narrow down the industry, removing choice, increasing fear, and contributing mostly to stress and waste of time. The assumption that if something is profitable then it must be good to society is very misguided. Almost equally misguided is the supposition that rich people always know better than the rest and that ruthlessness plays no part in one’s wealth (this aspect of the problem was explored in the previous post). In fact, the legal occupation is more about who argues better and has deeper pockets for better arguers/manipulators/dirt diggers; it’s not really about justice (case of point: O. J. Simpson). It’s biased towards money and in favour of one who already exploits others. So getting to the point though, the software industry does not need patent lawyers. Developers already have copyrights by default and disputes over copyrights are easier to resolve (even out of court) because the matter is not so blurry.
“The assumption that if something is profitable then it must be good to society is very misguided.”There is this one blog/magazine which is very shameless about its boosting of software patents. It’s called IAM and we pointed out its weaknesses in prior years. Here it is right now cheering the patent extortion business which works well for patent troll Acacia. And according to this patent maximalists’ blog, we should also belittle Bessen’s research [1, 2, 3] because, according to its stance, there are flaws. To quote: “On the Gametime IP blog Patrick Anderson takes Bessen, Ford and Meurer to task over their working paper, entitled The Private and Social Costs of Patent Trolls. Sadly, however, although Anderson does a very effective job, out there in the real world nobody is listening. Reports on the CNN Money, Washington Post, Business Insider and Ars Technica websites, among others, all report the findings uncritically. Now I think Anderson’s blog is among the best there is on patents, but how many people read it in comparison to those sites that I have mentioned? The fact is that, whether you like it or not, this paper is going to be very influential – just as Patent Failure, written by Bessen and Meurer in 2008 continues to be cited approvingly in countless reports and policy papers to this day; even though it too is deeply flawed.”
How are these “deeply flawed”? No details given, bot even a link/reference.
According to another patent lawyers’ blog, this one from Axel H. Horns, software patents are no longer up for debate in Europe. The German Pirate Party (sponsored in part by patents-loving company) is once again cited for support. Quoting the post:
After that the debate on software patents died down. A conference organised by the European Patent Office and held in Brussels on July 05, 2007, under the title “Computer-implemented inventions: where do we stand in the debate on ‘software patents’?” made perfectly clear that nowhere any intentions were living to re-start the legislative process to have a sectoral Directive on patentability of CIIs.
What the EPO has been doing in recent years is rather shameful. Its head left not too long ago, after she had opened a door to interpreting software patents as valid in Europe. Then again, the EPO is once of those establishments biased to serve patent supporters and be run by them, too.
Mike Masnick et al. are meanwhile “Petitioning The[ir] Government Against Software Patents,” according to this blog post which comes 2 weeks after the laughable ‘reform’:
Apparently I had missed that the White House set up a platform for people to petition it directly. A few folks have sent over a petition that was set up asking the administration to reject software patents, noting that they are hindering the software industry, one of the few “strong” industries in the US. The specific petition asks the government to stop issuing software patents… and to void all existing software patents.
Given the declining quality of patents, the USPTO should clearly address scope and not the nonsense about “first to file”. Getting rid of software patents would be a good start. █
So it has finally happened: a patent reform bill has actually become law. Last Thursday, the U.S. Senate voted 89-9 to send H.R. 1249 to the White House, where it was signed into law today. While I have pointed out in the past that this bill misses out on several aspects of reform that previous bills attempted, it does include some useful aspects.
First, though, let’s discuss what the new law will NOT include. It will not include any provision tying damages in patent litigation to the specific contribution of the patent over prior technology nor will it provide any specific damages limitation. It will also not require bifurcated trials to separate liability and damages issues. It will not allow interlocutory (real-time, during the underlying case rather than post-verdict) appeal of claim constructions by courts. It will also not specifically include a provision restricting venue in patent litigation (but, as shown below, the joinder provision will have an effect on venue for some cases). Each of these provisions were included in prior versions of the legislation and would have helped fix the system.
[...]
The joinder provision included in the America Invents Act, as passed, which Red Hat actively supported, specifically states that there must be another basis for joinder beyond an allegation that the defendants have all infringed a patent. Thus, the new law should prevent the “file around the country, and add a few Texas mom and pops” tactic. In fact, the natural result of this new law should be that patent plaintiffs, especially non-practicing entities (NPEs), will generally have to file as many lawsuits as there are defendants. This will mean that each case will likely be filed either where each defendant is organized (often Delaware or Nevada) or where it has its principal place of business.
At least as important as this effective restriction on venue is the effect on NPEs of having to litigate one case per defendant. First, NPEs have been targeting multiple defendants in a single lawsuit to reduce their costs. More important, though, NPEs have been leveraging such lawsuits against defendants by forcing competitors and other unfriendly parties to either cooperate by sharing confidential documents, expenses, attorneys, and strategy or to spend even more money and resources in defending the case. The new “one defendant-one lawsuit” rule will require NPEs to try cases as many times as there are defendants. Not only is this prohibitively expensive, but it puts the validity of the patent(s) in suit in peril every time the case is tried.
Ultimately, however, patent trolls should not exist; neither should software patents. █
