Summary: The once-elusive war on software patents is finally leading to some breakthrough and even the Federal Circuit reinforces the trend of software patents’ demise
Software patents are gradually losing their grip on the industry, not just in the world at large but also in the US (genesis of software patents). A few days ago an interview was published in which Simon Phipps (OSI) spoke about the goal of eradicating software patents and explained the latest turn of events as follows: “The Supreme Court in their judgment created a very clear test to work out whether a software patent was going to be valid or not. What they said was that, they said that there could still be software patents, but that simply taking something that is not patent‑eligible like an algorithm and then claiming that it’s patentable because it runs on a computer is not sufficient to actually establish patentability.
“They said that to get a software patent, the software that you have has got to improve the computer significantly. Because of that, the standard for getting software patents has been dramatically increased by the Alice decision.
“The federal circuit court then referred to the Alice decision, and decided not even to proceed to find out if there had been infringement on the Digitech case because they declared that the image processing software was not a significant improvement to the computer. Rather, it was a computer implementing a non‑patent‑eligible technique.”
Based on the article “Appeals court knocks out computer bingo patents” and some that are citing it, yet another software patent has just dropped dead. “Silly software patents are finally on notice at the Federal Circuit,” says the summary and lawyers do some legal analysis (not challenging the ruling but interpreting it). Progressive sites like TechDirt use a clever headline and say: “Another day, another story of stupid software patents getting stomped out of existence thanks to the Supreme Court’s Alice v. CLS Bank ruling. As we’ve been noting, this ruling is looking like it’s going to invalidate a ton of software patents (and that’s a good thing). The latest one dumped was an attempt to patent bingo online. Yes, bingo. The lower court had already rejected the patent using previous Supreme Court rulings against patenting “abstract ideas.” Now, with the Alice ruling in hand, the Appeals Court for the Federal Circuit (CAFC) completed the stomping out of the bingo patent.”
Based on this same site, citing the post “Patent Troll Landmark Technology Sues eBay For Challenging Its Patents; EBay Responds With Anti-SLAPP Motion”, there is bullying over the suggestion that some patents need re-examining. To quote: “Over at Popehat, there’s a fascinating story about the depths to which patent trolls will go to “protect” their business models. The story involves Landmark Technologies, a troll we wrote about earlier this year for its rather aggressive take on patent trolling. Landmark holds patent 6,289,319: ‘Automatic Business and Financial Transaction Processing System.’ Or, as the EFF puts it more succinctly: paying with a credit card online. eBay recognized that Landmark’s trolling was bad news, and filed with the US Patent and Trademark Office (USPTO) for a re-exam of three patents. The USPTO initially recognized eBay’s request, noting that there were “substantial” questions about the patentability in those patents. While it eventually left two of the patents alone, it dumped many of the claims in a third patent.”
Remember how back in early August an invalidated patent caused much trouble for that aggressor called Apple.
There is a real opportunity here for change. Patents on software can now be eliminated. Rather than actively fight software patents Google is just promising not to sue. What a wasted opportunity and misguided strategy.
Back in 2013, Google announced its plans to not sue anybody who had implemented open-source versions of its MapReduce algorithm. Since then, the company has expanded what it calls its “Open Patent Non-Assertion Pledge” to a number of other patents. Today it is announcing its largest expansion of this program to date, with the addition of 152 additional patents. This brings the total number of patents included in this program to 245.
Google ought to do more to end software patents, not just acquire some and then promise not to sue.
Meanwhile down in New Zealand, a lawyers’ site claims that changes are coming:
On 13 September the new Patents Act will come into force – whether you’re ready for it or not. So, too, will the Patents Regulations 2014 which were ratified by an Order in Council on 11 August.
Everything, then, is set. This article thus serves as something of a recap on the extent of the changes under the new regime.
Many of the provisions of the new Act are the same as the current Patents Act 1953. There will then be some continuity for patentees and businesses. However, two very significant changes are being implemented which concern how IPONZ examiners consider patent applications and the limits placed on the patentability of software.
IPONZ examiners will shortly have to examine patent applications to determine whether the claims made in respect of, for example, a product involve “an inventive step”. The inclusion of the law of “inventive step” in the new Act represents a higher threshold for hopeful patentees to meet.
There was lobbying by proprietary software giants to bring software patents to this island, but they have not been exceptionally successful. This is of course good news that reminds us that the end of software patents as elusive as we once assumed it to be. █
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Summary: The debate about software patents in the United States is back because many Free software advocacy groups and companies (not Open Invention Network though) are getting involved in a Supreme Court (SCOTUS) case
OVER THE past 6 months or so there have not been many debates about software patents. There were debates about trolls and other such distracting debates; many of them were ‘pre-approved’ by corporations and covered by the corporate press. We had highlighted this appealing trend several dozens of times before pretty much abandoning this debate and giving up on involvement; generally speaking, providing coverage for these debates is basically helping those who create obstacles for small players (monopolies/oligopolies) just shift the public’s attention away from patent scope.
Debates about software patents returned about a week ago. The Open Invention Network (OIN) was mentioned in the article “Software patents should include source code”, but it’s such an offensive idea because it helps legitimise software patents, which is what the Open Invention Network often does anyway. To quote the article: “Computer-implemented inventions that are patented in Europe should be required to fully disclose the patented invention, for example by including working, compilable source code, that can be verified by others. This would be one way to avoid frivolous software patents, says Mirko Boehm, a Berlin-based economist and software developer working for the OpenInvention Network (OIN).”
Why on Earth does the Open Invention Network get involved in pushing the idea of software patents in Europe? Source code or not, software patents are not legal in Europe and the same goes in most of the world, including India where lawyers’ sites still try to legitimise them.
In another blog post, one from a proprietary software company, the ludicrous notion of “Intellectual Property” is mentioned in the context of Free software and patents. The author is actually pro-Free software, but the angle he takes helps warp the terminology and warp the discussion somewhat. To quote him: “My usual response to the question, “Do I have to worry about patent trolls and copyright infringement in open source software?” is another question, “Does your proprietary vendor offer you unlimited liability for patent trolls and copyright infringement and what visibility do you have into their source code?” In the proprietary world I think you’d be hard-pressed to find a vendor who provides unlimited liability for their products against IP infringement, or even much over the cost of the products or services rendered. How often do you review their source code and if given the opportunity are you able to share your findings with other users. In open source that’s simply table stakes.”
Contrary to all the above, the Software Freedom Law Center, together with the FSF and the OSI (Simon Phipps and Luis Villa) actually fight the good fight. To quote Phipps: “How important are software patents? We know they’re a threat to the freedom of developers to collaborate openly in communities, chilling the commercial use of shared ideas that fuels engagement with open source. We know that the software industry was established without the “incentive” of software patents. But the importance of the issue was spotlighted yesterday in a joint action by two leading open source organizations.”
Here is how Phipps concludes his article at IDG: “I endorse and welcome this joint position calling for firm clarity on software patents. (I was obviously party to the decision to take it, although I’m not writing on OSI’s behalf here.) With 15 years of history behind us, there’s far more that unites the FSF and the OSI than divides us. We’ve each played our part in the software freedom movement that has transformed computing. Now all of us in both communities need to unite to end the chilling threat of software patents to the freedom to innovate collaboratively in community.”
Red Hat too is joining this battle and announcing this to shareholders, making some press coverage in the process amid many articles about SCOTUS in the post-Bilski case era (see some coverage in [1, 2, 3, 4, 5, 6, 7, 8, 910]).
Software patents are finally in the headlines again (not much sympathy for them), but there is also some focus on trolls, courtesy of companies like Samsung and Apple. Other recent reporting about patents covered patent lawyers’ business, the role of universities in patents (they help feed trolls these days), and also USPTO reform (that was a fortnight ago). None of this dominated the news, however, as much as the debate was on software patents. So, perhaps it’s time to get back to covering patents on an almost daily basis.
Software patents are the most important issue as they are the biggest barrier to Free software. We just need to have the subject of software patents and their elimination publicly discussed. █
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Vulnerable terms die hard
Photo by Brian Solis
Summary: Free/libre software — unlike “Open Source” — highlights the main strength of code people are sharing among one another
WHEN it comes to freedom-respecting hardware, an explanation to the public about the benefits is relatively simple. Many refer to particular actions as “unlocking” or “jail-breaking”, so there is also familiar terminology one can use. The words “free” and “freedom” would have been very helpful in this context, but the “Open Source” movement sought to bury those words.
Nowadays it’s rather common to see articles about the subject accompanied by terms like “open-source” or “Open Hardware” (misnomers because they overlook the main benefit). Some refer to it as a matter of “control” . use it as a metaphor for a process , a financial model , a business model , and even ecosystems . There are many other new articles about it [6-10] and few actually have anything to do with source code.
By going along with a term like “open source” — a term originally coined and used by the spies (like the NSA) to mean something completely different — the “Open Source” movement made itself susceptible to brand dilution and confusion. Companies like Microsoft now call “open” some of their proprietary software products and formats. █
Related/contextual items from the news:
Matthew Casebeer Computer Scientist for MAYA Design, a consulting group that’s focused on simplifying devices and data. He finds that open source design benefits all who share information through their devices, not just computer scientists that work on fixing problems for large groups of users.
Six years ago, Maggie Vail and Jesse von Doom launched CASH Music, a nonprofit with the express goal of building open-source tools to help musicians reach their audience—and make a living. Vail originally cut her teeth at the Kill Rock Stars label, while von Doom’s background was in web development. Both wanted to streamline the musician-to-audience experience. And so they made the CASH (which stands for Coalition of Artists and Stakeholders) platform open-source, allowing artists and labels to build networks in their own unique and flexible ways.
Open-source capitalism is the same exact thing that made early America a successful nation to begin with.
Proof that open source can pay arrived today in the guise of Cambridge bioinformatics company, Eagle Genomics, who closed a £1 million funding round that it said would allow it to further develop its core platform technology and scale up operations including a doubling of staff.
Having started in human health and expanded into the areas of crop science and personal hygiene, the company also plans to move further into non-traditional areas for bioinformatics such as consumer goods, food safety and animal health.
The Open Source Beehives Project aims to lower the barriers to backyard beekeeping with simple, low-cost hive designs. With bees dying by the millions, they need to spread the buzz.
When your last smartphone started to get a little long in the tooth, you probably just bought a new one. Maybe you kept the old one around as a backup. Maybe you recycled it. But, chances are, whatever you did, you didn’t physically upgrade the thing. You didn’t toss in more memory or a new processor or any aftermarket parts.
If like me you would prefer to be dining something else rather than mowing the lawn, you might be interested in this awesome open source Arduino mower which brings a little more fun back to moving your yard and has been under development for some time.
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Summary: Microsoft proxies or offshoots are not managing to keep their cover and legitimate figures in the Free software world end up ostracising these
TECHRIGHTS recently wrote about the latest FUD from Black Duck, which has its roots in a person from Microsoft. Bruce Perens said that more people should call out this firm for its dubious claims about the GPL and now we see Simon Phipps, the president of the OSI, speaking about the problem. To quote:
So the real risk is much smaller than the headline numbers suggest. In all this, I can’t help feeling Black Duck want us to be afraid. It’s very important that Github takes its responsibilities seriously, and their new improvements show they are starting to do so. But the headline “60% of open source is dangerous” number from Black Duck, together with the “77% of Github is dangerous” number, seem over stated. Given their business model is to apply reassuring consulting and tools to corporate fears about open source, maybe that’s not surprising. But it’s regrettable.
Open source software is all about developers being able to achieve sufficient certainty to collaborate without the need to spend money on legal advice. OSI’s approved licenses deliver that, and the vast majority of active open source projects have this topic sorted. While Github’s laissez faire attitude to date has led to a good deal of inconvenience identifying the license in use for projects there, as well as pandering to the anti-bureaucratic instincts of the newer generation of developers, it’s now being sorted and it never rose to the level of a crisis for most people.
It must have been frustrating for Black Duck to have the PR spin on their new product thwarted by Github; I just wish they had responded by toning down the “danger, danger” message. Open source has a lower compliance burden than proprietary software and its endless, custom EULAs and developer licenses. Let’s shout that message, for a change.
Not too long ago Phipps also chastised a Microsoft proxy called Microsoft 'Open' Technologies.
After all the GPL fear that was spread by Black Duck it is too hard to believe anything it says. Black Duck was also honouring Microsoft with 'open source' awards (lending legitimacy with mere words and hype), not disclosing that it had a Microsoft business partnership and also a strong Microsoft connection (the firm’s founder) since its inception. The thing to remember about Black Duck is, they’re not selling FOSS or even any valuable information, just FUD and proprietary software. Moreover, they deserve no mercy or the benefit of the doubt (as there is doubt no more and the doubt only ever comes from them, along with fear and uncertainty about using FOSS code).
Yes, how profoundly ‘open source’. As long as the rest is all proprietary, everywhere else inside the stack… █
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Nelson Mandela would not have been proud
Summary: Why Google needs to fix the licence of VP9, or simply stop pretending that it should be the only de facto standard for multimedia
IT HAS become rather evident that WebM has a licensing issue due to MPEG-LA, a Microsoft- and Apple-backed troll. There is finally a good press report about it, citing Mr. Phipps (OSI President). It says: “When Google announced that it was signing a patent agreement with the MPEG LA patent pool, the company said that it would ensure that a licence agreement for third parties using WebM/VP8 would be put in place that would let them make use of the protection within the agreement. After the publication of a draft of the cross-licence agreement, Simon Phipps, open source advocate, has voiced doubts about the agreement saying it “closes the door on software freedom”.”
“The problems with such licences are that they make it hard to include support in FOSS applications and they have an international impact, even where software patents are not legal.”The problems with such licences are that they make it hard to include support in FOSS applications and they have an international impact, even where software patents are not legal. But as this tweet reminds us, work on globalising the policy may be underway. “Will the unitary patent give NPEs more leverage and should patent owners opt out? Panelists from HGF and ZTE discuss at #mipbeijing,” says a pro-patents account. Remember that MPEG-LA is NPE acting as a proxy for companies like Microsoft, Apple, and Nokia. We’ll write about software patents in the next few posts. █
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Unleashing the attack dogs on free Internet communication
Summary: Patent news involving communications tools which either promote surveillance (Microsoft) or impede surveillance (FOSS and standards); more Microsoft involvement in patent law is seen
Skype is said to be a patent violation (inevitably, all software is a patent violation in a country where software patents are abundant) and a Microsoft friendly site adds that “CopyTele CEO Robert Berman, whose company filed two claims last week against Microsoft’s Skype service, says his case is nuanced.”
Hopefully he can destroy Skype, but the government would never allow that. Skype has been incredibly valuable not just for domestic surveillance but foreign surveillance too. The US records everything and stores it in datacentres with colossal machines that boast high disk capacity. On a per-person basis, this is rather cheap. See our Skype overview page for more information. It’s not the main topic of this particular post, which is really about patent abuses.
Skype’s rival which supports real privacy is SIP-based VOIP, but Microsoft’s partner BT is attacking it with software patents. There is a Slashdot discussion about it and we covered it the other day.
The OSI’s president, who is British, says that “BT mounts awesome visual aid of why standards should be patent free by law” and the FFII’s president writes:
After 20 years we still do not have a free video codec for the web, blame Microsoft, Nokia and other patent trolls.
He adds at a similar time that “BT claim patents on VoIP SIP, a disaster, covered by a minefield of 99 patents. Time to quick swpats out of EU” (swpats as in software patents).
He ridicules the recent “World IP Day” by calling it “World Imaginary Property” and adding that “Microsoft heavily depends on plant variety rights. Monsanto needs software patents”.
He also thinks that the “EFF does not push for abolition of software patents in the US,” calling “for an FFII.us branch” (the EFF has indeed disappointed in that regard).
The USPTO cannot be chastised by US entities as effectively as European entities doing the same thing. Additionally, the EFF is dominated by lawyers (part of the problem), whereas the FFII is dominated by software professionals. The EFF is working against trolls but not against software patents like it once said it would. Google too is adopting this method. The danger is that the USPTO will be expanding towards a global patent system (a subject we covered here many times before), inspired by the US, as usual. The first step is almost complete:
After decades of proposals and debate, a new European-wide single patent, known as the Unitary Patent may well be a reality by the end of 2014.
From the “World IP Day” (notice globalisation nuance) we have this tidbit:
Luke Johnson – too many patents now issued and undermine the value of IP protection (those ‘patent trolls’)
We said this many times before. Anyway, this “IP Day” is just more propaganda opportunism. It’s for lobbying. Microsoft is lobbying too, eternally striving to prevent the patent system from being truly fixed while its lawyers are committing RICA Act violations (racketeering). Here is the latest propaganda from Brad Smith (top Microsoft lawyer), with a British lawyer giving a shoutout:
Brad Smith laments the absence of a well functioning secondary market for patents — and patent lawyers who love their patents
Not so long ago Microsoft brought extortion to China (starting with a producing giant, Foxconn [1, 2]), calling it “licensing” to deceive regulators. This is crime disguised as “honouring the [patent] law.”
There will soon be a panel event involving a prominent opponent of software patent, Judge Posner. To quote this introduction: “A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.”
This panel does not look like it’s completely rigged, unlike the ridiculous "roundtable" (where all sides of the table held the same position/premise). █
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Microsoft’s sting is deceivingly called “Microsoft Open Technologies”
Summary: Microsoft continues to blackmail, damage, demonise etc. — thus isolating FOSS (Free Open Source Software) projects and marginalising the development community/ies — while claiming to have embraced “openness”
The OSI’s president would not characterise Microsoft as Satan, he is just realistic about the company’s real intent. His predecessor was the same as the OSI was barely ever infiltrated by Microsoft moles, thankfully enough (I can think only of two exceptions, Denise and Matt). The OSI is about to get a new board and hopefully enough Microsoft’s entryism attempts will be kept at bay (OSI was infiltrated by Microsoft only in the licence sense). Microsoft successfully infiltrated other FOSS authorities which it rendered defunct upon joining. Yes, we have examples, but these are not worth revisiting right now.
Currently, Microsoft tries a man in the middle approach and Phipps knows what Microsoft is really up to. He writes:
Microsoft Open Technologies is plenty busy. But Microsoft still hasn’t explained why a separate entity was needed
Phipps is more blunt in his blog. He calls this scam “Microsoft Firewall” and says:
On its first anniversary, I remain convinced that the motivation for Microsoft’s wholly-owned open source & open standards subsidiary is primarily to isolate Microsoft from the open source community.
Well, what Microsoft calls “openness” is actually extortion, blackmail and sabotage; taxing GNU/Linux and controlling it. This is all just a branding and marketing exercise for Microsoft. Fernando Cassia shows that the Microsoft-funded SUSE, as expected, is sidling yet closer to Microsoft right now, handing yet more control over GNU/Linux to the sociopath:
Since we shared the stage at OSBC last year, our joint efforts have also delivered the SUSE Manager Management Pack for System Center, which facilitates Linux server patching through Microsoft’s management tools, as well as support for SUSE Linux Enterprise Servers and openSUSE images on Windows Azure Virtual Machines.
Obsidian makes a mistake too.
Microsoft is not being nice to Linux. Putting aside extortion with patents, which is a RICO Act violation, there is technical sabotage. With Vista 8 it is suppressing Linux boots (through UEFI restricted boot) and it has real impact on Free software adoption. As Mr. Varghese puts it, there are untold complications:
Linux does not have this capability. Those Linux distributions that have developed a means of booting on secure boot-enabled systems need to disable hibernation in the kernel. Or they can do as Canonical, the maker of Ubuntu, has done and remove the hibernation option from the user interface.
Thanks to SUSE folks who helped take restricted boot mainstream (kernel-embedded), we are all bound to suffer for years to come. Hardware is being made Linux-hostile with the flawed assumption that Linux will cope.
‘Open’ is how Microsoft paints itself whilst doing the very opposite; the company tries to immune itself from criticism using newspeak. █
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Summary: The British government says no to “FRAND”-washed software patents traps, at least in the public sector
It is with great pleasure that we read this news about standards winning in the UK. Real standards:
Whitehall has launched its long-awaited response to the open standards consultation, which will force government bodies to comply with its list of “Open Standards Principles” when purchasing technology.
Departments must use the principles for all software interoperability and data and document formats. If they do not use the principles they will have to apply for an exemption, according to a Cabinet Office statement. As of today the principles will be embedded in the Cabinet Office’s spend control process.
Over at IDG, never mind London-based sites, Simon Phipps, the OSI’s President (from the UK), celebrates on the news:
Government procurements now prefer open standards – and that means no patent restrictions in the standards.
Here is something about getting it right:
A little over five years ago I was speaking at a conference for the CIOs of various Canadian ministries. Speaking just before me was a consultant from Accenture who was presenting on their most recent Global Report on Government Service Delivery. In it, Canada had just slipped from first to second in the world, after Singapore. While slightly disappointed, the audience remained content that among 30 or so leading countries in the world, Canada remained second.
The FSFE’s response was noted by some:
The new policy does not cover open-source software, which is part of a different policy document.
“This is a major step forward,” said the Free Software Foundation Europe (FSFE) of the Open Standards Principles.
Here is the original statement in full, courtesy of Karsten:
Today, the UK took a long-awaited, important step towards fixing this problem. (FSFE press release) It published a set of “Open Standards principles” (pdf). They’re effective immediately, and all central government bodies will have to abide by them. It also put out a response to the public Open Standards consultation that it had run up to June 2012. (See FSFE’s response to the consultation.) In this post, I’m covering only the Open Standards principles.
This news is important for British SMBs which capitalise on standards, unlike giant multinationals. █
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