Summary: Challenging the old misconception that patents are beneficial to anything but few multinationals and their patent lawyers

PATENT monopolies form the basis of business of some ruthless multinationals — companies with so many patents that nobody is able to enter their field without fear of litigation. Patents are a form of territory-marking and they are an obstacle or a barrier to the number of people working in a particular field. Surely this cannot result in more innovation. I understand this as a researcher and programmer in the field of computer vision, where people habitually get US patents on matrix operations. That’s mathematics.

According to this news article, an award goes to a company that helps groom the portfolio of patent monopolisers:

On Friday afternoon, Indianapolis Mayor Greg Ballard announced the winner of a Super Bowl XLVI contest for Indianapolis-area startups presented jointly by Develop Indy and Startup America Partnership. The competition sought to recognize a high-potential startup in the Indianapolis area while raising awareness of Indianapolis as a great place to launch a business.

The winner was Indianapolis-based legal technology startup PatentStatus, a cloud-based software-as-a-service that enables organizations with large patent portfolios to implement a virtual patent marking strategy on their corporate web sites.

Now, let’s think about it for a second. Here we have proprietary and remote software which targets what is essentially a company with many monopolies. By helping such entities mark their territory, so to speak, this Indianapolis-based company essentially does more to scare potential competition. In essence, this depresses innovation and provides yet more examples of how patents stifle progress. In some places, in order to stride forward, employees are actively encouraged not to look at patents — as means of avoiding wilful infringement.

According to a reader of ours, there is the White House response which says “overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community..”

“Like so many others,” notes the reader, “it intentionally or accidentally mistakes the problem as being one for developers, when the issue of patents is really about users. It’s 2012 and it’s tiring to see that canard still being used.”

Here is the Glyn Moody piece that he cites. Moody concludes with the following words:

What’s interesting here is that open source was nowhere mentioned in the original petition. So it shows a commendable savviness on the part of the person who actually wrote the reply – Quentin Palfrey, Senior Advisor to CTO for Jobs and Competitiveness at the White House Office of Science & Technology Policy – that much of the concern about software patents is the deletorious effect they have on free software.

So even if the e-petition failed to get President Obama to agree to abolish software patents (admittedly a bit of a long shot), it did have the beneficial effect of eliciting this strong vote in favour of open source from a very high-profile site.

When will US policy-makers realise that patents — and software patents in particular — are a sham that benefit nobody but a tiny proportion (maybe under 0.001%) of the population? There are high costs associated with externalities. █

Summary: Another look at the OpenStack situation, why Microsoft should not be allowed to enter, and more about patent and copyright complications

SOME days ago we wrote about OpenStack's situation when it comes to Microsoft. Later we showed what Microsoft boosters were doing to spin it as good news. Well, according to this new article:

OpenStack is supposed to be a vendor agnostic open community for building an open source cloud stack. And it is, unless you don’t pull your own weight- or if you’re Microsoft.

I know there is plenty of vitriol in the open source world towards Microsoft and certainly some of that has now surfaced in the OpenStack community.

OpenStack is now removing the Hyper-V capabilities from its stack, after Microsoft didn’t maintain the code. That happens in projects all the time, just think about the Linux kernel where Microsoft has had similar challenges and hey for that matter so has Google.

The hostility towards Microsoft has a lot to do with this monopolist’s continued attacks on Open Source projects. We need not whitewash Microsoft here or claim the above to be an irrational move of irrational hatred. Never mind the fact that Hyper-V is proprietary and not open. Microsoft continues to attack Linux with all sorts of proxies like SCO as well as patent trolls. There are those who wish to just abolish it all, especially patents. Realising the idiocy of many patents, there are some who speak about the harms of patents as a whole, not just software patents. To quote:

“Is this Patent full of crap?”

[...]

The ideas are those of patent lawyer Andrew Schulman, but the story is full of insight on a patent lawyer’s thinking and offers real clues into why the patent system is such a mess–complexity compounded, full of precedents that ordinary humans will find puzzling at best.

Earlier we wrote about many patents becoming just junk. Even Oracle seems to be moving further away from patents and is now trying to use copyrights against Android. Quoting Groklaw:

Today is the due date for Dr. Cockburn’s third attempt at a damages report on behalf of Oracle, and just to make sure Oracle knows what needs to be submitted, Judge Alsup has issue a reminder order. (709 [PDF; Text]) The judge wants to see not only the report but also all of the related reports and studies that support it.

Let’s remember that Microsoft has put code with its copyrights inside Linux and the same goes for Mono. They try to make those things more adaptable to Microsoft’s proprietary software. In the case of Mono, there is lawsuit risk too. Anything with Microsoft in it tends to be tainted. Just see what happened with FAT. █

Summary: Apple products get banned (for the time being) after Apple decided to attack Linux-supporting competitors and then received some blowback

APPLE’S opening of a jar of worms has led to reactionary lawsuits that sometimes trouble Apple and discourage the original strategists (those in favour of suing Android). Some of Apple’s legal leadership has already left or was fired. We covered this at one time.

According to the corporate press and the Irish Times, Apple has its day in court and the outcome is not as Apple originally planned:

Motorola Mobility has won a second German patent ruling against Apple over its iCloud service allowing the company to block sales of devices including iPhone and iPad if they use the software that accesses it.

Apple started this whole war and there is an attempt at deterrence from the defendants. Citing a Microsoft lobbyist, ZDNet tells the distorted version of the story, where Google and Motorola are somehow the “aggressors”. To quote:

Apple was forced to remove several iOS devices from sale on its German online store on Thursday as a result of its patent battles with Motorola.

The iPhone 3GS, iPhone 4 and 3G iPads are currently not available from the company’s web store in Germany following a ruling in favour of Motorola relating to FRAND-pledged patents declared essential to 3G standards.

With more rumours based on Apple patents (like this one) we expect Apple to carry on with its patent strategy, living and dying by the sword (the man behind this strategy is already dead). Apple does not even get sympathy from people who claim to like Apple products:

I like Apple products. God knows I own and use enough of them. But, I hate their out-sourcing business practices and their world-wide anti-Android lawsuits. So, when I learned this morning that Motorola Mobility had won a permanent injunction against Apple’s iCloud service in Germany because of a patent violation and Motorola had followed that up with another patent victory, which has forced Apple to take all its older phones, 3G and 4 and all iPads off its German online store (German language link), I was pleased.

Apple has made enemies it did not need to make. █

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: GMO, a robbery of the right of reproduction (and a potential health hazard), is promoted by Bill Gates for profit, whereupon critics strike back

TECHRIGHTS covers patents and it also covers Microsoft, so the area of globalist/monopoliser Gates Foundation promoting GMO is very relevant to us. This post will not repeat arguments we made before, either about Gates’ promotion of GMO monopolies or the dangers of GMO (see the wiki page for an index of previous posts on that). Instead, it will draw some attention to more controversial sites which notice how Bill Gates is bribing the press while Natural News cites it and writes:

Aaron Dykes of Prison Planet recently gave an insightful TV news presentation analyzing The Bill and Melinda Gates Foundation’s influence over the media to promote their “world health and agriculture” agendas while soft pedaling the downside of all they’re doing.

Such items as “Gates using his money to save lives … etc” have been appearing in several news outlets, including ABC news (2). Meanwhile, items that question Gates’ “philanthropic” endeavors are muffled or marginalized. Those endeavors deal with vaccinations, sterilization, and GMOs. These are depopulation favorites.

The Gates Foundation donated $1.5 million to ABC’s News Project “Be the change; Save a Life,” extolling the virtues of ensuring Africans don’t starve. The NY Times mentioned Gates as the principal private funding source and adviser for world food policy and agricultural development.

In a less controversial site we find this toned-down interview which explains what Gates ignores (they pretend he doesn’t know that, politely enough):

The Flip-Side: What Bill Gates Doesn’t Know About GMOs

[...]

TakePart: In the introduction to his letter, Bill Gates cites the Green Revolution of the 1960s and ’70s, saying scientists created new seed varieties for rice, wheat, and maize, and that this resulted in increased crop yield and a decrease in extreme poverty around the world. Do you agree that this is a model to use moving forward?

Heather Pilatic: The Green Revolution is a story that some people like to tell, but it has little basis in historical fact. Take the Green Revolution’s origins in 1940s Mexico, for instance. It was not really about feeding the world; Mexico was a food exporter at the time. Rather, the aims included stabilizing restive rural populations in our neighbor to the south, and making friends with a government that at the time was selling supplies to the World War II Axis powers and confiscating oil fields held by Standard Oil (a funding source for the Rockefeller Foundation, one of the key architects of the Green Revolution).

We can also learn from India, the Green Revolution’s next stop after Mexico. India embraced the Green Revolution model of chemical-intensive agriculture. Now it is the world’s second biggest rice grower with surplus grain in government warehouses. Yet India has more starving people than sub-Saharan Africa — at more than 200 million, that’s nearly a quarter of its population. History shows that a narrow focus on increasing crop yield through chemical-seed packages reduces neither hunger nor poverty.

So no, we do not agree that the Green Revolution offers a promising model for addressing poverty.

This is not about addressing poverty; it’s about exploiting the poor for yet more profit while hijacking the voice of the poor. The whole thing is evil propaganda for people who run society. █

Summary: A few updates of greater importance where the Linux situation is discussed in the context of Android and Novell

THE patent assault on Android is one that we cover here several times per week because Android is perhaps the best example of Linux in the mainstream (criticisms aside) and it helps show the lengths to which Microsoft and Apple would go to derail Linux, even with software patents as we predicted for more than half a decade.

Professor Webbink from Groklaw is perhaps the best source of news about the Oracle vs. Google case, which he claims to be moving along as follows:

Just because the Oracle v. Google case has not been set for trial (and won’t be until at least the time at which Oracle provides its third attempt at a damages report) does not mean the court can’t move the case along, and that is what Judge Alsup has done with his latest order. In an attempt to narrow the issues to be argued at trial, Judge Alsup’s latest order (708 [PDF; Text]) focuses on the copyright issues and directs the parties to provide opening briefs in which they identify each remaining claim of copyright liability and the affirmative defenses to each such claim. In addition, the parties are to identify those issues that should be resolved by the court and those underlying facts that first need to be decided by the jury.

Groklaw continues to face a barrage of FUD from Microsoft boosters who continue to spin/modify the news (in this case about OpenStack wanting to toss Microsoft out) and Microsoft lobbyists who are distorting the story about the ITC and then seeding disinformation in the corporate press along with pro-Microsoft blogs. Pamela Jones from Groklaw debunks the nonsense and explains:

I’m seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there’s quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I’ll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn’t final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn’t like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble’s motion to ask Finland and Canada to provide them, and that’s still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft’s statement today that this means the defense is meritless is… well… to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?

The case is important because it’s about Microsoft’s patent abuses against Android, as well as some of the patent trolls Microsoft is using. Last year we wrote a great deal about Novell’s patents, which went to CPTN, i.e. to Microsoft, Apple, Oracle, and EMC (3 of these are Android foes). Here is a new article about the Department of Justice. Part of it says:

Another example of international cooperation was the Antitrust Division’s close cooperation “with the German Federal Cartel Office on the acquisition of certain patents and patent applications from Novell Inc. by CPTN Holdings (a holding company owned by Microsoft Inc., Oracle Corp., Apple Inc. and EMC Corp.). This was the first merger enforcement cooperation the Division had had with Germany in 20 years.”

Novell became just a pile of patents, which gave Microsoft ammunition with which to threaten UNIX/Linux. The authorities needed to step in after the OSI and FSF had filed a formal complaint. Here is the story of another company which rapidly becomes just a pile of patents. It says: “Remember, back in August, shortly after Google’s purchase of Motorola, Kodak looked like the next company in line for an IP-driven payday. Analysts looking at the high valuations of the Novell, Nortel and Motorola portfolios estimated Kodak had $3 billion in IP assets alone: with a market capitalization of just $700 million, it seemed like easy money. Kodak’s stock rose accordingly in anticipation of a white knight around the corner.”

This is of course not innovation. It’s a case of virtual “goods” being used to make lawyers richer and interfere with fair competition.

Novell, by the way, has just been assigned another patent, according to this roundup from January 22^nd. Any new patents in Novell’s hands might eventually be passed to Linux foes, not the OIN. █

Summary: Response to reputation laundering from Wired Magazine, the latest nonsense from Microsoft’s lobbyist Florian Müller, an update on Microsoft’s trolling against Android, and a little more of Apple’s

WE are quite cynical about the corporate press. It has become abundantly clear that journalism is dying and instead it gets accommodated/replaced by the PR industry, working at the behest of rich people with an agenda and a nickel for any press still willing to bend over (independent press is likely to perish in the process). Like a husband who tells the policeman or the judge that he deeply loves the woman whom he beats up daily, Bill Gates/Gates Foundation would love for us to believe that he is a master of Open Source. Yes, and Cade Metz trying to portray these racketeers as friends of Open Source (whitewashing Gates at the same time). Why would anyone with integrity do reputation laundering for a criminal and his company that commits acts of extortion? Even Gutierrez gets characterised positively:

But that afternoon was different. At the invitation of the company’s chief legal minds — Smith and Gutierrez — Ramji sat down with Gates, chief software architect Ray Ozzie, and a few others to discuss whether Microsoft could actually start using open source software. Ramji and Ozzie were on one side of the argument, insisting that Microsoft embrace open source, and Gutierrez offered a legal framework that could make that possible. But other top executives strongly challenged the idea.

Then Bill Gates stood up.

No, Bill Gates has been attacking Open Source for a very long time. Remember that Letter to Hobbyists? And all those court exhibits we showed? We oughn’t allow history to be rewritten like this. Over at Free Software Daily, the modified headline of this article states “Meet Mobster Bill Gates, the Man Who Charges Open Source Software even if is free Android Linux” (the original is troll article that attracted many comments, for being more inflammatory than sane).

Microsoft is currently feeding patent trolls in order to attack Linux. Microsoft does not have enough ammunition to attack Linux, so it uses help from the outside.

Pamela Jones, over at Groklaw, writes more about the case that seeks to expose MOSAID, a patent troll that Microsoft is feeding. To quote part of the analysis:

B&N and Microsoft have come to an agreement about Steve Ballmer’s participation in the Microsoft v. Barnes & Noble action at the ITC. They were arguing about it, and they’ve now agreed that Ballmer will not have to testify live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft’s lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties’ next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue.

[...]

Microsoft is also opposing Barnes & Noble’s request that the record be held open to include Nokia and MOSAID’s evidence, if Barnes & Noble is finally able to get it. And they parties continue to try to whittle into shape what each may use as evidence.

Lots of sealed filings, once again. But don’t worry. By hook or by crook, we usually find out in due time what the filings were about.

I had a chance to talk to Andy Updegrove, of Standards Blog, who as you probably know is a lawyer who does patent work in the standards area. I wanted to pick his brain, because the 2000 patents Nokia sold to MOSAID relate to standards, according to their statements. Just how many patents could possibly be required for a phone to be built? Surely not 1,200 out of the 2,000, I was thinking. Yet, that is the claim.

[...]

He suggested that we read some Department of Justice ‘business review letters’ on patent pools, because a patent pool is an example of multiple patent owners getting together to agree on a price for technology required to implement a standard. That’s not exactly what Microsoft, Nokia and MOSAID say they are doing, but we’re getting warm. You get to read in the letters the way the pool participants set the pool up, what safeguards they took (in the request letter), and the way the DoJ analyzed the request and either approved, qualified, or rejected the request. The controls traditionally include hiring a third party expert to review each supposedly essential claim and determine whether it’s valid, whether it’s essential, and what it’s worth relative to the other essential claims. So he thought we might find it interesting to look at what a legal pool looks like, and then we can contrast that to the actual conduct that is being alleged here.

This case has not been decided yet, but it does help shed a lot of light on Microsoft’s racketeering.

The known Microsoft boosters and even lobbyists (whom they cite) try to make us believe that it’s all over and Microsoft is innocent. Some people fall for it. They also push this tripe into Slashdot with all the bias and misdirection. As Homer put it in USENET, we should just ignore the Microsoft lobbyist. To quote: “Note this is only the conclusion drawn by Microsoft’s pet shill, Florian Müller (who’s now openly on Microsoft’s payroll), and he drew this stunning conclusion from just the /title/ of a docket he doesn’t even have access to, because it’s still under seal.

“It’s also, as the title suggests, just an “Initial Determination”, and may yet be disputed by the DOJ – a fact Müller chose to ignore. He also chose to ignore several of B&N’s valid complaints that might yet cause
the DOJ to overturn this conclusion, even if it turns out to be true and “final”, such as Microsoft deliberately withholding prior art in its various patent applications, and using NDAs to cover up extortion, under
the pretext of “secrets” that are in fact a matter of public record (as all patents are required to be by law). But instead he portrayed B&N’s complaint as futile, because:

“For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn’t require a patent holder to grant a license on any terms.”

“Then he completely ignores all the other key points (above). This seems to be the entire basis for his pessimism (or I should say “optimism”, since it’s clear whose side he’s on).”

Microsoft is feeding lobbyists and trolls and it’s easy to see this. Apple is said to have been sued by trolls again, but since Apple itself acts like a patent troll we have no sympathy for it. To quote:

A patent troll is going after Apple for patent infringement of an “electronic alignment system”.

Apple’s spiritual leader’s friend, Larry Ellison, is still attacking Android with patents that he got from Sun. Google gets another opportunity.

Mr. Pogson summarises: “Google argues that Oracle’s experts are not expert as they had no intimate knowledge during deposition.”

Basically, it seems like Oracle’s patent case against Android will be coming to an end. Maybe a copyright allegation alone will be left, so think along the lines of SCO.

OIN is meanwhile growing strong:

OIN today announced a remarkable increase in the size of its community of licensees during 2011 as licensees seized the opportunity to benefit from the value of the growing OIN community and the freedom of action enabled by OIN’s royalty free licensing program. During 2011, OIN’s community grew to over 400 corporate licensees, a more than 60% year over year increase. OIN licensees, which include founding members and associate members, benefit from the leverage provided by a patent portfolio dedicated to the protection of Linux and access to enabling technologies through OIN and shared intellectual property resources.

What’s baffling is that Oracle is in the OIN. It never ought to have attacked in the first place, but maybe it was a favour to the thermonuclear CEO, Larry Ellison’s “best friend” (by his own words). It is not a far fetched hypothesis. █

Summary: How the patent system, controlled for the most part by lawyers, raises a generation of leeches rather than a generation of engineers

WE VERY often emphasise the fact that the patent systems’ main cheerleaders are patent lawyers. Well, Tim has just published a thought-provoking article that starts with a very suitably rhetorical question: “Does Innovation Revolve Around Patent Lawyers?” Here are some bits from his analysis:

A patent attorney named Daren Gibby was kind enough to send me a copy of his new book Why Has America Stopped Inventing? As you’d expect from a book written by a patent attorney, it’s a pretty strongly pro-patent book. I didn’t expect to agree with the book’s arguments, but I thought it would be a good opportunity to engage with the “other side” of the patent debate.

The bulk of the book is a meandering narrative about America’s great inventors—Eli Whitney, Samuel Morse, Charles Goodyear, and many others—and their struggles to enforce their patents against infringers. Whitney, for example, almost completely failed to prevent infringement of his cotton gin patent, and as a consequence made very little money from his invention.

After a few chapters, I began to wonder what the point of all these anecdotes was. After all, the book bills itself as an explanation for America’s alleged decline in innovation. But it wasn’t clear what these blow-by-blow descriptions of the patent enforcement efforts of great 19th century inventors had to do with the modern patent system. Indeed, aside from some hand-waving about the lack of cancer cures and flying cars in chapter 1, the book never makes a serious effort to substantiate the claim that the pace of American innovation has slowed down.

Watch how products are being taxed behind closed doors. The externality is all of us who are not part of this private deal.

“Here’s a post explaining that proprietary codecs drive up the costs,” wrote to us a reader today. It’s a tax on ideas and here is one way to tackle it along with Phoronix‘s analysis.

The first three adhere to the standard Linux library API’s, so should be a straight forward swap in for applications that use them. OpenMAX IL does not have a standard API at this stage, so is a custom implementation. All these libraries are as supplied by Broadcom, the SoC (System On Chip) provider.

In another new post from Mike Masnick he explains how 3D printing is being held back by patents. Innovation anyone?

We’ve seen this before, but here it’s a modern example: work simply wasn’t done on many of these efforts in part because there was no competition. And, in fact, there are still a few patents that really do hinder things, and this is a problem. Considering just how much good these 3D printers can do — especially as they provide more power, do multi-color, and a variety of other features, it kind of makes you wonder just how much we’ve lost by having tons of researchers just sitting on their printer projects out of a fear of getting sued.

Separately, according to some “legal” blog, US judges (“legal” folks) permit software patents. To quote:

Ever since the U.S. Supreme Court spoke on patentable subject matter in Bilski v. Kappos, 130 S. Ct. 3218 (2010), Federal Circuit panels have taken a variety of approaches to the subject. The latest approach is seen in Dealertrack, Inc. v. Huber, No. 09-1566 (Fed. Cir. Jan. 20, 2012). It brings back the notion of preemption as a test for patentable subject matter (also known as patent eligibility). The notion of preemption was briefly touched on in the original In re Bilski opinion, 545 F.3d 943 (Fed. Cir. 2008) (en banc).

This is a European blog. The lawyers in Europe wants software patents simply because it means more business to them, at the expense of buyers of products and engineers themselves. The Bilski case , like all cases, was decided on by lawyers, not scientists, so it is not surprising that they expand their own territory at the expense of producing industries.

In this week’s news we discover that Wipro seeks US monopolies on software, possibly because in India it is hard.

Facebook too is mentioned in this context:

As it prepares for one of the biggest IPOs ever, Facebook is coming under the same fierce attacks being waged against other big technology companies: patent lawsuits.

Facebook itself is also launching patent attacks. Going back to Wipro (a close Microsoft partner like Facebook, but from india), its new patents are leaving room for doubt. Another Microsoft partner, Quest the villain,
gets a patent and brags about it. To quote: “Quest vWorkspace 7.5 delivers low cost desktop virtualisation via patent-pending scalability enhancements, direct Hyper-V integration, fast provisioning, and advanced desktop virtualisation load balancing and provides direct support for Microsoft Hyper-V, including FREE Microsoft Hyper-V Server.”

Here is another update from the patents arena:

Fiserv this month filed a lawsuit in federal court against rival IBM i banking software provider Fidelity National Information Services (FIS) and its Metavante subsidiary over alleged violation of its patents relating to online payments. The alleged violations involve patents held by Fiserv’s subsidiaries, CheckFree and CashEdge, that describe online financial activities, such as conducting account-to-account transfers, creating electronic transaction “pick lists,” and making payments on behalf of others.

And another new one:

Not that it was simple to create. The research began more than a year and a half before USF applied for the patent in 2006. It arose from a project on people’s transportation behavior.

Even search algorithms are being patented:

Melbourne-based researchers are looking to commercialise a search algorithm that analyses networks to identify the most easily exploitable vulnerability chains.

One last example shows us that software patents are out of control in the US and as long as lawyers run the system (politicians and judges) we are unlikely to see much change, only change for the worse. Here is what seems like business methods. Bilski didn’t help much, did it? It’s business as usual. █

Summary: OpenStack does not tolerate the proprietary Hyper-V anymore

LAST year we wrote about OpenStack putting proprietary inside open (with help from Novell). According to a Microsoft booster’s update on this, Microsoft might be taken out of the stack as one of the men responsible for it leaves SUSE (more on that in an earlier post). To quote:

Code for Microsoft’s Hyper-V should be removed from the up-coming Essex release of OpenStack because it’s essentially been forgotten about, according to OpenStack release manager Thierry Carrez.

Microsoft does not belong in “Open” anything. Microsoft engages in extortion against Open Source. We’ll show the latest examples of this later. █

Summary: The cost of Nokia’s virtual handover to Microsoft and the failure to do anything except feed Android enemies

WHEN ELOP left Microsoft we predicted that he would be trouble and when he signed a deal with Microsoft we said it would be about patents. We were right. It was the same with Novell, which had its patents end up in Microsoft’s belt. Here are the posts we wrote about CPTN before Nokia signed a deal with Microsoft:

• CPTN Shows Microsoft Becoming a Patent Agitator Like Kodak, Whose Time is Long Gone
• Microsoft-run Patent Cartel Retreats Following Formal Complaint, But Why? (Updated)
• Microsoft Patent Cartel (CPTN) Dodges German Federal Cartel Office
• Benjamin Orndorff From Microsoft/Gates and Ellis Represents the CTPN Patents Cartel
• OIN is Very Different From CPTN and UNIX Risk is Revisited
• In Defence of OIN and Android
• SCO, CPTN, and UNIX
• From UNIX Battles to .NET Battles
• Free Software Foundation’s Statement on Microsoft/Novell/CPTN Patent Attack Against Software Freedom
• A Paralegal’s Take on Microsoft’s Latest Anti-Google (and Anti-FOSS) Moves

According to this one report among many, Nokia is doomed (more layoffs of course) because Windows doesn’t sell:

When Microsoft launched Windows Phone a year ago, Microsoft proudly told the world that they shipped 2 million Windows Phone smartphones by HTC, Samsung and others. They soon were spooked, however, when the sales dwindled and dried up and stopped giving the sales breakdown. By the Spring, Microsoft insisted all Windows Mobile smartphones be counted together with Windows Phone – even as these two platforms are incompatible. And still the sales of ‘the third ecosystem’ kept falling, down to about 500,000 units by Q3. And early numbers from Q4 from Microsoft’s best market, the USA, reveal that even more than a year after its launch, Windows Phone sales are still severely lagging its older and obsolete cousin, achieving only 1.4% or about 520,000 units. Windows Mobile meanwhile refuses to die, and in the USA achieved 2.4% market share of new sales according to Nielsen or about 890,000 unit sales.

Thus if you remember seeing a ‘Microsoft’ market share in smartphones somewhere near 2% for Q3, that includes the better-selling Windows Mobile, and the newer and supposedly better so-called ‘third ecosystem; Windows Phone has far less than 1% market share globally.

We now need to keep track of where Nokia’s patents are going. Nokia has a big mountain of patents and it is feeding trolls with Microsoft’s guidance (MOSAID for example, but we will write about it separately). In order to sign the deal with Nokia Microsoft reportedly paid just a quarter of a billion dollars, which is ridiculous. It’s nothing like the rumoured billions. Nokia’s filings reveal that Elop merely passes the keys of Nokia to Steve Ballmer and the company that Elop himself was still a top shareholder of. He should have been sued, maybe even jailed, but the law doesn’t work this way; it sympathises with white-collar crime like collusion, bribes, and obstruction of justice. But that just leads to a different sort of debates that would suit another type of Web site. █

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: Another quick look at the patent play against Android/Linux and who is behind it

Regarding a story that was mentioned here before (because Microsoft lobbyists were trying to spin it ) Muktware states that it should really be blamed on Apple’s own aggression, not on Google or Android:

Apple has created a hostile environment in the mobile world by dragging almost every Android player to the court. We are noticing that Apple has started to lose legal battles in the courts, which is a good sign for the growth of the industry. Apple has used every kind of patents they can, even the rectangular design of a tablet, to exhaust their competitors and monopolize the market. Now, the tables have turned, Motorola, the inventor of cell phones has sued Apple, seeking an injunction against the iPhone4S and the iCloud.

This is a deterrent against Apple’s attacks. Nokia, having signed a deal with Apple and Microsoft, proceeds to feeding patent trolls as we covered last week:

Nokia sells more than 450 patents to patent troll

Following a long history at the forefront of the wireless industry, Nokia holds more than 30,000 patent licenses and applications. On Thursday, the Finnish vendor’s portfolio was confirmed to be slightly lighter as patent troll Sisvel International announced that it had acquired more than 450 Nokia patents.

It would not be shocking if Sisvel went after Android vendors, along with MOSAID (also fed by Microsoft/Nokia). Nokia is controlled by Microsoft and Apple signed an agreement with Nokia last year. Nokia itself, led by a mole from Microsoft, keeps imploding based on this news:

Nokia’s Windows Phones not selling

Nokia Oyj reported a 73 per cent fall in fourth-quarter earnings as sales of its new Windows Phones failed to dent the dominance of Apple Inc.’s iPhone or compensate for diving sales of its own old smartphones.

Apple itself cannot quite get its way causing an embargo against Android; there are new software patents coming from Apple, but patent proxies (perhaps Oracle too) are likely to come. Here is a new article that speaks of a new Apple patent: “This SDK would act as a sort-of “interpreter” of language between a mobile device and another gadget. It would make it possible for accessory makers to build apps for the iPhone or iPad that could communicate directly with their devices. For example, it would be like using your phone to control a desktop radio.”

A Microsoft lobbyist, Florian Müller, is working to weaken (at least in the press) the case for Android by feeding Android-hostile claims (fuelled by Apple), but fortunately enough not many journalist pay attention to him anymore (all the stories, including this latest one are consistently anti-Android). Perhaps they finally realised who was paying his wage. He is still a lobbyist for hire. █

THE patent culture is growing unpopular among the public, but those who make money from this wasteful culture continue to promote it.

According to this new bit, algorithms that can reduce energy usage get patented now:

Its patent-pending modlet® (for “modern outlet”) features intelligent engineering and algorithms to provide a simple, low-cost and easy-to-use solution for saving money and energy on electronic appliances.

Here is another patent on software that we found in a press release:

TRA Inc., a leading media marketing and analytics software company and Experian Automotive, a leader in providing information services and market intelligence to the automotive industry, today announced the launch of TRA’s “Media TRAnalytics(R) TV Auto Ratings”, a patented software solution enabling advertisers to accurately target the networks and programs that best reach desired consumers by automatically matching automotive registration data with television tuning data at the household level.

Why should such abstract ideas be granted a monopoly on them? Over in the Thai press, patents on business methods are now being discussed:

Patents: With recent developments in the US and the UK on business method patents, protection could possibly be extended to a range of financial services in many jurisdictions such as the US, Canada, Europe, Japan, Australia and China, to name a few. These include hardware, software, data manipulation and output processes for credit risk and credit management, fraud prevention, identity and personal data security technologies, and of course mobile and online banking. Financial transactions are increasingly electronic and global in nature, so industry players are looking to those jurisdictions where patents might be available in order to exploit their inventions in those countries _ or to avoid countries where they might infringe or be subject to an injunction order.

For business methods, the argument against patentability is that the method itself does not produce any protectable product nor any process that results in such. It is therefore little more than a theory or an abstract idea, neither of which is actually patentable. Computer programs are also protectable under copyright law, and so if the program is nothing more than a source code, there is an argument against patentability. A recent US judgement popularly referred to as the Bilski case states that, while it is not the only test, to be patentable business methods should transform an article to a different state or thing and have a useful, tangible and concrete result.

The Bilski case did not help revolutionise (e.g. eliminate) the process of evaluating software patents although it aided the destruction of a few. █

Summary: Intel, which has been promoting software patents, buys some from RealNetworks

CHIPMAKING monopolist Intel, a corrupt company that lobbies for software patents [1, 2], is reportedly buying some software patents [1, 2] from a familiar company. The general observation is that Intel is unlikely to use those patents against Linux or Free software in general, so it’s better off in Intel’s hands than in the hands of some patent trolls or Linux foes like Apple and Microsoft. █

Summary: Android-hostile patent wars are fought well by Google and its partners, which have Microsoft-funded lobbyists try to portray them as aggressors (for reactive moves)

Google’s fight to keep Android free faces barriers from CPTN members (Novell’s patents) and their proxy trolls, amongst others. According to this latest update from Groklaw‘s Professor Webbink, Google is getting its way against Oracle:

The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.

With respect to the ’476 patent, the court found the term “computer-readable medium” to include transmission media as suggested by Google. Oracle had wanted to limit the definition to storage media. By seeking a broadened definition one presumes that Google is aiming to increase the likelihood that the claims will be found invalid. In finding in favor of Google the court pointed to the explicit definition of the term “computer-readable medium” as set forth in the patent’s specification, a definition Oracle wanted to ignore.

Oracle is said to be retreating from the patent angle because it is failing. It had been baffling that Oracle chose to sue Android/Google until we saw in a credible source what Larry Ellison's best friend planned to do. Steve Jobs vowed to even spend tens of billions of dollars just suing Android (if necessary) and so far Apple is said to have spent $0.1 billion or more:

The never-ending war on Android has cost Apple more than $100 million, according to latest estimates. While a huge chunk of that money was spent (read wasted) in claims against HTC.

Motorola, which Apple attacked, is fighting back against Apple (probably as means of deterrence) and Charles Arthur is still flirting with a Microsoft lobbyist over at Tweeter and beyond. The lobbyist (Microsoft-funded lobbyist Florian Müller) is using him to incite against Google and Android. No disclosures in those posts about Florian’s paymasters. The Guardian, now funded by Bill Gates, helps the lobbying efforts of Microsoft. How sad. Here is one better report on the subject:

Motorola Mobility, which is seeking regulatory approval to be bought by Google Inc, has filed a new lawsuit against Apple Inc accusing the iPhone maker of infringing its technology patents.

While Bloomberg keeps the usual corporate bias (still promoting intellectual monopolies in new ways) there are more reasonable sites like a Red Hat site, OpenSource.com, which has just published this new article about patent trolls. To quote part of the article:

When well-known, richly compensated patent lawyers switch from representing world-class tech companies to servicing “non-practicing entities,” something’s up. Could the sordidness of a business based on bringing patent lawsuits be outweighed by large amounts of cash? At least for some, apparently yes.

This week Ashby Jones wrote for the Wall Street Journal about two specific patent lawyers, John Desmarais and Matt Powers, as representative of a larger shift in the practice. Each of them was once an attorney for large companies, protecting those companies’ patent interests in court. Desmarais’ software-related clients included IBM and Verizon; Powers has represented Cisco, Oracle, Microsoft, and Apple. But today they have joined the ranks of “patent trolls,” the colloquial term for “non-practicing entities” (NPE), which exist only to pursue the monetary benefits of aggressive patent-infringement lawsuits.

Ideally, patents protect and motivate innovation as well as benefit future innovators. They can be an important business justification in fields where R&D is expensive, like pharmaceuticals. They put the details of an innovation into public view, inspiring improvements and making a record of its existence, both for historic record and the benefit of future inventors. Thus, companies once used patents to protect what they had put significant resources into creating. Likewise, patent lawyers would work for those companies to defend their patents. Now there are those who are interested only in the financial gain and not in protecting innovation–like Desmarais and Powers.

But this approach is contrary to the intent of the patent system. Worse is when, as the WSJ highlights, some companies sell their patents to an NPE to prevent them from being in the awkward position of suing customers or partners. This practice puts the patent’s advantages in the hands of a non-creator, who almost certainly does not hope to inspire, much less be responsible for, future innovation. Instead of benefiting innovators and the public, going on the patent offense benefits only the bank accounts of the trolls.

Recently, Red Hat was attacked by a patent troll that was passed 2,000 or so patents with help from Microsoft. Here at Techrights we’ll keep a close eye on that. We have also queried Red Hat’s legal team and expect a response soon. █

Summary: How a process which produces monopolies or fear is being streamlined to potentially make the effects more severe

THE USPTO, a farce for the masses, has signed a contract to have some software supplied. The goal there seems to be to increase efficiency, i.e. grant even more patents (poor patents) more rapidly. Here’s to monopoly:

Science Applications International Corp. or SAIC (SAI) was granted a prime contract by the U.S. Patent and Trademark Office or USPTO to provide software development integration and testing services in support of the USPTO’s Automated Information Systems. The multiple award, indefinite-delivery/indefinite-quantity or IDIQ contract has a one year base period of performance, four one-year options, and a total ceiling value of $525 million for all awardees, if all options are exercised. Work would be performed mainly in the National Capital Region or NCR.

Meanwhile, yet another automation system is presented which claims to be capable of finding FOSS inside a body of code or files, further helping the fear of FOSS along the lines of Black Duck and Protecode. To quote:

SourceSquare is graphically creative with a range of colors highlighting the various files on your system. It generates a direct line notation of where the Open Source files exist, and even more important, how much Open Source is on your system. The treemap visualization allows users to get a more detailed outline of all their files, with and without Open Source coding.

Whether it will be used to help FOSS or harm it remains to be seen, but it is Open Source and uses Java. We saw what OpenLogic was doing about it, usually just scaring users. Companies with Microsoft roots tend to do this. █

Summary: A collection of news about the litigious challenges from monopolists against Linux in the mainstream

THERE IS something about the patent system that nobody can miss. Its main proponents and benefactors are those greedy patent lawyers who want to put their tentacles on real work and tax it. People who file those are typically those patent lawyers who somehow convince technical people that they need a monopoly. In the case of multinational mega-corporations, those monopolies might make business sense, but what about the rest of the businesses?

Patent trolls further complicate the situation because all they do is raise the price of everything and promote no agenda of a producing company (quite the contrary in fact). One new article asks, are “Legal: Ecommerce Owners Liable to Patent Trolls?”

To quote:

There has recently been an increase in the number of patent claims against website developers and operators. The claims are based on “business method” and software patents for various functions of a website, such as drop-down menus, site search, and other common functions. Many of these functions are in common use by many developers, who do not know that the software or method they are using is covered by a patent. Many of these patents are old, and developers have furthered website development using their functions to create new technologies, which are still covered by the patent. In addition, searching patent registrations to determine if your website is infringing on an issued patent is difficult, time consuming, and expensive. “Patent trolls” are patent owners that take advantage of the difficulties of finding a patent, and lie in wait for someone to use their technology without realizing it is covered by the patent owners rights under their patent.

The USPTO has widened the scope of patentability to the realms of the absurd. Sun Microsystems engineers used to joke about it and see how absurd a patent application can pass muster. Later on their patents ended up in Oracle’s hand to attack Linux/Android. Regarding this case, Groklaw writes:

With that short statement [PDF] Oracle advised the court today that it will undertake a third attempt to produce a satisfactory damages report and that it will do so in compliance with the orders of the court. I have no doubt they will produce the report. Whether they will be able to restrain themselves in the manner directed by the court remains to be seen. If past history is any indication, don’t hold your breath.

Oracle is trying to make Android more expensive. Along with Oracle we have Microsoft and its proxies doing the same thing. One patent troll, MOSAID, is quite clearly such a proxy and Groklaw has this to say about its case against Red Hat:

Facing numerous filings that either seek to dismiss MOSAID’s claims altogether or to block MOSAID from filing a second amended complaint, MOSAID has now responded with a raft of responses. Of course, MOSAID believes the law is on its side and that all parties should remain in the conjoined suit and all of MOSAID’s new claims added in the second amended complaint should be permitted. How the court decides these issues will largely determine whether this ends up as one suit or multiple suits. In any case, don’t expect MOSAID to back down.

Let’s remember Microsoft’s involvement in passing thousands of patents to MOSAID. Then there’s Apple, which launched attacks on Android/Linux (starting with the Apple vs. HTC case), but as another court loss is reached it seems possible that Apple cannot do much:

The lawsuit that Apple slammed HTC with is over and $100 million in legal fees later, Apple have nothing to show for it. Apple have been known to protect their design patents fiercely and in some instances, irrationally and for many who have been following the HTC lawsuit, the same thoughts ring, what exactly was Apple hoping to achieve through the lawsuit?

To quote another report:

The decision was an appeal of a ruling from a lower regional court in August 2011, requesting a temporary injunction. At the time, Apple did win a temporary injunction in the Netherlands. However, it was based on a photo gallery scrolling patent and not design-related patents, which were ruled not to infringe in the ruling on Tuesday.

The British press covered this as well [1, 2], not to mention Android sites that wrongly characterise a Microsoft lobbyist as a FOSS advocate:

After a solid year of courts beckoning to Apple’s call, it would seem that sanity is returning to European benches. Taking a queue from Germany, which is set to reject Apple’s patent case over the revised Galaxy Tab 10.1N, a Dutch court rejected Apple’s final appeal to get Samsung’s tablet banned from sale in the Netherlands. Free and Open Source Software advocate Florian Mueller reported the legal news on the FOSS Patents blog. The appeal denial is the latest in a string of many Apple defeats and few victories in the last few months.

Florian is definitely not a FOSS advocate; he is the exact opposite, but he names himself to confuse. He is paid by Microsoft to attack FOSS causes. █

Summary: The duopoly which is Apple and Microsoft faces new legal challenges while the patent assault heats up

APPLE’S growth is impeded by the rise of Android. The dead CEO vowed to destroy Android, so we have no sympathy for him or for the cult he created. In fact, we urge people not to buy from Apple until or unless it stops suing (to embargo) its competitors, notably Linux/Android.

In a new post from Muktware we read about the latest lawsuit against Apple, this time for anti-competitive behaviour (again):

Apple Sued For Anti-Competitive Practices

A federal antitrust class action lawsuit has been filed against Apple accusing the company of billing iPhone customers for voice and data services even after they cancel it. They also Apple of stifling competition and increasing prices for software apps by charging developers an annual ‘application’ fee.

The Courthouse News reports that lead plaintiff Eric Terrell accuses Apple of ‘unlawful anticompetitive activities,’ and claims that consumers did not contractually consent to Apple and AT&T’s 5-year exclusivity agreement.

Fortunately, Apple’s behaviour is likely to just drive people away to Linux and even the lawsuit from Oracle (perhaps in part motivated by Apple’s CEO) won’t be able to stop it. The Oracle case is just another SCO and the outcome might be the same, except for the bankruptcy.

Microsoft too has been flirting and collaborating with Apple's lawyers, according to recent reports. Microsoft engages in illegal tactics and conspiracy to harm a potent rival. Having been faced with a legal challenge,Groklaw claims that the plot is being unravelled and Microsoft’s attack through Nokia becomes too hard to deny. To quote:

Nokia continues to struggle mightily to get free from Barnes & Noble’s discovery requests. Barnes & Noble, you’ll recall, succeeded in persuading the ITC to recommend that Finland help it to do depositions of some Nokia executives, including Stephen Elop, and also get its hands on some documents that Nokia isn’t willing to provide voluntarily.

So the necessary request documents were sent to Finland, and then Nokia started going wild with efforts to block. And it continues to do so, telling the court all the steps it’s taken, and asking ITC to quash the Barnes & Noble motion or in the alternative to advise Finland that it can’t provide any discovery until the motion is ruled on. Nokia also has complaints about what it represents to both Finland and the ITC as being Barnes & Noble’s misstatements about the case.

And now Microsoft has asked the court to quash a motion to depose Steve Ballmer. It’s under seal, but I’m sure we can guess at its contents. After all, we’ve seen companies try to keep their executives from having to get involved in litigation before, and so far, they all had to testify. Remember SCO v. IBM? Sam Palmisano had to testify because he had “unique personal knowledge”, or so the judge believed. If the CEO knows things other people don’t, no matter how busy he is, he will likely have to testify. I’m sure Microsoft lawyers know that, so in the alternative, they ask that he be allowed to testify by videoconference.

We warned about this right from the start. It is good to see action being taken to expose this at the courts and set obstacle.

In other news, RIM, whose key executives leave, finds itself sued over patents again. Guess who’s suing again?

Ottawa-based Wi-LAN Inc. has launched a patent suit against Research In Motion Ltd., adding to the challenges facing the troubled BlackBerry maker.

The mobile patent wars are becoming nasty and when Microsoft passes ammunition to patent trolls (proxies) there needs to be a lot more investigation. it’s not as shallow as it may seem. █

“On the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO’s strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO’s financing, hiding behind intermediaries like Baystar Capital.”

–Bruce Perens

Summary: New developments in the patents arena and what the news sites fail to tell

THE Microsoft lobbyists continue to attack Android and they resort to such ridiculous spin (link omitted on purpose) that the FFII is sharing it for hilarity in the mailing lists. Poor Microsoft cannot come up with a meaningful story against Android, so whenever Google is using patents to defend Android from attacks its lobbyists link to articles like this one and whine senselessly (portraying Google as a patent aggressor). Generally speaking, those types of smears against Android have been muted somewhat because journalists slowly learned who was being paid by Microsoft (Florian Müller, for example, is paid by Microsoft).

Some patent lawyers seek to make a quick buck from the mobile arena, acting as parasites in a thriving market:

Software patent attorney, Steve Aycock today announced the launch of a new law practice which helps people patent their software. The law firm specializes in helping independent inventors, entrepreneurs and start-up companies patent their new technologies including software inventions. Mr. Aycock was a software engineer for ten years before attending law school so inventors will get someone with experience in both software and patent law.

No thanks, Steve, patents are a waste of time for developers. Surely enough this bogus industry of litigation looks to expand by latching onto real industries. From the news we discover that “Venable LLP notably strengthens its patent prosecution and litigation practices with the arrival of three new partners – Michele Van Patten Frank, Toni-Junell Herbert, and Mark Shanks; Of Counsel Therese Finan; and Associate Fabian M. Koenigbauer to the firm’s Washington, DC, office.”

In other words: prepare for more lawsuits. Oh, innovation, surely!

It’s the same in Europe. Patent lawyers (who obviously want software patents in Europe) promote their cause with an analysis that ends with nonsense:

Conclusion. In case of mixed-type invention (such as organisational, commercial or intellectual applications of software), EPO examiners are urged by the problem/solution approach to consider any disclosure of non-technical aspects to the detriment of applicants. Therefore, patent drafters should not at all or only to the absolutely required extent incorporate non-trechnical aspects in the claims or specification.Otherwise non-technical aspects could “devaluate” even important technical claim features.

It is hardly even coherent. Lawyers like to make it sound complicated when in fact the criteria for rejecting a patent can be simple.

Fortunately, more people are able to see past the spin and realise that software patents — if not patents in general — have become a burden on society. Tim thinks that the Tea Party should take on the issue too. In his own words:

The debate over software patents does not unite Silicon Valley the way the debate over SOPA does. Rather, the software patent debate pits the patent bar and large software companies like Microsoft and IBM, which have tens of thousands of patents, against rank-and-file programmers and up-and-coming entrepreneurs for whom the threat of frivolous litigation is a growing disincentive to innovation.

But I think this is precisely what makes it a great issue for Republicans—and especially Tea Party Republicans—to take up. There’s a long-running battle inside the GOP between pro-business Republicans and pro-market ones. The former have supported bailouts, corporate welfare, and protectionist legislation like SOPA. The Tea Party was organized in opposition to those things. And in the last couple of years, the Tea Party has had growing momentum.

Here’s how I’d frame the software patent debate if I were advising a GOP member of Congress: Software patents are a bailout for declining software companies that are better at filing patent applications than producing innovative products and services. For example, it’s been years since Microsoft was a major source of new innovations. That torch has passed to younger companies like Google, Facebook, Dropbox, and a revitalized Apple. But Redmond has so many patents (60,000 of them, according to one estimate) that it’s essentially impossible to write software without accidentally infringing some of them. And this means that Microsoft can force any company that beats them in the marketplace to share their profits with them, as it is currently doing to firms that produce Android phones.

If only there was as much public pressure against software patents as there was against SOPA last week… █

Summary: Patent stories that mostly relate to Android and its competitors

THE sales of Windows continue to decline as Linux-based platforms gain traction (notably Android).

As Tim points out, Microsoft trolls just attack messengers now and moreover:

Microsoft Advocates who infest the newsgroups, who engage in personal attacks and vile insults claim that the desktop is still alive and well! They claim that the tablet form factor is not what the mainstream consumer is wanting! – The reality though outside the wibbly wobbly world of Microsoft Advocacy is very different and I think the trend away from the desktop form factor by the mainstream consumer will continue. As for Windows and the latest “great” version (8), I think by the time it finally flops onto the market, people will have already settled on the plethora of more mature alternatives leaving Microsoft languishing in a Windows Phone 7 market share hell.

Microsoft is resorting to the use of patents in this age of software patents boosting; those parasites are extorting those who do sell (at Windows’ expense) and Mr. Pogson tried to find some numbers:

Much has been written on the web about M$’s taxation of Android/Linux but M$ mentions little but lawsuits in its recent 10-Q report. In fact, there we read, “there are approximately 60 other patent infringement cases pending against Microsoft.” Nowhere is there a number showing revenue from royalties levied on Android/Linux. While noting the risk of consumers buying gadgets not running M$’s stuff M$ never mentions royalty income from those gadgets. It must not be substantial because hundreds of millions of units running Android/Linux were sold but royalty revenue by M$ was not enough to prevent a decline in revenue by their client division.

We reckon that many of Microsoft’s patent deals put a small tax only as symbolic as Microsoft needs for them to provide FUD. But patent trolls and proxies like MOSAID are then being sent to push further up the price of Linux/Android. That’s their goal. It’s about destroying the economic advantage of Android, more so than to be a Microsoft cash cow.

We have two options now; one is for Microsoft to be nailed for creating an anti-competitive conspiracy against Android; the other is to target the patent system that enables this to carry on. With more software patents being granted all the time in the US (e.g. this new roundup from Iowa) the problem is clearly getting worse; more and more ideas are being “stolen” from the Commons. IBM too seeks a patent monopoly on software. To quote one article about it:

According to the document, the patent covers “techniques for protecting a child user from inappropriate interactions within an immersive virtual environment” in which those actions may be determined by “examining characteristics of the interactions between a child and another user”, “by monitoring physical signs of stress in the child”, or “by receiving software commands given by the child to signal discomfort in a particular situation”. Once detected, the technology may take action by “notifying the parents of the child, altering the virtual world to end the interaction, or notifying authorities of the behavior of the other user.”

Here is a new post which demonstrates how messed up the USPTO is:

Aleks Yankelevich drew my attention to an interesting patent case Gore versus Garlock. The Federal Circuit court decided to reverse a lower court reaching the stunning conclusion that prior art doesn’t matter if it was kept secret. So if you invent something and keep it secret, someone else can patent it.

There are also some newer articles about items we mentioned before, such as this one from Microsoft:

Despite the fact that the word “ghetto” was not a part of the patent paperwork, the program has been nicknamed the “Avoid the Ghetto” app.

[...]

This has led to cries of racism and economic disadvantage for minority neighborhoods. Dallas branch NAACP President Juanita Wallace told CBS, “I’m going to be up in arms about it if it happens. Can you imagine me not being able to go to Martin Luther King Boulevard. because my GPS says that’s a dangerous crime area? I can’t even imagine that.”

For whatever reason Google is still being scrutinised while it is in fact a victim of litigation from Apple, Microsoft, and some of their front groups (CPTN, for example, includes Oracle too). To quote:

Regulatory reviews mean the purchase by Google is likely to close in 2012, Libertyville, Illinois-based Motorola Mobility said in November. Google plans to use Motorola Mobility’s more than 17,000 patents to protect supporters of its Android software in licensing and legal disputes with rivals such as Apple Inc. — and also move into the hardware business.

Here is another report about the Alcatel case we wrote about the other day:

SOFTWARE HOUSE Microsoft and Alcatel-Lucent have ended their patent lawsuit and told the judge that they have had enough.

The lawsuit has lasted ten years so it is perhaps through attrition that it has come to an end. Either way both parties asked US District Court Judge Marilyn Huff to dismiss all claims and just get over the whole business.

Last year we claimed that Apple and Microsoft were colluding against Android and Google validated this in the middle of the year. This new report too helps validate it even more:

If you were searching for Apple Inc. (AAPL)’s European patent lawyers on a Friday, you would have better luck looking in the German city of Mannheim than on the golf course or in a pub.

Judges in the southwest German city hold most patent hearings on the last day of the week and will issue rulings in smartphone disputes involving Apple, Samsung Electronics Co. (005930) and Motorola Mobility Holdings Inc. over four of the next five Fridays starting today. The city, along with Dusseldorf and Munich, has become the center of European patent litigation as companies seek quick rulings from German judges that influence courts throughout the continent.

“If you have a big multinational corporation setting up a patent litigation strategy for Europe, they will almost always sue in Germany,” said Rowan Freeland, a litigator at Simmons & Simmons LLP in London. “Maybe you add other countries as well, but if you have to choose, it’s almost certainly Germany.”

Mobile device makers filed dozens of cases in the three cities last year. Samsung today lost a patent-infringement suit filed against Apple in the Mannheim court. The judges also heard another suit between the two rivals. A hearing in two disputes between Motorola Mobility and Microsoft Corp. (MSFT) originally scheduled for this afternoon were postponed until next month.

They have a common interest as both are suffering from Linux. But their tool for competing, namely patent attacks, is not acceptable, especially when they do so with the goal of removing competition from the market. It’s doupoly abuse [1, 2, 3], or simply a cartel. █