Summary: A weekly roundup of news about patents in the United States and elsewhere, with special focus on software patents
Free/libre software has much less to worry about now that software patents are getting weaker if not fewer, too. There are changes that affect not only software patents but patents as a whole. In the US, for example, patents on genes/genetics were ruled illegal not too long ago. Here is an explanation of why Australia might soon follow suit. Titled “Australian Court Disagrees With US: Claim Genes Are Totally Patentable”, the article reminds us that “Last year, the Supreme Court made an important ruling in the Myriad Genetics case, effectively saying that genes aren’t patentable, even if you can separate them out from the rest of a strand of DNA. Myriad Genetics had isolated two key genes related to breast cancer, BRCA1 and BRCA2 and argued that only it could test for those genes, because of its patent. The Supreme Court soundly rejected that, noting that you cannot patent something in nature, and clearly Myriad did not “make” the genes. Unfortunately, as we’d noted just a few months earlier, a court in Australia had come to the opposite conclusion, saying that Myriad Genetics had legitimate patents on BRCA1 and BRCA2. That case was appealed, and there was some hope that after the US’s ruling, higher courts in Australia might see the light. Not yet apparently. An appeals court has agreed that genes are patentable Down Under, which means that such important genetic tests there are likely to be much more expensive and limited.”
Australia, quite infamously as we pointed out before, was one of the countries that succumbed to US lead on software patents, so on genetics too there might be changes afoot. Here is a timely reminder that India still wrestles with software patents, having done so for years. India is famous for its heroic opposition to patents on medicine where life is at stake.
One new article from the Indian press quotes a few people who follow this closely. One of them “said that many of the companies that work on open source software and related segments have raised their opposition while the originator companies are demanding for a patent.”
Actually, many proprietary software patents are also against software patents. It is not a FOSS issue but a CS issue (computer science, not closed source).
“Currently,” continues this article, “software is not patentable under the existing Act and it needs to be registered under copyright. Many experts think that a patent would be stringent than a copyright is and would be advisable for the innovators to protect their software from infringement.
“The draft has been issued in the public domain for comments and the government has to consult every stakeholder on it. The issuance of the guideline is in final stage, he said.
“As per the Intellectual Property Office report, about 80% of patent applications at the Indian Patent Office are filed by foreign global technology companies. In the past decade the number of applications by foreign applicants has risen from about 8,221 to 34,276, said industry leaders.”
So these patents have a strong correlation to and with digital colonialism. Why would Indians ever accept them? The multinational corporations surely want these, but what’s in it for India itself? India has fantastic software engineers of its own. It need never be dependent on multinational entities, especially for software.
Here is a US-based pro-software patents site (run by patent lawyers) saying that “Big Banks Get Software Patents Despite Alice”. It is selective and selection-centric spin. The reality, on the whole, is the very opposite. The pro-business, News Corp-owned Wall Street Journal very recently published “Hard Times for Software Patents” followed by the detailed report titled “Courts Nix More Software Patents” and “Federal Courts Reject More Software Patents”. It says what one ought to expect.
Speaking of large corporations and software patents, watch what BMC is doing. The British press said that “BMC has accused ServiceNow of violating seven of its patents (5,978,594, 6,816,898, 6,895,586, 7,062,683, 7,617,073, 8,646,093 and 8,674,992), spanning incident management, performance analytics, configuration management, discovery, orchestration and change release management.
“The company lodged its suit on Tuesday in the generally litigant-friendly US District Court for the Eastern District of Texas.”
BMC is acting like a patent troll and attacks small rivals. Witness the glory of software patents! The weapon of abuses indeed, injustice galore!
Contrariwise, Van Lindberg from Rackpace (very large company) says that they have killed a software patent and potentially a troll. The title says “Another Patent Troll Slain. You Are Now Free To Rotate Your Smartphone.”
Here is more on that: “Over the last few years it’s been great to see companies like Newegg and Rackspace decide that they’re not going to give in to bogus patent troll lawsuits. As we’ve discussed, it’s almost always easier, faster and cheaper to just settle and pay up whatever the troll is asking for. That’s part of why trolling works. Fighting a patent lawsuit — even a totally bogus one (i.e., not infrigning) — on a clearly invalid patent will still cost many hundreds of thousands, if not millions, of dollars. If the troll is offering to settle for tens of thousands of dollars, many, many companies will do the obvious short-term cost-benefit analysis and settle. It’s hard to directly fault them for this — but it only makes the problem worse for everyone else. Not only does it fund the patent trolls to keep suing others, often they’ll use some of that money to buy more bogus patents and shakedown companies over that new ones as well. On top of that, settling patent threats just puts a big “sucker” sign on your company, meaning that more trolls will start circling. Making a stand and saying that you will not compromise or deal with trolls actually helps in the long run by scaring off some trolls. Both Newegg and Rackspace have been getting a lot of publicity (and goodwill) for their anti-troll efforts.”
Here is a somewhat comical take on a troll that decided to attack the government. The headline says it all: “Patent Troll Told That It Can’t Sue The FTC For Merely Investigating Its Shakedown Scam”
Well, “just when US starts correcting them,” writes Dr. Glyn Moody, Europe, with the corrupt EPO, decides to “Repeat US’s Past Mistakes”:
Back in May, I wrote about a very interesting paper discussing some potential pitfalls of the new Unified Patent Court. Given the magnitude of the change that it and the unitary patent system will bring, it is extraordinary that we still don’t really know how things will work out in practice. That makes another paper called “The Unified Patent Court (UPC) in Action – How Will the Design of the UPC Affect Patent Law? ” particularly welcome, since, as its title suggests, it explores how the new UPC is likely to shape the contours of patent law in Europe.
Since the new paper appeared, there has been a further US Supreme Court ruling, Alice v. CLS Bank, that has already led to no less than 11 software patents being thrown out by lower courts. Indeed, there is every indication that the era of completely insane software patents is drawing to a close in the US. It is therefore deeply ironic – and rather frustrating – that at precisely the moment when sanity starts to break out in the US, the EU incomprehensibly decides to take exactly the same path of madness that produced so many problems across the Atlantic.
Those are all good ideas, but it’s rather depressing that we must already be thinking of ways to minimise the damage the new UPC is likely to cause Europe’s economy in general – and the world of software in particular.
In the coming weeks we will continue to show how the EPO turned rogue and corrupt. It would be foolish to adopt software patents when the US relents.
Here comes another smackdown of a troll. As Mike Masnick put it: “We recently noted that a bunch of courts had been killing off bad software patents thanks to the Supreme Court’s ruling in Alice v. CLS Bank. And now, that ruling is even leading the trolls themselves to give up. Notorious patent troll Lumen View recently dropped its appeal in its case against the website FindTheBest, saying that the ruling in Alice made it clear it wouldn’t win…”
Steven J. Vaughan-Nichols wrote about this trend as a whole, saying that patent trolls are starting to get trampled. He also quotes OIN:
First, the Open Invention Network (OIN), whose members include Google, IBM, NEC, Philips, Red Hat, and Sony, now has more than a thousand licensees in its Linux and open-source, defensive patent pool. In an e-mail , Keith Bergelt, OIN’s CEO said, “The OIN license is becoming part of a broader set of community norms and is increasingly being integrated into the culture of open source/Linux-centric companies. It is for many the foundation around which their IP [intellectual property] strategy is built and a critical enabler of patent non-aggression and freedom to operate.”
We recently wrote about the podcasting troll winning against CBS, but this is definitely not over. As TechDirt put it: “The trial (in East Texas, of course) for CBS came first and the jury sided with Personal Audio, because that’s how East Texas patent juries typically roll. In a moment of semi-kindness, the jury awarded Personal Audio $1.3 million, rather than the nearly $8 million they supposedly requested. This story is really just a stepping stone, however. CBS has made it clear that it will appeal the case to CAFC, and given how software/business method patents are getting tossed out left and right these days, the company has a decent chance of prevailing. Meanwhile, the EFF reminds us that it’s still working hard to invalidate the patent at the Patent Office, which would help accelerate the process of killing off these bogus lawsuits.”
CBS is a bad company, but hopefully it will win on appeal.
Here is Matt Levy quoting the partly pro-software patents Michael Risch while saying: “We cannot continue the excesses of the past. Invalid patents don’t benefit innovation, they block innovation. And we have a patent system where a substantial portion of the issued patents, if not most, are invalid. And the patents in the software area are even worse.”
At the end of the day we will hopefully see patents on software universally invalidated. Until then we will have rumour mills and speculations (e.g. about prices) telling us that Free software is not free, thanks in part to lack of comprehension of what patents really are for and how they affect the industry (it’s a poor article which reveals its author’s ignorance on this subject). We have already covered this issue before (it’s about Samsung and Microsoft). █
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The EU too is besieged by corporations
Summary: A roundup of news about patent monopolies and in particular the immense power wielded by giant multi-national corporations that steer the debate and acquire trans-Atlantic monopolies on ideas, always against citizens’ interests
Some well-meaning people still focus on patent trolls, not on software patents. The world’s largest corporations engage in a coup or an occupation against policy-makers and it shows. This includes some who purport to be supporting FOSS, fair competition, etc. Melanie Chernoff, the Public Policy Manager for Red Hat, says that “North Carolina says ‘no’ to patent trolls”. To quote the article published this afternoon:
North Carolina became the latest state to take a stand against patent trolls when NC Governor Pat McCrory signed a new law last week aimed at preventing bad faith assertions of patent infringement. Patent trolls (more officially called “patent assertion entities” or “non-practicing entities”) are known for sending very vague letters, with often meritless claims, to other businesses in the hopes of extorting a settlement to avoid the nuisance of a lawsuit.
But this is not the thing to strive for. The real (core) issue is patent scope and even those who spend all their time diverting attention and/or arguing about “trolls” (front groups CCIA with its lawyers who are funded by giant corporations) increasingly — however rarely — recognise the issue of scope while still trying to shift attention to “trolls”.
The other day The Economist, widely recognised for its pro-Big Business agenda, published this article titled “Patents that kill”. To quote some of the relevant parts:
IN 1742 Benjamin Franklin invented a new type of stove, for which he was offered a patent. Franklin refused it, arguing in his autobiography that because “we enjoy[ed] great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours.”
The pharmaceutical industry makes the best case for patents (and makes the most of patents when they are approved). Medical research and development (R&D) is costly. Moreover, although a patent application must be filed straight after a drug discovery, clinical trials necessary for drug approval may take several years. This shortens the effective life of the patent. As three economists argue in a recent paper this causes problems. In order to prove the efficacy of a drug, pharmaceuticals have to match the length of a clinical trial to the expected survival time of the patients. A clinical trial for patients with metastatic prostate cancer lasts only three years compared to an 18-year-long trial for those suffering from a milder, localised prostate cancer. Since a typical patent is in force for 20 years, firms only have two years of effective patent length left to commercialise a new drug against localised prostate cancer.
Here we deal with an issue that has nothing to do with patent trolls but with patent scope.
Dealing with the issue of European approach towards software patents, Glyn Moody put the words of some British patent lawyers in a frame of mind that assures us Europe is assimilating to the US (and USPTO), not the other way around. To quote Glyn Moody: “It would be easy to assume that the European Patent Office (EPO) stands in the same relationship to the European Union as the USPTO does to the United States, but that’s actually wide of the mark.”
There is corporate control of the USPTO, which is operating against the interests of US citizens (except the top 1% perhaps). The lawyers’ blog has apparently produced “a great piece, but its gentle humor exposes a serious point about the EPO: it is literally above the law.
“That emphasizes once more that the unitary patent system has been decoupled from the normal legislative and democratic processes of the European Union, and thus will be under no obligation to take heed of the economic interests of the European citizens.”
We are soon going expose corruption at the EPO, based leaks from a source which is pursuing encryption at the moment.
Moody continues: “There is no precedent in the political history of modern democracies where important property issues affecting the economic sustainability and development of a country, and the proprietary rights and business prospects of its people, were conclusively and exclusively taken by a judicial body at supranational level. A democratic policy-making process for the determination of patents as objects of property exists, of course, in all countries of the world, including the US, whose system the UPC tries to imitate. The difference is that the US unified patent system does not escape democratic control, and the economic policies that it serves are widely debated by legislators, judges, economists, lawyers and industry players, all of whom are residents of the same country.”
Finally, says Moody: “It’s still early days for the unitary patent and the Unified Patent Court, so it’s not yet clear how the new system will work, and how serious the problems will be. The danger is that Eponia might turn out to be not so much a quaint oddity in the European political landscape as a dangerous rogue state with serious negative consequences for the region’s businesses and citizens.”
The system is out of control at the moment. It gets worse as patents expand in terms of scope (especially in Europe but also in other continent) while the US merely makes baby-steps in the opposite direction, while much of the effort is being diverted towards “trolls” (small abusers), of course at the behest of large corporations, as usual in US politics as per the modus operandi. █
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Summary: Microsoft resorts to AstroTurfing, lawsuits, vapourware, and attack ads, revealing that it is a feeble aggressor whose only remaining hope for revival is destruction of rivals
Samsung sells computers with Windows, but Microsoft is now suing Samsung. This is very revealing.
Now that Microsoft takes its Android-hostile patents to court we might finally see them defanged, or as SJVN put it, this “could be the beginning of a war over the validity of Microsoft’s Android patents.”
“The Apple vs. Samsung case recently suffered a setback after Samsung had used the SCOTUS ruling against ‘abstract’ patents.”There is no such thing as Android patents, just as there is no such thing as FOSS patents. This is the wording style of the aggressor. The Apple vs. Samsung case recently suffered a setback after Samsung had used the SCOTUS ruling against 'abstract' patents. Additionally, China told us which patents Microsoft is using against Android, so there too lies an opportunity for a final smackdown (prior art can be brought forth).
All this lawsuits talk ought to remind us that Microsoft really hates Linux and FOSS. It only pretends otherwise because it needs to (Slashdot gives some help to Microsoft’s “open” proxy/PR/charm offensive), as many businesses/people who use Windows also use GNU, Linux, Android, Firefox etc. We quite enjoyed this new analysis from Jim Lynch, who correctly said:
Microsoft has never been a…er…fan of Linux, to say the least. Former Microsoft CEO Steve Ballmer even likened Linux to cancer back in 2001. Now Microsoft has an unintentionally hilarious comparison of its server products and Linux on a site called Why Microsoft.
I hadn’t heard of this site before, but I bumped into it via a Reddit thread. Talk about a one-sided comparison bathed in “marketing-speak!” I particularly enjoyed the ridiculous bit about security threats where Microsoft just says this: “Persistent threats and dedicated attackers can slow your projects and put your IT environment at risk with Linux projects.”
It was a fun read this morning while I finished my first cup of coffee. I was fortunate not to snort coffee through my nose while reading through it. Thanks for the laughs, Microsoft.
Feel free to put me in the cynic category when it comes to Microsoft and open source. I think the Why Microsoft site is a much clearer indication of where Microsoft’s thinking is at than the speculation in this Dev Ops article. In other words, I’ll believe that Microsoft is actually embracing the open source community when it actually happens.
Windows is in trouble, so Microsoft’s lawsuit against a massive partner (Samsung) is not entirely shocking. Windows is in so much trouble that releases of it get altogether cancelled and Microsoft started using vapourware tactics (talking about versions of Windows that do not even exist). To quote the British press:
Microsoft has at last revealed the date when its second major update to Windows 8.1 will ship to customers: never.
Vista 8 has been an utter disaster (worse than Vista). No wonder Microsoft goes to court in a desperate attempt/attack to tax the Android leader. No wonder Microsoft uses vapourware tactics as well (all links to examples are omitted as we don’t wish to feed fiction, fantasy, and marketing).
Microsoft will mostly likely continue its attack ads against Google, even though Microsoft reads your mail  while repeatedly accusing Google of doing that.
Windows is a passing fad. We don’t expect it to be widely used 5 years from now. Other Microsoft products heavily rely on Windows’ inertia, so they too will gradually perish and be shut down (while more staff gets laid off by the tens of thousands). █
Related/contextual items from the news:
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Matt Levy works for CCIA (occasionally a Microsoft proxy) now
Summary: Matthew (‘Matt’) Levy moved into a foe of patent progress last year, but he still runs a site calls Patent Progress, in which he diverts all attention to patent trolls (as large corporations such as Microsoft like to do)
WE ARE excited to see that after the USPTO had begun rejecting software patents and CAFC had ruled against 'abstract' software patents (owing to SCOTUS) there was impact by extrapolation. As TechDirt puts it, “Latest CAFC Ruling Suggests A Whole Lot Of Software Patents Are Likely Invalid”. Another patents expert (especially expert in patent trolls) puts it like this: “The most litigious “patent troll” in the US has lost a major case after the US Court of Appeals for the Federal Circuit found its patent was too abstract.”
We continue to be disappointed by the site Patent Progress (notice which controversial entities its writers are affiliated with). The name is misleading and it’s a dot-org too, despite corporate connections. We wrote about this in the past, before we knew that Matt Levy, its main writer, “joined the CCIA in 2013″ (see our Wiki page about CCIA).
Levy continues to favour the IBM-style OIN-esque aggregation of patents. From his latest post: “A coalition of tech companies (Google, Canon, SAP, Newegg, Dropbox and Asana) recently announced a new private initiative to disarm patent trolls: the License on Transfer Network (LOT). This is essentially an extension of Google’s Open Patent Non-Assertion Pledge (OPN) that I wrote about in my very first Patent Progress post last year.”
We recently saw several links (e.g. in Twitter) pointing at our older (and sceptical) analysis of Patent Progress. It seems that not only us have noticed the change of agenda, or lack of coherent agenda. Not a word has been said in Patent Progress about the above news, which is massive! Is Patent Progress becoming as credible as ‘Consumer’ Watchdog’? To ‘Consumer’ Watchdog’, only Google is a problem (it seems like an extension of Microsoft’s “Scroogled” PR) and to Patent Progress, the only problem is patent trolls, not patent scope. █
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Summary: Thoughts about the level of interest in Free/Open Source software (FOSS) and growth of at least some sites that focus on GNU/Linux
About nine months ago my wife and I decided that we had what it takes to keep Tux Machines going and growing. The site had been my favourite source of news for over half a decade (the editorial picks were simply better than the competition’s) and I was saddened to see it slowing down, due to positive developments in its founder’s life (a wedding).
News sites about GNU/Linux seems to be growing fewer, with some widening scope beyond GNU/Linux and FOSS and some not keeping up a regular stream of news. No need to name them, as that might only offend them (Phoronix actually does a great job keeping up the flow of news). Paradoxically, interest in Free software seems to be growing, especially now that large nations adopt it. They probably favour news in Mandarin, Russian, Korean and so on, but still, one would expect them to read some news in English too.
Tux Machines recently reached high levels of traffic that resemble the traffic of this site (stressing and sometimes overstressing even four cores with Varnish and CMS cache). This tells us that interest in Free software is not necessarily declining, even if the amount of coverage definitely declined in recent years. █
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