Summary: A bundle of news about software patents in Europe and the United States

THERE is a tonne of stuff to wade through today, so without further ado, we start with Europe, which is on the brink of nasty changes.

Europe

European patent law is at real risk of being altered without a democratic process. Free software activists keep a close eye on these issues because if the EPO sells out to Microsoft and the likes of it, then software patenting may become possible, formally. Here is another new report that serves as a warning that there is a push for "Community patent", which would likely forbid the freedom of software that is produced by the European community. Yes, it's a nasty, if deceiving, use of words to characterise it as the opposite of what it really is. [via Digital Majority]

Some member states, including Germany, have favoured establishing an international body to handle Community patent cases, while others preferred a Community system.

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In recent months, discussions in the Council's preparatory bodies have concentrated on possible cooperation arrangements between patent offices in Europe based on enhanced partnerships, and on the economic benefits of a Community patent on the basis of an expert study highlighting its potential to foster innovation, in particular for SMEs and universities.

Axel H. Horns has this report about the Council of the European Union discussing the Community patent today.

On May 28 and 29, 2009, a EU Council meeting (2945th session of the Council of the European Union - Competitiveness Configuration (Internal Market, Industry and Research)) will take place in Brussels. It will be chaired by Mr Vladimír Tošovský, Minister of Industry and Trade, and Ms Miroslava Kopicová, Minister of Education, Youth and Sports, of the Czech Republic currently representing EU Presidency. The afternoon session on May 28, 2009, will be devoted to the examination of the project for creating a Community Patent and a Unified Patent Litigation System (UPLS).

This must be another one of those events (or parties) of lawyers and diplomats where they set up a system that benefits them and their peers.

The pro-Microsoft Rory Cellan-Jones from the BBC (he meets with Microsoft sometimes and always favours them in his coverage) is also taking a role in such intellectual monopoly ceremonies. Rory finds out -- much to his surprise perhaps -- that not everyone is a huge fan of this closed system that gives jobs to lawyers, litigators, and those organising their self-glorifying, self-congratulatory parties.

Dave Birch of Consult Hyperion has strong views on all sorts of technology issues – instinctively, he is an open-source web libertarian, and he was not afraid to voice his opinions to the patent lawyers and artists’ rights organisations gathered in Prague, You get a bit of a flavour of that in this video.

From his journey comes the following video, which is now available in Ogg Theora format for those who haven't the patent licences to watch it otherwise.

Direct link

The summary of this video is: "In Prague for the Patinnova patents conference, a rebel has managed to sneak his way in. Dave Birch - who doesn't bel[ie]ve in patents explains himself to Rory Cellan-Jones"

Patent Harassment and Trolling

This system continues to be messy, especially in the United States where software patents have been legitimate for quite some time. In Europe, programmers already enjoy the benefits of copyright law, so here is a relevant new post:

Patent Lawsuit Over Shazam Highlights The Difference Between Invention And Implementation

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That is the process of innovation. The idea was a useful starting point, but it was meaningless until the idea could be implemented in a way that the market wanted. And, yet, some guy who had the same idea, but didn't go through the trials and tribulations of actually making it work for the market, suddenly gets to demand tons of money for it? That's an economic and societal waste.

From the same Web site: "Lawyers Fined $72.6 Million For Screwing Up Patent Application, Not Letting Company Sue For Enough Cash"

Rob Hyndman points us to the news that a law firm has been hit with a $72.6 million judgment for legal malpractice, after a company who had hired the law firm to handle its patent applications claimed that the law firm screwed up the applications, making it that much harder for the company to shake down other companies for cash.

Here is another takes on the same story:

They say everything is bigger in Texas, and that appears to include malpractice awards in the Lone Star state.

Yesterday, a federal jury in San Antonio slapped Akin Gump Strauss Hauer & Feld with a $72.6 million judgment for botching a patent application filed by a Texas-based company and an inventor.

And this is what's referred to as "innovation"? Does this advance science?

What about abuse of trademark law?

Of Patent Trolls and Trademark Champions: A Tale of Two Spangenbergs

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But that version misses the byzantine backstory to this suit: Spangenberg and her husband Erich already sit atop a sizable fortune, won through intellectual property litigation.

Mike Masnick has this to say:

We've Had Patent Trolls And Copyright Trolls... So Why Not Trademark Trolls?

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So, it was really only a matter of time before we got "trademark trolls," as well. To be honest, we've had a few stories about a guy named Leo Stoller, who has been dubbed a trademark troll after registering trademarks on all sorts of common words and then insisting no one could use those words without paying.

Counter-Productivity

The idea of killing software patents is far from controversial and where patents murder people (see recent examples in [1, 2]) it's desirable to apply changes, too. According to the following report about patenting of human genes, this whole thing may be doing more harm than good.

Dr. Shuster, who has a doctorate in molecular pathology conceded that patents on genes hinder medical practice.

Business method patents are already a dying breed and just watching some of them can be a disturbing experience because here we have ideas that are applicable with pen and paper. Using pen and paper alone can constitute an infringement, a violation of the law. Is rational thought being criminalised now? Should it?

In the bill, the term “tax planning method” is defined as “a plan, strategy, technique, or scheme that is designed to reduce, minimize, or defer, or has, when implemented, the effect of reducing, minimizing, or deferring, a taxpayer’s tax liability, but does not include the use of tax preparation software or other tools used solely to perform or model mathematical calculations or prepare tax or information returns.”

The highly-regarded Mises Institute has just published this essay which calls Intellectual Monopolies a "Unnecessary Evil."

In a rush to stimulate the economy, the Obama administration is touting various "visionary" plans to make the American economy more progressive, more innovative, and more forward-looking by subsidizing politically-motivated projects like "green" technology. These hands-on policies will be ineffective. Recent research suggests that a much more effective way to accomplish the same goals would be to eliminate intellectual monopoly and to reduce the regulatory burdens on innovators.

According to conventional wisdom in economics, temporary monopoly rights--patents--are necessary to give people incentives to come up with newer, better ideas. After all, if people who came up with new ideas could see those new ideas copied without cost by competitors, why bother spending the time and energy? Hence, we have patents.

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Progress is also slowed by the regulation of food and drugs, which requires years of extensive and expensive testing before a drug can be approved for sale. This means that some lives are saved because people are restricted to hyper-safe drugs, but the lives saved come at the cost of lives that are lost because the appearance of these drugs on the market is delayed. Further, other drugs that would be useful but might carry greater risks never make it to the market to begin with.

From a purely economic point-of-view -- let alone ethical -- there is reason for radical reform. The original goals and means of the patent system are not longer hunoured as greed and self interest lost sight of the genesis of it all. ⬆

"They [EPO examiners] claim that the organisation is decentralising and focusing on granting as many patents as possible to gain financially from fees generated." —Expatica, European Patent Office staff on strike