Summary: Roundup of news about software patents, trolls, and ambush

SOFTWARE PATENTS are a hot topic at the moment because they may either vanish or invade more countries. They are probably the last obstacle for Free software to clear and they seem also like Microsoft's last resort. Here is a particularly good comment on the subject: [via Digital Majority]

Such a set of instructions is an algorithm, so such a patent could fit some people's definition of a "software patent". Of course, you could try to respond to this by defining software as a set of instructions to be performed by a programmable computer. But this overlooks the problem that most technical processes nowadays are computer-controlled. Again, you could try (as some FFII-backed MEPs did during the CII patents directive debate) to restrict patentability to only those technical processes which make use of "forces of nature". The first trouble here is that even "pure software" makes use of "forces of nature" within the microprocessor. Even marketing processes make use of forces of nature governing our brains. So this could become quite a meaningless restriction, and even if it was applied restrictively it would leave, for instance, sound or image processing methods in a grey area. The current approach of the EPO's Boards of Appeal, which is confirmed by the judges of most EPO states, is that for a computer program to be patentable there must be a "technical effect" going "beyond the normal physical interactions between the program and the computer". It is an interpretation which of course leaves a lot of room for debate, but do you have a better alternative? Of course, considering how difficult it is to pin down what a "software patent" actually is, it is difficult to avoid that other debate: why bother? why shouldn't pure software be patentable? what's so special about it in comparison to other areas of technology?

Andre from the FFII has just taken a look at Google's approach to patenting:

And for my field of special interest, patents and standards, yet another patent license text:

Patent License Subject to the terms and conditions of this License, Google and its affiliates hereby grant to you a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this License) patent license for patents necessarily infringed by implementation of this specification. If you institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the implementation of the specification constitutes direct or contributory patent infringement, then any patent licenses for the specification granted to you under this License shall terminate as of the date such litigation is filed.

There are reasons to believe that the patent system is deficient for more than just software patents as a reason. There are also business method patents at stake, not to mention the fact that there are patent trolls. Here is a new roundup of some of their activity in Texas:

Klausner alleges that six defendant companies are infringing the '576 Patent. The defendants are Qwest, Yahoo, Panasonic, Ribbit Corp., SpinVox and ooma.

The plaintiff also alleges that all the defendants, with the exception of SpinVox, have infringed the '818 Patent.

Klausner is a patent troll that we wrote about many times before [1, 2, 3, 4, 5, 6, 7]. Even a lobbyist for software patents calls what the likes of Klausner are doing "extortion".

“This is a huge problem for companies like ours,” said David Bates, intellectual property counsel for GE Healthcare. “It’s extortion, and we do face (these problems) on a regular basis, and because of the way the system is set up we can’t possibly keep up

Top up this contemporary patent mess with some malicious patent ambush such as Rambus'. Here is a new report on the subject.

Nvidia said Tuesday the US Patent and Trademark Office has initially rejected 41 claims by Rambus that accuse the graphics chip maker of aping its memory controller tech without paying.

The 41 jilted claims relate to seven of the nine patents Rambus alleges have been infringed by Nvidia. The IP-only memory company filed a formal complaint with the US International Trade Commission in November 2008 requesting an investigation it hopes will lead to barring of certain Nvidia kit if royalties or settlement money isn't slipped its way.

Even businesses with real products can be patent aggressors (and offenders), so this is not a problem that elimination of trolls alone would resolve. Scope of patenting and purpose must be revisited to ultimately make economical and ethical sense. Sanity can be restored. Some patents kill people [1, 2]. ⬆