Bonum Certa Men Certa

Patents Roundup: What Bilski Means to IBM, Microsoft; Patent Trolls Still Win

Bill ski



Summary: The latest news about software patents which pose a threat to the freedom of software

AS WE POINTED out a couple of days ago, In Re Bilski goes all the way to the top, potentially to invalidate software patents in the United States. Groklaw has some very extensive text and the software patents-hostile wiki has a new page asking, "should the whole patent system be axed?"



There is clearly a lot of unrest because this bubble is waiting to explode. Reuters published a report about the Microsoft/Lucent dispute a few days ago:

Microsoft, Lucent battle in huge patent case



Microsoft Corp (MSFT.O) argued before an appeals court on Tuesday that its Outlook calendar date-picker tool did not infringe an Alcatel-Lucent (ALUA.PA) patent and asked for a $358 million jury verdict to be overturned.

The lawsuit is the last remaining after Alcatel-Lucent and Microsoft settled other patent fights in December. The case was appealed from a district court in San Diego, where a jury ruled that Microsoft did infringe and ordered it to pay $358 million, or $511 million including interest.


Microsoft too is suffering from software patents, so this is hardly sustainable even for monopolists. As stated over at BusinessWeek the other day, "Businesses come down on both sides of the issue. IBM (IBM), which has obtained a slew of business-method patents, filed an amicus brief in what is known as the Bilski case, stating that the company is now opposed to them. IBM maintains that the patents are not needed to promote innovation; businesses would come up with the products even without patent protection. "You're creating a new 20-year monopoly for no good reason," IBM's top in-house patent attorney, David Kappos, told BusinessWeek last year."

As someone points out privately, "What is curious is that IBM in Europe filed [PDF] recently an Amicus Curiae Brief to the EPO EBoA defending the approval of software patents.

"Who holds the real IBM position on the matter: IBM US or IBM Europe?"

IBM's position on software patents is definitely very troublesome [1, 2]. However, "IBM was talking about business method patents here," points out a person with knowledge in this area. "I read somewhere on the net that IBM was behind the Bilski "machine transformation" test."

Looking at BNA.com, there is mere speculation about what In Re Bilski might do to software patenting.

Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either.


The pro-Microsoft Richard Waters weighs in on the subject and The Prior Art blog quotes some judges of relevance.

CHIEF JUSTICE ROBERTS: I may not be a software developer, but as I read the invention, it's displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them. I -- I might have been able to do that.

[....]

In the patent bar and at the Federal Circuit, software patents are the law of the land. But during oral arguments in the 2007 AT&T v. Microsoft case, which regarded damages for infringing copies of software distributed overseas, it became clear that the at least a few Supreme Court justices haven't made up their minds about whether software should be patentable.

During oral arguments in that case, Justice Breyer went out of his way to make it clear that despite the fact that software patents were issued widely following the Federal Circuit's 1998 State Street Bank decision, he had never gotten the opportunity to weigh in, and as far as he was concerned, it's not a settled issue:

JUSTICE BREYER: “I take it that we are operating on an assumption that software is patentable? We have never held that in this Court, have we?”

Later, Justice Stevens also asked a government lawyer point-blank whether software is patentable. The answer: "Standing alone in and of itself, no."

He likely said that because as it stands, software has to be tied to a machine to get a patent—not hard to do. But it shows that for Stevens, like Breyer, software patents are up for debate.


The nature of software patents is very troubling because to avoid an infringement (willful or not willful) is virtually impossible. Software is written very quickly, without a rigorous manufacturing process. As are result, the patent trolls and aggressors are still having a field day.

Store Payment Info In Your Online Store? Watch Out For Patent Infringement Lawsuits



[...]

As for the patents in question, they're all a variation on a "method and apparatus for conducting electronic commerce transactions using electronic tokens." The specific patents are 7,376,621, 7,249,099, 7,328,189 and 7,177,838. Reading through the claims, this seems like an incredibly typical online system for storing payment info and seeing if the person can actually pay. Since the patent system defenders among our readers get quite upset whenever I say something seems "obvious" to me, let's flip this around. Can anyone explain how these concepts were not obvious at the time of filing?


More patent trolls in the news:

Patent trolls live under the bridge



Dell, HP, Fujitsu and IBM have been hit by a lawsuit in the Eastern District of Texas Marshall Division - famously known for its ability to expedite patent (chapter 830) disputes. The article linked to points out that it is unfair to describe anyone bringing patent suits to court as "patent trolls" - they have to have a sound case and deserve their time in court. So who exactly are the trolls?


Here is another mighty innovator in the news:

Actus goes patent lawsuit crazy



[...]

The outfit clams that more than 15 companies, including Apple, Amazonmdocs, American Express, Apple, Barnes & Noble, Best Buy, Cabela's, Citigroup, Ebay, Firstview, Marketing Technology Concepts, Netspend, Officemax, US Bancorp, and Vivotech have nicked its technology.


It's clearly time to change this system or abolish parts of it. This is not working. It does not increase capacity to innovate, it just makes a welfare system for lawyers.

Comments

Recent Techrights' Posts

Banned evidence: Ars Technica forums censored email predicting DebConf23 death, Abraham Raji & Debian cover-up
Reprinted with permission from Daniel Pocock
Intimidation, Threats, and Bullying Not Tolerated by Techrights
When it comes to our reporting, safety always comes first
Something to Celebrate in Gemini Protocol
More capsules and users join in
 
Gemini Links 29/03/2025: Art of Looking, Wireguard, EMacs
Links for the day
Links 29/03/2025: Attacks on Social Security and War Updates
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 28, 2025
IRC logs for Friday, March 28, 2025
A World Without Rules
We're long insisted on better laws and actual enforcement of them (applicable to all, not selectively applied)
IBM's BS (Bait, Switch) Regarding Ways to Stay Onboard
PIPs, RTOs, and forced relocations are just an illusion of choice (or ability to recover)
statCounter Sees Microsoft Windows Falling to New, Unprecedented Lows in Palau
Taking Android into account, Windows is now down to an all-time low of 14%
Google News Lost the Fight to LLM Slop (While Google Itself Sells Slop, Nowadays Under the Name "Gemini")
Many people say that "Google is getting worse"; that's almost an understatement
Links 28/03/2025: AirAsia Trouble Again, UMich Culls All DEI Programs
Links for the day
Gemini Links 28/03/2025: Alexa is for Gullible People, Rant About Feature Overload
Links for the day
The SLAPPs From the Microsoft Strangler (and Sidekick) No Better Than Patent Trolling
one must never settle with trolls
Links 28/03/2025: Last Reminder "to Delete Your 23andMe Data", "UK's First Permanent Facial Recognition Cameras Installed"
Links for the day
Microsoft Canonical Continues Its FUD (Fear, Uncertainty, Doubt) Campaign, Reveals Google Too Sponsored It
They're paid-for lies from a Chinese company that takes GAFAM money to write puff pieces about them
Android Rises Above 76% in Mozambique, Leaving Windows in the Dust
Windows may soon be measured as smaller than Apple's iOS
IBM, Red Hat and Microsoft Probably Also Manipulate Metrics (It Helps Con the Shareholders)
Wall Street's credibility will depend on enforcement of "checks and balances"
Slopwatch: trendhunter.com and Other Pure Junk From "Google News"
The need to vet sources is hardly new; anyone can spew out anything, anywhere. There's a need for vetting.
Gemini Links 28/03/2025: Rewatching The X-Files, Slop Concerns, and NOSTR Censorship
Links for the day
Links 28/03/2025: Australia at Risk, EPO Grants Illegal Patents With Illegal Effect
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 27, 2025
IRC logs for Thursday, March 27, 2025
Links 27/03/2025: Obituary to a Shop, Russia Trying to Buy Time
Links for the day
Links 27/03/2025: Slop, Autosuggestions, and Nostr
Links for the day
Apparently Confirmed: IBM Layoffs in Canada Today, Hundreds Affected
Impacting "177 people", says one person, "in Ottawa"
When Windows Was Dominant (1990s) Browser Monopoly Meant MSIE, But Now Google Android is Dominant and the Web in a 'Webapps' Era Works With (or Is Designed for) Chrome-isms
We've been there before
Slopwatch: BetaNews, LinuxSecurity.com, and the Attack on Web Search Using Fake and Likely Plagiarised Pages
Changing a few words here and there won't change the fact that it's not properly authored
Links 27/03/2025: U.S. Honeybee Deaths Reach Record High, Legal Occupation Next in Line After War on Science
Links for the day
Using Courts for 'Revenge' is Always a Losing Strategy
Trying to cause someone you dislike to spend a lot of money
IBM CFO James Kavanaugh Refers to Firing of Almost 10,000 Americans as "Workforce Rebalancing" (Shifting IBM's Centre of Balance to Low-salary Contracts/Countries)
The scale of IBM layoffs is getting too large to evade WARN Notices
[Video] Dr. Richard Stallman's Keynote Speech in Kerala Finally Uploaded
In non-free format and proprietary YouTube, but perhaps that's better than nothing
Islands Are Leaving Microsoft Behind, According to statCounter
Android has had a very strong year
EPO Management Fails to Deny That the Office is Discriminating Against Women
Europe's second-largest institution isn't just exceedingly corrupt but also immoral
In Some Countries the Market Share of Vista 11 is Going Down, Not Up
despite being released in 2021
Rumour: Mass Layoffs in IBM Canada Today
Maybe later today some people from Canada will say something firmer and maybe some media will even talk about that
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 26, 2025
IRC logs for Wednesday, March 26, 2025
Gemini Links 27/03/2025: X-Files' "Kill Switch", Orlando, and ASN (Autonomous System Number) 'Hack'
Links for the day