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

Slopwatch: Anti-Linux Articles Published by Bots, Dominating Google News
So a lot of the Web is Microsoft chatbot-generated anti-Linux FUD
EPO Staff Representatives Confront the President Who Says 'F--king' in Front of Female Workers Over Measurable Discrimination Against Female Colleagues
Central Staff Committee versus Lukashenko's sponsor
 
They Will Never Leave Linus Torvalds Alone, Rust is Just Another Way to Cause Instability and Infighting in Linux
We already identified the Rust "community" as troublemakers more than 5 years ago and we wrote about the evidence
Moving Away From Certificate Authorities (CAs) Like Let's Encrypt Means Taking Away From the US Government the Power to 'Censor' Sites by Revoking Certificates
Gemini capsule is cheap to run and easy (easier than a Web site) to maintain. More people disillusioned and frustrated with social control media flock to it.
BetaNews' Managing Editor Wayne William Took Charge of GNU/Linux Articles and His Articles Are Real (He Actually Wrote Them)
We are frankly relieved to see that Wayne William recognised the problem and did something about it
Links 14/02/2025: Publicity Rights Violated (ByteDance), Bribes to Trump Passed via Social Control Media 'Settlements' Again
Links for the day
Gemini Links 14/02/2025: Constitution, Cosmic DE, and More
Links for the day
Links 14/02/2025: Measles Outbreak in Texas, Zelensky Warns Russia Will Attack a NATO Country
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 13, 2025
IRC logs for Thursday, February 13, 2025
Gemini Links 13/02/2025: gwit and Restart
Links for the day
Links 13/02/2025: Algorithm Bots and 'Teleport' Breakthrough
Links for the day
IBM Layoffs in 'RTO' Clothing Reported by Thomas Claburn
This "hey hi" (AI) nonsense is just a go-to excuse that IBM and GAFAM (and many others) use
Still Waiting for the EU to Abolish the Illegal and Unconstitutional Court Linked to EPO Corruption and Lobbyism by the Patent Litigation Industry
Sadly, all the blogs that used to talk about those issues have been infiltrated and then completely hijacked by the very perpetrators of the illegality
Social Engineering of the Free Software Movement is a Corporate Takeover With Code of Conduct (CoC) to Drive Out or Expel Dissent
Richard Stallman (RMS) covered "cancel culture"
Links 13/02/2025: Mass Layoffs at Google (Disguised as "Buyouts"), Telecoms Price Hikes as Collusion/Price-Fixing
Links for the day
[Video] Richard Stallman Questions and Answers Session in Google's YouTube or Invidious
From last night
Gemini Links 13/02/2025: Broken Watches and Naming Types
Links for the day
Corrupt Bill Gates Worming His Way Into Richard Stallman Videos in Google's YouTube
Reputation laundering riding other people's names?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 12, 2025
IRC logs for Wednesday, February 12, 2025
Links 12/02/2025: Crytek Layoffs, Security Holes, and Giving Ukraine to Russia
Links for the day
Relaying GAFAM Talking Points and Lies Using GAFAM LLMs, or Slop Pasted in by Brittany Day
linuxsecurity.com is relaying slop, i.e. misinformation
Photos From This Evening's Talk by Dr. Richard Stallman in Torino, Maybe a Video Soon
The talk that Dr. Richard Stallman gave today (a few hours ago) was recorded and streamed
IlSoftware.it Covers Richard Stallman's Visit to Give Talks in Italy
The publication is in Italian, the talk was in English
Macho Patent Office
At the EPO there's always room for women in top roles
Gemini Links 12/02/2025: "Bream Gives Me Hiccups", Making Chinese Tea, and More
Links for the day
This is Why Codeberg Issues an Apology Today
This response was clear and relatively swift
The Register Studies (to Affirm) Reports of IBM Layoffs "at the Finance and Operations business unit"
something about that specific unit
Links 12/02/2025: SSL FUD, DEI Phase-out, Felonies Committed by MElon (Data Breaches)
Links for the day
Italian Media Covers Richard Stallman's English Talk Ahead of Tonight's Public Appearance
article in La Stampa
Destruction and Distortion of Information, Including Facts About Linux (Bonus: This is Destroying the Planet)
All that LLMs have going for them is hype, and moreover media that intentionally misrepresents them and their supposed capabilities
Google Seems to Have Just Killed All Instances of Invidious
YouTube is rapidly becoming just "another Neflix"
Microsoft Skype in a Freefall: About 20% Decrease in Site Traffic in 3 Months (Amid Microsoft Phasing Out Credits)
Microsoft axing more services/features may mean that now they scrape the bottom of the barrel and Skype will simply die, discontinuing service (like ICQ) in a matter of years
Gemini Links 12/02/2025: Depression, Gabbro, WikiTok, and More
Links for the day
Links 12/02/2025: Health, Security, and Monopolies
Links for the day
Gemini Protocol is Increasingly Important to the Net
Gemini Protocol will turn 6 this summer
Former EPO Manager Warns That the Illegal 'Court' for "Unitary Patents" Enables “Law Shopping”
Daniel X. Thomas opposed the very existence of the UPC, which any honest person could recognise was both illegal and unconstitutional
Like GAFAM, the EPO is Passing the Financial Pains to Staff
the EPO is operating illegally at this point
Morale at Microsoft Ruined by the Company Labelling Thousands of Workers 'Low Performers', Sacking Them on the Spot and Denying Them Basic Benefits
people laid off as "low performers" go to social control media to bemoan the label
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 11, 2025
IRC logs for Tuesday, February 11, 2025