Bonum Certa Men Certa

Patents Roundup: Microsoft, Danger in New Zealand, and Rise of Opposition

New Zealand flag



Summary: A lot of news about software patents and intellectual monopolies in general

IT HAS been a long time since the last post about patents, so here is a quick summary.

Patents in a Standard and Microsoft



Rambus is an example of a case [1, 2, 3, 4] where so-called standards get contaminated by patents, sometimes secretly. One of the key Samba lawyers (and one who stood up to Microsoft) wrote about patents in standards. He refers to the Rambus case:

We have just heard of a proposed settlement of an EC antitrust action against a private company named Rambus. Rambus has reportedly tabled an undertaking to reduce its royalties for DRAM patents, which would lead, technically, to a decision according to Art. 9 of EC Regulation 1/2003. The Commission has published it for market testing, inviting comments by the middle of July. Although the proposed licenses and royalties still raise questions, it is in the line of successes of EU antitrust activities where USA initiatives have most remarkably failed. But more importantly, it is the first signal to the world of standards that the recent free rides by some players in that field are going to be under vigilant scrutiny of the antitrust authorities.


Law.com wrote about Rambus as well. [via Groklaw]

The move closely follows the U.S. Patent and Trademark Office's rejection of all 41 claims in seven of the nine patents Rambus asserted against Nvidia and 17 of its customers in the ITC case.


Digital Majority has made the observation that Microsoft may be hiding software patents in XPS. To quote from the XPS licence: "There is a requirement that any XPS implementation that is distributed, licensed or sold contain a notice in the source code of the implementation indicating that Microsoft may have intellectual property associated with the implementation and to provide a link to where the license may be obtained from Microsoft."

“The TomTom case was another example where a Microsoft promise regarding patents was suddenly broken.”In reference to this Patently-O article, Pamela Jones wrote: "What he is saying is that it is harder to push through an obvious patent, and more exactly that if your patent is found to be obvious, the appellate court won't help you as readily as it used to, due to the ruling in KSR. To patent lawyers, that is a bad thing. To me, thinking of patents like Microsoft's FAT patents, it's a good thing."

The TomTom case was another example where a Microsoft promise regarding patents was suddenly broken. It is similar to what Rambus did and some might call it an "ambush".

ACTA



ACTA is a global problem [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. Fortunately, some good people took it upon themselves to address it and Glyn Moody shares some of the details.

One of the frustrating aspects about the Anti-Counterfeit Trade Agreement (ACTA) is that it is a cosy club of rich and powerful nations plus a few of their equally rich and powerful chums in select industry. Meanwhile, hoi polloi - that's you and me - don't get a look in, even though we are the most affected.


The EFF too was involved in fighting ACTA using a lawsuit. Someone in Slashdot called ACTA the "Anti-Internet Freedom Agreement," adding that:

ACTA will mandate software patents, criminalization of copyright infringements, censorship lists, data retention. States that today resist such measures due to local democratic pressure will be able to cite "Obligations under International Law" as an excuse to move towards eFascism. The goal is to send 4chan, piratebay, and anyone else who offends the powerful to jail.


New Zealand



The most urgent news comes from New Zealand, where Free software folks have noticed some disturbing developments following similar recent attempts to disrupt copyright law.

Software patents are not currently available in New Zealand, although several companies have tried to get “by the back door”, i.e. by tying the software idea they want to patent to some piece of hardware.

A software patent is a state-enforced monopoly on a idea. They exist in the US and some other countries, but not in many places including New Zealand. We don’t need or want them here. If you want some reasons, here are five good ones:


More information can be found here:

The director of the End Software Patents campaign Ciaran O'Riordan writes to warn of an imminent threat of software patents in New Zealand...


This has just reached the press:

Open source activists target software patents



Open-source champions are pushing to eliminate software patents from New Zealand through a Patents Bill now at the select committee stage in Parliament.

Such patents have been accepted by default for many years, but this is damaging to the software industry, which subsists to a great extent on adapting and including the ideas of previous inventors, says New Zealand Open Source Society president Don Christie.


USPTO



Moving way up north to the United States, the big news is a USPTO appointment which we already wrote about. David Kappos [1, 2, 3, 4, 5, 6] may not be the worst (re)placement, but there is usually room for improvement as Kappos does not oppose software patents. There is some punditry about the subject and the FFII rightly gets upset that the USPTO is already blocking access to Bilski's pending patent application. Whose office is this?

The US Supreme Court will soon hear Bilski on why software and business method patents are so good for the US economy. I was trying to find out where the Bilski's pending patent application was published, and I ended up writing to the new USPTO President and ex-IBM David Kappos. I finally got an answer from a USPTO official that the Bilski's pending patent application cannot be seen by the public.


We'll come back to it in a moment.

Over in South Africa, this article was published regarding the Bilski case, whose absurdity is demonstrated by this older article from IEEE Spectrum.

It is important that the Bilski judgment be understood correctly, and not misinterpreted as meaning the end of software patents in the US. However, there is a lack of clarity as to which kinds of patent claim will satisfy the Bilski test, and it is therefore good news that the US Supreme Court has agreed, on 1 June 2009, to hear arguments in Bilski v Doll to review the Federal Circuit decision. The Supreme Court will deal with two questions: firstly, does the Federal Circuit's decision conflict with the Supreme Court's decision in Diamond v Diehr where the court held that the only non-patentable subject matter is “laws of nature, physical phenomena and abstract ideas”; and secondly, does the “machine-or-transformation” test conflict with the US Congress's intent that business methods are patentable?

The Supreme Court may uphold the “machine-or-transformation” test, may alter how the test is administered, or may adopt another test altogether. Oral hearings will commence in October 2009, so it will be some time before a decision is issued.


More information can be found here:

Since the Bilski patent application has never been published, it is hard to determine from the claims if its commodity hedging scheme requires a computer for any practical use. If the hedging scheme requires a computer for any practical use of the invention, then denying the patent just because it does not recite the hardware is absurdly formalistic. If the invention does not require a computer for any practical application of the invention, then it is hard to see how the invention is novel. In this case, the courts should avoid any overly broad pronouncements about business method patents or software patents and rule the invention is not patentable for lack of novelty.


Patent Baristas covered it as well.

Handicapping Bilski

IP Law & Business laments that when the Federal Circuit issued the landmark Bilski decision, some folks were ready to call it the death of (most) business method patents, or even software patents—that view may be a bit premature. Even if Supreme Court nominee Sonia Sotomayor joins the court and turn out to be strongly pro-patent, those hoping for stronger limits on what can be patented, there are still a number of way to find a majority. Several justices have, in other cases, dropped hints about what’s in their minds on this subject.


Here is a comment which states the absurdity of patents on sharing of photos.

Patents on "organizing and sharing images online"? Surely these are "business methods". I hope the Supreme Court (In Re Bilski) can bring some sanity to this ridiculous software patent mess the lawyers have gotten us into.


EFF's patent-busting project may not be the most effective way to battle this issue at its core, but another little milestone is marked with elimination of the notorious subdomain patent.

San Francisco - The U.S. Patent and Trademark Office has announced that it will revoke an illegitimate patent on Internet subdomains as a result of the Electronic Frontier Foundation's (EFF) Patent Busting Project campaign.

U.S. Patent No. 6,687,746, now held by Hoshiko, LLC, claimed to cover the method of automatically assigning Internet subdomains, like "action.eff.org" for the parent domain "eff.org." Previous patent owner Ideaflood used this bogus patent to demand payment from website hosting companies offering personalized domains, such as LiveJournal, a social networking site where each of its three million users may have their own subdomain.


Here are some more discussions on the subject.

EPO



As we noted earlier, the USPTO denies access to Bilski's pending patent application, but FFII's president (Benjamin) claims that he "got confirmation that EPO publishes pending patent applications, not like in the US." There are barriers however:

EPO website and pending patent applications



Does someone has a link to a webpage of the EPO displaying a pending patent application?

Gauss is for the moment down (once again), it is time to move to make mirrors.


As Benjamin puts it, "things go wrong with the web memory: http://noepatents.eu.org, http://gauss.ffii.org, http://wiki.ael.be all gone."

There seem to be new attempts (by lawyers) to bring software patents to Europe. IP Kitten (a set of lawyers) writes some more about the current situation, mostly by quoting:

The European Patent Office (EPO) does not grant patents for computer programs ("software patents") or computer-implemented business methods that make no such technical contribution. In this respect the granting practice of the EPO differs significantly from that of the United States Patent and Trademark Office (USPTO). [IPKat comment: Although, after Bilski, it appears that the USPTO is now even more strict than the EPO]


The notion that software patents can magically intrude Europe through unification is further substantiated by this.

Step forward for an EU patent?



[...]

The European Union has moved to address a decisive issue key to the creation of the hotly-contested European community patent. At the end of May, European Industry Ministers agreed to ask the European Court of Justice (EJC) whether draft plans to cut the costs of defending patents in a single European patent court would be compatible with EU law. Because the European Patent Office also grants patents that are valid in non-EU member states – such as Norway and Switzerland – the topic is under debate.


The "community patent" is nothing to do with community in the inventors' sense. Community of lawyers -- maybe.

Green Party and Pirate Party



Not everyone has surrendered to this ludicrous idea that software development deserves monopolies. There are at least two political strands in Europe that explicitly oppose the EPO's current practices. One of them is the Green Party, whose position is:

Public documents in open formats Greens want public documents to be written and conserved in an open format, in order to keep public administrations independent from software publishers and patent holders and ensure document accessibility to all citizens, independent of which software he or she uses.


Regarding the EPO:

European Patent Office (EPO) Greens want EPO to become a Community Institution, accountable to the Commission and the EP. The EPO shall be publically funded, in order to discourage their practice of issuing high numbers of patents in order to secure EPO financing, which is detrimental to the quality of patents. Greens propose that 5% of the renewal fees of patents are transferred to an independent research and innovation fund.


Another opposer of what the EPO is doing would be the Pirate Party, which according to Dailykos will continue to gain momentum. The lawyers at IAM are not entirely happy, obviously.

"The Pirate Party wants to fundamentally reform copyright law, get rid of the patent system, and ensure that citizens' rights to privacy are respected." And as of today, the Pirate Party is represented in the European Parliament, having secured just over 7% of the votes in Sweden in the European elections held over the last few days across the EU.


There are people who go even further.

In it, “Newspapers are elephants in a desert of their own making, desperately wandering from watering hole to watering hole, but the revenue flowing from each tributary of their 18th century monopoly on the sale of copies is drying up,” says Crosbie, adding:

“Neither fencing off the copies nor reinforcing the monopoly will help. Their business model faces absolute drought. So they collect, not to commit suicide, but to assemble their graveyard.

[...]

then i realized, i was an artist, and all the articles on ars, /., techdirt and here reminded me of patent trolls, copyright propoganda, ad nauseum.


Despite all that copyright propaganda, ad nauseum etc. it is opposers of such monopolistic abuse who are often described as the "bad people", where "bad" just means "less wealthy" or simply the digital majority. It is largely the same when it comes to pure politics.

"It is not the policy of the EPO to require or examine source codes […]. Moreover, given the length and complexity of source code listings, which can often stretch to hundreds of pages, it would be quite impossible to examine them." —European Patent Office brochure



Recent Techrights' Posts

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day
LWN (Earlier This Week) is GAFAM Openwashing Amplified
Such propaganda and openwashing make one wonder...
Open Source Initiative (OSI) Blog: Microsoft Operatives Promoting Proprietary Software for Microsoft
This is corruption
Libre-SOC Insiders Explain How Libre-SOC and Funding for Libre-SOC (From NLNet) Got 'Hijacked' or Seized
One worked alongside my colleagues and I in 2011
Why We're Revealing the Ugly Story of What Happened at Libre-SOC
Aside from the fact that some details are public already
Removing the Lid Off of 'Cancel Culture' (in Tech) and Shutting It Down by Illuminating the Tactics and Key Perpetrators
Corporate militants disguised as "good manners"
FSF, Which Pioneered GNU/Linux Development, Needs 32 More New Members in 2.5 Days
To meet the goal of a roughly month-long campaign
Lupa Statistics, Based on Crawling Geminispace, Will Soon Exceed Scope of 4,000 Capsules
Capsules or unique capsules or online capsules are in the thousands and growing
Links 24/07/2024: Many New Attacks on Journalists, "Private Companies Own The Law"
Links for the day
Gemini Links 24/07/2024: Face à Gaïa, Emacs Timers for Weekly Event, Chromebook Survives Water Torture
Links for the day
Why Virtually All the Wikileaks Copycats, Forks, and Rivals Basically Perished
Cryptome is like the "grandpa" of them all
A Total Lack of Transparency: Open and Free Technology Community (OFTC) Fails to Explain Why Over 60% of Users Are Gone (Since a Week Ago)
IRC giants have fallen
In the United Kingdom Google Search Rises to All-Time High, Microsoft Fell Nearly 1.5% Since the LLM Hype Began
Microsoft is going to need actual products or it will gradually vanish from the market
Trying to Put Out the Fire at Microsoft
Microsoft is drowning in debt while laying off loads of staff, hoping it can turn things around
GNU/Linux Growing at Vista 11's Expense
it's tempting to deduce many people who got PCs with Vista 11 preinstalled are deleting it, only to replace it with GNU/Linux
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 23, 2024
IRC logs for Tuesday, July 23, 2024