Bonum Certa Men Certa

Patents Roundup: Bilski, USPTO and Justice for the Rich Only; 'Community' Patent and 'Harmonisation' in Europe

Wall in paris



Summary: A large number of reports on the subject which affects Free software at a legal level

THIS is just a quick rundown through some of the patent news impacting Free software.

Red Bend sued Free software some weeks ago and there is a long article about it in LWN.net. It is available to non-subscribers now.

Even for patentese, this language tends toward the impenetrable. But once one realizes that "reference entries that contain reference that refer to other entries" means "addresses," it starts to become a little clearer. To your editor's overtly non-lawyerly, not-legal-advice reading, this claim does appear to describe what Courgette is doing.


The article "The Supreme Court v. Patent Absurdity" has been published by the Wall Street Journal, which includes this factoid:

One direct consequence is that "patent trolls" buy up patents so they can sue innovators. Big technology companies pool their patents to reduce lawsuits. For information technology, the costs of litigating patents may be greater than the economic benefits of patents. Real money is involved: The largest patent-case judgment is for $1.67 billion, being appealed by Abbott Labs in a case brought in the plaintiff-happy federal court in eastern Texas.


Here is perspective on the pharmaceutical industry.

The book ends with the perennial question of “would we have got where we are today without patents?” Dutfield points out that it almost goes without saying both that the pharmaceutical industry is crucially important for human welfare since it produces cures (among other things), and that it is considered to be the most dependent of all industries on patents.
This should remind us of two things that a new institutionalist approach leads us to expect. First, changes in property rights structures can never make winners out of everybody. Second, the differences between the gains for some and the losses for others are bound to be great when the biggest right holders have, as they often do, such a firm grip on the regulatory system to the partial or total exclusion of other holders, users and those representing consumer interests.


The Justice Department (and by inference/extension the USPTO) will not make many fans if it permits access only by the affluent. Groklaw complains that this new PACER survey removes/neglects privacy and the following update shows that anonymous access is not really allowed as long as RECAP is treated as too "naughty".

NOTICE (8/22/09):The court would like to make CM/ECF filers aware of certian security conce rns relating to a software application called RECAP, which was designed by a group from Princeton University to enable th e sharing of court documents on the Internet. Once a user loads RECAP, documents that he/she subsequently accesses via PA CER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether document s are available from the Internet repository. RECAP captures District and Bankruptcy Court doucments, but has not yet inc orporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted o r sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Int ernet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sea led documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure t hat documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts wil l continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.


Groklaw remarks that the "US District Court for the District of NJ Notices RECAP" and adds: "I think whoever wrote this notice may not be aware that the federal judiciary switched to Linux for its infrastructure back in 2003, so evidently there is no cause for alarm about the flexibility of open source software. I don't know how RECAP works, but just speaking in general. Because their system works on Linux, they have many, many options to address security successfully, even if there were valid concerns, and likely that's one reason the courts chose Linux."

Here is an attempt to make money out of the Bilski proceedings.

A webcast of the panel discussion will be available for a registration fee of $15 (government/academic/retired FCBA member), $35 (government/academic/retired nonmember), $65 (private practitioner FCBA member), or $105 (private practitioner nonmember). Instructions for accessing the webcast can be found here. Those interested in obtaining group pricing and university law schools interested in free internet participation should contact Elisabeth Reed at reed@fedcirbar.org.


Bilski was also covered here at Patently-O, which looks at "The Value of Patents in a Major Crisis Such as an Influenza Pandemic." People like Donald Trump are said to be making a fortune out of Swine Flu.

E.D. Texas Magistrate Judge Love has recommended that H&R Block's advance-tax-refund patents be held invalid for failing to claim patentable subject matter under Bilski. The claims in question are all directed toward either a "computerized system" or "computer-implemented method." Quoting Nuijten, the court first held that Bilski controls both system and method claims – since a "court should not be 'overly concerned with pigeonholing subject matter once the court assures itself that some category has been satisfied.'"

The claimed invention involves issuing a cash-advance to income tax filers and then retaining a right to receive payment from the government.


Stupidity at the USPTO is being put to the test:

Journalists who cover Washington know the drill: top bureaucrats can be very hard to get through to, especially when you need to reach them the most.

So when ABA Journal senior writer Terry Carter got nowhere in his recent effort to reach Patent and Trademark Office director David Kappos through spokesman Peter Pappas for a story he was writing, he decided on a characteristically novel approach: on Tuesday he drafted and posted a humorous patent application for a "method to get an interview with USPTO Director David Kappos." Edward Adams, editor and publisher of the ABA Journal, wrote in this story at the Journal Web site, "We figured the problem was that Carter was not speaking the agency's language."


Glyn Moody passes the message that "[Microsoft] filed a patent for sparklines in Excel, ignoring Tufte and demonstrating that the patent system is a deranged circus" and Amazon scores gift-delivery patent, according to Slashdot.

In May, the USPTO rejected Amazon.com's patent claims (PDF) for its Method and System for Placing a Purchase Order Via a Communications Network (a 1-Click spin-off). At the time, a USPTO Examiner cited Bilski, explaining that elements of CEO Jeff Bezos' gift-delivery invention 'may be performed largely within the human mind,' coming to essentially the same conclusion a NY Post reporter arrived at in 2002. But Amazon's attorneys have worked their legal wordsmithing magic (PDF), convincing the USPTO that 'obtaining delivery information for a gift from one or more information sources other than the gift giver and recipient' is indeed novel and patentable. A Notice of Allowance for the patent was mailed to Amazon on November 17th, just in time for Holiday Season injunction-giving!"


The EFF has found another ugly patent to swat and it is looking for brains.

Patenting podcasting? You've got to be kidding. Yet a company called Volomedia just got the Patent Office to grant them such exclusive rights.

EFF and the law firm of Howrey, LLP aren’t willing to just sit by and watch. This patent could threaten the vibrant community of podcasters and millions of podcast listeners. We want to put a stop to it, but we need your help.


Thought-provoking new article at Against Monopoly: "Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense"

Defenders of patents commonly say they are against innovators' ideas being "stolen" or "plagiarized." This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.

Under copyright law, someone who independently creates an original work similar to another author's original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author's work. Thus, for example, a copyright defendant can try to show he never had access to the other's work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one's original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make "derivative works".) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1's copyright, since author 2 did not copy anything.

Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference--one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law--that it simply prevents people from copying others' ideas.


Glyn Moody adds:

"How to Fix Capitalism" is an insanely ambitious post that ranges over, well, just about everything concerned with business and all it touches. The following proposals give some hint of its deep wisdom:
# Abolish patents. They have not been proven to speed progress: the evidence seems to be to the contrary. They definitely increase costs, are an inefficient way of funding R & D and allow oligopolists to block competition.


Over in Europe, the following articles are worth a glance:

i. Internet-hosted prior art and proof of publication: UK not bound by EPO level of proof

In a recent hearing concerning a UK patent application, Ranger Services Ltd's application, BL O/362/09, 17 November 2009, Hearing Officer Lawrence Cullen was faced with a question relating to the status of cited prior art which had been obtained from an internet archive. Rejecting the application before him, which was for a system of using an automatic number plate recognition system to detect cloned vehicle number plates, he considered that the current European Patent Office guidelines [see earlier IPKat post here] would suggest that the cited prior art should be taken into account.


ii. QinetiQ mail virus patent attracts barbs

An anti-virus expert has poured cold water on a patent from British technology firm QinetiQ that supposedly offers a new technique for tackling malicious email attachments.


No company should not be able to patent software in the UK, but Nokia is a problem in that regard (because of Symbian [1, 2]).

The ugly "Community patent" is still trying to rear its ugly head and potentially bring software patents to the whole of Europe. Here is the latest update: "EU Community Patent And UPLS: Will There Be A Political Breakthrough Soon?"

The Intellectual Property Expert Group (ipeg) are feeding hopes in their Blog that the Swedish EU Presidency might be lucky enough to successfully forge some sort of political compromise on the EU Community Patent as well as on the Unified Patent Litigation System (UPLS) later this year.


The "Community patent" is an attempt previously characterised as “harmonisation” by Charlie McCreevy and other cronies, including Microsoft lobbyists.

In relation to copyright, Glyn Moody has just explained what “harmonisation” really is about:

I and many others have noted how changes in copyright law only ever work in one direction: to *increase* copyright's term and to give greater powers to copyright holders. In effect, it's a ratchet. But until now, I've not seen a good explanation of what's driving all this (although I had a pretty good idea). The motor behind the ratchet (assuming such mixed metaphors are permitted) is harmonisation:

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.


As Roger Lancefield points out in the comments,"effectively this is legal imperialism.

"It's hard not to draw parallels with another manifestation of US legal imperialism, the extradition treaty which has destroyed Gary McKinnon's life." Remember what Microsoft did to McKinnon.

Recent Techrights' Posts

Dances With Wolves, Wakes Up With Fleas
Small minds say "td;dr" whereas the rest say, "give me information, give me time to study it"...
Garrett Does Not Just Try to Cover Up for Himself, He's Clearly Covering Up for His Mates From Microsoft (and Admits Third Parties Fund His Litigation, With Their Legal Bills Estimates Already Approaching $1,000,000)
They have already sent us about 75 KG of legal papers. How is any judge supposed to keep up?
Richard Stallman in the United States - Part IV - Back to Switzerland
The "cancel mob" tried to "finish off" RMS 5 years ago
Dr. Richard Stallman in Ada Lovelace Lecture Series 20 Hours From Now in Lucerne School of Computer Science and Information Technology (Rotkreuz)
Well-connected and affluent corporations want everything to be controlled by them, ranging from culture to words and news
GNU/Linux Seen as Rising to 20% in Eritrea, But That's statCounter Identifying "Unknown" as GNU/Linux
What if statCounter managed to figure out what all those "unknowns" are?
 
Under IBM, Some Fedora Blog Posts Have Become LLM Slop! (Red Hat is Doomed by Slop Fanaticism)
Who would even bother reading such trash?
Lots of People Leaving IBM Today
IBM cannot be trusted
LLM Slop Rare and Scarce This Friday
We still hope that by the end of this year slop will become nearly extinct
Defending British Democracy From American Predators
We stand united and strong in the face of predators
Links 06/03/2026: LLM Prompt-injection Vulnerability in Microsoft's Proprietary GitHub, "260,000 Federal Jobs Lost"
Links for the day
It's Friday and Many People Publicly Announce Leaving IBM (Which is Engineering 'Willful' Departures to Mask RAs' Scale)
We understand from whistleblowers that IBM already destroyed Red Hat's culture
Dr. Richard Stallman (RMS), the Man Whose Mind Scares GAFAM et al, Began Speaking in Switzerland
His ideas and ideals are not obscene
Gemini Links 06/03/2026: "Setting up the Feed" and Using Molly Brown
Links for the day
Links 06/03/2026: Can't Copyright Slop in US, Microsoft Became Slop Provider for Militarism
Links for the day
Threats Issued to Daniel Pocock Having Launched the JuristGate Web Site Which Covers Financial Fraud in "Legal Insurance" Clothing
Is our world governed by laws or by rich corporations (or nations/superpowers) with well-connected lawyers/politicians?
International Women's Day: At the EPO, for Women to Become Managers They Need to Sleep With Well-connected Men and Mingle With Corrupt Men
Sunday is International Women's Day
Dr. Richard Stallman Starts His Talks in Switzerland in 8 Hours
They try to assess how many people plan to attend to ensure everyone gets a seat (without compromising the privacy/identity of those attending)
IBM Red Hat Layoffs: It's Not About "AI"
"Automation" is not "AI", it's just a generic term which can describe jobs left for machines to do, sometimes computers
Microsoft Windows Used to be Identified on Over 99% of Web Requests From Benin. Now It's Around 50%.
Or a lot less
Microsoft 'Open' 'AI' Has Severe Financial Problems, Version Inflation ("GPT-5.4") is Mindless Hype and a Misleading Distraction
In practice, both users and sponsors of ChaffGPT are fleeing
The Techrights Static Site Generator (SSG) Turns 5 Next Year
It's still under active development in our Git servers
New XBox Boss (Sharma) Implicitly Confirmed XBox (the Console) is Now Dead
Vista 11 is now also known as "XBox"
Murder as a 'Joke' to GAFAM People (Sociopathy)
When it comes to Microsoft and Salesforce, they profit from this mentality
Microsoft ‘Project Helix’ is Just a Tweet in MElon's "X"
Some "tweet" is easy, as words are cheap
Microsofters' SLAPP Censorship - Part 4 Out of 200: Rianne’s Version of Events and Narrative
today we tell Rianne's experience
EPO Staff to 'Meet' This Coming Tuesday to Plan Industrial Actions Including Upcoming Strikes
using Microsoft spyware to organise this can be an own goal because Microsoft serves the dictators, not the union that tries to topple them
Thousands of EPO Workers Rally Against EPO Management
The staff is furious to see what became of the EPC and the EPO. This is not sustainable.
In Argentina Firefox is Measured at Only 1%, Google Chrome (Proprietary) at About 90%
And it has long been that way
IBM's March 2026 Layoffs Already Happening (to Accelerate Soon in Europe and America)
We're probably seeing some of the last years of IBM and it's anything but certain that IBM can survive the coming decade
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 05, 2026
IRC logs for Thursday, March 05, 2026
Gemini Links 05/03/2026: Industrial Panettone, Cancel, and LLMs
Links for the day
It's Not "AI", IBM is Collapsing Due to Financial Difficulties, "All Small Country Offices Will Close"
IBM is in trouble. Insiders know it.
"AI Companies" Running Out of Money, GAFAM Layoffs Are Signs of Weakness, Not "AI Efficiency" or Novelty
In the past, this term ("AI") had another meaning and connotation
Libel/Defamation Law Does Not Exist to Cover up Crimes
The projection tactics are nothing new
Myanmar/Burma: Growing Acceptance of GNU/Linux, Big Losses for Windows
GNU/Linux has come close to 5% there
Without IBM, Microsoft Would Not Have Taken Off. Both Companies Need to be 'Taken Down'.
Maybe it's time to boycott IBM as well
'Former' Red Hat Staff Upset That Techrights Covers IBM Accounting Problems
Are we touching a sensitive subject at IBM?
Ubuntu is Controlled by a Youngster From the British Army (Background in Mass Surveillance), So One Can Expect Ubuntu to Not Respect Privacy
"Canonical is aware of the legislation and is reviewing it internally with legal counsel"
IBM Hates Computer Freedom. This Means Red Hat Too is an Enemy of Software Freedom.
A summary of Fedora's position when it comes to "attestation"
IBM Union Says Many IBM Layoffs in Europe, With Netherlands and Belgium Confirmed, Allegedly Italy Soon (200 Layoffs)
IBM's demise will harm Red Hat and already harms Red Hat, according to whistleblowers
Microsoft and Microsoft's 'Open' 'AI' Seeking Bailout From the Pentagon Means Brand Erosion
Microsoft and its offshoots growing more and more dependent on military ("defence"; "Department of War") budget
Another EPO Strike a Fortnight From Now, Local Staff Committee Munich (LSCMN) Shares 127-Page Document Explaining How Policies Impact EPO Staff
The Office is circling down the drain
Microsofters' SLAPP Censorship - Part 3 Out of 200: A More In-Depth Breakdown
presents the narrative in a less chronological and more logically coherent fashion
2026 Seems Like (Potentially) the Last Year of Slop Drowning News Sites
Sites that do so perish [...] It's getting hard to find slop in news sites which cover "Linux" because many gave up
Links 05/03/2026: New LexisNexis Data Breach Confirmed, "Goldman Sachs Head During Financial Crisis Says He “Smells” a Similar Crash Coming"
Links for the day
"Silent Layoffs" or "Forever Layoffs" at IBM and Red Hat (After Bluewashing)
Like every day (all day long) we can see people who leave IBM and say something that's based on a 'script'
Free Software Foundation (FSF) and Others Promoting String of RMS Talks, Starting Tomorrow in Lucerne School of Computer Science and Information Technology
Well done, FSF!
Links 05/03/2026: A Bet Against Substack, American Government Openly Hostile Towards Environment
Links for the day
Gemini Links 05/03/2026: Greed and Sentiments Shifting Against Slop
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 04, 2026
IRC logs for Wednesday, March 04, 2026
FSF Promoting Richard M. Stallman (RMS) Talk in Switzerland in Just Over a Day From Now
RMS may have more talks on the way
Why Slop Will Flop - Part IV - We've Seen the End of It
Some years ago they insisted blockchains would revolutionise everything
Android is Proprietary 'Linux' and It Becomes More Malicious Over Time, Google Only Delayed What It Planned All Along
Google is a proprietary software giant, GSoC is only a distraction and confusion
Links 04/03/2026: Scam Altman Causes Chatbot Sub Numbers to Plunge, "Stocks Drop as Inflation Risk Emerges"
Links for the day
Why Slop Will Flop - Part III - Our Relationship With Slop (and Yours)
I never - except inadvertently - "used" an LLM-based chatbot
Why Slop Will Flop - Part II - Devil in the Details
News sites or social control media sites which tolerate slop are digging their own grave
Simpler Means Faster
Do you know your bottlenecks?
Gemini Links 04/03/2026: About a Missing Symbol and "Good Manners"
Links for the day
The Register MS Takes Money From Chinese Surveillance Threat to Promote a Ponzi Scheme
"Sponsored by Huawei."
Nicaragua's GNU/Linux Usage Measured at Over 8% by statCounter
Nicaragua is a poor country, but it also has rich culture
Why Slop Will Flop - Part I - Slop Fatigue Prevalent
See, sooner or later people (audiences of colleagues) find out and as soon as they find out you are slopping, they will lose interest
Microsofters' SLAPP Censorship - Part 2 Out of 200: Detailed Timeline From 2012 (Attack on Reporters That Question Restricted Boot) to 2024 (Lawsuit Against Reporter and His Wife in Another Continent)
we reproduce a document produced 2 years ago to give people more context and more facts
Links 04/03/2026: "The EU moves to kill infinite scrolling" and a call to "Nationalize Amazon"
Links for the day
Coming Soon: Evidence of Abuse in Our IRC Network
IRC's freedom can sometimes be its 'weakness' if not properly guarded
High GNU/Linux Adoption in Brunei Darussalam
It's worth noting (or at least noticing) that Microsoft loses ground in some of the countries where the government contracts paid the most
Media Blackout Reducing or Preventing Press Coverage of Microsoft Layoffs in 2026
Worse yet, there will be gaslighting and deceit
GNU/Linux in Laptops/Desktops Still Matters, It's Likely the Only Way to Achieve Software Freedom
Software Freedom requires all sorts of things at the "OS level"
Gemini Links 04/03/2026: The Garnet Star, The Hunt, The SYN Attacks
Links for the day
The EPO's General Consultative Committee (GCC) Discussion Illuminates How Much Worse Things Have Gotten ("on Strike and Participated in the 'Meeting'")
a videoconference - not a physical meeting - discussed EPO policies
Free Software Foundation Supports Its Founder, Advertises His Talks in Switzerland
When you suppress voices, assuming the reasons for suppression are bunk, it is always bound to backfire very badly
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 03, 2026
IRC logs for Tuesday, March 03, 2026