Bonum Certa Men Certa

Patents Roundup: Lawyer Takeover, Failed Reform, and Policy Laundering With ACTA

Brussels
Brussels, Belgium



Summary: What the latest news tells us about the use of law -- not improved products -- to compete in the market

THIS post mostly looks at policy-making around software patents, which are being used by Apple and by Microsoft at the moment in order to stifle their "most potent operating system competitor". That would be Linux, sometimes with GNU. The issue of software patents is far more important than GNU/Linux-oriented Web sites typically indicate.

Question of Bias



The EPO nominates some people for what it calls "European Inventor Award 2010".

Twelve candidates from nine countries are competing this year for the European Inventor Award 2010, a highly regarded innovation prize presented annually by the EPO together with the European Commission.

The prize, which is purely symbolic and involves no material recompense, is awarded in four categories: Lifetime achievement, Industry, SMEs/research and Non-European countries. The four winners will be chosen by a high-ranking international jury and will be presented with their prizes by EPO President Alison Brimelow in Madrid on 28 April 2010.


Professor Peter Landrock is in that list and it may all seem fine, except for the fact that the president of the FFII points out that the "EPO [is] nominating a software patent proponent and enforcer [by] the name of Peter Landrock (Cryptomathic)"

“FairSoftware is not a software company. The name is deceiving.”This page says: “We have invested heavily in secure, mobile signature solutions based on two-factor authentication which offer high security as well as ease and convenience to the end-user. Our approach is based on research and development carried out over many years, and we feel strongly that we deserve fair acknowledgement from companies and organisations using our patented technology,” said Professor Peter Landrock, Executive Chairman of the Board of Cryptomathic. “This core technology contributed to Cryptomathic earning a nomination as one of the 40 most innovative companies in the world at the World Economic Forum in Davos in 2003. We prefer to resolve such issues through commercial discussions without litigation but have so far been unsuccessful with BBS. Hence we are left with no alternative but to file suit.”

So, it's another one of those European supporters of software patents. There are also people such as this guy, who describes himself as "the founder of FairSoftware, a venture dedicated to helping entrepreneurs find co-founders for their web or iPhone app."

FairSoftware is not a software company. The name is deceiving. The company strongly promotes software patents.

Here is something from the news which reminds us that lawyers -- not engineers -- favour software patents (the more, the merrier to them because it means legal business).

Kimberlee Weatherall, who teaches intellectual property law at the University of Queensland, puts the controversial issue of software patents into perspective.


Here is the new perspective of a software developer:

I’ve considered the arguments by Stallman, John Gruber, and Tim Bray on software patents, and I side with Stallman in that software patents are inherently problematic and are a net loss for society.

The major difference in their arguments is that, while all three mention the realities and dysfunctions of the patent system, Stallman focuses strongly on the difference between what it’s intended to do and what actually happens. He also illustrates the reality of trying to develop any nontrivial software in a patent-filled landscape.

[...]

As a working software developer, the thought of accidentally and unknowingly stumbling into someone’s patent is terrifying. There’s no question that it has hurt our industry in the past and will continue to artificially restrict progress indefinitely, and there’s little convincing evidence that the supposed benefits exist in practice at a large enough scale to maintain the status quo.


Reform



Patent reform in the United States is a subject that we wrote about some days ago [1, 2]. Basically, those in control of the system do not want to truly fix this system. From Senate.gov we now have "Leahy, Sessions, Hatch, Schumer, Kyl, Kaufman Unveil Details Of Patent Reform Agreement":

WASHINGTON – Leaders of the Senate Judiciary Committee Thursday announced details of an agreement on long-pending legislation to make needed reforms to the nation’s patent system.

This is the third consecutive Congress in which Senator Patrick Leahy (D-Vt.), the chairman of the panel, and Senator Orrin Hatch (R-Utah), a former committee chair, have introduced patent reform legislation. A bipartisan majority of the Committee advanced the legislation last April. In the months since, Leahy, Hatch, and Senators Jeff Sessions (R-Ala.), the Committee’s ranking Republican, and Chuck Schumer (D-N.Y.), Jon Kyl (R-Ariz.), and Ted Kaufman (D-Del.) have continued to work toward an agreement to make the legislation ready for Senate consideration.


"[The] US Patent Reform [is] promoting cheap patents," argues the president of the FFII, "good rebate for patent trolls, 75% price reduction." It sure seems reasonable to argue that the patent reform is a lost cause. Those in control of this system are mostly lawyers, not engineers. According to this patent lawyer blog (floridapatentlawyerblog.com), software patents are still (currently) allowed, even post-Bilski.

In one of its last decisions of today, the Board of Patent Appeals and Interferences (BPAI) reversed a Patent Examiner's 35 U.S.C. ۤ101 non-statutory subject matter rejection of a key Invatron Systems invention. As a Miami Patent Attorney, this case was interesting because I haven't seen any BPAI decisions regarding 35 U.S.C. ۤ101, much less a decision that invokes Bilski, in a while.

At issue was an Invatron Systems claim pertaining to a scale for weighing items, wherein the scale included a computer that performed a series of steps, such as providing a coupon. The Examiner found the claims recite a method of purely mental steps, not tied to another statutory class. The Appellants contended the claimed method recites steps including providing a coupon to the customer and that these steps cannot be performed purely mentally since there is no way to provide a coupon without the coupon being physically inputted into the weigh station display.

[...]

As such, claim 17 required a specific structure that captures, stores, and displays specific data. This specific structure ties the recited method to a particular machine, in that the method recites how to operate a weigh station with a weigh station display. Since there is a particular machine required, claim 17 satisfies the machine prong of the machine-or-transformation test and the transformation prong need not be evaluated.

[...]

The lesson learned in this case is that although a claim may not explicitly and positively recite a structural element, the claim may require a specific structure to perform the steps of the claim. If that structure satisfies the machine prong of the machine-or-transformation test, an Examiner's 35 U.S.C. ۤ101 non-statutory subject matter rejection may be reversed under Bilski.


ACTA



The ACTA encompasses patents, as we last showed about a week ago. It's just policy laundering for the big companies. The "European Parliament reserves its right to challenge ACTA in front of the European Court of Justice," shows the FFII's president, who also found out that "DeGucht tries to keep the European Parliament happy on ACTA" [1, 2]. He cites this article from IP Watch about ACTA. Check out the following part:

IIPA drew commentary from internet rights groups and open source software proponents by saying that government procurement policies encouraging or mandating the use of open source software were akin to piracy. The IIPA suggested Brazil, India, Indonesia, the Philippines, Thailand and Vietnam be put on USTR watch lists for policies favouring open source software, saying it limited the ability of proprietary software to compete.

Philip Morris said the increasing number of countries proposing to adopt plain packaging for cigarettes, or having heath warnings covering more than 50 percent of cigarette packaging is worrisome, as it might infringe trademark rights, and encourage “illicit trade in tobacco products.” The cigarette maker called for their IP rights to be protected and enforced in a number of countries, arguing that “these initiatives, which are not based on any solid scientific evidence that they contribute to legitimate public health objectives, would effectively constitute an expropriation of some of the world’s most valuable trademarks without the payment of adequate compensation to manufacturers.”

The Free Software Foundation called for an end to digital rights management software, which they said prevents users from freely enjoying their purchases and are almost always incompatible with free software.

The National Association of Manufacturers (NAM) said that IP rights were wrongly considered to be mainly the concern of sectors such as pharmaceuticals, software, and entertainment. International counterfeiting and piracy is a “mainstream and Main Street issue for US manufacturers,” they said. The specific focus of NAM in 2010 is “four Cs”: counterfeiting, customs, cooperation internationally and China.

Agricultural technology company Monsanto complained about patent backlogs in Argentina and Brazil, which it said delays their ability to enter the market and enforce rights on their products, and about government procurement that favours locally owned or registered IP in China. The European Union’s recent trend to “unduly broaden breeder’s exemptions” will undermine IP rights on plants, Monsanto said. Breeders exemptions are intended to protect plant varieties while not restricting follow-on innovation by people other than the original rights holder.


Watch what Monsanto -- with all of its sickening business practices [1, 2, 3, 4, 5, 6, 7, 8] -- is doing there. Also see the role of IIPA. It is related to what we wrote in [1, 2, 3]. "IIPA suggested Brazil, India, Indonesia, Philippines, Thailand be put on USTR watch list for policies favouring open source," writes the president of the FFII.

Recent Techrights' Posts

[Meme] Security is Not a Failure to Boot (or Illusion of Security Due to 'Unknown' System)
Red Hat is largely responsible for this mess
What is Secure Boot?
Security means the user feels safe and secure - i.e. confident that the machine would continue to work following a reboot or a system upgrade (or kernel upgrade)
Links 27/05/2024: Chatbots Generate Hateful Output, TPM Performance Scrutinised
Links for the day
David Heinemeier Hansson (DHH) Realises What He Should Have Decades Ago
seeing that DHH is moving away from Apple is kind of a big deal
 
StatCounter (or statCounter) Has Mostly Recovered From a Day's Downtime (Malfunction)
Some of the material we've published based on the statCounter datasets truly annoys Microsofters
Google: We Don't Have Source Diversity, But We Have Chatbot Spew in Place of Sources (and It's Not Even Accurate)
Search engines and news search never looked this bad...
StatCounter (or statCounter) Has Been Broken for Nearly 24 Hours. Who Benefits? Microsoft.
StatCounter is broken right now and has been broken for nearly 24 hours already
Reinvigorating the Voice of GNU/Linux Users (Not Companies Whose Chiefs Don't Even Use GNU/Linux!)
Scott Ruecker has just announced his return
"Tech" in the Context of Even Bigger Issues
"Tech" (or technology) activism is important; but there's a bigger picture
A Decade of In-Depth Coverage of Corruption at the European Patent Office (EPO)
The world needs transparency and sunlight
Delayed Series About Dr. Richard Stallman
A lot of the attacks on him boil down to petty things
Hopefully Not Sunset for StatCounter
We hope that StatCounter will be back soon.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 26, 2024
IRC logs for Sunday, May 26, 2024
Links 27/05/2024: Self-Publishing, Patent Monopolies, and Armed Conflicts
Links for the day
Gemini Links 27/05/2024: Tethering Connection and PFAs
Links for the day
Imagine Canada Enabling Rapists to Harass Their (Rape) Victims
This analogy is applicable because abusers are empowered against the abused
A 3-Year Campaign to Coerce/Intimidate Us Into Censorship: Targeting My Old "Tweets"
This was basically an act of vandalism no better and no worse than UEFI restricted boot
Links 26/05/2024: Google 'Search' Morphing Into Disinformation Factory, Discussion of Maze of the Prison Industrial Complex
Links for the day
In the Pacific (Mostly Islands Around Oceania) GNU/Linux Grew a Lot
Microsoft cannot compete fairly
A Toast to Tux Machines
Food ready for the party, no photos yet...
IBM/Red Hat Failing to Meet Its WARN Obligations in NC (STATE OF NORTH CAROLINA), or Perhaps It's Constantly Delaying the Layoffs
IBM isn't named even once
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 25, 2024
IRC logs for Saturday, May 25, 2024
GNU/Linux in Greenland
The sharp increases for GNU/Linux started last summer
The Sheer Absurdity of the EPO's Career System Explained by EPO Staff
"Staff representation has previously pointed this out to management, and the career system has been the reason for several industrial actions and litigation cases initiated by SUEPO."
[Meme] Productivity Champ Nellie Simon: It Takes Me 3+ Weeks to Write 6 Paragraphs
Congrats to Nellie Simon!
It Took EPO Management 3+ Weeks to Respond to a Letter About an Urgent Problem (Defunding of EPO Staff)
The funny thing about it is that Nellie Simon expects examiners to work day and night (which is illegal) while she herself takes 3+ weeks to write a 1-page letter
Staff Union of the EPO (SUEPO) in The Hague Taking Action to Rectify Cuts to Families of Workers
they "are active in challenging this measure via the legal system"
Links 25/05/2024: Microsoft Adds More DRM (Screenshot Blocking), Another Microsoft Outage Takes Down Everything
Links for the day
Gemini Links 25/05/2024: "Bill Smugs" and OpenBSD Mirror Over Tor / I2P
Links for the day
Microsoft #1 in Gaming Layoffs, Laid Off Workers Receive Another Insult From Microsoft
Many of them never chose to work for Microsoft
In New Caledonia Windows is Now Below 30% (It Used to be Over 90%)
Microsoft's Windows absolutely collapsing and the measures are relatively stable
Forget About India's and Pakistan's Nuclear Weapons and Armament Race, They Need to Abscond Windows and Microsoft (Security Swiss Cheese)
Both countries would be wise to remove Windows as soon as possible, irrespective of the local party politics
statCounter: GNU/Linux Rose From 0.2% to Over 3% in Pakistan
GNU/Linux "proper" (i.e. not ChromeOS) has the lion's share
Red tape: farmer concerns eerily similar to Debian suicide cluster deaths
Reprinted with permission from Daniel Pocock
Galway street artists support social media concerns
Reprinted with permission from Daniel Pocock
Links 25/05/2024: Section 230 and Right of Publicity Violations by Microsoft (Which Attacks Performance Artists)
Links for the day
[Meme] No Microsoft
For fun!
Microsoft Windows Falls to New Lows in Poland
It may mean people delete Windows from relatively new PC
A 3-Year Campaign to Coerce/Intimidate Us Into Censorship: An Introduction
The campaign of coercion (or worse) started in 2021
The "D" in Debian Stands for Dictatorship That Extends to Censorship at DNS Level
Of course the registrar, which charged for domains until 2025, just went along with it
Cybersecurity and Infrastructure Security Agency (CISA) Getting Stacked by Microsoft
it lets Microsoft write policies
The Parasitic Nature of Microsoft Contracts
Stop feeding the beast
Gemini Links 25/05/2024: Emacs Windows 2000 Screenshots and Little Languages
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 24, 2024
IRC logs for Friday, May 24, 2024