TODAY'S post catches up with patents news from the past 3 days. We will start with the issues that affect Free software the most.
I just really can't see why IBM should be singled out as patent public enemy number one for open source because of this one business dust-up. I also can't help notice, as Pamela Jones of Groklaw recently pointed out, that there's reason to believe that TurboHercules isn't so much an open-source company as it is a proxy, along with OpenMainframe, in a battle between IBM and Microsoft over cloud-computing.
Again, I find myself asking, "Who's really the open-source enemy here?" It's not IBM.
Both sides are wrong for one simple reason: the people who run companies like IBM or Microsoft or Novell or HP, do not have friends or enemies. What they have is strategic interests. That's all.
The GPL triggers upon public distribution of licenced code: "if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights."
Your "only money speaks" ditty is an anthem for outlaw corruption a la Microsoft.
Open Invention Network (OIN), the company formed to enable and protect Linux, today extended the Linux ecosystem with the signing of Ulteo as a licensee. By becoming a licensee, Ulteo has joined the growing list of companies that recognize the importance of participating in a substantial community of Linux supporters and leveraging the Open Invention Network to further spur open source innovation.
“The opinion pieces of IBM partners/apologists sometimes assume that IBM is untouchable when it comes to criticism from the Free software community.”The IBM-created/led OIN has actually been helpful in the past [1, 2, 3, 4, 5, 6]. It's one of those cases where IBM's involvement actually defends GNU/Linux from hostile patents (although a permanent solution would just eliminate software patents). The opinion pieces of IBM partners/apologists sometimes assume that IBM is untouchable when it comes to criticism from the Free software community. This oughtn't be the case.
Dana Blankenhorn says that "the IBM open source pledge [has been] amended."
The real news is that Eric Raymond agrees with Mueller. The author of The Cathedral and the Bazaar, which did so much to define open source as distinct from Richard Stallman’s free software ideal, says IBM is digging itself into an ever-deeper rhetorical hole.
Jones got into this with a long Groklaw post that has 11 updates (so far) acting as exhibits. It’s the fiercest debate there since the end of the Novell case, which is to say in about two weeks.
A summary is that TurboHercules started this mess, that IBM has not even filed a case, and that it looks like a shakedown by Hercules’ Roger Bowler and Jay Maynard. (Raymond credits Maynard with bringing him into the case.)
The thing is, Mueller may have jumped the gun on his accusations that Big Blue was giving the finger to the open source community.
Florian Mueller, Open Source Patent Activist, just released the following information. He believes that patents already used by IBM against TurboHercules are also a threat to other major FOSS projects. He now calls on the community for action.
I think that the best way to defend open source against software patent attacks is to abolish software patents. The U.S. Supreme Court might abolish software patents this month in the U.S.A. New Zealand is close to passing a law abolishing software patents in New Zealand. We are making progress from the days when people considered abolishing software patents just a flaky idea.
Commerce Minister Simon Power says the Government will back changes proposed by a select committee that will mean computer software can no longer be patented.
Parliament's commerce select committee proposed amending the Patents Bill, which passed its first reading in May last year, after receiving many submissions on the controversial issue.
The recommendation has attracted considerable attention outside New Zealand, particularly from the open source software community, which claims large software makers have gamed the patent system and stifled innovation.
From the IPKat's friend Kristof Neefs (Altius) comes this link to Decision T 1616/08, in which the European Patent Office's Technical Board of Appeal ruled that the subject matter of Amazon’s controversial One-click patent is obvious. In the decision of 11 November 2009, the application to patent a "Method and system for placing a purchase order via a communications network" was opposed by the Gesellschaft für Informatik e.V., Fleurop-Interflora European Business Company AG and the Förderverein für eine Freie Informationelle Infrastruktur e.V.(FFII e.V.).
Commenting on previous efforts to introduce a European Interoperability Framework (EIF), CompTIA, a global ICT industry group with member companies such as Microsoft among its members, said it was ''concerned about the proposal's promotion of ICT standards and development models that reject valid intellectual property'.'
Indeed, Palm has a range of intellectual property assets, from hardware to software patents and its well-regarded webOS operating system.
I’m sure you can already see the problem. What software startup has $5 million to burn on defending a case with no value-add? Even $500k? I’d say it takes $1-2 million or thereabouts just to get through claim construction, which will give the parties a better sense of the overall merits of the case. One patent suit with a slightly determined plaintiff could very easily end a software startup just in legal fees, let alone the impact of the suit on gathering customers in the future.
So, software startups have to settle patent cases very early, and at high settlement amounts, because they have absolutely no leverage. Invalidity takes years to litigate, so you can’t threaten to invalidate the patent; same with inequitable conduct. Non-infringement arguments are great in theory, but the plaintiff won’t have a judgment day until the middle of the case at the earliest, after claim construction, when summary judgment motions are allowed (on most schedules), and that’s several years of litigation and several million dollars away. The defendant could file for a re-exam, but once it’s filed, the defendant has no control over it, and it takes a few years to get through the PTO.
In the 1981 Diamond decision, the majority effectively reversed 1978's Parker v. Flook decision to disallow software patents. As Lee has persuasively argued, software patents have proven an overwhelmingly destructive force that inhibits economic growth by crippling small, innovative software developers. In both of these decisions Justice Stevens worked to limit the power of the government to reward entrenched interests. Yet this is a kind of jurisprudence that many, on the right and on the left, object to on grounds of judicial restraint.
There are growing predictions from many authorities that Stevens might be the primary author of the Bilski patent case which has yet to be handed down.
There are patent concerns, but Google has a very good record on patents, so I am optimistic there.
Patent Resources Group (PRG), the nation’s leading patent educator, will be hosting a panel discussion on “The Future of U.S. Patent Law” on June 11, 2010 in Washington, DC. This in-depth, one-day event, offered in partnership with Buchanan Ingersoll & Rooney PC, will bring together some of the best minds in intellectual property to inform, discuss, and debate the future of U.S. patent law. The one-of-a-kind program will include brief lectures, lively panel discussions, and audience participation.
Major topics will include:
* U.S. patent reform * Latest developments at, and tensions between, the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit * Approaches to improve pendency and efficiency at the USPTO
[PDF] (which they wrote in Microsoft Word) states: "Protect intellectual property rights. Intellectual property is to the digital age what physical goods were to the industrial age. We must ensure that intellectual property is protected in foreign markets and promote greater cooperation on international standards that allow our technologies to compete everywhere. The Administration is committed to ensuring that the United States Patent and Trademark Office has the resources, authority, and flexibility to administer the patent system effectively and issue high-quality patents on innovative intellectual property, while rejecting claims that do not merit patent protection."