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Patents Roundup: Software Patents in India, the US, Microsoft's Dubious Software Patents, and Mark Cuban

When competition is becoming lawyers' business, generally unhinged from science and technology

Faculty of law



Summary: A roundup of news of interest with a special focus on software patents, which severely affect one's ability to liberally develop software and are potentially being expanded to countries outside the United States, where the Supreme Court may have already, in effect, put an end to them anyway

RETUNING to our main focus again, this post brings together all the news we were able to find about software patents towards the end of the week. It's sub-divided into four parts.



Software Patents in India



As readers probably know by now, as we wrote half a dozen articles about this subject alone, India's political system, which has a lot of power in the world, is surrendering to the lobbies of multinationals and offers them patents on software, effectively stomping on India's massive population, software developers in particular. Here is a new "[t]ime-line of Software Patent Law in India" which explains the latest development as follows:

August 21, 2015: Guidelines for Examination of Computer Related Inventions released by IPO. Provide that: – Mere use of mathematical formula in a claim to clearly specify the scope of protection being sought would not render the claim a mathematical method. Eg. Method of encoding, decoding, encryption – While business methods are non-patentable, if the claimed matter specifies an apparatus or technical process for carrying out invention even in part, the claims to be examined as whole – So long as a computer programme is not claimed in itself, but in a manner so as to establish industrial applicability and fulfils all other criteria of patentability, the patent should not be denied.


These loopholes are even worse than what we have in Europe (similar to New Zealand's loopholes). If Narendra Modi and his colleagues fail to stop this, India will suffer from inflated pricing and many software houses (local) will shut down. Nothing has actually changed in India which justifies this latest change to guidelines. It probably boils down to lobbying and corruption. We know which companies want software patents in India; they're not Indian companies but companies that exploit Indian labour for cost-savings, ensuring that India stays dependent on foreign-made systems with imperialistic back doors.

Software Patents in the US



SCOTUS, the US Supreme Court, has emerged as somewhat of a hero in the fight against software patents. We are grateful for Alice as it's a huge game-changer. Patent lawyers are plotting to patent software nonetheless, even after the Supreme Court banned many of them. How typical. Expect a major war of words between people who actually produce software and patent lawyers whose role is parasitic at best (as well as their very rich clients and patent aggressors, i.e. companies like Microsoft).

Microsoft's Dubious Software Patents



PatentVue, a patents glorification site which even celebrates Microsoft's patent troll Intellectual Ventures, has just published the article "Microsoft Has a Diverse Software Focused Patent Portfolio".

"If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed."Microsoft needs such patents so that it can attack, extort, and blackmail Android/Linux. Microsoft has been pressuring in favour software patents in Europe (often via lobbyists and proxies, e.g. Association for Competitive Technology, which keeps changing its name in order to dodge negative publicity). This year alone Microsoft attacked Samsung, Kyocera, Dell, and ASUS using software patents, forcing them -- by means of patent blackmail -- to put Microsoft spyware inside Android. If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed.

Quoting the patent maximalists from PatentVue: "Earlier this month, Microsoft and Google announced a settlement to end nearly 20 patent-related lawsuits in the U.S. and Germany. The deal brought to close years of patent litigation surrounding various technologies, including gaming systems, mobile devices, and multimedia streaming.

"Envision IP analyzed Microsoft’s US patent portfolio to understand where the company has focused its patenting efforts, as well as to determine emerging technologies which Microsoft may be developing. At a high level, we identified 31,209 in-force, unexpired US patents owned by Microsoft and its subsidiaries. According to the company’s annual 10-K filed in July, Microsoft owns “over 57,000 US and international patents”. Also, according to Microsoft’s Patent Tracker Tool, the company owned 29,235 patents as of December 11, 2014."

"It's Microsoft's utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place."Rather than produce software Microsoft has been busy bullying the EPO into granting it patents as soon as possible (many of these are on software), even without proper prior art search, checks for inventive step/s, suitability based on European patent scope and so on (there is a fast track now, so an even sloppier examination process is clearly inevitable). Speaking to patent maximalists with a Microsoft Windows Web site several years ago, Microsoft's Marshall Phelps said that Microsoft would have 50,000 patents within two years. The EPO, as he explained it, "can’t distinguish between hardware and software so the patents get issued anyway" (more so if Microsoft pressures the examiners to do their job at a rush).

For those inside the EPO who don't understand Microsoft's insidious (uniquely so!) role in the EPO, including the pressure for a V.I.P. lane, we can humbly suggest a quick read though the TomTom case. It's Microsoft's utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place.

Shooting the Mark Cuban (Messenger)



Mark Cuban, an influential person in the US, has expressed his opposition to software patents on many occasions and even put money where his mouth was (investment in Vringo notwithstanding).

"This isn't what the patent system was supposed to be about."Patent lawyers and nasty (at times exceptionally rude) proponents of software patents resort to an ad hominem attacks on Mark Cuban, still (ongoing smear campaign). Here is the latest such attack. Patent examiners (technical people) and software developers alike ought to know that their enemies are often patent lawyers and lobbyists, not just their main clients (cash cows), i.e. companies like Microsoft. These people have made a mockery of the patent systems with all sorts of loopholes and corporate/V.I.P. queues. This isn't what the patent system was supposed to be about. At the beginning it was advocated to the public as the mechanism by which a lone inventor can protect himself or herself from a corporate raid on ideas. Now it's all reversed. It's protectionism for the world's billionaires. Fix it or abolish it.

“People that use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us.”

--Steve Ballmer, Microsoft



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