10.05.10
Patent System Gone Crazy: Patents on Paris Hilton’s Hair, Thanks to Maximalists
Summary: New evidence which shows increased opposition to some software patents and bizarre turns taken by the patent system when lawyers are put in charge
THE FFII’s president shares what he labelled “EFF letter to the US Supreme Court [PDF] about software patents and binaries as prior art” (the latter is humour).
For those who missed the context of it, the EFF supports an attempt by Microsoft to simplify re-examination/invalidation of software patents. Microsoft wants this not because it’s suddenly against software patents but because just like Apple it is being hit by some of them (i4i in this case is a key driver).
“Patent Lawsuit Fight Over Who Has The Right To Sell Paris Hilton Hair Extensions” was en eye-catching headline from TechDirt, which says that even parts of people’s body (or imitations of those) can not be ‘protected’ by patent monopolies, or at least asserted as such.
So, when another firm came along, named HairTech Int’l, and started selling hair extensions to make your hair look like Paris Hilton’s, Celebrity Signatures got angry and threatened to sue. After being told that HairTech was no longer making the product, it backed off, but upon learning that the Paris Hilton extensions were back on the market, it called up the patent attorneys and filed a lawsuit.
Additional patent propaganda and revisionism are now being used to pretend that patents are a crucial part of one’s business; not surprisingly, the source of this claim is a patent licensing firm, whose argument TechDirt has just debunked:
Hank Northhaft is the CEO of a patent licensing firm. He likes to claim that he’s the CEO of a technology miniaturization firm, but the majority of the company’s actual revenue comes from patent licensing, not actual product sales. He’s got a book coming out next year that’s all about making it even easier and cheaper to get patents, which he insists will create hundreds of thousands, if not millions, of new jobs, and has been making the rounds writing opinion pieces for various publications pitching this plan. Unfortunately, each of his opinion pieces seems to rewrite history or misinterpret studies to make his argument. Frankly, that’s pretty sad.
The patent system is broken and evidence is abundant. █
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Jose_X said,
October 5, 2010 at 3:58 pm
>> (the latter is humour)
What does that mean?
The brief looked legitimate, sadly so since it almost assumes software patents generally are legit. [I didn't like the EFF's Bilski brief either as it did the same while claiming business method patents should not be awarded]
By appealing, Microsoft and others can try to get the Court to say something that will give more legitimacy to sw patents. I think that is their intent.. ie, address a side issue that assumes the patent is valid. If nothing else, it tries to push into the conscience of the SCOTUS that many people agree software should be patentable. [Microsoft doesn't build PCs, and I expect should not be liable for the patent infringement though I haven't looked at the actual patent]
Dr. Roy Schestowitz said,
October 5, 2010 at 4:52 pm
See
http://press.ffii.org/Press%20releases/FFII%20and%20EPO%20announce%20%22Binaries-As-Prior-Art%22
Jose_X Reply:
October 5th, 2010 at 8:33 pm
Thanks, that was funny.
Do you know if the FSF will file a brief that “wonders why Microsoft did not ask to get the patent rejected on grounds of being abstract” and then repeats some of the fsf great points against swpats plus maybe something else new and then argues a bit for the burden of proof to be lowered a little so that it’s easier to knock down bad patents in general.
The eff seems to again want to accept swpats, and then seems to want the court to give a few biscuits to the poor open source souls. [I'll read it again more slowly and fully later because I may have easily misunderstood.]
I googled a bit to see if I could write a brief. It seems you need to do so through an attorney that has effectively registered to perform that service. My guess is that you can go see some attorneys and some might write the letter for you based on your draft, but it will likely cost some pretty bucks since they likely don’t want to put their name on something that doesn’t meet the Courts high standard of adding value to the particular question the Court has in play for that case (?). Also, it seems the typical deadline is about 1 month from the time the Court accepts an appeal. http://www.law.cornell.edu/rules/supct/37.html . I had also heard that the brief needed to be prepared specially (but I suppose the attorney would handle that as part of the service).
Dr. Roy Schestowitz Reply:
October 6th, 2010 at 12:56 am
I seem to recall seeing a similar analysis of the EFF’s contribution, which is said to legitimise software patents, but then again so does OIN (which is OK with “good” software patents, whatever that may be).
Jose_X Reply:
October 6th, 2010 at 3:41 pm
Their Bilski brief specifically said software should be patentable but business methods no. Maybe it was me who posted about that before. [Of course, I would reread their brief before signing with blood along the dotted line that they took that position.]
Dr. Roy Schestowitz Reply:
October 6th, 2010 at 3:57 pm
Which phrase/s may indicate this? IBM had such phrases hidden deep inside.
Jose_X Reply:
October 7th, 2010 at 11:41 pm
I don’t remember, but I think their Bilski said this. As for the current brief, the implication software can be patentable is littered throughout, eg, on page 13
>> The FOSS business model ensures that FOSS developers generally do not make the kind of money required to successfully mount patent litigation defenses, especially when those defenses require the search for long-lost or arcane source code.
The implication here an in other related parts is that source code would be needed to see if prior art exists. Well, at this point, you are accepting that the patent might apply if sufficient prior art is not found.
I also don’t appreciate how open source is painted as sort of rag-tag with people not necessarily in charge of keeping track of past code contributions. Anyway, this can be forgiven, and they do speak well of open source essentially attacking the “to promote the progress” if we make things too hard on FOSS.. but it remains that they take the position swpats in general are valid.
Jose_X Reply:
October 7th, 2010 at 11:44 pm
Oh, in that first section (of 3) the conclusion is that it’s not very fair for those practicing FOSS (a proven valuable way to create software) if the costs of defense are too high.
twitter Reply:
October 8th, 2010 at 9:36 pm
Software patents are unjustified on their own. An economy is not free if the state grants monopolies on business methods, mathematics and ideas. These reduce a market to a Soviet style system where only one or two companies are allowed to practice. Software is always a business method, math or broad idea. Software patents unjustly prevent people from helping themselves and sharing the results with their neighbors. They also grant a state monopoly on entire classes of business.
Dr. Roy Schestowitz Reply:
October 9th, 2010 at 12:21 am
That is an argument that can be extended beyond software.
Jose_X said,
October 8, 2010 at 12:52 am
Notice the large number of high profile patent cases out today since Bilski and which may very well go to SCOTUS, and notice how Microsoft wants to argue a side question that assumes swpat are legit? And google, apple, etc are coming next…
The idea is to erode the gains from Bilski.
We need briefs helping the Court realize these appeals all want to erode Bilski by not putting that question to the Court but have the Court rule on a side point that implicitly accepts the ruling of a lower court swpat victory.
Moglen(?) was talking about how we may not get another shot for a decade on swpat? Wrong, Bilski was great for us, but immediately we are getting more action, perhaps under the radar, from large vendors to erode Bilski. Bilski has potential to destroy the value of Microsoft’s patent arsenal, for example.
Anyway, I hope we get support here in this case to re-echo that i4i would be abstract for loading sw on a PC (although MS can accept the loss if they believe in their heart they violated
).
I will email the FSF soon with some arguments they might want to use (or maybe one of their lawyers will submit on my behalf.. and I’ll try to pay them later on :-/ ).
Dr. Roy Schestowitz Reply:
October 8th, 2010 at 1:34 am
The problem we have is that small companies do not have legal departments and little incentive to submit recommendations regarding patents (IBM can have someone work on it full time at %0.0001 of the company’s budget). This leaves giants to do the bidding and obviously it is them — being giants — who have a lot to gain from patents (protectionism). In some sense, it’s a closed-circuit system and it is not democratic.