07.18.08
Latest Live Examples of Patent Failure™
A Firestar Falls
Based on previous and very recent posts about Red Hat, Sun and Firestar [1, 2] (c/f older analysis in [1, 2, 3]), it could be concluded that the main loser was software patents. The world learned that:
- Paying for software patents (licensing) may be all in vain
- Software patents can be challenged in court and potentially trashed through a reexamination process
- The GNU GPL permits coverage of all users of the software, endowed by by a single entity
- Patents are not inherently antithetical w.r.t. Free (libre) software
There is some more new coverage of the Red Hat/Firestar/Sun situation in OStatic and The Register. Ars Technica, on the other side of this, makes the incorrect assertion that the patent in question has already been invalidated.
The Linux vendor has been receiving plaudits and its legal team patting themselves on the back for defusing a ticking time bomb of claims against its JBoss middleware partners and customers.
If Sun Microsystems has got its way, though, Red Hat could have become just another victim of patent poker in the US and left customers, partners and itself open to future claims.
Sun has succeeded in overturning the Firestar patent in question – “Object model mapping and runtime engine for employing relational database with object oriented software” – after it approached the US Patent and Trademark Office (USPTO), claiming the existence of prior art. Firestar had brought the claim against JBoss but this passed to Red Hat once it acquired the open source middleware provider in 2006.
At the end of the day, it’s mainly a question of who you upset with patents. Who is to benefit from frivolous lawsuits — or worse — from saber-rattling? That’s why people are encouraged never to depend on Mono (Microsoft’s restrictive and monopolistic .NET atop GNU/Linux).
Remember that it’s about the holder of the patents, not just those without-a-merit software patents, which may seem innocent due to the chaos they have become and the difficulty of having them upheld in court.
Here is a blunt new comment on this subject.
The thing I like most about Mono is how easy I can delete it and anything associated with it from my system. Every time I do an install, it is the very FIRST thing that I remove even before doing package updates.
I cannot justify having anything remotely connected to Microsoft on my machine no matter what Mr. DeCaza says.
Want to sleep with the enemy, fine but don’t complain when you get thrown on the rubbish heap when you are of no further use to MS.
This little rant came in response to Miguel de Icaza’s latest intervention in the direction of GNOME. Didn’t Jeff Waugh insist that Miguel has no influence on GNOME’s direction anymore?
Patent Opposition Grows
Addressing the issue of patents, Glyn Moody has just published a good summary of recent events/developments. In their light he explains why software patents haver become an absurdity.
Again, much kudos to Sun for (a) finding some prior art to invalidate the patent and (b) nobly sharing it with its rival, Red Hat, in a spirit of solidarity. But what this does reveal is that here we have not one but *two* companies being forced waste much effort and much money to get somebody’s claimed intellectual monopoly struck down for the good of the free software (and non-free software) world. Wouldn’t it have been better if the patent had never been awarded in the first place?
[...]
What’s particularly heartening is that those words appeared in the Wall Street Journal, hardly a bunch of sandal-wearing hippies. And the number of respected voices joining in is starting to increase. Here’s what Professor Joseph Stiglitz, a 2001 Nobel Laureate in Economics, had to say on the subject:
Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.
The same type of opposition comes in the form of an entire book, aptly titled “Patent Failure”.
Bessen and Meurer propose requiring that applications for software patents be required to describe their inventions in greater detail (known as “enablement” in patent jargon). They express sympathy for a formal prohibition on software patents, but ultimately do not endorse that reform out of fears that defining software patents would prove too difficult.
Reading Patent Failure makes two things clear. First, the patent system is in desperate need of reform. Second, it is extremely complicated, and it is therefore difficult to predict the results of any given reform.
Crooked System
We previously wrote about the outrageously poor appointments of judges [1, 2], which enable companies with vested interests to affect the outcome of trials. This serious problem has finally gotten the attention of the US Congress.
Sure enough, a legislative fix is now on the way, in the form of H.R. 6362, sponsored by the chairman of the House IP committee, Howard Berman, D-CA. The bill will require the Secretary of Commerce to make these appointments in the future, together with the Director of the USPTO. It also creates a retroactive defense to any challenges of the 40-odd judges who were appointed “illegally,” IPO Daily News reported on Friday.
For more examples of this problem, see this older article.
A US law professor has uncovered a constitutional flaw in appointing judges who decide patent appeals and disputes, which could undo thousands of patent decisions concerning claims worth billions of dollars.
The basic point John F. Duffy, who teaches at the George Washington University Law School, has raised does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.
“I actually ran it by a number of colleagues who teach administrative law and constitutional law,” Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must be missing something. “No one thought it was a close question.”
The RIAA does this too, so there a similarity between obstruction of justice in patents and in copyrights. Here are a couple of fairly recent examples:
1. RIAA Hopes New Judge will Nab Sharers
Rather that directing the lawsuit at the same defendants as before, the RIAA directed it at John Doe (a defendant to be identified later), therefore obtaining a new judge … who may not be so strict about the “making available” clauses.
Nice move, RIAA.
2. Chief RIAA Litigator Named Colorado Judge — UPDATE
The Pirate Party of the United States took a different position. “Being the lead counsel in a multi-year campaign of extortion, pretexting, and sham litigation should not be rewarded with a seat in any court, except perhaps as a defendant,” said the party’s chairman, Andrew Norton.
None of this is too exceptional. Just watch what McCreevy did for Hollywood the other day. Let’s face the fact that even the legal system can be quite corrupt. Can it be taken to court or would that be recursive? █
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