07.03.14
Posted in Courtroom, Law, Patents at 10:29 am by Dr. Roy Schestowitz
Justice gone backwards
Photo from Reuters
Summary: A patent case in the United States gets sent from SCOTUS to CACF, showing a rather odd hierarchy of justice (top-to-bottom, back to notorious patent boosters)
THE Rader corruption and the impact on CAFC was mentioned here just weeks ago, noting that the Court had been put under mortal danger (some people call for its abandonment/abolishment). This is the court which was responsible for software patents in the United States, home of software patents (universally). According to this update from the EFF, CAFC may actually have a go at overriding SCOTUS. As the EFF put it: “The Ultramercial case has been bouncing around the federal courts for years. In 2010, a trial court held the patent invalid on the grounds it claimed an abstract idea. On appeal, the Federal Circuit reversed, finding the patent non-abstract because it “clearly require[s] specific application to the Internet and a cyber-market environment.” The Supreme Court then sent the case back to the Federal Circuit for reconsideration. In a remarkable decision by former Chief Judge Randall Rader, the lower court thumbed its nose at Supreme Court authority and upheld the patent for a second time. The defendants returned to the Supreme Court. EFF filed an amicus brief urging the Court to take the case and find the patent abstract.”
The US patent system seem to favour those with money (for more motions and appeals), not those with original ideas. It is a real problem. Watch how the USPTO, led by corporate masters like IBM, stops beneficial products from reaching their full potential:
We’ve seen this many times before, how patents can hold back very useful developments. Notice how 3D printing is suddenly a big thing? It’s not because of any new miraculous breakthroughs, but because some key patents finally started expiring, allowing real innovation to move forward. We saw something similar in the field of infrared grills, which were put on the… uh… back burner (sorry) until key patents expired. Derek now points us to a similar example.
This article goes on to showing how microwaves got retarded by patents, and there’s no exception here. Patents just tend to harm innovation and those who promote them (usually lawyers) do a great disservice to society.
One day the patent system (if it still exists in its current form) might actually be reshaped by people representative of society, not patent lawyers. █
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Posted in Europe, Law, Patents at 5:17 am by Dr. Roy Schestowitz
Summary: Continued discussion about the meaning of the US Supreme Court (SCOTUS) ruling and what it means to programmers all around the world, not just patent lawyers who seek to monopolise and tax software development
THE recent SCOTUS ruling on patents ended software patent scope where it reaches "abstract ideas" (whatever exactly it means, as no criteria were specified or even a test). The ruling left room for patent lawyers to exploit (pretending nothing has actually changed). We have demonstrated, based on dozens of analyses from patent lawyers, that lawyers’ responses are quite consistent, ensuring only that people still come to them to patent algorithms.
Here is another new analysis from Dykema Gossett PLLC, saying that “Litigants involved in current or future litigation over software patents will want to study the claims at issue to assess their vulnerability under the framework laid out in Alice Corp. While patent eligibility of any particular software claim will remain a case-by-case, fact specific inquiry, at least now there is some guidance by which to conduct that inquiry.”
“Basically, the corporate media is now a platform by which lawyers ‘report’ to the public on a decision in which they have vested interests.”Dr. Glyn Moody looks at the glass as half full, celebrating the fact that the SCOTUS is at least recognising that there are limits to software patents. He also, however, bemoans Europe moving in the opposite direction. To quote Moody: “I’ve written a number of times about the curse of the “as such” clause in Article 52 of the European Patent Convention, which has allowed software patents to creep in to Europe by the backdoor. In the US, which has a far more liberal attitude to patenting everything under the sun, there has been a cognate problem, whereby patent applications have been made on a abstract/trivial idea simply by appending “using a computer” to make it novel. At long last, the US Supreme Court has addressed this issue.”
“European Unitary Patent system will work means that there is no independent court to which appeals can be made – only an appeal court within the new patent system itself. That lack of an external check is an extremely dangerous feature – and one that the European Union may well come to regret.”
The European angle is interesting as the EU’s position on software patents has been gradually morphing/assimilating to the US position.
Here is America Online (AOL) giving a ‘report’ (not analysis) about the SCOTUS ruling. Guess who wrote it. That’s right, AOL treats ‘IP’ groups as journalists now, boosting their position, which is what we foresaw and worried about. The article begins with the following promotion: “Michael Gulliford is the Founder and Managing Principal of the Soryn IP Group,a new breed of patent management and advisory company that provides a host of patent-centric services to a select group of innovators.”
“The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope.”Basically, the corporate media is now a platform by which lawyers ‘report’ to the public on a decision in which they have vested interests.
Here is an analysis from Davies Collison Cave, separate from the press (legal sites host these). It says: “To be eligible for a patent in the US, a computer implemented invention will probably now need to provide a technological improvement, solve a technical problem or effect some improvement in technology or a technical field. It will certainly need to involve more than simply implementing an abstract idea on a generic computer.
“Whether it was intentional or not, the US Supreme Court may have introduced into US law technical contribution requirements similar to those of European patent law.”
Yes, so the US is moving closer to EU patent law while EU patent law is moving closer to US patent law, which includes software patents. There seems to be some kind of dangerous convergence here. We need to fight hard to stop it.
Here is another new analysis from Stinson Leonard Street LLP (another patents firm):
Software patents vulnerable: use of a computer is “not enough”
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This decision will likely be cheered by technology companies with patent portfolios directed to more sophisticated inventions that go beyond computer-implemented business methods. However, software patents directed to general business processes, such as those that involve the performance of well-known financial transactions on a computer, may be in jeopardy of being invalidated.
That basically sounds like the “as such” nonsense that we have in Europe and to some degree in New Zealand as well. This is not good. This might mean that spurious patent litigation (over software patents) can soon break out of places like the Eastern District of Texas, where stories like this one are being reported by the patent trolls-obsessed:
A controversial patent that has been used to wring millions of dollars in settlements from hundreds of companies is on the verge of getting shut down.
US Circuit Judge William Bryson, sitting “by designation” in the Eastern District of Texas, has found in a summary judgment ruling (PDF) that the patent, owned by TQP Development, is not infringed by the two defendants remaining in the case, Intuit Corp. and Hertz Corp. In a separate ruling (PDF), Bryson rejected Intuit’s arguments that the patent was invalid.
Notice the type of patents they are using. The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope. Here is Steven W. Lundberg (highly vocal proponent of software patents [1, 2, 3]) boosting software patents again (as if nothing has changed) and several other patent boosters like Fenwick & West LLP and Stroock & Stroock & Lavan LLP. Perhaps they view all this as an opportunity (in the long run) to file their patents in yet more continents, making even more money by taking away from society and tying the hands of programmers.
Timothy B. Lee is a little more optimistic than us. He says that “the Supreme Court might kill software patents” and here is why:
Last week I argued that the Supreme Court’s widely anticipated ruling in the case of CLS v. Alice wasn’t the knockout blow software patent opponents had been hoping for. The Supreme Court struck down the specific patent at issue in the case, but it was vague about when, if ever, other software patents were allowed.
Reading commentary on the case has made me more convinced that software patent owners should be worried.
In a nutshell, the Supreme Court said two things: you can’t patent abstract ideas, and merely implementing an abstract idea on a generic computer isn’t enough to turn it into a patentable invention. The big question is: what’s an abstract idea?
The patents the Supreme Court struck down last week and in a 2010 case called Bilski v. Kappos were extremely abstract. In essence, both patents took an abstract business strategy — like holding money in escrow to prevent either party to a deal from backing out — and claimed the concept of implementing it on a computer. In both 2010 and 2014, the Supreme Court said that wasn’t enough for a patent.
Some software patent supporters, like former Patent Office director David Kappos, have concluded that the decision leaves most software patents unscathed. But the respected patent scholar Robert Merges, a software patent supporter himself, is not so sure.
David Kappos is not credible because he worked both for the patents-greedy USPTO and for IBM, one of the most aggressive patent-rattling companies and leading lobbyist for software patents, even in Europe. The argument we made some days ago is that all software patents are — by definition almost — abstract. Unless there is a working implementation to be patented, all that the application allude to are ideas, barely any function at all.
What it boils down to is this; if a judge was competent enough to tell the difference between pseudo code, programming, UML etc. (which is unlikely, especially in clueless, biased and corrupt courts like CAFC), then every software patent would be deemed “abstract”, hence invalid. To construct a legally-cohesive argument along those lines might require a lawyer. Are there any “good” patent lawyers out there? █
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Posted in GNU/Linux, Google, Microsoft at 4:27 am by Dr. Roy Schestowitz
Jolla is what Nokia should have been
Summary: A reminder of what Nokia has really become (a part of Microsoft) and where people should go if they pursue what Nokia would have been without the mole (Elop)
SEVERAL months ago we wrote about Microsoft’s disturbing attempt to use Nokia’s brand and reputation to ‘steal’ Android. Microsoft will never succeed, but it can do some damage. There are still some fools out there who buy phones solely based on brand loyalty and moreover they are loyal to Nokia. They don’t know what happened to Nokia; They won’t realise that they are giving all their data to the NSA through Microsoft, the #1 PRISM partner (the NSA easily sucks in everything Microsoft has).
Much of the corporate press fails to critically assess what Microsoft is doing to Android, which it is attacking while pretending to embrace it. Here is an example of it and also a technical response that says:
I wish I could say I was impressed with the Nokia X2, but I’m not for the simple reason that it seems to be the worst of both worlds. You have Android of course, but it has been modified to try to make the phone into a hybrid that resembles Windows Phone and promotes Microsoft’s online services.
How many people would really want to buy this thing? If you want Microsoft’s services then the logical thing to do is to simply buy a Windows phone. And if you prefer Android then wouldn’t you go for an Android phone that hasn’t been tweaked to look like Windows Phone?
Sorry, I just don’t see who the market is for this kind of device. I doubt very many Android users are going to bother with it, and I can’t see it having enough appeal for Windows Phone users either. It seems to be a franken-phone with one foot in both camps and I doubt it’ll do much in the way of sales.
Looking at this from a purely technical point of view misses the point. We have already explains what Microsoft is hoping to accomplish here [1, 2, 3]. It’s pretty serious.
Many people are rightly concerned that Android (Google’s and others’) is not privacy-respecting either. For that reason we are still advocating the phoned from Nokia’s Linux proponents, who left the company and started Jolla, basing the work on MeeGo. The latest report [1] says that “Jolla has announced the availability of an Android launcher based on Sailfish operating system for Android devices.”
This is good news. My wife and I are excited about it because buying a Jolla phone has been her plan for a long time, provided it’s sold in the UK and is privacy-enhancing. Last week there were some teasers about this [2-7] and it seems like many Android devices (including ours) will be easily convertible to Sailfish OS devices. Replicant is another interesting option, but device compatibility is still too limited for it. █
Related/contextual items from the news:
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Jolla has announced the availability of an Android launcher based on Sailfish operating system for Android devices. The product will be officially called the “Jolla Launcher,” and the company’s invitation based Alpha phase testing will begin next week.
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Posted in Microsoft at 4:06 am by Dr. Roy Schestowitz
Summary: The alliance of proprietary software giants and software patents proponents (BSA) is seen bolstering Microsoft’s war of aggression against its own ‘clients’
AOL got the patents of Netscape and Microsoft later took those patents (quite a disaster in its own right). According to this new article (published in a site financed by the man behind Netscape), Microsoft makes billions of dollars from “patented technology” (the figure probably referring to the Web browser or something related to it). To quote: “From a suburb of Philadelphia, a man named Rob Morris watches Microsoft collect $3 billion in licensing fees from a patented technology he feels is ultimately his.
“The BSA’s position has been merely identical to that of Microsoft over the years.”“At the peak of Microsoft’s browser war with Netscape in 1996, a small two-man team by the name of V_Graph approached Microsoft with a novel browser component that could integrate web content into custom applications. They called their product “web widgets.”
“Though appreciated, their offer was rejected and eventually returned to them. However, months later Microsoft launched Internet Explorer 3.0, and officially reigned supreme with the world’s first fully componentized browser — a technology conspicuously similar to V_Graph’s.”
There is something truly disturbing here because Microsoft, based on some leaks (dodging NDA trickery), uses browser patents to extort Android, various other Linux-based operating systems, browsers etc. It is possible that Microsoft is not at all entitled to these patents. Never mind eligibility of software patents in general, there’s likely prior art; we just need to identify it and cite it.
The other day we found this article about the recent SCOTUS ruling (more on that in a later post) and the article stated: “The U.S. Supreme Court decision in Alice v. CLS Bank could make many of the ridiculous business-method and software patents invalid … eventually.”
But meanwhile, looking at the article “No Unanimity in Reactions to SC’s Unanimous Software Patent Decision” (from ECT), we sure found something curious. Watch the response from Microsoft’s lobbying arm, the BSA, which appears as involved in the following way (also mind the revolving doors Victoria Espinel just went through): “When the U.S. Supreme Court issues a unanimous decision, it’s easy to conclude that it must be right on the facts, right on the law, and right in applying the law to the facts. So what’s not to like about its recent 9-0 ruling in a software patent case?
“The decision was spot-on — or at least nearly spot-on, according to Victoria Espinel, president and CEO of the Business Software Alliance.
“”This decision is a victory for innovation,” she said.
“The Court confirmed existing law that views abstract ideas as ineligible for patent protection, noted Microsoft.”
The BSA’s position has been merely identical to that of Microsoft over the years. Both the BSA and Microsoft choose to portray this judgment as limited, celebrating what they perceive as strengthening Microsoft when it fact it can invalidate Microsoft patents, including many which allude to Web browsers.
Speaking of the BSA, watch what it does right now to further fracture society for profit. “The paid informants program of the Business Software Alliance,” says Torrent Freak, “is a great success. The group recruits informants through Facebook and other venues, offering them hard cash in return for a successful tip. According to a BSA executive, this approach has put a dent in software piracy rates.”
At whose expense? And how is that a “great success”? “Microsoft is playing hardball with the NHS,” says this other new article, noting that Microsoft is “threatening trusts and authorities with drastically increased software payments over claimed licence violations.”
“For many years the BSA lobbied for Microsoft in Europe, trying to spread software patents into everything including standards (recall FRAND).”This is the kind of aggression we recently wrote about. Thankfully, based on inside knowledge that I have (in my job), the NHS is gradually moving to FOSS in some areas, with expansion in terms of scope over time. The “great success” that the BSA brags about is more likely a success for FOSS, at least in the long run. People just don’t want to pay for proprietary software anymore. A lost client pays $0 and is not locked in anymore.
The British press says: “The tough talking comes more than a year after an organisational shift began across the NHS (April ’13) saw some Primary Care Trusts and strategic health authorities abolished and clinical commissioning groups taking their place.”
Well, the NHS should tell Microsoft (and the BSA) to go where the Sun doesn’t shine. All we have here are a pair of patent and EULA bullies, who wish to make money out of fines rather than licences, locking in people and forcing them to pay for stuff that they never produced (extortion through patents). For many years the BSA lobbied for Microsoft in Europe, trying to spread software patents into everything including standards (recall FRAND). It’s truly time to make a statement and take a tough stance, abandoning Microsoft and other proprietary software as soon as possible. █
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