Robert Weber, a senior vice president for Legal and Regulatory Affairs and general counsel of IBM, has just published the following article about patent reform. It appeared in Forbes earlier today. From the end of this article:
As the largest holder of U.S. patents, we feel it is our responsibility, and the right time, to speak out forcefully in favor of reform. We are trying to do our share by unilaterally publishing a first-ever corporate policy aimed at promoting patent transparency and quality. We also initiated, and with others in the private sector, are working with the U.S. Patent & Trademark Office to ensure that citizens have a voice in the patent review process.
But these voluntary efforts, along with recent wise Supreme Court decisions, are not enough.
Progress, not perfection, is the goal. It was so from Eli Whitney’s time, and is true today. Congress finally has an historic opportunity to address the thorniest of modern challenges, to secure America’s continued role as the leading innovator in the global economy.
All Vonage wanted to do was to capitalize on the ability to make cheap, voice over Internet phone calls. Unfortunately, in their haste to deliver a working product, the company received complaints that it had trod upon the technology owned by other firms.
“After USPTO Examiner Mark A. Fadok rejected Amazon CEO Jeff Bezos’ 1-Click Patent claims as ‘old and obvious,’ Amazon canceled and refiled its 1-Click claims in a continuation application as it requested an Oral Appeal, a move that smacked of a good old-fashioned stalling tactic. But the move may have backfired, as Fadok has just completed his review of the continuation app and concluded that all of the refiled 1-Click claims should be rejected, providing explanations of why the Board of Patent Appeals was wrong to reverse his earlier decision after listening to Amazon’s lawyers in September. In October, USPTO Examiner Matthew C. Graham rejected most of the 1-Click claims as part of the reexam requested by LOTR actor Peter Calveley, a decision that attorneys for Amazon are currently trying to work around with some creative wordsmithing. Can’t see how all of this means ‘less work for the overworked Patent and Trademark Office.’”
Apart from the repeated, systematic and well-documented misuse by Amazon, the last sentence is worth special attention. Later on, trigger-happy lawyers whine about an 'overburdened' system — the burden that is self-imposed and a self-inflicted illness. We covered this Amazon issue many times before [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. It has become a classic case of abusing the system, so Amazon should — by all means — be ashamed of itself. It’s part of the problem, not the solution.
The appeals court ruled that Google’s immensely profitable AdSense did not infringe on Hyperphrase’s patents. It handed down a split decision on AutoLink, agreeing that Google did not infringe, as claimed, on one of the Hyperphrase patents.
Novell’s deal with Microsoft has become controversial for a variety of reasons. Only one of them is a path towards deduction from Linux revenue, capitalising on the notion of ‘patenttax‘. Such payments are not justified for several reasons, including:
”Novell has, in some respect, assisted the opening of that jar of worms. Novell granted Microsoft the precedence it so badly craved.“The list goes further than this. It remains a fact that at the time of Novell’s deal with Microsoft (November 2006), patents were not seen as a principal challenge to Linux. Novell has, in some respect, assisted the opening of that jar of worms. Novell granted Microsoft the precedence it so badly craved. On numerous occasions shortly after the deal had been signed, Microsoft's CEO used that deal explicitly as proof “that open source is not free”. That was before the middle of May when Microsoft decided to openly ‘assert its rights’.
The Economist published a good article a couple of days ago. Other than the fact that it somehow attributes the success of Free software to Linus Torvalds (others like Richard Stallman will be rightly — or leftly — put off by this), it does point out the role of cost as an advantage.
Pundits agree: neither Microsoft nor Apple can compete at the new price points being plumbed by companies looking to cut costs. With open-source software maturing fast, Linux, OpenOffice, Firefox, MySQL, Evolution, Pidgin and some 23,000 other Linux applications available for free seem more than ready to fill that gap.
As you can see, it’s not only a question of freedom, but also a question of cost. At the moment, amid some financial discomfort, Microsoft’s eye is focused on making Linux not free. This goal is made easier to accomplish with the help of Novell, which took money to change everything. Can this ever work and be generalised to affect all GNU/Linux vendors? Maybe.
PC Magazine has just published an article that quotes those whom we have had our eyes on. There is a continuing attempt to impose per-unit royalties on Linux shipments (never mind the notion of redistribution, being one of the essential 4 freedoms), using patents. Will it work? That is already happening at Novell. Fortunately, Andy Updegrove has presence in this article where he rebuts:
The twist with any new Linux lawsuit is that past cases have “mobilized a huge and passionate community,” says attorney Andrew Updegrove, an open-source litigation expert. Today, any new open-source project is scrutinized by hundreds of erstwhile developers looking for potential patent infringement. “If a company is going to proceed with its claims of IP infringement, it better have a smoking gun,” says Chris Swenson, the director for software industry analysis at NPD Group.
It’s important that Linux users and customers join forces and fight attempts to change laws and rewrite rules in order to marginalise GNU/Linux. The Free Software Foundation (FSF) is determined to bring change to patent laws in the United States, so there’s still plenty of hope. According to an article from Linux.com, this FSF initiative ought to have begun about a month ago. It has yet to bear fruit. █
It is still Boxing Day, but the amount of relevant material is mounting. Here are some pointers to new or existing OOXML issues that are being explored at the moment.
Standards Are Standards, Not a Gown
Pay careful attention to this insightful comment about Office binaries getting encapsulated in an XML-shaped wrapper. That pretty much sums up the purpose and essence of OOXML. It’s a gown for legacy formats that are operating-system dependent, bug-ridden, inelegant, and protected by patents.
How Many Patents Would You Like With That Standard?
Bruce Byfield has published another article that includes some bits about OOXML. It also contains technical mistakes (misunderstanding of the process) and once again talks about conspiracy theories. This confirms the biases that he tried to deny.
Expiring Standards
How would you like to be told that your ‘standard’ has evolved every month, or every year? How would you feel if your ‘standard’ was poorly documented, not documented, or only documented in program source code that you are not permitted to use, let alone view?
”OOXML is not a standard. It’s merely another monopoly enabler.“Andy Updegrove wrote an article about an overlooked aspect of standards. He speaks about the cost of preservation. Dynamic standards are a moving target and if they evolve poorly in line with a single product, then preservation is a non-starter.
The GNOME desktop strives to deliver the experience of a truly free desktop. Compromises might be made where there are no other choices due to ubiquity (e.g. Samba, which was recently victorious, bar patents). Here is a snag. Open source is not enough if it implements a proprietary format with patent entanglements, such as OOXML. Consider this new writeup:
We have seen the signs that changes are happening. Not just specifically in the Linux world, but in Open Source, Open Standards and in the proprietary world as well.
[...]
Things are looking good for Open Source and Open Standards. Where do things go from here?
People need to insist on having Open Standards.
Clearly enough, Gnumeric misses this point. OOXML will never ever be open. It doesn’t even matter what ISO, which is being hijacked, eventually says. Formality means nothing in practice, especially when so much abuse is involved.
Here in Britain, authorities are being told at the moment that open standards are more important than opening of the source code. So, why is Gnumeric going down this path, let aside the benefit to Microsoft? █
Made for science, but used for profits at science’s expense
Software patent myopia is the name of a new essay that contains a very apt analogy:
Whatever one thinks of software patents a priori, surely we can do better than to take a myopic view of the potential problems of software patents and of where they are likely to be found. This research seems a lot like arguing that cigarette smoking isn’t bad because it doesn’t cause cirrhosis of the liver or because it helps fight obesity.
A newer article from Forbes, “Patenting For Profits”, provides insight into the mind of those striving to possess all sorts of knowledge. In particular, it is made clear that patents become associated with money (investor) rather than knowledge and defense of inventor (the reason for having patents in the first place).
By monetising portfolios, it becomes apparent that patents become a product, so need we be surprised that the legal system gets misused by trolls whose only product is a set of acquired patents? Here is the opening paragraph:
Managing technology patents is becoming a science in itself. IBM, for example, consistently one of the global leaders in patent filings, recently filed an application to create a unique system for protecting its patents.
Europe is still in a better position when it comes to handling of patents. The following fragment from Slovanian presidency programme drops a hint.
Slovenia will aim to take forward work on a number of priority areas for the internal market, including the electronic communications legislative package,financial services, postal services, establishing the Community patent, the Customs Code and taxation.
Mind the word “Community”. It is unlikely that Slovenia will adopt a system that resembles the American one. No country in Europe has gone that way. █
In light of this recent interview with Jim Zemlin[MP3 or Flash], where Jim talks about the patent threat (or lack thereof) to Linux, consider the following news:
Samsung, the world’s largest maker of memory chips, said in a filing with the Korea Exchange that the agreement with Hitachi Global Storage Technologies Inc covers HDD patents by International Business Machines Corp and Hitachi. Japanese electronics conglomerate Hitachi bought IBM’s disk drive operations in 2002 for $2 billion.
As you can see, IBM is indirectly involved and the same would go for Lenovo in a separate context. It is worth raising a couple of issues now:
Similarly, Lenovo, which bought a business unit from IBM and is based in China, seems to favour the use of SLED. Once again, Microsoft gets paid for software it has nothing to do with.
Hitachi (and IBM by association) are said to be engaged in a patent deal with Samsung. Samsung also signed a patent deal that involved Linux.
Ever since Samsung signed a patent deal with Microsoft — a deal whose statement included and mentioned Linux by name — we’ve wondered what the vague descriptions (or non-descriptions) actually meant [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19]. For instance, we suspected that phones using Mono had something to do with this. Yes, Samsung uses some Mono on some of its smartphones. Whether the Linux kernel was also involved in cross-licensing or not, it was hard to tell at the time. It was probably never discussed either because the patents seem mythical. █
Andy Updegrove has found a couple of news items which are particularly interesting, especially when they are grouped listed in tandem (as they were). To address the “thirst” for standards, China has decided to create no less than — wait for it — 10,000 new standards!
The country will compile 10,000 new standards to meet the standard vacuum in certain fields next year. Meanwhile, some 11,000 outdated national standards will be revised, the Standardization Administration chief Liu Pingjun said, according to today’s People’s Daily.
That’s an awful lot of standards. The point of standards is to limit and to address detrimental diversity which eliminates cooperation and thereby choice.
”In spite of China’s open arms to standards, the country has just rejected one candidate.“How does this relate to this Web site? Think about Microsoft and Novell, both of which are striving to get — or at the very least assist — a document format specification standardised, despite the fact that one standard already exists to serve this purpose. Moreover, it does not suffer from all those deficiencies that we frequently mention, e.g. platform specificity, patent encumbrances, poor documentation, etc.
In spite of China’s open arms to standards, the country has just rejected one candidate.
The once-overwhelming VICS system of Japan eventually may not find its place in the China market. Tongyan Qi, key propeller of China real-time traffic information services and chief of the State Traffic Information Service Workgroup, sets forth in a panel discussion on NaviForum Shanghai 2007, the largest international navigation event organized by China government, that, though trial use of the VICS system is underway in Guangzhou and Dalian, it will not be used as the standard for China real-time traffic information; China will formulate its own standard instead.
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