07.14.08

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Another Small Defeat for Software Patents (and Win for Free Software) in the US

Posted in America, IBM, Microsoft, Patents, Red Hat, SUN at 1:57 am by Dr. Roy Schestowitz

Where can Red Hat collect its refund?

Red Hat’s current leader never spoke to Microsoft about patents, but he saw his company surrendering to software patents abuse. Well, guess what? It was all in vain

Mike Dillon, Sun’s general counsel, has put up a weblog entry describing that company’s efforts to invalidate the Firestar patent – the one Red Hat just licensed.

Dillon writes:

Unfortunately, the PTO’s response comes a little over two weeks after Red Hat entered into a settlement with Firestar. Although the recent U.S. Supreme Court decision in Quanta Computers v. LG Electronics protects downstream Red Hat licensees through the application of the doctrine of patent exhaustion it doesn’t insulate others in the open source community from future actions by Firestar. It’s our hope that the rejection of the patent through the reexamination process will become final in August eliminating this threat for all members of the open source world.

Speculation: could Firestar reduce its claims in order to entice Red Hat to cough out money, knowing that the software patent in question would soon be invalidated?

Also found a couple of days ago in Digital Majority: IBM limits patentability based on criteria that include “tied to a particular machine or apparatus.”

IBM filed an amicus brief in Bilski arguing for a principled approach based on the precedents of the Supreme Court. IBM’s test would limit the scope of patentable subject matter to avoid granting exclusive rights to non-technological business methods while broadly allowing for protection of new technological advances. Under IBM’s proposed test, a patentable process must either (1) be tied to a particular machine or apparatus, or (2) cause transformation or reduction of an article to a different state or thing, and in either instance produce technologically beneficial results. IBM’s approach is not only consistent with the jurisprudence of the Supreme Court, it is also substantially consistent with prevailing international standards, including those of the EPO and its member states.

Microsoft too said something along those lines, but perhaps went further:

MR. OLSON [For Microsoft]: The ’580 patent is a program, as I understand it, that’s married to a computer, has to be married to a computer in order to be patented.
JUSTICE SCALIA: You can’t patent, you know, on-off, on-off code in the abstract, can you?
MR. OLSON: That’s correct, Justice Scalia.
JUSTICE SCALIA: There needs to be a device.
MR. OLSON: An idea or a principle, two plus two equals four can’t be patented. It has to be put together with a machine and made into a usable device.

The Inquirer has some new coverage of the Rambus-Nvidia case (“memory controller interfaces” being a good reminder of OOXML’s dangers). it was mentioned the other day.

This is one of the more severe cases where companies are fined billions merely for following industry ‘standards’ or intuition.


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4 Comments

  1. Linux said,

    July 14, 2008 at 2:08 am

    Gravatar

    Bill Gates has not left Microsoft. He is just gone behind the scene and is now fighting GPL using teh name of Foundation. The charity and all leaving MS is just a eye wash to fool the masses.

    He is going to use all his wealth and power to stop GPL/Linux/FOSS at every place and at every cost using the name of his foundation.

  2. Roy Schestowitz said,

    July 14, 2008 at 2:18 am

    Gravatar

    Yes, he has already begun using that celebrity status and trust fund, but if you say something about it, you’ll get attacked. “Charity” is a moral shield, just like “donation”. Some would call it sentimental blackmail.

    “There’s free software and then there’s open source… there is this thing called the GPL, which we disagree with.”

    Bill Gates, April 2008

  3. Balzac said,

    July 14, 2008 at 9:38 pm

    Gravatar

    I don’t want to be protected from software patent claimants by extortion payments to those claimants which shield me as a user from patent liability for that specific software.

    I read something about all upstream sources and downstream derivatives being protected by the Redhat deal but I still didn’t get any warm fuzzy feelings from it.

    I think the optimal response to software patent claims is organized civil-disobedience.

    Once again, a critical point of view of BoycottNovell.com seems entirely appropriate.

  4. Roy Schestowitz said,

    July 14, 2008 at 11:13 pm

    Gravatar

    http://beranger.org/index.php?page=diary&2008/07/13/20/22/20-sun-fights-to-invalidate-the-fir

    They were simply feeding the trolls — it’s the same as when you simply pay the protection tax to the Mafia instead of calling the police and trying to fight with the evildoers.

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