01.25.09

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Patents Roundup: New Studies Antagonise Intellectual Monopolies, Reform/Intervention Possible

Posted in America, Free/Libre Software, Law, Patents at 11:21 am by Dr. Roy Schestowitz

“The genesis of this [patent trolling] idea was when I was at Microsoft. We had a problem with patent liability. All these people were coming to sue us or demand payment. And Bill (Gates) asked me to think about if there was a solution.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures

THIS is a quick rundown through developments which have potential to affect the playing field.

Government Intervention

Lincoln memorial
Lincoln memorial

The pro-software patents folks at IP Watchdog recognise the fact that the battle over patents is one that can determine the outcome in Freedom’s triumph over proprietary oppression. The author also speaks about the role which the new president plays:

It has already come to light that President Obama is interested in moving the United States federal government away from proprietary software to open source solutions. I am not sure this ought to a top priority that is so important that it is on his mind during his first 48 hours in Office, but it is apparently ahead of a lot of things.

[...]

A little more than 21 months ago the United States Supreme Court issued its decision in Microsoft v. AT&T, but not much has been written about this decision, at least not when you compare it with the amount that has been written about the other patent decision that was issued the same day by the Supreme Court, namely the obviousness decision in KSR v. Teleflex. The lack of coverage for the Microsoft/AT&T case is no doubt at least in part due to the fact that KSR v. Teleflex was so highly anticipated, and completely jumbled the law on obviousness to a point where you cannot get a patent on an invention if you actually thought the invention would work.

In order to facilitate proliferation of Free software, Obama will also need to look into a serious patent reform and elimination of software patents — a point that was stressed here:

Tech to Obama: Think patent reform

[...]

Repealing software patents could give a much-needed boost to the tech industry in troubled economic times. Software patents affect all developers, commercial vendors, and open source hobbyists alike. Patents restrict what functionality we can include in our applications, how our programs can interoperate, and how and where they can be deployed. In turn, this affects every computer user, by limiting features, raising prices, and slowing the pace of progress.

It seems as though things are changing gradually, but there will be barriers if the maximalists are being put in charge. It’s a point that we raised some days ago.

DOJ Gets Another Copyright Cop

[...]

Among the tech community, there was some belief that the Obama administration understood some of the key issues, such as the damage done by draconian copyright laws — and they had shown that with the way they went about running their campaign. However, there’s an increasing realization that the techies on the campaign are entirely separate from the policy people now involved in the administration. First there was the appointment of one of the RIAA’s top lawyers as associate attorney general, and now comes news that Neil MacBride, the BSA’s antipiracy enforcer, has also been appointed to a high level role in the Justice Department.

Academic Intervention

Nature, which is a highly respected journal, has published a very important article. Despite the fact that it speaks of biology as an example, it argues against intellectual monopoly.

Abstract

A new survey shows scientists consider the proliferation of intellectual property protection to have a strongly negative effect on research.

Introduction

A system of intellectual property (IP) rights can encourage inventions by scientists and help promote the transformation of research achievements into marketed products. But associated restrictions on access can reduce utilization of inventions by other scientists. How is this trade-off working out in practice?

Here is the truth right from the horse’s mouth:

A Patent-Holding Software Engineer Explains Why Software Patents Harm Innovation

It’s no surprise that many technologists and engineers dislike software patents — even as their company’s execs and lawyers push them to get more patents. Stephen Kinsella highlights an anonymous comment from a software engineer who clearly works for IBM (though he doesn’t come out and say that directly), where he explains how IBM actively encourage engineers to file for as many patents as possible (it rewards them with monetary bonuses).

There are other new findings and articles which make similar assertions. The following article even points a finger at IBM, claiming that the company’s lust for patents is only providing ammunition to patent trolls. [via Digital Majority]

The reason patent trolling is so profitable is that over the last quarter century the courts have expanded patenting into new areas like software and business methods, and dramatically lowered the bar for receiving a patent. As a result, patents that would have been rejected 30 years ago (like this ridiculous patent on removing white space from database entries, which IBM received earlier this month) are now routinely approved by the Patent Office. As a result, patent trolls are able to buy up low-quality patents by the truckload. Even though the vast majority of the patents won’t survive legal challenges, defendants can’t take the chance that one of them might survive and force the firm into a 8- or 9-figure settlement.

Patent trolls make good poster children for the patent system’s dysfunctions, but focusing too much on them ignores the fact that abusing the patent system is a game played by large companies as well. For example, Verizon managed to extort tens of millions of dollars from Vonage to settle a lawsuit over an absurdly broad Internet telephony patent. Verizon, of course, isn’t a “patent troll,” but a competitor interested in hobbling an up-and-coming competitor. Any patent reform needs to address the Verizons of the world too, not just the NTPs.

Over at Glyn Moody’s blog, there is proof that backlash against intellectual monopolies has proven effective.

This is extraordinary. It equates those who wish – legitimately – to minimise intellectual monopolies as the moral equivalents of counterfeiters. In other words, the intellectual monoplists seem to regard *any* threat to their fat-cat lifestyle as illegal, almost by definition.

The good news is that by identifying those against intellectual monopolies as this “second threat” on a par with counterfeiting is proof of just how successful we are becoming.

That’s basically a way of saying that those who challenge bad laws or ‘dare’ to see them as illegitimate are now “criminals”. It is a nice method for shielding broken laws that are often acquired by stakeholders and put in place not because of logic.

A positive adjustment is no rebellion; it’s a simple case of striving to restore sanity, just as women needed to fight for equality and slaves needed to resist slavery in order for it to end. To suppress opposition is akin to banning organisation of labour unions. This characterises a broken democracy and deprivation of free speech.

For a little more context, worth seeing is this opinion piece from Mike Masnick.

One of our readers, Virginia, alerted us to a report concerning a gathering of US IP Attaches (basically, the US gov’t’s international copyright cops that we send around the world to try to enforce draconian IP policy), in which they spend most of the time complaining about how countries around the world don’t agree with the US’s view on intellectual property and are quick to ignore it when possible. In fact, those countries often don’t even want to invite their US counterparts to meetings because they’re “too aggressively pro-IP.”

More here:

Nations ranging from Brazil to Brunei to Russia are failing to properly protect the intellectual property assets of US companies and others, and international organisations are not doing enough to stop it, seven IP attachés to the US Foreign and Commercial Service lamented recently.

Meanwhile, an industry group issued detailed recommendations for the incoming Obama administration’s changes to the US Patent and Trademark Office.

Other News

As further reading material on this broad subject, one might also consider:

1. CES: TiVo CEO sees end of legal fight as catalyst

TiVo Inc (TIVO.O) Chief Executive Tom Rogers hopes his next day in court will give him the legal leverage to sign new cable and satellite partnerships that can boost subscribers to its digital video recorder service.

New licensing agreements with operators in the U.S. and overseas may become easier to score, once TiVo puts behind a long battle with EchoStar and the Dish Network (DISH.O) satellite TV service.

2. TTB Technologies Files Patent Application

TTB Technologies announced it has filed a continuation patent application entitled “Electronic Advertising Device and Method of Using the Same,” with claims covering methods of and devices for delivering entertainment services for free to individuals in exchange for the individuals providing identifying information and thereby displaying targeted advertisements based on the identifying information provided.

3. Vlingo’s CEO Fires Back at Nuance Over Patent Lawsuit—Says ‘When they Couldn’t Win Yahoo’s Business, This Was Their Reaction

As soon as news broke Tuesday that Burlington, MA-based Nuance Communications was suing Harvard Square startup Vlingo for allegedly infringing one of Nuance’s speech-recognition patents, I requested an interview with Dave Grannan, Vlingo’s CEO. Grannan, who came to Vlingo from Nokia last year, has spent quite a bit of time with Xconomy in the past, talking about Vlingo’s speech-to-text technology and its deal with Yahoo, which is using the disputed software for its oneSearch with Voice mobile search service.

In summary, things are definitely happening. Not much has changed, but some things might change very slightly pretty soon. It is agreed among academics that intellectual monopolies are harmful, programmers do not want them, and the new administration in the United States probably requires their elimination in order to support a software reform at the very least.

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3 Comments

  1. Shane Coyle said,

    January 25, 2009 at 12:14 pm

    Gravatar

    I’ve been thinking it’s time to give opensourcegovernment.com (not a link cuz it’s just an afd parked page right now) another attempt at being a decent website for information and discussion on government policy re: FLOSS.

    Wiki? Blog? News aggregation? All of the above? Anyone have any ideas, or want to help out?

  2. ram said,

    January 25, 2009 at 9:12 pm

    Gravatar

    My company, of which I am the Technical Director, has US Software patents. The only reason we filed and obtained a patent on a class of algorithms was to prevent a bigger company filing and ripping us off. We let the patent expire at the first expiration date so now anyone can use the class of algorithms (including us).

    This strategy against a really stupid patent system is less effective now since the USPO increased their fees from a few hundred dollars to several thousand dollars. Legal fees have similarly increased.
    The USA would be better off with NO PATENTS instead of the insane system they have now.

  3. Roy Schestowitz said,

    January 26, 2009 at 3:22 am

    Gravatar

    But… but.. how would the lawyers make a living?

    [sarcasm /]

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