04.09.09

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Patents Roundup: OIN to Strike Back, Apple Clarifies, Lawsuits Continue, and Turnaround Foreseen

Posted in Apple, Courtroom, GNU/Linux, HP, IBM, Kernel, Microsoft, OIN, Patents, SUN at 3:53 am by Dr. Roy Schestowitz

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THIS is the latest part in an endless series which explores our software patents landscape. As Jose X put it in last night’s post, “software patents [are] poised to cripple the industry and shut out real innovation.” This affects not only Free software, but as usual, we choose to focus on GNU/Linux.

Microsoft and GNU/Linux

In what came as somewhat of a surprise to many, Microsoft may be forced to pay $388 million for patent infringement. It’s a surprise because this decision was not widely anticipated.

News Analysis. Some court rulings are just rich with irony. Today, April 8, a jury found that Microsoft infringed on Uniloc patents for product activation. Microsoft uses the technology to protect its software from theft. Who’s stealing from whom?

I expect to read lots of comments on this blog praising today’s jury verdict, which ordered Microsoft to pay Uniloc $388 million. Gauging from comments on past posts about product activation, many of you don’t much like it.

This sum of money and the nature of this case is somewhat reminiscent of the Alcatel-Lucent case (involving MP3 support in Windows). It has been a long, fierce battle [1, 2, 3, 4, 5].

In other important news, there are more confirmations of the claim that OIN may strike back at Microsoft pretty soon (within weeks).

Indeed, Rooney quotes OIN CEO Keith Bergelt, who was interviewed by our sister site, LinuxDevices, shortly after the Microsoft lawsuit was filed, as saying that there could be a “response” to Microsoft from the open source community in the coming weeks. “It’s Newton’s law. For every action, there’s an equal and opposite reaction,” Bergelt was quoted as saying. The story goes on to quote Bergelt’s assertions that the settlement “says nothing about the validity of the patent.”

Another report (or opinion) suggests that the TomTom case may indeed be used against Microsoft:

So in the short term, Microsoft didn’t gain very much by picking on TomTom. And in the long term, the company’s decision to sue could explode in its face.

TomTom may have stepped aside, but some much bigger and better-funded open-source players are now stepping up to the plate. The Open Invention Network, for example, is already pondering a counterattack that could include legal action designed to invalidate Microsoft’s FAT patent.

The next few weeks will be interesting. Microsoft opened a Pandora’s box.

Apple

Slashdot has just brought back what is old news (but still new to some) about Apple polluting the Web with its patents. The company has a formal response to that and it doesn’t sound too good: “While the current draft patent policy does state a “preference” for royalty-free standards, the ready availability of a RAND option presents too easy an alternative for owners of intellectual property who may seek to use the standardization process to control access to fundamental Web standards. A mandatory royalty-free requirement for all adopted standards will avoid this result.

Well, RAND and Free software don't work together. Apple ought to know this.

Victims of Communication

One recent patent victim which was mentioned a few days ago is Hewlett-Packard. According to this report, it bailed.

Hewlett-Packard has cashed out of a four-year-old Wi-Fi patent lawsuit from Australia’s national science agency that’s targeted a who’s-who list of big tech vendors with wireless products.

Communication is an area where the patent thicket has always been notorious and now there is another massive lawsuit:

Dallas-based 7-Eleven Inc. and Circle K Stores Inc. were two of nine companies named in a lawsuit filed by Emsat Advanced Geo-Location Technology LLC and patent licensee Location Based Services LLC, alleging the defendants of infringing patents covering enhanced 911 services in cell phones, Law360.com reported.

[...]

The suit claims the telecommunications companies infringe patents titled “Cellular telephone system that uses position of a mobile unit to make call management decisions,” issued between 1999 and 2007, and covering location services for 911 calls, allowing for increased accuracy in determining the location of a cell phone user who has placed a call to an emergency operator, the report stated, citing the complaint. It also alleged the companies infringe a patent application filed January 2008, titled “Cellular telephone system that uses position of a mobile unit to make call management decisions.”

Why are such patents granted in the first place? It’s truly an embarrassment to the practice of patenting.

Turnarounds

As an update on the situation in India [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12], someone who is trying to legalise them wrote this article which explains where the system stands. [via Digital Majority]

In India, for administrative convenience, four patent offices are located in metropolitan cities. However, the offices are inconsistent in their practice with regard to software inventions, mainly due to the lack of clear guidelines. While the Indian Patent Office largely relies on the practice of the European and UK patent offices, there have been instances where inventions claiming software methods with a technical effect that have been allowed by the European or UK patent office have nonetheless been rejected by Indian Patent Office officials on the following grounds:

• The term “technical effect” is not defined in the Indian Patents Act.
• The Draft Manual is not binding on the examiners, as it is only in draft form.
• There are no Indian precedents in respect of software inventions.

As a side note, here is another call for a “global patent”, which is somewhat of a euphemism (think globalisation, like Community patent, harmonisation or centralised court for increased damages, software patents, and so on).

Here is another new editorial about the proposed patent deform[sic] bill in the United States. It addresses the wrong questions and dodges common criticisms like those relating to software patents.

It isn’t often that you see heavyweights in the tech world duking it out in a high-stakes match, with Congress as the referee. It’s happening today over proposed reforms in patent law, which pits the software and information technology giants against their counterparts in biotech. The issues are as fascinating as they are thorny — and while each side paints the choices as black and white, there’s enough gray here to cover a fleet of battleships.

[...]

One reform everyone agrees on is the need to expedite patent applications. The U.S. Patent and Trademark Office has just over 5,000 underpaid and overworked examiners to review more than 400,000 new applications each year. It would take them two years just to catch up on the current backlog if no new applications arrived. This, too, is stifling innovation. The office needs the money for more staff.

One person opines that software patents, just like network neutrality, suffers from serious misconceptions.

Software patents may be going the way of network neutrality: an arcane policy problem once the preserve of a small circle of wonks is becoming a politicized slanging match. In both cases an esoteric but important research question has become a point of leverage for certain interest groups. In both cases the subject (“network neutrality”, “software patents”) is at best poorly defined, typically has multiple possible meanings, and at worst is so vague as to be useless. And in both cases, the poster child is the small-time innovator, while the sugar daddy is a big money player minimizing costs (e.g. content providers who love net neutrality, and VCs who hate software patents).

Assuming that it’s true and software patents are standing on their last leg, why can’t the Bilski test be invoked? Sun Microsystems has just heroically attempted this but failed due to some federal judge.

A federal judge has shot down an attempt by Sun Microsystems Inc. to use the Bilski test to invalidate two patents for product configuration software held by Versata Software Inc. that Sun is accused of infringing.

Here is an interesting new essay titled “Ten Reasons the Supreme Court Should Take In re Bilski.”

Erika Arner is the co-author of the Bilski petition for certiorari challenging the Federal Circuit’s limits on the patentability of method claims. She handles patent prosecution and litigation at Finnegan Henderson in DC. I asked Ms Arner to write this post.

The thing to look forward to at this stage is OIN’s response to Microsoft, but all in all, this only legitimises software patents rather than challenge them. IBM would not mind.

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