10.08.09

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The FFII and Red Hat’s CEO Express Dissatisfaction with United States Patent System

Posted in America, Europe, Law, Patents, Red Hat at 3:51 am by Dr. Roy Schestowitz

My ex hat

Summary: More new calls for the elimination of software patents in the USPTO

A lot of opposition to software patents made its way into the desks of USPTO clerks last week. Heise has some new coverage of this.

Harsh words came from Eben Moglen of the Software Freedom Law Center (SFLC): “Software patenting has been a scourge in the global technology industries,” writes the lawyer. In his brief, Moglen argues that software is nothing more than an array of computer instructions. In the lawyer’s opinion, computer programs should be as ineligible for patent protection as mathematical equations or precise descriptions of physical laws. Ciaran O’Riordan of the End Software Patents campaign, which is supported by the Free Software Foundation (FSF), also calls software patents an “economic failure and a hindrance to the progress of the useful arts.” Allowing software patents has “resulted in perverse economic effects,” as litigation is increasingly targeting not only developers, but also users in the general economy, said O’Riordan.

The President of the FFII points to this new interview which he described as: “RedHat CEO about software patents, nobody can write software without risking a lawsuit”

Here is the official video description:

Open software developer Red Hat is mounting a Supreme Court battle in the nation’s highest court, with Jim Whitehurst, Red Hat CEO and president and CNBC’s Bob Pisani.

The FFII has also just officially announced its amicus curiae brief.

The Foundation for a Free Informational Infrastructure (FFII) and IP Justice filed an Amicus Curiae Brief to the U.S. Supreme Court. The case Bilski v. Kappos is expected to become a landmark ruling on the future of the U.S. patent system. The joint Brief explains the interlink of software and business methods, and points out alternatives to the so called Machine-or-Transformation test used for categorizing patents.

The Against Monopoly Web site has this new post which gives examples of outrageous patents. Not too surprisingly, mostly software patents are given as examples.

Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice):

* Amazon’s “one-click” patent, asserted against rival Barnes & Noble
* Cendant’s assertion that Amazon violated Cendant’s patent monopoly on recommending books to customers (since settled)
* The attempt of Dustin Stamper, Bush’s Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims “a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities”

Even in the United States, pressure to abolish software patents is increasing. The nation’s dependence on Free software may make such abolishment inevitable, but IBM, whose officer now controls the USPTO [1, 2, 3, 4, 5, 6, 7, 8, 9], is still standing in the way.

“Technology products typically consist of hundreds or thousands of patented components. It therefore is impossible for technology companies to investigate all of the patents, and pending patent applications that may be relevant to a new invention (product), notwithstanding their best efforts to do so.” —Business Software Alliance, Amicus Brief to the Supreme Court in eBay Vs MercExchange

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3 Comments

  1. Jose_X said,

    October 8, 2009 at 3:45 pm

    Gravatar

    Great link: http://www.cnbc.com/id/15840232?video=1286390389&play=1

    Great exposure for Red Hat (and taking share from Microsoft), Linux, FOSS collaboration (great for security, privacy, and low cost), and the problems with software patents.

    This video is probably a wake-up call to groups betting on Microsoft.

  2. Jose_X said,

    October 8, 2009 at 4:35 pm

    Gravatar

    The FFII made a great submission: http://media.ffii.org/BilskiFFII/ACB_FFII.pdf

    It’s offers a very focused point from the legal point of view.

    It has a great section on the differences between software and hardware. These include obvious things we all recognize that differentiate quite clearly the ease by which numerous things can be done with what is intangible but which cannot be done with what is physical.

    It addresses IBM’s contention that reverse engineering gains makes not having source code a small issue.

    It addresses the lie that patenting opens up inventions to the world, and states that open source (through copyright) do fulfill this openness and very successfully.

    It also hits on the economic problems/costs with patents and that software patents won’t promote progress. [Patent supporters talk about the positive side of the ledger (more jobs, blah blah), but ignore the costs and inefficiencies of such a system. Would you pay 1 million dollar for a cheeseburger? Why not? You'll gain a cheeseburger. Don't you want to gain something? Ah, but at what costs?]

    It too takes the position that SCOTUS and other important courts have been almost clear that software is abstract and cannot be patented (and loading it onto a machine is a trivial step) and have drawn an almost clear line between what is patentable and what is not, but suggests an improvement to the Machine/Transformation test from Bilski (leveraging European experiences that stopped those that try to game the system) so that lower courts and the USPTO can more easily avoid future mistakes. The improvement is as follows: to reject abstractions outright within claims rather than do what is currently done of allowing these abstractions if the abstractions are a subset of the whole.

    It gives historical European examples of lessons (eg, for business patents) we should keep in mind if we don’t want to repeat the mistakes.

    Jose_X Reply:

    A few more specifics related to the above:

    They state that patents should not affect the majority negatively in order to be valuable. Patents should apply to scarce resources (to motivate the creation of more of them).

    They also mention the ways the system is abused: patents that are essentially obvious and patents where an observer simply puts on paper the current state of the art (common practice) perhaps at a time when little prior art exists (which they can work around) so as to be able to take an industry hostage.

    They mention that testing obviousness by mostly only looking at prior art (much of which is missed anyway), the USPTO fails to account for many things that are considered so obvious and standard that they are never written down but are known by everyone in the industry.

    Also, they justify their submission because of the importance of having laws that are consistent across nations and also that SCOTUS ruling will be taken into consideration by the EU so much care should be taken to be fair and correct.

    [I read the brief entirely first and them mostly paraphrased without reviewing all the details, so some of the above statements might be a bit off. It's a great read for anyone watching the software patent battle closely.]

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