11.09.09

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Patents Roundup: Supreme Court Paywalls Raised as Bilski (Re)Starts, Microsoft Patent Lawsuits, EU Community Patent

Posted in Courtroom, Europe, Free/Libre Software, Intellectual Monopoly, Law, Microsoft, Patents at 12:42 pm by Dr. Roy Schestowitz

Supreme Court bricks

Summary: Just a grouping of patent news of relevance to Free(dom) software

TODAY is an important day. The Supreme Court is hearing the Bilski case, which may finally end software patents in the United States. Pointing to this page from Practising Law Institute, President of the FFII writes: “300USD for the audio recording of Bilski, everything is good to make money in the US

Land of the fee? It is the same story with PACER as a service/plug-in called RECAP had its writer chased by the FBI (Wired Magazine broke the story); gratis access to court documents was at one stage named as a risk to national security. Maybe they meant financial security of some national oligarch.

Jose X has told us about the following AP article, which is filled with quotes from Microsoft:

“Technology companies care about this case because it will define what you can and cannot get a patent on,” said Emery Simon, counselor to the Business Software Alliance, which represents large technology companies including Microsoft Corp. and Intel Corp. “The scope of patentability could have ramifications for the path that technology takes.”

[...]

At this point, there is no firm consensus on what the test for patentability should be. IBM Corp. says an invention should be eligible if it makes a “technological contribution.” Microsoft says an invention should be eligible if it has physical properties or produces a result in the physical world.

Under both tests, the companies say, software would make the cut and the Bilski risk-hedging application would not.

Indeed, Horacio Gutierrez, deputy general counsel for Microsoft, said the Supreme Court would actually help the technology industry by blocking a patent in this case — sending a strong signal that the government must hold patent applications to high standards.

In preparation for another round of In Re Bilski, Ciaran O’Riordan from the FSF wrote this article on abandoning software patents [via ]. He has managed to put it in a good place (Patently-O) which ensures it won’t be an exercise of preaching to the choir. At Groklaw, Pamela Jones says: “I’ve heard that at least one Supreme Court justice reads Patently O.

On Monday, November 9th, the Supreme Court will hear the case of Bilski’s business method patent. Being the first review of patentable subject matter since 1981, this decision could make the rules for decades to come. The court will review the 2008 ruling of the CAFC which created the “particular machine or transformation” test. This test, depending on who’s reading it, could significantly narrow the scope for patenting software ideas.

The Supreme Court isn’t obliged to rule on the patentability of software ideas. Bilski’s patent is a business method patent, not a software patent. So why might the court make a broad ruling which would cover software? For people who are already aware of the legal arguments, I’d like to offer a review of the socio-economic arguments for abandoning software patents.

The SFLC has this new page with highlights of the briefs and SD Times says something reasonable.

Recently we managed to show that Microsoft had amassed over 50 patent infringement cases against it (pending). Well, Law.com has this update about one of them.

Court Transfers Part of Patent Case Involving Microsoft to Texas

[...]

A Delaware federal judge’s transfer of part of a patent infringement case involving software giant Microsoft Corp. to the Eastern District of Texas is the latest example of the federal courts’ shifting approach to patent litigation venue battles. The decision is also notable in that the Eastern District of Texas, known as a plaintiff-friendly venue, has itself recently started to transfer cases to other venues in compliance with recent federal appellate decisions.

[...]

QuinStreet dragged Microsoft into the case in January 2008 with a third-party complaint asking the court to rule that Microsoft should reimburse QuinStreet for any damages awarded to Parallel Networks. QuinStreet alleges that if it is infringing Parallel Networks’ patents, that is due to QuinStreet’s use of Microsoft’s Web server software for Web page generation.

Relocation to Texas is part of a recurring theme we began seeing not so long ago. Microsoft is losing a lot of money in these lawsuits and having fired many lawyers as part of budget cuts (down 15%), Microsoft is likely to fall under a heavy weight of software patent lawsuits. It will be more defenseless. Maybe it’s time for Microsoft to quit lobbying for this type of patents. Avistar is one of the many companies that have drained Microsoft’s legal budget [1, 2, 3, 4, 5, 6, 7, 8, 9], so it is rather ironic that days ago it announced support for a Microsoft platform.

Some days ago we also wrote about TRIPS, which is a nasty new way of generating money from intellectual monopolies [1, 2, 3, 4]. TRIPS actually kills people and related to this we have some posts about gene patents. From Science Blogs:

Court Upholds Rights of Scientists and Patients to Challenge Gene Patents

[...]

“We hope this challenge is the beginning of the end to patents on genes, which limit scientific research, learning and the free flow of information,” said Chris Hansen, a staff attorney with the ACLU First Amendment Working Group. “No one should be able to patent a part of the human body.”

From Patent Baristas:

A federal district court said that the ACLU et al. suit challenging the patentability of gene patents can go forward. The American Civil Liberties Union (ACLU), the Public Patent Foundation (PUBPAT), and a whole host of others have filed a lawsuit challenging patents on two human genes associated with breast and ovarian cancer claiming that the patents are illegal and restrict both scientific research and patients’ access to medical care, and that patents on human genes violate the First Amendment and patent law because genes are “products of nature.”

Axel H. Horns has this update on the Community patent, which can be viewed as a mechanism for banning Free software in Europe.

EU Community Patent: The Mill Goes On And On

[...]

With other words, the highly crucial question of the arrangement concerning translations – which might well be decisive for the fate of the entire project – is taken out of the main body of text on the Council Regulation on the Community Patent. As far as I can learn from earlier Documents, utilisation of machine translations is considered to be the joker of the day. The newly introduced Article 61 makes clear that if this approach should later turn to be unworkable, the language arrangement can be changed without unbundling the entire package of the EU Community patent project.

Microsoft uses its lobbying groups to promote the Community patent.

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