07.12.16

Gemini version available ♊︎

Software Patents in the US and the European Loopholes Revisited

Posted in America, Europe, Patents, RAND at 4:21 pm by Dr. Roy Schestowitz

FRAND (in a standard) or “on a device” loophole

A device

Summary: While the United States distances itself from patent maximalism and moves further away from software patenting, the issue is still unresolved in Europe, which traditionally rejected such patent applications upfront

SOFTWARE patents are certainly a dying breed of patents in the United States, especially after Alice. Those who deny these trends are typically lobbyists of the software patents interest groups/profiteers. This report which was authored by Charles Bieneman, says that even the Court of Appeals for the Federal Circuit (CAFC), originator of software patents in the United States, walks back on the issue and “Maintains Unpredictability of the Law of Patent-Eligibility”. To quote Bieneman: “The Federal Circuit vacated a summary judgment of invalidity under 35 U.S.C. § 101 after disagreeing with a district court that claims of U.S. Patent No. 7,604,929 were “directed to a patent-ineligible law of nature–that hepatocytes [liver cells] are capable of surviving multiple freeze-thaw cycles–and that the patented process lacks the requisite inventive concept.” Rapid Litigation Management, Ltd. V. Cellzdirect, Inc., No. 2015-1570 (Fed. Cir. July 5, 2016). Reading this case for broader lessons on Section 101 validity – as I read all cases that implement the Mayo/Alice patent-eligibility test – the main lesson to be drawn here is that outcomes under Section 101 remain highly situational. Patent-eligibility determinations, even more than other questions of patent law, frustratingly depend on the context of the litigation, specific words that may or may not be included in a patent claim, and, let’s be honest, the particular judge or judges hearing the case.”

“The courts which actually count and are not known for corruption quite unequivocally reject software patents.”At the CAFC, as noted here many times before, trial misconduct is common. It’s a corrupt process. Consider the recent BASCOM case which is still mentioned in the news this week. SCOTUS, which bypasses CAFC, continues to reject challenges to Alice, e.g. the Sequenom case — a subject which was also revisited earlier this week. The courts which actually count and are not known for corruption quite unequivocally reject software patents.

Europe, on the other hand, risks going in the very opposite direction.

According to last week’s blog post from Cambridge Wireless Blog (based in the UK), “not all software is patentable, and never has been. But this is generally true: not everything is patentable. As straightforward examples, you cannot patent a piece of art, or a book, or a theme or story for a book, say. These are regarded as “non-technical”. Likewise, you cannot patent a pure business method, again in essence because they are regarded as “non-technical” and for policy reasons. You also cannot patent “scientific theories” or “mathematical methods”, again essentially for policy reasons: no-one should be allowed to patent what is already “out there”, waiting for humans to uncover it.”

“”fluffy” software is not patentable but “hard” software is,” Benjamin Henrion noted about the premise of the above. “There is no such thing as hard software,” he added. This is perhaps where the EPO loophole comes into play. If one pretends that the software is tied or combined with a device, then suddenly the software is deemed patentable. Another loophole for software patenting in Europe has been FRAND. We wrote about this for nearly a decade. FRAND has been a vector of software patents injection into standards, even where software patents are not at all valid. “FRAND And The Clash Of Industries,” an article published earlier today, says the following:

They use open source licenses to handle the copyrights and patents, community governance to handle trademarks and other patents and public benefit entities to protect everyone from everyone else. Each participant in the collaboration works at their own expense in order to achieve a shared outcome that benefits all, including themselves. When they create an enhancement, fix a defect, participate in a design, they are not “working for free” or “donating their work” so much as they are “participating in co-development”. It’s a new way to leverage IP for greater benefit than directly monetising its scarcity.

[...]

But that’s not the case in markets where collaboration happens at the level of specifications and de jure standards rather than code and de facto standards, such as the telecommunications industry. Decades of comfort with SEPs and FRAND terms have resulted in a heavy investment in patents licensed in such a way that they create mutually-assured control. Telecommunications standards are so heavily encumbered with SEPs that patent pools and cross-licensing have become the norm. That in turn has created a barrier to newcomers that has made the telecommunications industry a cartel of giants.

That cartel of giants now sees its mesh of complex physical technologies coming to a lifecycle point where software dominates. The rise of apps and smart devices for the user and of software-defined and implemented infrastructure for operators, means that there is more and more of an incentive to move in to the computer and software technology markets. This in turn has created an impetus to adopt the working practices of that industry, which notably today means collaboration over shared implementation rather than just over mutually essential specifications. As a result, they seek to introduce open source into their business.

[...]

So will we create a new opportunity with regulations like EIF, or allow an existing industry to hobble another as the two collide? That’s the real question about FRAND terms for SEPs. Trying to force-fit FRAND into open source by mistakenly asserting it’s just a matter of compliance is sure to fail. Despite the name, FRAND is always discriminatory.

It is sad that so many years down the line, nearly a decade after Microsoft lobbied via groups like the Business Software Alliance, this subject remains unaddressed and FRAND remains a big barrier, even in Europe. There is much work to be done in Europe, even if the US gradually ends the era of software patenting.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. [Meme] Gemini Space (or Geminispace): From 441 Working Capsules to 1,600 Working Capsules in Just 12 Months

    Gemini space now boasts 1,600 working capsules, a massive growth compared to last January, as we noted the other day (1,600 is now official)



  2. [Meme] European Patent Office Space

    The EPO maintains a culture of illegal surveillance, inherited from Benoît Battistelli and taken to a whole new level by António Campinos



  3. Gemini Rings (Like Webrings) and Shared Spaces in Geminspace

    Much like the Web of 20+ years ago, Gemini lets online communities — real communities (not abused tenants, groomed to be ‘monetised’ like in Facebook or Flickr) — form networks, guilds, and rings



  4. Links 16/1/2022: Latte Dock 0.11 and librest 0.9.0

    Links for the day



  5. The Corporate Cabal (and Spy Agencies-Enabled Monopolies) Engages in Raiding of the Free Software Community and Hacker Culture

    In an overt attack on the people who actually did all the work — the geeks who built excellent software to be gradually privatised through the Linux Foundation (a sort of price-fixing and openwashing cartel for shared interests of proprietary software firms) — is receiving more widespread condemnation; even the OSI has been bribed to become a part-time Microsoft outsourcer as organisations are easier to corrupt than communities



  6. EPO's Web Site Constantly Spammed by Lies About Privacy While EPO Breaks the Law and Outsources Data to the United States

    The António Campinos-led EPO works for imperialism, it not only protects the rich; sadly, António’s father isn’t alive anymore and surely he would blast his son for doing what he does to progress his career while lying to staff and European citizens



  7. Links 16/1/2022: Tsunami and Patents

    Links for the day



  8. IRC Proceedings: Saturday, January 15, 2022

    IRC logs for Saturday, January 15, 2022



  9. Links 16/1/2022: Year of the GNU/Linux Desktop and Catch-up With Patent Misinformation

    Links for the day



  10. Patrick Breyer, Unlike Most German Politicians, Highlights the Fact That Unified Patent Court (UPC) and Unitary Patent Are Incompatible With EU Law

    A longtime critic of EPO abuses (under both Benoît Battistelli and António Campinos leadership), as well as a vocal critic of software patents, steps in to point out the very obvious



  11. Links 15/1/2022: Flameshot 11.0 and Libvirt 8.0

    Links for the day



  12. Blogging and Microblogging in Geminispace With Gemini Protocol

    Writing one’s thoughts and other things in Geminispace — even without setting up a Gemini server — is totally possible; gateways and services do exist for this purpose



  13. Links 15/1/2022: Raspberry Pi in Business

    Links for the day



  14. IRC Proceedings: Friday, January 14, 2022

    IRC logs for Friday, January 14, 2022



  15. Gemini Clients: Comparing Moonlander, Telescope, Amfora, Kristall, and Lagrange (Newer and Older)

    There are many independent implementations of clients (similar to Web browsers) that deal with Gemini protocol and today we compare them visually, using Techrights as a test case/capsule



  16. 2022 Starts With Censorship of Christmas and Other Greetings at the EPO

    The nihilists who run the EPO want a monopoly on holiday greetings; to make matters worse, they’re censoring staff representatives in their intranet whilst inconsistently applying said policies



  17. Links 14/1/2022: FFmpeg 5.0 and Wine 7.0 RC6

    Links for the day



  18. White House Asking Proprietary Software Companies That Add NSA Back Doors About Their Views on 'Open Source' Security

    The US government wants us to think that in order to tackle security issues we need to reach out to the collective 'wisdom' of the very culprits who created the security mess in the first place (even by intention, for imperialistic objectives)



  19. Links 14/1/2022: EasyOS 3.2.1 and Qt 6.3 Alpha

    Links for the day



  20. Scientific Excellence and the Debian Social Contract

    The Debian Project turns 30 next year; in spite of it being so ubiquitous (most of the important distros of GNU/Linux are based on Debian) it is suffering growing pains and some of that boils down to corporate cash and toxic, deeply divisive politics



  21. Links 14/1/2022: openSUSE Leap 15.2 EoL, VFX Designers Are Using GNU/Linux

    Links for the day



  22. IRC Proceedings: Thursday, January 13, 2022

    IRC logs for Thursday, January 13, 2022



  23. 2022 Commences With Microsoft-Themed (and Microsoft-Connected) FUD Against GNU/Linux

    A psychopathic Microsoft, aided by operatives inside the mainstream and so-called 'tech' media, keeps spreading old and invalid stigma about "Linux" and Free software; few people still bother responding to these fact-free FUD campaigns, which boil down to ‘perception management’ PR/propaganda



  24. Between January 2021 and January 2022 the Number of Active Gemini Capsules Nearly Quadrupled Based on Publicly-Available Catalogue of Capsules

    Geminispace has grown to about 2,000 known capsules and 1,600 of them are active, permanently online, fully accessible; in January last year these numbers were about 4 times smaller



  25. Links 13/1/2022: NetworkManager 1.34 and Everett 3.0.0

    Links for the day



  26. Links 13/1/2022: Sparky 5.16, Fwupd 1.7.4, and KDE Plasma 5.24 Beta Released

    Links for the day



  27. Call a Spade a Spade (Microsoft 'Contributions' to Linux)

    Call a spade a spade; Microsoft does not love Linux and doesn’t try to help Linux, as it’s still all about Windows and proprietary software with surveillance, back doors, and worse things



  28. No Excuses for Using GitHub Anymore

    Software developers become living witnesses to more and more reasons to abandon Microsoft for good



  29. Links 13/1/2022: Slackware Linux 15.0 RC3 and More Microsoft Aggression Against Linux

    Links for the day



  30. IRC Proceedings: Wednesday, January 12, 2022

    IRC logs for Wednesday, January 12, 2022


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts