Bonum Certa Men Certa

Big Step in the Right Direction for Software Patenting in the US

Invention in dictionary



JupiterMedia is rerunning a story from the former Managing Editor of LinuxToday. It explains very clearly why so-called 'innovation' is nothing but an accumulation of knowledge that we already have and therefore the idea of software patenting is rather ludicrous.



All technology, computer or otherwise, is based on something that came before it. It doesn't just come out of thin air. Did Windows magically appear in the mind of some Microsoft engineer from the ether? Not hardly! They based the interface on work done by prior developers and slapped the whole thing on top of the DOS operating system that itself was a copy of CP/M. Microsoft didn't even make DOS themselves: it was built by a third-party development house and bought by Microsoft when the House of Bill made a deal with IBM.

Oh yeah, that's innovative.

The whole scientific method, the current fad of looking at the universe, is based on this philosophy. Take the work of others and refine it to better fit the way we perceive the universe to work. Technology is the same way: it took 100,000 years for human beings to figure out how to build the microwave oven.


Politics



The patent question is one which makes it difficult to totally escape a dose of politics. Here, for example, is a video accusing the USPTO of fraud and corruption. There's always need for vigilance and appropriate response. As Carla put it yesterday:

Free/Libre software itself is political. The GPL is called a copyleft license, which is wordplay on copyright. It is a clever use of existing copyright laws to protect software freedom, and copyleft has expanded to include a number of creative works, such as books, articles, photos and other images, movies, and music. Which is in direct opposition to the fierce attacks on existing copyright law, especially the insanely over-the-top attempts at exterminating fair use, and turning minor copyright violations into crimes of the century.

[...]

So there are a few examples of important political issues that Linux/FOSS users can address and influence knowledgably. It doesn't matter who is in whatever elected office, or what party they belong to, because these issues affect everyone. Our elected persons are hearing mostly one side of the story, and that is the side that gets rich off corruption and abuse. They need to hear from the good guys, too.


The encouraging news is that the new administration of the United States seems determined to address the patent problem -- one that has become a catastrophe which Republicans seemed unwilling to ultimately tackle [1, 2, 3, 4], perhaps because it favours 'generous' monopolies.

The new US-President wants to improve "predictability and clarity" in the patent system as well as "patent quality". His reforms would "reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation"


Here is some more related information.

What an Obama Presidency Means for Technology



[...]

Begin Intellectual Property Reform: rather than just the usual extension of copyright terms, Obama’s staff recognizes the “need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.” That includes “opening up the patent process to citizen review [to] reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation.”

Obama’s running mate has been criticized for supporting current policy on copyright, but an exposure of government policy to sources of light outside of the lobbyists currently illuminating the dark caves of Washington is likely to change things dramatically.


In other news, this newly-announced FTC hearing which involves Intellectual Monopolies drew some attention because, as Groklaw put it, "Note that the keynote will be given by Paul Michel, Chief Judge of the U.S. Court of Appeals for the Federal Circuit, the judge who wrote the recent Bilski decision." The FTC has an abysmal reputation when it comes to regulation, especially in recent years.

Patent Abuse Resumes



To demonstrate the problem at hand, consider claims that Halliburton is now trying to patent a form of patent-trolling, much like IBM and its darnest of patents, e.g.:

  1. IBM Wants Patent On Finding Areas Lacking Patents
  2. The IBM 'Patent Troll' Patent


From Masnick:

We see all sorts of ridiculous patent applications and patents, but my favorites tend to be the patents that have to do with patents themselves (such as the patent app on a method for filing a patent). However, the folks over at Patently-O have highlighted a fascinating patent application from an attorney at Halliburton, which appears to be an attempt to patent the process of patent trolling.


For vivid illustration of the impact, witness this new $3-billion lawsuit against Google. It's about software patents.

Profy reports that a Russian company is suing Google for $3 billion over Google’s contextual ad program, AdSense.


Masnick responded to this too.

The concept of contextual advertising was hardly a new idea. In fact, from the early days of web advertising, it was always a target. Plenty of other companies tried to do it, but what made Google so successful was that it actually implemented the process in a way that worked. It was about putting it into practice, not the grand scheme that ended up in a patent somewhere. This seems like nothing more than a company trying to shakedown Google.


The Maginot of Linux



Linux too is susceptible and sensitive to patent-trolling, but some people find comfort in the existence of OIN. Here is a new article about this patent pool, which the likes of Acacia [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11] render futile.

The OIN is refining the traditional IP model by acquiring strategic software patents and making them available royalty-free, for any use, to any organization that agrees not to assert its patents against the Linux system. This frees organizations to make significant corporate and capital expenditure investments in Linux -- helping to fuel economic growth and technological innovation.

The proliferation of open source hardware and software platforms is an irreversible trend, Bergelt added. As open source continues to accelerate beyond the enterprise to mobile devices and the desktop, the OIN would continue to work for the common good, creating a Linux IP "No-Fly Zone" that ensures the Linux ecosystem will not be impaired by intellectual property rights issues.


As pointed out repeatedly by the folks at FFII, OIN is a replication of a Maginot Line, which arguably makes it a big mistake.

The opensource folks have mirrored the French in WW II. Basically they have created a Maginot Line called the Open Invention Network (OIN). The OIN have been amassing patents so they could counter-sue any tech company that sued open source. But like the French, the OIN has been prepping for the wrong war. IP Innovation is not a tech company, they make nothing, they are not infringing on any patents. OIN is sidelined with their pants down while the battle moves elsewhere.


We wrote about this problem quite recently. OIN is not to be trusted much, at least until IBM changes its ways and OIN's strategy along with it.

Bilski



Analyses of the re Bilski decision we have thus far accumulated in [1, 2, 3, 4, 5, 6, 7]. Here are some newer clarifications that shed light on updated scope of patenting:

1. In re Bilski and Business Method Patents

Under the new standard, a process must either be tied to the use of a machine or be a transformation of something physical to be patentable, which would include a transformation of data that represents something physical.


2. Patent-Eligible Subject Matter in the United States - The Court of Appeals Decision in In re Bilski

Since the claims before it did not relate to any particular machine, the court did not address further what was required to meet the first of these options and in particular did not consider whether a general purpose computer when programmed could become “a particular machine or apparatus”.

On the second option, the majority did attempt some guidance as to what it meant by “articles” that were to be the subject of transformation.


This is definitely a step in the right direction. It's better for the economy, according to this new article, but elimination of software patents as a whole would not be better for IBM. It is, after all, still a software company, not a business methods company (despite the name which contains "Business Machines"). They also vend hardware, so it's unlikely that they will push for broader elimination and reduction of scope.

It’s what everyone has been talking about lately. No, not the election—software patent reform. (Bear with me, non-IP folks.) Last Thursday, the U.S. Court of Appeals for the Federal Circuit rejected a patent application from a company called WeatherWise for a method of managing the risk involved with energy costs. The court ruled that in order to be patentable, a process must be tied to a “machine or apparatus, or transform a particular article into a different state or thing.” That means abstract processes known as “business methods” can no longer be patented. A classic example of a patented software business method is Amazon’s one-click process for online purchases.

So how will this ruling impact software innovation, particularly for startups and investors? The news has caused quite a stir in the Seattle tech community (and elsewhere), with some entrepreneurs worrying about their ability to protect their fledgling intellectual property. Meanwhile, some venture capitalists view the ruling in a positive light, as protection against “patent trolls” that acquire business method patents and then sue software startups for infringement. As Fred Wilson of New York-based Union Square Ventures puts it in a blog post, “It’s a huge tax on the startup/technology ecosystem and it’s hurting innovation.”


The huge efforts to stop software patents are finally paying off and the action taken by the United States government is an important one to watch. In the next post, we will turn our attention to Europe. ⬆

Recent Techrights' Posts

The Register MS Helps Prove the "AI" Frenzy in the Media is Evidence of Compromised Media, Not Legitimate "Revolution"
Ignore the hype and carry on
Microsoft Insiders on "Effectively Being Silently Laid Off From Microsoft"
People are laid off by the thousands without the media uttering a word or the companies confirming anything
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 08, 2026
IRC logs for Thursday, October 08, 2026
Gemini Links 08/10/2026: Economical Thrashing, How I Killed the Earth, and Thoughts on Gemini
Links for the day
Links 08/10/2026: Wikimedia Bemoans Chaffbot Slop (Bots Sold as 'Agents') That Sabotage It, ICC's Taliban Warrants
Links for the day
Links 08/10/2026: Slop Scammers (Pushers) Inflate Hosting Bills and "YouTube Testing Everything"
Links for the day
London Became Synonymous With the Royal Courts of Justice
London used to be a place where we go on holiday/retreat/break; nowadays we have only one destination there
Brigading Against Women - Part XXIII - Extremism in the Mix and Getting the Police Involved
In 2012 I was getting heckled a lot for opposing back doors in Linux; it has not stopped since
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 07, 2026
IRC logs for Wednesday, October 07, 2026
Microsoft's XBox CEO Asha Sharma Tells Staff That Many Thousands of Layoffs Are in Fact "Return to Growth"
Get it? Layoffs are "growth".
Gemini Links 07/10/2026: On Feeling Guilty Leaving the US, Multinet, and Limiting Net Usage
Links for the day
The Cyber Show Explains the Concept of "Data Rape"
a metaphor some might find crude
FREE BEER is Still Online, But Barely Active
25 years ago or even 20 years ago many spoke of open/free beer (or "COLA")
Syria: GNU/Linux Has Surged to 8% "Market Share"
I don't have a convincing explanation for this
IBM Dimming Down the Lights on IBM Consulting, No Knowledge or Experience Required
They just "ride" the (old) brand, that's all
Statement on American SLAPP
Crossposted from schestowitz.com
Today The Register MS Published "SPONSORED FEATURE" and "SPONSORED POST" With "AI" 31 Times in Them
This isn't a "Reality" or "Era of AI", it's a paid-for spam campaign
Gemini Links 07/10/2026: Nostalgia, Neutral Map, and Shorthanding
Links for the day
Links 07/10/2026: Unrest in France and Rumours of Plague in Russia
Links for the day
Brigading Against Women - Part XXII - The Lozza Problem (in Length)
Garrett's case was a waste of the Court's money
JavaScript in Richard Stallman's Web Site
For search he is using CGI, not JavaScript
EPO's Local Staff Committee The Hague (LSCTH) Plans Presentation Next Week (Coinciding With Apparent Coronation of 'Cocaine King' Campinos)
They've outsourced this session to the dictator's spying eye
The GNOME Foundation's Code of Conduct Has Been Misused to Hide Corruption
People who value free speech and freedom of expression won't touch social control media with a 10-foot bargepole
Voting for Freedom of the Press
American elections happen every 4 years
What Brett Wilson LLP and Matt Garrett Don't Want People to See/Read
Book-burning is counterproductive
Book-Burning Mindset Does Not Work
It makes the suppressed voices more widely known
Microsoft's XBox in 'Freefall'
XBox is practically finished
Slop is Plagiarism
Plagiarism is not "theft" and copyright infringement is not "piracy"
IBM is Almost Defunct
IBM is doomed. It just tries to test how much more patience the shareholders have.
Criminalisation of Journalism
"Journalist Derya Okatan arrested in Turkey for allegedly possessing classified material"
Brigading Against Women - Part XXI - Hiding Behind the Veil of "Privacy" After Telling Nazi Things in IRC Channels of Techrights and Physically Threatening People
To merely explain an abuse (or crime) requires naming people; that's a fundamental tenet of reporting
Links 07/10/2026: Quitting Smartphone and "Meta's Muse Is Spying on All Your Friends and Family"
Links for the day
Gemini Links 07/10/2026: Greed, In Praise of Zotero, and The de-Google Path
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 06, 2026
IRC logs for Tuesday, October 06, 2026