The 'little guy' always drowns in patent pools

Patent Pools

Previously, in our writings about "Linux Defenders" [1, 2, 3, 4], we presented both the good and the bad. It's not all good, even though journalists who are focused on GNU/Linux prefer to view it that way. Sean Michael Kerner poses this as a question.

Will Linux Defenders Save Linux from Microsoft?

Questions over patent validity in software are never easy to answer, but it's one that a new effort called Linux Defenders from the Open Invention Network (OIN) is trying help solve.

Linux Defender includes facilities for peer-to-peer patent review, post patent review as well as defensive publications for patents.

[...]

"It's not really focused on Microsoft," Keith Bergelt, chief executive officer of Open Invention Network told InternetNews.com. "Under post-issue Peer to Patent there will probably be some Microsoft patents up there, there will probably be some from small companies and trolls,” he said, using a pejorative term for patent-holders who often manipulate the patent system for excessive profits.

The thing is, Microsoft and patent trolls are not exactly separable. We were told that "they [OIN] are nervous once you mention the words "patent troll"." The people at eWeek presented the view of the Linux Foundation:

Stated Jim Zemlin, executive director of the Linux Foundation. "The open source community is getting an IP rights tool that will limit distractions created from organizations that like to play the FUD game."

It is sad to see the Linux Foundation using propaganda terms like "intellectual property rights," but then again, it's also funded by the likes of IBM, Intel, and Novell. OIN is a patent pool and it's a blood relative of the Linux Foundation. As this new paper suggests, patent pools stifle innovation. TechDirt has the gist of it: [via Digital Majority]

Patent pools tend to come about when you have a lot of patents in and around a particular product, creating "patent thickets" where a bunch of different patent holders all hold onto important pieces of the puzzle. T he worst case scenario, then, is that nothing can get done, as it's impossible for anyone to innovate without being hit by a ridiculous number of lawsuits. To us, this is a sign of the patent system clearly not working. If so many different elements all need to be patented separately, then mistakes were made in the patenting process. You get, as Michael Heller has called it, a gridlock situation. Our solution? Throw out such patents, because they're clearly hindering, rather than enabling, innovation.

Back in 2006, Richard Stallman explained why identifying prior art is not the way to go. He criticised OSDL (back then the equivalent of the Linux Foundation) when he wrote:

The Open Source Development Lab (OSDL) has a project to educate the US Patent Office about ideas already known ("prior art") so as to prevent issuance of "poor quality" software patents which would cover those known ideas. It works by annotating free software packages in free software repositories so that ideas in them can be found more easily. It sounds like a good thing because the problems are hidden. The GNU Project does not participate in the project, and you should think twice about it too.

So why is the SFLC supporting this latest move? Those who can offer better advice should mail it to info@linuxdefenders.org and also sign this EU petition against software patents while they are at it. Anyone can sign the petition, even non-EU citizens.

Apple

Apple harms Free(dom) software and GNU/Linux [1, 2], but Apple/Mac enthusiasts prefer to deny this. It's just too embarrassing. In the latest step that may lead to castration of GNU/Linux features due to Apple patents [1, 2], Apple claims to have 'invented' the third dimension on the desktop, despite all that we find in Compiz/Beryl/ Compiz-Fusion/Metisse/ Looking Glass/whatever.

The Register has the details.

The US Patent and Trademark Office today published a collection of Apple filings, including a 3D interface that may herald the most radical - or, dare we say, the most bizarre - usability development since Doug Englebart first demoed a window-based GUI 40 years ago yesterday.

CNET has some more information about this and a clearer schematic.

In other Apple news, the company has just lost a patent case in the Eastern District of Texas.

We're not sure how we overlooked this one, but late last week, Opti apparently "won" a patent hearing over Apple in the Eastern District of Texas. You remember them, right? This is over that whole "Predictive Snooping of Cache Memory for Master-Initiated Accesses" issue. Oh, right, that predictive snooping issue. Uh-huh.

It's worth remembering that Apple's reasoning about "defensive" patents does not apply where patent trolls are involved. The trolls have no products, so swords can't be crossed.

Abuse

Abuse. Yes, that's what the patent system is about. Its holy grail is callously being called "intellectual monopolies" for a reason.

The reasoning behind these things is explored in this new post.

Today ( Friday 5 December) the World Business Council for Sustainable Development (WBCSD) organised a side event on 'the business contribution to a new climate agreement'.

With 65 lobbyists, the WBCSD is one of the bigger business lobbying bodies in Poznan. It represents over 200 transnational corporations, most of them headquartered in Europe, Japan and North America, employing 'over 3 million employees and a combined turnover of 7 trillion dollars'.

[...]

On access to intellectual property and the much needed technology transfer that will permit to the Global South to deal with urgent mitigation and adaptation challenges, WBCSD representatives called it "completely unacceptable for industry" that a UN climate agreement would include compulsory licensing of patents. They want technology transfer only to take place through projects that require the participation of multinationals.

In many cases, trade agreements and embargoes can be used against nations that encourage freedom of thought and resist intellectual monopolies. Even emoticons are becoming intellectual monopolies of individual people now.

A Russian businessman has trademarked the combination of semicolon, dash and bracket that make up a winking face 'emoticon' in texts and emails.

This is not a joke. It ought to be, but it's not.

While Google acknowledges that the system is broken, it carries on filing and thus endorsing software patents along the way.

Google’s official stance about the US patent system is that it is broken. The company has pushed for patent reform in order to stop “frivolous patent claims from parties gaming the system to forestall competition or reap windfall profits.”

We have accumulated a couple of videos where Google speaks about intellectual monopolies [1, 2] and the overall picture is not encouraging at all. They probably whine only because of nuisance such as those Chrome lawsuits and Yahoo patents.

Legal/Political Means

It's probably all down to law. Digital Majority pulled this new reference from earlier in the week. It's about the effect of In Re Bilski on computer programs patentability, which remains a subject of disagreement and little ground for testing in court (as yet).

Can I patent software running on a general purpose computer?

The Bilski court focused on data-processing methods, and did not address the patentability of hardware or software per se. A key question for the future is how the phrase “tied to a particular machine” will be applied to software patents. If interpreted narrowly — i.e., requiring the use of special-purpose computing hardware to receive a patent — many, if not most, business method and software patents may not survive. If it is read less restrictively, the status quo may prevail. In either case, patents for inventions implemented as software should include some structural and functional components in the patent application and the claims. Claims covering human activity are now seemingly a thing of the past.

IPKat has a discussion that relates to this too (re: UK sovereignty/monopoly though).

The IPKat is always saddened when all that effort that goes in standards-setting leads to litigation. In theory it should be friction-free and competition-friendly, but technical misunderstandings and misjudgments, drafting imperfections, impatience and opportunism all play their part in ensuring that the gulf between the ideal and the real remains as wide as ever. Merpel says, you'd think that Open Source licensing would provide more litigation and patent standards less -- but it's very much the other way round. This looks like a good topic for a PHD thesis or two.

In the United States of America, the new democratic government has promised a lot of change, but it becomes increasingly easy to have doubts [1, 2]. Here is another new reason for doubt:

...[W]idespread reports that Obama has chosen Xavier Becerra to be the new US Trade Representative. In the past, the US Trade Rep has basically acted as a representative of Hollywood at times, and Becerra may be no different... as he's literally the Congressional rep for California's 31st district... which (you guessed it) covers Hollywood. Uh oh. That would be like making a Congressional rep from Detroit in charge of automotive policy in the US. They're less likely to have the nation's overall best interests in mind.

The appointment of IBM's Irving Wladawsky-Berger, who has yet to become part of an advisory body, is not good news, either. ⬆