Summary: Patent maximalists have their revenge in a system designed to benefit monopolies and protect them from competition

SOFTWARE PATENTS have become an increasingly-relevant issue when it comes to Free software. Therefore, Free software supporters should probably treat it as important and this post is a short overview of the latest news.

USPTO

"The patent office should create a pool of software programmers and keep a database of their related skills," says the president of the FFII regarding this new essay which is summarised by TechDirt:

In the past when discussing different ways to potentially improve the patent system, I've pointed out that one of the key points in determining whether or not something is patent worthy is supposedly whether or not the invention would be "non-obvious" to a "person having ordinary skill in the art." And, yet, at no point in the patent review process does the average examiner -- who quite often does not have ordinary skill in the art -- ever go out and ask those who do. That always troubled me. So, I thought one (of quite a few) useful improvements to the system would be to let patent examiners call on certain folks who work in various fields. Now, this wouldn't be to have that person give a total thumbs up or thumbs down on the patent. That would still be reserved for the examiner. But, at least hear some knowledgeable people out on whether or not the idea is obvious.

TechDirt also alerts readers that the "Patent Office Hires Economist To Add Some Actual Evidence To Patent Policy" (cost benefit of patents is high for monopolies and low for the rest).

Given all this, it's interesting to hear, via Jamie Love, that the USPTO has hired economist Stuart Graham to the newly created position of "chief economist." Love notes that Graham's appointment comes with the mandate to compile economic data while doing a true economic analysis of patents for the USPTO. This seems like a good thing. I did a quick search on Graham's previous research and came up with a a listing of some of his research -- and at a first pass, it bodes well. He's done work on how post-grant opposition to patents can improve quality of patents (pdf) and also has done research on patents in the pharmaceutical world, noting that there is a disconnect between patents and actual product development. In fact, that same study found that increased R&D doesn't appear to be an indicator of greater product development at all.

New Zealand

Last week's big news was that New Zealand is rejecting software patents [1, 2], but as the president of the FFII puts it: "How the NZ Patent Office will make the definitive distinction between embedded and other types of software?"

Some patent lawyers have raised this point:

How might the New Zealand Intellectual Property Office handle the challenge of developing guidelines for a clear and definitive distinction between embedded and other types of software? The IPKat awaits the outcome with curiosity.

The report is silent regarding patent term extension where commercial exploitation of a patented product, such as a pharmaceutical or agrochemical, is delayed due to the need to obtain regulatory approval. This omission is particularly disappointing for patentees as the Bill contains 'spring-boarding' provisions in clause 136 that grant an exemption from infringement for an act done for experimental purposes and in clause 138 for the development and submission of information required to obtain regulatory approval.

These loopholes also exist in Europe and Microsoft brags about exploiting them.

Facebook

Facebook is a bad company when it comes to software patents and according to this, it has just been sued for supposedly violating the law with software patent infringements.

Technology patent trolling seems to have become a regular pasttime — something that is influenced proprtionally with lucrative potential of a patent, and which the long-flawed approval process at the USPTO (U.S. Patent & Trademark Office) abets in the first place. Now there’s another questionable patent lawsuit, this one involving ‘online communities’, and naturally, Facebook is a target with its community of more than 400 million users.

TechDirt says that the patent is very broad, covering just online communities.

It's always fun to see patent system defenders in our comments insist that the patent system rarely makes mistakes in issuing patents, and how really bad patents get pushed out upon review. And yet... then we hear stories like the following one. Four guys, back in 2001 filed for a patent (6,519,629) on a "system for creating a community for users with common interests to interact in." Seriously. Reading through the patent application, I'm having trouble seeing how this wasn't covered by a ton of prior art. What in that patent does not apply to early BBS systems, for example? And, even if there really is something new (I can't find anything), how is putting together an online community not an obvious thing?

This is another sign that the patent system does not work.

Apple

Despite Apple's lawsuit against Android/Linux [1, 2, 3, 4, 5, 6, 7, 8], HTC is said to be doing quite well.

Taiwan's HTC Q1 profit, March sales rise

[...]

Earlier this month, Apple sued Taiwan-based HTC and accused it of infringing 20 hardware and software patents related to the iPhone.

It wasn't long ago that a company close to HTC attempted to embargo Apple's iPad using patents and here comes another lawsuit claiming patent violations.

A company that has already sued Apple over a patent on zooming and scrolling on a mobile Web browser, is now adding the iPad to the lawsuit Monday.

The Mad Hatter argues that Apple is the "Competent Danger to Free Software" and he explains why:

Free has nothing to do with price, instead it stands for ‘FREEDOM’ or ‘LIBERTY’, meaning that the end-user should be free to use the software, modify the software, and pass on their modifications. There is no reason why free software cannot be sold, as long as the four freedoms are respected. Those freedoms are:

* The freedom to run the program, for any purpose (freedom 0). * The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this. * The freedom to redistribute copies so you can help your neighbor (freedom 2). * The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

While many people consider Open Source to be equivalent to Free Software, it isn’t. Open Source is a software design methodology, which is claimed to produce better software, while Free Software is a philosophical equivalent to the Freedom of Speech clause found in many countries constitutions.

It is rather amazing that some people still choose to believe that Apple is friendly towards "Open Source". It's only blind faith. ⬆