2014-03-16

Alice vs CLS - Supreme Court Amicus briefs compartison

Interesting to compare the Amicus Briefs from:

Google, Amazon, Facebook, Linkedin, Netflix, Rackspace etc:  "A plague of abstract computer related patents is impairing and taxing innovation in the high-tech sector". 

Microsoft, Adobe and HP: "Software makes computing technology work" ... "...Only by looking at the each claim as a Whole..." Just like EPO makes software patents OK.

Tells me where I am buying my products and who's the real innovators. 


A decisive Court looks like the best shot we have for innovation since IBM killed the best part the proposed Innovation Act, as noted by Timothy B Lee at Washington Post.

2013-05-13

US judges: "method and computer-readable medium claims lack subject matter eligibility"


One step closer to removing publishing of code from whats patentable:
"While none of the opinions garnered majority support, seven of the ten judges agreed that the method and computer-readable medium claims lack subject matter eligibility. And, eight of the ten concluded that the claims should rise and fall together regardless of their claim type. "

http://www.patentlyo.com/patent/2013/05/cls-bank-v-alice-corp-court-finds-many-software-patents-ineligible.html

A "Record on a Carrier" ruling as what started the flood of software granting by the EPO, lets just hope that some of that stupidity gets washed away by this ruling from the US.

 Its very close to saying that code is not a special purpose machine, is abstract. Eat that!

2012-11-21

EU-parliament to abandon patent law?

The EU-parliament have been guarding its legislative powers, trying to keep the new "Unitary Patents Courts" within the EU legal framework unlike how its pushed as a separate cross state agreement by the EU-Council. A leaked report from the EU-parliament meeting this Monday, shows a rush to sign the Council "compromise" version anyway. This is not just a threat to innovation or bad for business, its also a problem for the EU project and democracy as it creates a self serving legal authority outside legislative control. The legality of this approach has been sharply questioned by Max Planck Institut and the EU court of justice among others. 

EU-patents has been on the agenda for more than 35 years. But patents are not just about innovation, they are also exclusions, borders, national protection and have been difficult for nations to agree on. The problems also relate to the current, non EU, European Patents Office, that has extended its reach issuing far broader patents than originally intended in its convention, super-seeding national courts confusing harmonization of whats patent-able with more patents and income. In this scenario, creating a new Court to enforce the same type of EU-wide patents is a big mistake for innovation and growth. 

Update on the leaked proposal: 



2012-10-22

Great support against the untiary patent court proposal

Just more than a year ago FFII.se replied to the Swedish justice department on a query about the proposal for a EU patent court (in Swedish), but we where quite lonely on the issue we had with that the court was not in the EU and beyond governing. Sure we had help from our network, but we where just the crowd fighting those self serving software patents against a collective of lawyers thinking of patents as their income. Now it seems we have company - and good company too!

Here is a nice round up by two high profile politicians of Europe:
https://www.unitary-patent.eu/content/european-union-under-threat-patents-column-d-cohn-bendit-and-m-rocard (Mr Rocard and Mr Cohn Bendit)

Add this fresh report on the proposal from Max Planck Institut and with a sharp tone:
http://www.ip.mpg.de/files/pdf2/MPI-IP_Twelve-Reasons_2012-10-17_final3.pdf

And now even more with quite a large group of professors and lawyers:
https://www.unitary-patent.eu/content/motion-project-european-patent-court-law-professors-and-lawyers

Many thanks to Gibus for his unrelenting research and reporting at http://www.unitary-patent.eu/
Gibus serves the platform that keeps us updated and ready to discuss issues that are quite complicated and yet crucial for innovation in Europe.


2012-10-19

Study suggest EU-patent rethink; EU pushes on.


Max Planck Institute for Intellectual Property and Competition Law just reported what we already know about the Unitary-patent proposal as modified by the EU-Council. Its bad. The report dives into twelve problems and ends with a recommendation to rethink the whole package.

At the same time, Mr Michel Barnier, EU-Commissioner for internal markets, announced, as reported by europolitics, that the criticized proposal will be brought to conclusion "in the coming weeks". (18/10 2012)
Please save innovation from a self serving patent regime in Europe.
I would urge Mr. Barnier to rethink that strategy... perhaps regarding the problems reported:
I. The unitary patent package adds to complexity
2. Fragmentation in the rules applicable to the unitary patent
3. Fragmentation of jurisprudence.
4. Insufficient exceptions and limitations
5. Absence of countervailing rights
6. Risk of dysfunctional patent practices
7. Discriminatory effects.
8. Inherent ineffectiveness of the Unified Patent Court
9. Uncertain implications of the unitary effect.
10. Incorrect legal basis for the unitary patent.
11. Exclusion of compulsory licenses through EU law primacy
12. Persisting incompatibility of the Unified Patent Court with EU law

2012-08-29

Apples and Samsung

Its obvious that Samsung stood on the shoulders of Apples looks, but Apples software patents are a plain steal from the public and innovation. To use them and to win using them is like a slap in the face for innovation.

The bounce back effect: http://www.google.com/patents/US7469381This is quite common in applications with fluid UX

Scroll with finger and pinch zoom: http://www.google.com/patents/US7844915
I could scroll like this on my fujitsu touch screen in the late nineties
Pinch zoom is like the first natural use of multi-touch.


Double Tap to zoom: http://www.google.com/patents/US7864163
Double tap has been used to "open" something, so its just obvious for going into an image as well.

If these patents remain alive - then we have a problem Huston...

Links:

See some history on multi-touch:
http://billbuxton.com/multitouchOverview.html

Some what-and what-not from the verge:
http://www.theverge.com/2012/8/30/3279628/apple-pinch-to-zoom-patent-myth

2012-05-12

What should be patent-able is what could have been kept a secret

Mark Shuttleworth makes a simple statement on techcrunch that I like about what kind of patents should be approved: “You should only be able to patent those things you could keep secret,”... “People have become confused, and think that a patent is incentive to create at all.” Patents where created to award sharing knowledge about inventions above keeping secrets. The fact that the author of the article is confused about this fact being a mere opinion of Shuttleworth is telling of the current situation.

2012-04-10

Cost of software patents shown

Nice to see media addressing the cost of software patents. At CNET, Jim Kersteller writes "What is that patent lawsuit going to cost you". Basically you'd have to pay lawsuits costs that are very high and pushes you to settle for anything under a million dollars. It certainly puts the small firm at huge risk. And to top that one off, Techdirt describes a study on why It's Mathematically Impossible To Avoid Infringing On Software Patents. Even for the larger players patents are as Brad Feld at Business Insider says "Games Where The Only Winning Move Is Not To Play". In fact this study, at techdirt, says that you earn more if you share for free. Oh wait, thats open standards and Internet.

On the other hand, if you can afford all the best lawyers you can go a long way in fighting off software patents (PJ/Groklaw) as Google has shown in the Oracle vs Google case. Its certainly in place to thank Google again for actually dealing with the patents rather than cementing the stupidity with counter claims. 

To help innovation slightly, the US Supreme Court has continued to enforce barriers against abstract and long reaching patents. PJ at Groklaw does an excellent job on reporting about the Mayo vs Prometheus ruling. In Europe the patent establishment is still trying to avoid any such reform by creating specialized courts outside the reach of the Union and the European Court of Justice. But the EU - "Unified Patent"- project seems fragile and has growing opposition. Last from the current EU-presidency, Poland. 

/jonas

2011-11-19

Noble of Barnes and Noble to expose the Patent Bully

Groklaw.net has published a detailed complaint from B&N on Microsoft abuse of software patents and market dominance against Android and Linux device manufacturers. We all know that this is the case, but prior deals have been concealed by NDAs. The documents shows how Microsoft is trying to kill free software like GNU/Linux and Android.

Amazon CEO Jeff Bezos, famous for the "one click shopping" patent agree that the market would do better without such patents. Mobile Computing News has an article where Mr.Bezos blame Microsoft of taking full advantage of the broken patent system.

Tim B. Lee at Forbes also notes that the iPhone also suffers from software patents and would do better without them. When Venture Beat asked what Vint Cerf would tell the developer of the Next Big Thing, the technology that could replace the Internet, Cerf said, "Shoot the patent lawyer.".

Yet patent-lawyers claim that we should be happy (ipbrief), when patents are allowed to cover software and business methods. Because patents equals innovation, right?

best,
jonas

2011-10-21

ACTA hearing report: Keeping patents above EU control?

FFII was invited by the Swedish justice department to participate in a hearing on ACTA - the question was simply if Sweden should sign an intent to allow EU to sign the criminal measures. Along the ACTA-process we have mostly seen information as leaks from negotiators. Even now after most participants have signed the treaty, some questions are hard to answer even though the treaty is public. Perhaps its because it is so generalized - something that could create a wide set of interpretations. See: EU Council file 12196/11 ACTA EU-memberstates agreement

First of all, EU has decided to add Patents to ACTA, something that the US does not want due to the implications of possibly harder injunctions and damages, as it seems.  Still, our Swedish negotiators and the EU-council seem confident that the agreement won't affect current injunctions and damages wrt patents.

Adding to the equation is the fact that the EU enforcement directive on criminal measures (IPRED-2), has come to a political halt. ACTA is used here as a shortcut, perhaps even with broader regulations, circulating the IPRED2 political process. It will probably even eradicate the need for IPRED2 - now that patents are in ACTA as an option that the EU council will most certainly adopt. Further adding to the EU equation is the setup of an new patent court for EU-wide patents. Such a court would need harmonization.

So whats the difference in interpretation between the US and EU on patents in ACTA?
Will ACTA make patent enforcement harder in EU? If so, how will it affect innovation and growth?

KEI-online on US Patent stance:
http://lists.keionline.org/pipermail/ip-health_lists.keionline.org/2010-October/000440.html

"Additionally, sources said the U.S. likely wants patents excluded from this ACTA section because it could also contradict a separate U.S. law that limits injunctions and damages in the case of an unauthorized use of a patented surgical method during a medical procedure."
EU should perhaps be more concerned here if it wants to stay in control of a very broad set of problems related to patents in different fields? Surgical Methods are not allowed to be patented but such borders have been broken before by the European Patent Office (EPO) - that accept lots of patents that are not supposed to be allowed, at the cost of real innovation and growth.

As it seems, EPO and the new "unified" European Patent Court will be outside EU influence by means of ACTA and EPO.  EPO certainly gets everything it wants.

On the meeting:  Everyone but me seemed fine with the agreement. Some from the attorneys office asked for broader tools, including domain name seizure etc. Not much room for digital rights - as in freedoms.

/jonas
More from FFII on ACTA at http://acta.ffii.org/

2011-10-04

Killing EU innovation with a unitary "more patents!" court

Erik Josefsson, ex ffii,
with a telling T-shirt, photo by
Benjamin Henrion
Patent folks repeat that unitary patents have nothing to do with software patents, but why then:
"EPLAW strongly recommends the exclusion of rules of substantive patent law from Union law". One argument is that only patent courts would be qualified to decide the limits of patents. Patent "users" and professionals seriously believe they own the golden hammer for innovation. Just don't let anything get in their way. Who would not like exclusive rights?

I also got strong reactions from patent attorneys from Stallmans piece in the Guradian. They say that software patents are already established in the EU, why does he not understand that? That debate was over ten years ago! But thats not true. Its happening right here and now while software patents are ever more questioned and tried publicly. What happened ten years ago is coming into the public light - and it shames the patent institutions. Its also a trial of legitimacy. Where monopolist proponents try to establish software patents like MS: "We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair." (see Glyn Moody on techdirt). A European court that protects the "users" of the patent-system would allow MS to litigate for licenses in one strike over all of EU.

A specialized patent outside EU law or national law would make it next to impossible to cure a sick system in need of outside input. It might also spell the end of free software and cost us quite a lot more, as Bessen and Meurer's book "Patent Failure" points out.

If you are in Stockholm, dont miss Stallman on 8/11 at the Stockholm University:
http://foss-sthlm.haxx.se/nov2011.html

And check out the petition to remove software patents at the white house.

 - jonas

2011-09-01

FFII-se reply to swedish justice department on unitary-patent-court.

Here is a quick translate of the Swedish text, http://www.ffii.se/jonas/svar-remiss-judep-20110830.pdf, sent to the justice department on the EU negotiations of a new patent court:

The Swedish Association for a Free Information Infrastructure,FFII, has interest in innovation and growth in software. We are therefore pleased to be consulted on a new patent court.

We are enthusiastic that the European patent system gets more efficient and integrated, but critical to the possibility of the patent court as final instance. For software, it is about the right balance between patent, copyright, access to and ability to manage information. The U.S. Supreme Court has repeatedly held back the U.S. Federal Patent Court in matters of what may be patented. We believe that a general appeals instance would make a more balanced assessment. Today, there are great risks for developers as abstract and theoretical methods are patented despite the boundaries of the European Patent Convention.

Economic research shows that many patents, especially in software, stifle innovation and
growth (1). A more balanced and independent assessment than the union's own patents are needed to clarify limits (2), reduce costs and provide the individual patents more value.

1 A Generation of Software Patents, Bessen, Boston University
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868979

2. Yttrande i betänkandet ”Patent och innovationer för tillväxt och välfärd” SOU 2006:80
http://www.ffii.se/jonas/sou2006-80/FFII-yttrande.html

2011-08-25

Chartered Institute for Patent Expansion strikes back

Richard Stallman wrote a piece in the Guardian on the risks of software patents under the proposed EU/unitary-patent. In a off-planet reply today, the Tim Roberts of the Chartered Institute of Patent Attorneys tells us that our fears are unfounded:

"• Despite Stallman's comments to the contrary, UK and European statute law regarding the patentability of computer-implemented inventions has not changed in substance for many years."

Mr Roberts must know that European Patent Office coined "computer-implemented inventions" outside statute law as to allow for software patents as seen from so many granted patents, while the European Patent Convention clearly states that software is not patentable. So the statement is nonsense. Things have changed quite tremendously - and thats just what this is about!

"• Stallman suggests that "appeals against the [European Patent Office's] decisions would be decided based on the EPO's own rules", and is concerned how the EPO would act "with external limits (such as national courts) removed". However, the EPO is bound by legislation agreed by its member states, has independent boards of appeal, and the current proposals involve creating a separate community patent court that will provide "external limits" in place of national courts." 



So why is it so hard to understand the point here? A specialized patent court is not the best "external limits" unless you want those limits to go very far. The US Supreme court have had to hold the US version, CAFC, of the proposed EU-patents court back several times. The lesson should have been learned.

/jonas


2011-08-19

Abstract matters, rules Judge.

There are so many nice cites comming from this recent Federal Circuit appeals court (CAFC) ruling that its best that you start reading the full text. Its inlined here on techdirt: "Court Ruling Opens The Door To Rejecting Many Software Patents As Being Mere 'Mental Processes'"

The court rules that a patent, on logging IP numbers related to card payments, is abstract matters and not patentable. And that abstract ideas, something that can be done using pen and paper, can't qualify as patentable just because it can be stored as computer instructions. 

This seems to have an aful lot of ties with the European patent office rulings wrt "record on a carrier" and "Pen and paper" in the IBM,1&2 and Hitachi cases, execpt that this judge understod things correct. Could this possibly resolve the current mess we have? I hope its a good start. This is just after the Supreme courts rejection of the Bilski patent. 

I certainly hope that this a sharp turn for the sort of post modern rulings that have made information and math patententable.  Abstract matters.

/jonas

2011-08-12

Would a new unitary patent court put the Eurpean patent office in order?

FFII.se got a request for comments on the new proposal for a European, unitary, patent court, in short:

"The Unified Patent Court is a court common to the Contracting Member States of exclusive competence on their territories for European patents with unitary effect and European patents. The Contracting Member States regard the Unified Patent Court to be part of the judicial system of the European Union and is subject to the same obligations as a national court with regards to the respect of Union law."

Sounds good. Some questions though:

Would the ECJ have competence over European Patent Convention and patent granting? 
Would EU-regulations allow complaints on patentable matters to go before the ECJ? 
What would happen with national patent courts? In most patent cases, invalidation is an issue for sure, so unitary patent trials would probably go to the new patent court almost instantly... 

The European Patent Office needs to have someone stop them from the terrible damage they are causing with software patents and bussiness method patents. 

Article 2
Definitions

(1) "Court" means the Unified Patent Court.

(2) "European Patent with unitary effect " means a European patent which benefits from unitary effect in the territories of the participating Member States by virtue of Regulation ### implementing enhanced cooperation in the area of the creation of unitary patent protection.

(3) "European Patent" means a patent granted under the provisions of the European Patent Convention designating one or more Contracting Member States to this Agreement without unitary effect.
(4) "Supplementary protection certificate" means a supplementary protection certificate granted under Regulation (EC) No 469/2009 1 or under Regulation (EC) No 1610/962.

(5) "European Patent Convention" means the Convention on the Grant of European Patents of 5 October 1973, as amended.

(6) "European Patent Office" means the organ carrying out the granting of patents as established by Article 4, paragraph 2(a), of the European Patent Convention and the registering of unitary effect in accordance with Article 12 (1) (b) of the Regulation ### implementing enhanced cooperation in the area of the creation of unitary patent protection.

(7) "Patent" means a European patent and a European patent with unitary effect.

(8) "Statute" means the Statute of the Court which is attached to this Agreement.

(9) "Rules of Procedure" means the Rules of Procedure of the Court.

(10) "Member State" means a Member State of the European Union.

(11) "Contracting Member State" means any Member State party to this Agreement.

Article 3
Scope of application

This Agreement shall apply to any:

(a) European patent with unitary effect;
(b) supplementary protection certificate issued for a patent;
1 Regulation (EC) No 469/2009 of 6 May 2009 concerning the supplementary protection certificate for medicinal products, OJ L 152, 16.6.2009, p.1.
2 Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary certificate for plant protection products, OJ L 198, 8.8.1996, p.30.