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

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/

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

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

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

Abstract matters, rules smart 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

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.

Google bids on stuff that stifle innovation

Today Google announced that it would bid $900 million dollars for patents from the Nortel bankruptcy. Google adds: " If successful, we hope this portfolio will not only create a disincentive for others to sue Google, but also help us, our partners and the open source community—which is integrally involved in projects like Android and Chrome—continue to innovate."

Thats noble! Its just that buying into bad patents send most companies into that fat cat stifling sweet-spot, purring over patents and patent investments. Lets just hope that Google wont feel obligated to defend this innovation policy patch investment in face of real reform when possible.

For a recent fat cat example, see Microsoft in this case:

“The Android platform infringes a number of Microsoft’s patents, and companies manufacturing and shipping Android devices must respect our intellectual property rights,” said Horacio Gutierrez, Microsoft corporate vice president and deputy general counsel. 

Hey ... I'm afraid its v e r y  difficult to respect intellectual property rights in those patents, see: 

Patent #5,778,372: “Remote retrieval and display management of electronic document with incorporated images.” July 7, 1998.

Patent #6,339,780: “Loading status in a hypermedia browser having a limited available display area.” Jan. 15, 2002.
Patent #5,889,522: “System provided child window controls.” March 30, 1999.
etc.
Full list on http://www.geekwire.com/2011/microsoft-cites-new-patents-vs-android 

Jonas

EU-court says no to EPO rule over EU-patents

Its official, the EU-court of justice gives a very direct answer to the EU-Council on the proposed EU-patent and EU-patent litigation court. The EPO-deal suffers from broken control and EPO's self serving belief that patents are the golden standard. The EU-Court tells us that patents must be under EU-ruling so that they can be refused by courts and companies outside the patent bubble.

From Visaepatetens: European Patent Court Not Compatible With European Union Law, says European Court of Justice http://www.visaepatentes.com/2011/03/european-patent-court-not-compatible.html "The Court observes, first, that, *under that agreemet, the European and Community Patent Court is an institution which is outside the institutional and judicial framework of the European Union*. [...] To that extent, the *courts of the Member States* are divested of that jurisdiction and accordingly *retain only those powers which do not fall under the exclusive jurisdiction of the European and Community Patent Court*."

Patent Court: the Commission welcomes the delivery of the Court of Justice's opinion http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/269&format=HTML&aged=0&language=EN&guiLanguage=en

But I wonder to what degree...

/jonas 

Update: In other news, EU-court denies patent on stem cells: 

http://yro.slashdot.org/story/11/03/12/0052225/European-Court-of-Justice-Rejects-Stem-Cell-Patents

The golden hammer slams again in a specialized patent court

The federal patent court of the United States just expanded the scope for patents again. It must be the golden hammer they own, it just makes everything look like glorious patents, disregarding competition innovation and all that economic research. Oh no, not my fingers too!

Since the Supreme Courts decision in the Bilski case this year, there has been a search for a new test to tell if some method is abstract matter (information, math etc) and not patentable.

Now in the case of RCT vs Microsoft that bar has been raised again to where has been before Bilski since State Street, where abstracts where removed by looking at surrounding effects from abstract methods.
In this case the court states: “the invention presents functional and palpable applications in the field of computer technology” and “Inventions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act.”


Truly "Not likely to be" when you own a golden hammer.




http://en.wikipedia.org/wiki/Law_of_the_instrument

http://www.awakenip.com/?p=497

Update: I just found a nice analogy, twitted by @timrue, something like this:
Abstract Physics exist - Google it. As a example, roman numerals might work harder to solve algebraic problems with than the Hinu-Arabic decimal system. Claiming that this is a real world problem and not abstract is what this is all about.

Google ready to kill software patents?

Google on Oracle vs Google:
"Each of the Patents-in-Suit is invalid under 35 U.S.C. § 101 because one or more claims are directed to abstract ideas or other non-statutory subject matter."

Google is asking if the granting of those patents make any sense, possibly questioning several of its own patents at the same time. CUDOS Google! Refusing software patents like this the right thing to do for innovation! More at groklaw.

Google also makes another very cool point by not counter-suing like other players do. The focus is instead entirely on Oracles claims and the obvious weakness of its patents.

Microsoft joins the beating of androids using broad patents

Seems Microsoft is not just playing good cop vs bad cop with its thick patent stick. This Friday 1/10 it sued Motorola for patent infringements on Android phones. “Motorola needs to stop its infringement of our patented inventions in its Android smartphones,” says Microsoft IPR cheif, Horacio Gutierrez, in a statement.

In other news: 'Microsoft indemnifies its Windows Phone 7 licensees against patent infringement claims,' the company said. 'We stand behind our product, and step up to our responsibility to clear the necessary IP rights.'"

Its was just not that obvious that the protection deal was there to be safe from Microsoft to start with.

This seems to be the other end of the lobbying activities that Microsoft use to change "open standards" into standard-you-pay-for. Microsoft is calling for tax on innovation on a wide scale, effectively transforming open into gated.

Looking at the patents in this case, it seems many of the patents relate to FAT, open standards and also OS-functions in Linux. This suit also has further implications in the ongoing battle on what patents that should be valid - and offers a great test-case. I'll get back on the patents in this case. 

This is the patent-list from ars technica

• 5,579,517: Common name space for long and short filenames
• 5,758,352: Common name space for long and short filenames
• 6,621,746: Monitoring entropic conditions of a flash memory device as an indicator for invoking erasure operations
• 6,826,762: Radio interface layer in a cell phone with a set of APIs having a hardware-independent proxy layer and a hardware-specific driver layer
• 6,909,910: Method and system for managing changes to a contact database
• 7,644,376: Flexible architecture for notifying applications of state changes
• 5,664,133: Context sensitive menu system/menu behavior
• 6,578,054: Method and system for supporting off-line mode of operation and synchronization using resource state information
• 6,370,566: Generating meeting requests and group scheduling from a mobile device

/jonas

USPTO: Here are some ideas for your guidelines

The US patent office (USPTO) is asking for patent granting guidelines after the Supreme Court had a chew at their machine or transformation -test. Here is what I would suggest the USPTO should do to get rid of "abstract ideas" as the constitution stipulates. The problem is urgent with the terrible quality of software patents issued and used. A new paper concludes that the survival rate of software patents that go to court is below 15%! At the core of the problem we have the problem that software is inherently abstract.

Here are some ideas for the guidelines:

1. Publication should never be an infringement. Information is the most abstract matter.
   Yet USPTO allows claims for "record on a carrier". Thats absurd!
2. Patents should not be allowed to claim generic computations and use of software. It means:
   - That a computerized anti-brake-system can be patented, as long as the merits lie outside the abstracts of software. Using software does not add to the invention.
   - That optimizing calculation steps or memory use are abstract matters, just as with pen and paper.
3. Execution of software is abstract for generic computers. By extension, running software cannot constitute a patent infringement alone. The same also applies to interaction, interoperability and communication with software. It also applies to compression, networking, business and virtualization in software however real world related the variables might be.

So in terms of the questions USPTO asked:


1. What are examples of claims that do not meet the machine-or-transformation test but nevertheless remain patent-eligible because they do not recite an abstract idea?

There are no such claims that we can think of. But if someone would for instance interpret software as a specific purpose machine, then the test would be quite broken. Obviously such a claim would cover publication of software, where information/instructions/software is clearly abstract matter protected under copyright.  

2. What are examples of claims that meet the machine-or-transformation test but nevertheless are not patent-eligible because they recite an abstract idea?

There could be cases where the "claim as a whole" would be mainly about abstract matter. 

3. The decision in Bilski suggested that it might be possible to “defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted,” such that the category itself would be unpatentable as “an attempt to patent abstract ideas.” Bilski slip op. at 12. Do any such “categories” exist? If so, how does the category itself represent an “attempt to patent abstract ideas?”

I would say that US Patent Class 705 "Business methods and data processing" is quite clear cut for in this aspect. Perhaps the entire 700 class "DATA PROCESSING: GENERIC CONTROL SYSTEMS OR SPECIFIC APPLICATIONS".

Another way would be to look at what the European Patent Convention deems as abstract matters in their exclusion list under Article 52(2) :"in particular 1. discoveries, scientific theories and mathematical methods; 2 aesthetic creations; 3schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; 3 presentations of information."
More examples of abstract ideas is not a bad, but we need to put the machine-or-transformation test to the test some more to see if they are necessary. I think its a good test to start with. 

References:

Swpat.org page about the consultation - last day!

Techdirt on courts rejecting more software patents than other patents.

Abstract patents in the recent Microsoft vs SalesForce case.

Abstract patents in the recent Apple vs HTC case.

Abstract patents in the recent Oracle vs Google case.

Are there any "good" software patents. (work in progress)

EU-Court publishes its opinion on proposed EU-patent court

The EU-Court of Justice, General Advocate, finally releases its opinion on the EU-Councils proposal for a new patent court system in EU.
As we heard in rumors earlier, the court and its general advocate finds patent granting too isolated from EU-law and oversight. Hear-Hear!

 I'd say its a win for FFII:s fight against an independent EPO-patent granting machine. IPjur and ipkitten comments.

Now we have to watch how the EU-Council will try to circumvent this statement. They apparently kept this document from the public since May.

Ugly EU-Council politics is trying to give the EPO immunity in patent granting on abstract matters. That would be a big disaster for EU-innovation.

Java strangled by Oracle's patent offensive

It seems patents are no longer used just for defense in software. In Apple vs HTC, Microsoft vs TomTom, Microsoft vs SalesForce and now Oracle vs Google patents and lawyers are out for a fight. This will certainly be another public show case of whats rotten in the state of patents today. Its all about abstract properties piled up so tall that we cant see where uses of information and calculation is someones exclusive rights.

Its a shame since Java and the Java VM had so much community going for it. Now everyone will be less interested in building on something that you might as well be sued for contributing to.

I will just refer to the swpat.org page about this case at:
http://en.swpat.org/wiki/Oracle_v._Google_%282010,_USA%29