Software is a special purpose machine says microsoft

In Microsofts brief to the Supreme Court in the Bilski case, Microsoft tries to duck the nonpateneable abstracts of data processing by arguing that software configures PC into a specific machine. Groklaw member PoIR makes a good case as to why this reasoning is wrong.

The main objections are well put:

• The Brief fails to mention the Turing machine in the evolution of general purpose computing
• The focus is on the special purpose machine ENIAC not the general purpose machine we call PC
• Modern day computing is nowhere near industrial age computers as described in the brief

EOLAS proves the point

Ars Technica reports that EOLAS who sued Microsoft for almost $600M and got away with it is now suing Google, Apple and many more for using AJAX and embedding components as in the first case. I think this is just the reminder we need to send the Supreme Court that is currently deciding if software patents bear legal ground, are abstract or not and fills the purpose to promote innovation. Well, we all know the answer to that one. Here are some well written letters to the court on the subject:

• FFII: s brief
• RedHats brief (on groklaw)
  
• SFLC:s brief (on groklaw)
  
• ... and other. (I think w3c should write something too .. see this EOLAS FAQ)
  

Patents in the lawsuit:

• US 5,838,906
• US 7,599,985

On the other side are some large corporations that seem to thrive from the uncertainty that these patents create, asking the court to keep software patents. More on this later...



/jonas

"Something will need to be done"

The conclusions in a new paper on European patent litigation ends by citing Joff Wild's article on EPO:s attack on UK judges: "the bottom line is that something will need to be done at
some stage to clarify how European patent law should be interpreted. Whether this is
through a Community patent, a pan-European litigation system, a series of directives or a
combination of them, we cannot have the situation in which different parts of what is
supposed to be a single market either do, or have the ability to do, interpret patent law in
completely different ways. If such a situation does persist, then the entire economic
premise of the European Union is completely undermined. It seems to be that it is that
serious."

And this is where it stands. The problem is the power play that puts patent interpretation outside the reach from the EU. The work in establishing a central court outside EU moving forward.

The paper can be found here:
http://igitur-archive.library.uu.nl/dissertations/2009-0901-200115/luginbuehl.pdf

I am trying to get through the paper right now. Lots of case-law and other stuff to digest. Missing stuff on UPLS though.

Obvious makes stupid

Michael Masnick at TechDirt has a good article on how obvious it is that the obviousness test doesn't work for patents.
There are quite a lot of good comments too, I especially like some laywers lobbying for software patents.

Just like the EPO, the USPTO has turned to old patents in order to establish un obviousness. The real clue is likely not there, its in the tacit knowledge of persons skilled in the art, just as the law states. Just because its new doesn't mean its not obvious as Michael says.

Thimothy B Lee at the Cato Institute writes a good introduction to software patents in context of the upcoming Supreme Court decision in the Bilski case. The article is filled with good references to research and court decisions.

I'll get back soon. I just recently had a son.

Threats in a Patent litigation treaty

Benjamin, president at ffii.org has written an excellent article to explain the threats in UPLS (Untied Patent Litigation System). The article gives more reasons to stay clear of any treaties like this until we have a better community patent implemented in the EU to work with. Otherwise it would be like a roof with no pillars.

The second question makes the threats in the treaty so very concrete for us programmers:

"Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples"

The reply is divided into:
1. Higher total costs of litigation
2. EU-wide injunctions to stop a software product
3. Out of court settlements for most of European players
4. Loss of legal certainty

Finally Bejamin gives a short pros and cons list:

Pros:

1. EU-wide injunctions and damages for patent holders
2. EU-wide revocation of a patent for defendents
3. Possible invalidation of software patents EU-wide (not very likely, but possible)
4. High costs of litigation, good for the patentee to reach a deal out of court
5. Uniform caselaw developed for software and biotech patents
6. No diverging decisions over the same patent by multiple courts

Cons:

1. No real legislator to correct decisions of such international patent court
2. No divergence of decisions which might show to the legislator where to intervene
3. Possible validation of software patents EU-wide (very likely)
4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
5. More incentives for patentees to litigate and enforce their patents
6. Pro-patentee courts
7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
9. No judicial review to correct the eventual deviance of such specialized courts
10. Potential higher costs of litigation for the patent holder

A recommended read.

Also see the EU-Councils request (9669/09) for comments from the European Court of Justice, ECJ, on the UPLS draft (7928/09). Lets hope that the ECJ can see the obvious conflict of interests with the IPRE-Directive and innovation policy legislation within EU. The UPLS process is one of the top priorities for the Swedish presidency until the end of 2009. The pressure is high.

/jonas

Remedies for a stressed patent system

The patent system is getting quite stressed with globalism, a long tail of users and oceans of abstract patents. This means that a patent might hit you faster than you can say opposition. The WTO, EU, US and JP are teaming to fight work loads and raise quality at the same time.

Here are three suggestions on how to fix some more immediate problems:

• A much longer opposition time, since patents are getting harder to categorize and searching is futile to protect your business. Rise the cost of continuations to cover what would otherwise be stopping innovation. The world is no longer just a dozen players that you can track.
  
• Translate patent grants into private insurances and share the pain of loosing a patent in appeals with your favorite patent office. Patents would of course still have to be registered with governments and courts after being approved from private insurance granting firms.
  
• Registries must be public and on-line. It's really hard to understand why it's still impossible to search granted patents on the EPO:s search service espacenet.com. We also need better collaboration in finding prior art, so that we do not have to repeat the work of researching against dubious patents over and over again.

This is just a patch.
We also need to take care legislation and get innovation policy working in order to separate good from bad patents. Thats why Bilski and UPLS/EU-EPLA matters.

/jonas

* See FFII on private insurances.

Stealing free - from open standards

A strong lobbying group is trying to redefine open standards. Open standards is known as the winning concept behind the Internet. But Microsoft and others want to change open standards into their needs, into something you will have to pay to use in the new European Interoperability Framework.

You can read about the proposed changes here in EIF2 on the EU-commission website. The current clear version is described here, its quite simply Royalty Free use.

This week has been busy for me, three seminars on open standards and open innovation, the last with the author of the much cited book called "open innovation" by Henry Chesbrough. He spoke of how Royalty Free meant that companies like IBM could sell more hardware and services on the marked by letting development free around the eclipse project and several other softwares and standards.

From all discussions held this week, its clear that the EU is being pushed away from a winning concept of open standards. Charging for open standards would change the innovative landscape on the Internet fundamentally. We know from the economy price winner Eric S Meskin at researchoninnovation.org that software patents are hurting and stifling innovation on the software side of the Internet.

Rescue plan for open standards!

Either EU remains committed to open standards or the term "open standards" need to be removed from the new interoperability framework decision. Perhaps using just standards as in formal standards from ISO would be more adequate? Open standards should not be stolen from the winning innovative Internet realm just because the greed of those that prefer royalty based industry standards along those lines.

Rescue plan for European Interoperability Framework

Does EU want to keep open standards as a requirement for e-government interoperability? I think it does, but fooling decision makers by trolling the meaning of the term does not help us here. It would not help the market to buy or invest in open standards either. eGovernment waters could become blurred and murky. It also puts those that aid in development under payment requirements and forces most to use large vendor solutions instead of community improvements. Will that help public e-services and e-governments in Europe?

Talk to responsible governments.

There will be votes about this soon in the EU-council, now the continuation of the project is under decision. Get things right - save all open innovation from these tricksters!


Wikipedia has a good article on open standards:

" The term "open" is usually restricted to royalty-free technologies while the term "standard" is sometimes restricted to technologies approved by formalized committees that are open to participation by all interested parties and operate on a consensus basis." (at least still)

/jonas

Amicus curiae brief

Enlarged Board of Appeal
European Patent Office
Erhardtstrasse 27
80331 München
Deutschland

Amicus Curiae Brief for case G 3/08 before the EPO Enlarged Board of Appeal

This matter is important to our software business. The large number of computer program patents recently granted by the EPO demand sound limits. This task is not simple given the questions asked in the referral.

It is important that clarifications are made where patents pose real risks, and many software developers wonder:

When do we acknowledge computer aided inventions as patentable?
Is merely choosing optimization in information space vs calculation steps an invention?
Is even publishing source code or instructions a possible infringement?
Why should file formats, as organization of information, be patentable?
Why should mere data communication protocols be patentable?
How large is the risk that I do not own what I write?

The World Wide Web Consortium tries to keep software patent out of web standards, the European car navigation developer Tom Tom's president recently said that they “spent more on patents than R&D” and patent trolls thrive on software developers and users.

Our concern is that EPO is overstepping its authority by neglecting EPC-restrictions on software.

Opinion on Referral Questions

Question 1

Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?

No. Excluded subject-matters should not be patentable under the EPC irrespective of how it is claimed. As software developers our definition of mere computer programs as such is data processing. It is close to calculation and organization of information.

Question 2

(a) can a claim in the area of computer programs avoid exclusion under Art. 52(2)(c) and (3) merely by explicitly mentioning the use of a computer or a computer-readable data storage medium?

No. Should a film producer get patents on his movie plot by merely mentioning the camera?

(b) ... is a further technical effect necessary to avoid exclusion, said effect going beyond those effects inherent in the use of a computer or data storage medium to respectively execute or store a computer program?

No. “Further technical effects” seems to be a way to make old stuff reappear as new inventions by adding a computer program. The real invention must lie in what happens outside the program, such that it makes the programming irrelevant to what is new in the invention.

Question 3

(a) must a claimed feature cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim?

Yes, that must be one conclusion from the exclusions. They seem to cover all abstract matters as excluded from patentable inventions. Another way would be to visit the recent US - Bilski case where the "Applicants' claims are not directed to patent-eligible subject matter, and in doing so, we clarify the standards applicable in determining whether a claimed method constitutes a statutory "process" under § 101." and later that "All of the steps are data manipulation steps".

(b) ... is it sufficient that the physical entity be an unspecified computer?

No. For instance, making use of red, green and blue diodes in a computer display to sharpen the image can be an invention regardless of any computer program even if it can be implemented using one. Disregarding this boundary would flood the EPO with patents on how to use the very same invention in relation to any kind of presentation of information.

Question 4

(a) does the activity of programming a computer necessarily involve technical considerations?

No. No more than writing a user manual.

(c) ... can features resulting from programming contribute to the technical character of a claim only when they contribute to a further technical effect when the program is executed?

The term “further technical effect” is misleading. Programming should be irrelevant to the contribution of technical features. A better voice compression contributes in the sense of knowledge in how to alter sound signals in relation to listeners, not merely in using another method of data processing.

Summary

EPO needs a very clear mandate to grant patents on computer program. The TRIPS “fields of technology” does not exclude limits on what is a patentable invention. It is very questionable if patents make a good incentive for software that contain many thousands of new ideas and easily combines into millions of new ideas on how to organize and calculate information over the Internet.

We believe software patents puts the whole patent system at risk.

TomTom attacked with silly Microsoft patents

Yes, Its the empire march. Microsoft is suing TomTom for patent infringement in U.S. Patents:
6,175,789; 7,054,745; 6,704,032; 7,117,286; 6,202,008; vfat: 5,579,517 ; 5,758,352; and 6,256,642 .

TomTom is a European company using a gnu/linux platform. Even though TomTom is pretty large, its a pressing moment with the financial crisis for everyone. Lets hope that they can stand the pressure from Redmond.

TomTom's CEO saying that they spend more money on patent litigation than on R&D:
http://www.youtube.com/watch?v=bSOIK-tlN8g

Groklaw has the complaint at http://www.groklaw.net/pdf/tomtomComplaint.pdf and a good recommendation: "Think Bilski"!

Update: Case settled out of court. Its incredible how naive most of these patents are, just watch the claims in the comments. Still they survive at the expense of development and competition. More at groklaw

Action: EPO court needs your statements on software patents

The January Official Journal of the EPO contains the announcement of the EPO President's referral on software patents and notes that:

"It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff). To ensure that any such statements can be given due consideration they should be filed together with any new cited documents by the end of April 2009 at the Registry of the Enlarged Board of Appeal, quoting case number G 3/08. An additional filing of the statement and documents in electronic form would be appreciated"

Dg3registry_eba @ epo.org

You should snail mail the your statement too as that e-mail address is complementary as said.

Email seems to be the "additional" way send statements, as commented by annonymous on IPKat:
" It follows from these requirements that a document only sent by e-mail does not, at present, appear to fulfill the conditions of "filing a written statement" in the meaning of the EPC."

My previous answer needs some refinements before i post it... though. Comments appreciated!

UPDATE 20090305: EPO Questions OCR:ed and commented at FFII

UPDATE2: EPO seems to have updated its software patents page and replaced moderate texts with pro patent politics. The EPO patent extremists are running wild on:
http://www.epo.org/topics/issues/computer-implemented-inventions/software.html

Compare this with the previous information, still available at:
http://web.archive.org/web/20070205233052/http://cii.european-patent-office.org/

"According to some, granting patents for computer-implemented inventions stimulates innovation because the financial and material investment that is needed to develop sophisticated and specialized software is protected. Others, however, believe that such patents stifle competition and act as a brake on innovation."

Happy new year!

ArsTechnica reports the good news that another patent has been invalidated with the Bilski case in mind. BPAI (the court) noted that the claims do not "recite any machine or apparatus or call for transforming an article into a different state or thing. A domain name is simply a series of characters representing the address of a resource, such as a server, on the World Wide Web. All of the steps are data manipulation steps."

I like the way that sounds. Its an acknowledgement that data processing should not be pantentable on its own.

ArsTechnica also published a great review over the history and future of software patents in the US in
"a return to the Supreme Court's software patent ban?"