§⁶⁴ immaterial boy

Noble of Barnes and Noble to expose the Patent Bully

2011-11-19T21:32:00.001+01:00

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?

2011-10-21T10:42:00.004+02:00

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

2011-10-04T14:50:00.007+02:00

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.

2011-09-01T09:12:00.000+02:00

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

2011-08-25T16:43:00.004+02:00

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.

2011-08-19T13:56:00.005+02:00

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?

2011-08-12T17:09:00.001+02:00

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

2011-04-04T20:23:00.001+02:00

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

2011-03-12T10:58:00.002+01:00

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

2010-12-10T17:53:00.004+01:00

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?

2010-11-13T14:12:00.008+01:00

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

2010-10-03T15:39:00.005+02:00

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

2010-09-26T12:37:00.013+02:00

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:

Publication should never be an infringement. Information is the most abstract matter.
Yet USPTO allows claims for "record on a carrier". Thats absurd!
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.
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

2010-08-24T13:43:00.004+02:00

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

2010-08-18T14:45:00.001+02:00

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

USPTO asks for help on "abstract ideas" after Bilski

2010-07-30T11:49:00.002+02:00

Groklaw and others comments on USPTOs request for comments and materals how to avoid patents on "abstract ideas" after the Supre Court ruling in the Bilski case. They seem to ask in relation to the "machine-or-transformation test" that the court down-played:

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?
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?
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 hope the community find lots of good answers. I'll get back with my own thoughts about this soon.
"Comments should be sent to Bilski_Guidance (at) uspto (dot) gov and must be received
by September 27, 2010."

The weak and narrow Bilski descision (update)

2010-06-30T13:15:00.008+02:00

The U.S. Supreme Court takes the easy way out of allowing abstract patent by ruling more specific than foreseeing.
I would have liked to see a clarification on whats abstract and not patentable. What we got was a loose no-no for business methods, whatever that might mean. On the other hand, business methods needs a boundary - and that might just be to the extent of what is an abstract (processes): Information and calculation.

Nothing seems to have been resolved though. When will lawyers ever understand the difference between complex (inventive step) and abstract (subject matter) - perhaps they need to study software development first? The well placed machine+transformation test was not accepted as well as the former business method enabler case "State Street". Its up to The Congress to clean or possibly corrupt the patent system further. FFII.org has a PR out: Narrow Bilski ruling leaves all options open for the future

Some discussions:

Groklaw:The Bilski Decision Is In: Buh-Bye [Most] Business Methods Patents - As text - Updated
http://www.groklaw.net/article.php?story=20081030150903555
Techdirt: Supreme Court Rules Narrowly In Bilski; Business Method & Software Patents Survive
http://www.techdirt.com/articles/20100628/0759029989.shtml
Techdirt x2: Second Thoughts On Bilski: Could Another Case Get A Direct Ruling On Business Method Patentability?
http://www.techdirt.com/articles/20100628/0945579990.shtml
Dr Dobbs:
http://www.drdobbs.com/blog/archives/2010/06/software_patent.html
NetworkWorld:
http://www.networkworld.com/community/node/63009
IEEE commentary (IEEE has a weakness for software patents)
http://spectrum.ieee.org/at-work/innovation/commentary-businessmethod-patentsdown-but-not-out
WSJ: "Patent-lawyers, rejoice"
http://blogs.wsj.com/law/2010/06/28/a-business-method-patent-is-dead-long-live-business-method-patents/

Recently, EPO-examiners published a book about software patents for programmers:
Amazon: Patent Law for Computer Scientists: Steps to Protect Computer-Implemented Inventions

A friend suggested to replace databases with software in the following cite:

"Databases are normally protected by copyright. […] Accordingly, if the improvement which you wish to claim relates only to the content of a DB, it is rather pointless in most cases to file a patent application, because in the majority of patent systems around the world, you will automatically have almost no chance of having a patent granted, as copyright is already foreseen as the appropriate protection. Although the law-maker may appear idiosyncratic at times, usually there is some method in the madness; it would simply be illogical to deliberately provide multiple legal protection means, when that would obviously result in conflict in the courts, with cases between owners of slightly different matter but differing protection rights being unnecessarily fought out."

That would bring us back to the discussion 1995-2000 when software patents where rare. Patents will keep expanding everywhere until we put an end to patent on information and calculation. Call them business methods, software or tax evasion methods - they are all the same and are all close to what we do with our brain. Computers are the new pens and papers where we need to keep clear from patents on use. Otherwise we all infringe on patents since its all too easy to "invent" information methods.

Update:

There is a good reference to the cost applicable to software (abstract) patents in comments by Justice Stevens:
"If business methods could be patented, then many business decisions, no matter how small, could be potential patent violations. Businesses would either live in constant fear of litigation or would need to undertake the costs of searching through patents that describe methods of doing business, attempting to decide whether their innovation is one that remains in the public domain. See Long, Information Costs in Patent and Copyright, 90 Va. L. Rev. 465, 487–488 (2004) (hereinafter Long). But as we have long explained, patents should not “embaras[s] the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.” Atlantic Works v. Brady, 107 U. S. 192, 200 (1883).⁵⁵"
See groklaw: http://www.groklaw.net/article.php?story=20100629014657710

/jonas WZAHWHHCAMV5

Indications that ECJ agrees with us on patent court oversight

2010-06-15T12:49:00.001+02:00

The rumor says the European Court of Justice (now Court of Justice of the European Union) thinks different than the EU-Council about the separation of the proposed EU patent court from the EU-system. The Council argues litigation costs prohibits further oversight, but are also protecting the responseless behavior from the European Patent Office. Keeping things intact could possibly fix the the European Patent Office mess with patents on abstract matters and the resulting patent inflation that is taxing innovation and growth. Axal Horns at IPJUR comments on notes from a unofficial hearing between the Council and the ECJ.

This would be a relief as of late since after EPO even chopping own tail trying to make anything patentable.

Microsoft infringes on all our innovation

2010-05-20T14:16:00.004+02:00

ZDNet:s Mary-Jo Foley reports that Microsoft sues Sales Force for patent infringements. This is a new and offensive course for Microsoft. Exposing patents is more straightforward than just rattling them for payments as we are used see in these cases. I like that the supposed "innovation" shows after Apple did the same thing.

The Microsoft PR says:
"Microsoft has been a leader and innovator in the software industry for decades and continues to invest billions of dollars each year in bringing great software products and services to market. We have a responsibility to our customers, partners, and shareholders to safeguard that investment, and therefore cannot stand idly by when others infringe our IP rights."

So its time to review that leadership by looking at the patents in question. Can we expect Microsoft to prove its innovation claim?
-Well... The patents are better described as an infringement on innovation. Its as horrible as we could expect. But could we have asked for more? ZDNet lists them (I add links for each of them):

7,251,653 “method and system for mapping between logical data and physical data”
5,742,768 “system and method for providing and displaying a web page having an embedded menu”
5,644,737 “method and system for stacking toolbars in a computer display”
6,263,352 “automated web site creation using template driven generation of active server page applications”
6,122,558 “aggregation of system settings into objects”
6,542,164 “timing and velocity control for displaying graphical information”
6,281,879 “method and system for identifying and obtaining computer software from a remote computer”
5,941,947 “system and method for controlling access to data entities in a computer network”

They are just as broad and trivial as in what you guess from the titles. Innovations... its just the opposite.

Update:
TechDirt: Microsoft Decides It Can't Compete With Salesforce.com; Sues For Patent Infringement Instead

/jonas

The European Patent Office bites its tail in order blur whats patentable - again

2010-05-16T21:35:00.007+02:00

This week, we finally learned that the questions The European Patent Office (EPO) sent two year ago to clarify what can be patented where inadmissible by its own patent high court, The Extended Board of Appeals (EBA). Its all the usual mess from EPO with slippery and indecisive wordings creating endless loops without clarifications.

EPO seems unable to repair itself...

EPO issues criticized software and business method patents even though its ruled by a convention excluding patents on calculations, information and software. The Appeals Courts of the EPO circumvented those rules by allowing something already known like a pen and paper to play that "non excluded" part. By separating whats "new" from whats "excluded" in patent claims they created a loophole rendering anything abstract patentable.

This has created an inflation in broad and abstract information and business patents flooding the European market, creating a legal mine field for anyone wanting to participate. Its a land grab for lawyers and patent trolls.

As EPO is clearly incapable making sense out of its own conventions and rulings, its high time for politicians to step in. These uncertainties cost an increasing risk to business in the European market.

To put an extra spin on this mess, the EPO PR interpret this non decision as a win for software patents. Hilarious and said, since this is just right - leaving questions unanswered and matters diffused is just what made this situation from the start.

Se also:
ComputerWorld UK
-
-
-

/Jonas Bosson

Apple makes war with silly broad patents

2010-03-03T19:46:00.003+01:00

No Mr Jobs, Those patents require no innovation.

Most software and Internet firms have pledged not to sue unless someone first sues them. Sun, Google, Oracle, Cisco and many more think that patents would have an ugly effect on the market otherwise. Apple appears to have left that defensive ideal by waging patent war with Android using HTC as its proxy.

By threatening companies that deliver with Android software - they probably hope scare them off. Perhaps like when Microsoft sued Tom Tom or used SCO to ram Linux. Apple uses 20 patents that are terribly week to any person skilled in software, but as with many patents take their toll on common sense in litigation.

Engadget has the full list of Apple patents in this suit and they represent the sorry standard for what is patentable today. This has little to do with innovation, but rather by pushing overly broad claims on what is possible trough a patenting office unfit to manage or deal with abstract matters such as software.

This is yet another reason, after EOLAs return, why we need to scrap software patents to save innovation.

Shame on Apple.
/Jonas Bosson

IPWatchdog thinks those "not interested in software patents are not innovators"

2010-01-07T14:58:00.005+01:00

I have long kept an eye on IPWatchdog, a popular patents law blog authored by Gene Quinn, a patent attorney in the US. I have valued his reports for some time even though we have quite different ideas about what should be patentable. But sadly now, in the wake of the Supreme Court Bilski case, it seems he has gone over the edge with blatant statements like:
"Those in the software industry who are not interested in software patents are not innovators, they are copiers. They steal the work of others. " in The Fundamental Unfairness of Retroactively Applying Bilski

I think this started when Mr Quinn totally flipped in his comments in this previous post where Ian Clark, a highly regarded software engineer and entrepreneur took issue with the attorneys ideas.

However blatant, this kind of proves him wrong on so many levels it also gives me good hope for reforms in the patent area in 2010! Innovation is not just about patents Mr. Quinn and certainly proven so in the software field.

/jonas

Software is a special purpose machine says microsoft

2009-11-01T12:03:00.006+01:00

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

2009-10-08T22:49:00.008+02:00

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:

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"

2009-09-10T18:07:00.004+02:00

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

2009-08-31T14:55:00.003+02:00

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

2009-07-09T18:11:00.006+02:00

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:

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

Cons:

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

2009-06-11T19:07:00.012+02:00

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

2009-05-15T11:35:00.012+02:00

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

2009-03-22T12:23:00.009+01:00

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

2009-02-27T10:00:00.004+01:00

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

2009-02-02T16:04:00.015+01:00

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!

2009-02-02T14:08:00.007+01:00

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?"

Bliski works in practice!

2008-11-27T15:30:00.004+01:00

PatentlyO reports that Court finds “Programmed Computer Method” Not Patentable Subject Matter!

This is certainly good progress in eliminating the abstract patents we have seen granted for quite a while.

There is also an update on the effects of Bilski on Groklaw using Microsofts patent portfolio as an exemaple.

TED: Patents and copyrights stopping innovation?

2008-11-20T13:52:00.008+01:00

Charles Leadbeater, journalist from the Financial Times talks about real innovation and how the image of inventors is bad for development on TED-talks.

Charles argues that innovation comes from consumers and its up to companies to listening to and understand consumers.

EPO can't hide from Bilski

2008-11-10T22:58:00.007+01:00

US patent praxis is now much clearer than EPO praxis. After a US court declared business methods and logic invalid in the Bilski case, Europe has to catch up.

Perhaps its the sub prime crisis that made the risk in the current patent inflation that obvious? My guess is that the court just used good old reason about keeping abstract matter out of patents at last!

While EPO argues that further technical effects, like running anything on a standard computer, allows for business methods and software patents, US has declared out... for real!

Any claims on abstract methods or information (aka record on a carrier) publication are out, while apparatus claims remain.

Europe has to tame the beast at the EPO or fall behind.

US court puts limits back on whats patententalbe - Woo!

2008-10-31T23:00:00.002+01:00

Groklaw writes that its time to pop the Champagne over the recent US court decision, re Bilski.
The decision states: "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."

This means death to most business method patents or at least to the State Street interpretation that has created a huge patent bubble for some years.

WSJ makes a reference to the case that set off software and business method patents "State Street":
"This is a pretty clear disavowal of State Street," said Daniel Crowe, a patent litigator at Bryan Cave LLP in St. Louis who was not involved in the case. "It's a ruling against the financial services industry." Mr. Crowe said he did not know what would happen to the business-method patents validated within the last 10 years. "That's definitely an open question."

In another WSJ article Randy Lipsitz, a patents specialist at Kramer Levin says:
“You’re going to see fewer applications from these industries,”

IBM seems pleased in a Business Week article:
Kappos said IBM was “very pleased” with the court’s decision. “It doesn’t spell the complete demise of business-method patents,” he says, “But without question it points to a major downsizing.”

I think this report at VentureBeat makes it very clear what just happend:

"The ruling clarified what types of patents the court found eligible: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” Ten years ago, the same court had ruled that a “useful, concrete, and tangible result” also signified that a concept could be patented. The result, as researchers later showed, was a 3000 percent increase in the number of business method patents between 1995 and 2001."

I will read in more on what happened, drink some Champagne and return with my thoughts about this decision, effects on Europe and the ongoing struggle here.

/jonas

EPO Board to establish software patents?

2008-10-25T13:07:00.006+02:00

EPO:s highest appeals chamber, The Enlarged Board of Appeal, has finally found the nerve to put the big question of patentability on the table, or perhaps not.

In fact, the questions seem like a school book example of avoiding clarifications by asking the wrong questions. Are the EPO just cowards, creating straw men or obstructing the clarity of law?

Still, here are my answers to the questions EPO puts before the chamber:

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

- No. Claims should get excluded if the claimed contribution is in software or any other excluded subject matter. Computer programs do data processing and that is the most narrow interpretation of the exclusion in using a computer program as such. But any computer aided inventions may otherwise be patented regardless of the use of software.

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, this is where the IBM cases got it all wrong. Storing information does not make the information itself patentable. (See program claims)

2.(b) If question 2(a) is answered in the negative, 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?

- Further technical effect is irrelevant to the question. The question should be if the claim needs to be a technical contribution not excluded under EPC 52. And the answer to that question is Yes. Further technical effect is just an excuse to make anything patentable, using known technology as rescue hook for excluded subject matter.

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?

-Argh, again that wording, but just for the sake of it... Yes!

3.(b) If question 3(a) is answered in the positive, is it sufficient that the physical entity be an unspecified computer?

-No. Absolutely not as that is a known technical subject matter.

3.(c) If question 3(a) is answered in the negative, can features contribute to the technical character of the claim if the only effects to which they contribute are independent of any particular hardware that may be used?

-Sigh.

4.(a) Does the activity of programming a computer necessarily involve technical considerations?

- No, as far as the activity concerns the rules for data processing.
- Yes if those considerations are in matters that are computer aided.

4.(b) If question 4(a) is answered in the positive, do all features resulting from programming thus contribute to the technical character of a claim?

-No. The consequence of saying that the number of steps or the memory use in data processing are technical considerations in software would make any and all software patentable, and that is not the intention of EPC 52.

4.(c) If question 4(a) is answered in the negative, 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?

-Further technical effect is irrelevant as it has nothing to do with the technical contribution.
-For instance, a car breaking system using software or not can be claimed where the technical contribution is on the use of the breaking system and not the software. This can be seen as the difference in a simulation of the breaking system in a computer from the use in reality, where only the later could gain protection.

More about the background at IP-kitten. Short story in NYTimes.

I will try to answer these questions in the next couple of days.

Intelligent business in stupid machines

2008-10-21T00:45:00.037+02:00

How can software patents possibly make sense in a complex networked business environment?

As many services that are user content driven today start to serve user written code, patent rights get more complicated. I find it hard to see how patent law can work or be enforced in this environment where copyright and contracts are well established.

We have prototyping languages that can change and adapt software in runtime over networks of data and code. Functions get updated and combined with other in realtime. This is not only true for web 2.0 application, its true for the majority (95%) of investments that is for own account or custom made software. (Koji Nomura 2004/OECD)

"We are the machine" becomes more and more real for the Internet. And it makes it more or less impossible to understand if we make patent infringements. Its hard to know if you can draw borders to any specific aparatus and if responsibility can be established. And who's responsibility is this situation, is it The Patent office, politicians or just the nature of development? We do know that publicly available software doubles every 13 month!

Thoughtcrime

2008-10-19T11:10:00.022+02:00

In a Swedish bill, communication profiles, aka sociograms or traffic data, will give authorities a new lead into investigations. While politicians argue that no personal data will be recorded outside particular narrow investigations, "traffic data" is not considered personal data as such.

During this summer the Swedish television sent news that such traffic data was to be stored in a database called Titan, on a super computer owned by the Swedish surveillance intelligence, FRA. The bad news is that this database will probably not be for military intelligence matters only.

People are worried that this will affect how we conduct business and talk to lawyers or journalists. Swedish blogger Mark Klamberg is one of many who has shed light on the many loopholes. Even if messages are not recorded, the context of the communication might very well be stored as metadata and used later. The new Swedish signal surveillance bill grants the FRA, rights to copy all Internet traffic crossing the Swedish borders.

So what do I think? Here is a list of useful traffic-data patterns:

E-mails and IP-number
E-mail sender and receiver
Google search terms and IP-numbers.
Membership logins at web sites.

I think this law is a marvel of contradictions, as it mixes what should and should not be allowed in very abstract terms. By recording what is normal traffic its easy to pin point the anomalies. By doing so, Ladies and Gentlemen, we have introduced thought crime.

And that would be a lot like what people think is illegal in the US...

Telecom package lost in backroom negotiations?

2008-10-18T12:08:00.012+02:00

- Amendment 166, recently voted for in first reading in the EU-parliament, seems to have been lost in the records of the EU-Council. Its a shame and a loss for the rights of Internet users. I sincerely hope that responsible member states will bring the Council up to speed. Sarkozy seems to pressure the Council for a Minitel like version of Internet. Locked and filtered.

UPDATE:
Its a terrible thing to see laws written without clear aim or leadership. Copyright enforcement on the net is a peril for fair use and net neutrality as much as it is needed. We need a clear voice from politicians on EU directives, or the process will harmonize the EU into a very ugly centralized and censured version of Internet.

What if your ISP would had to do the policing of your blog or website, regardless of what YouTube or website you publish on?

Its right when creators get access to infringing publishers and can remove the material and seek reasonable damages.

Me, I think:
* Publishing or uploading without consent is infringing, but not downloading. Downloading is NOT stealing.
* Laws against processing "protected" information are stupid and dangerous.
* Names of users of IP-numbers from ISP:s should get delivered by court descision, not too easy.
* Automated filtering of Internet for "unlawfull content" is not OK.
* Automated search for infringements should be done just as anyone can do it.

More services will save the day. No one wants to download everything to their computers.

IPTegrity writes about the Council trouble:
http://www.iptegrity.com/index.php?option=com_content&task=view&id=181&Itemid=9

Bloggers in Sweden: HAX, Mark Klamberg, Oscar Swartz

Software patents take on the market

2008-10-18T10:33:00.013+02:00

From a C-Net interview with Horacio Gutierrez, IPR-lawyer at Microsoft, its clear that patent insurance still is the game to curb competition. Even though Microsoft is paying ten times its patent income in patent charges, trials and fees, it manages to find profit in the larger loss and risk for all. The idea is to sell an insurance against patent risk called patent indemnification to partners. Selling patent indemnification covers patents and patent lobbying costs by creating new alliances and effectively kills independent actors. Its just what Bill Gates concluded in the early days of Microsoft:
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors." (Quoted by Fred Warshofsky "The Patent Wars" of 1994)

In this new world, the business models would be:

Cross-license if you can level with Microsoft's patent and pay the trolls whatever.
Get indemnification and lock yourself within the agreements of your new host. Microsoft perhaps?
Don't develop any software liability. Instead - become a troll, get patents and sue!

Any other suggestions?

UKPO vs EPO 1-1

2008-10-09T20:18:00.019+02:00

Confusing. Bad. Fuzzy. Seems UKPO lost its appeal against Symbians effort to grant software patents in the UK. The ruling from yesterday can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1066.html

The ruling fails to understand that the contribution of making a data program run in less steps, faster independent of hardware, is within the computer program exclusion:

"Stage 2 Identify the contribution:
A program which makes a computer operate on other programs faster than prior art operating programs enabled it to do by virtue of the claimed features.

Stage 3 Is that solely excluded matter?
No, because it has the knock-on effect of the computer working better as a matter of practical reality.

Stage 4 Is it technical?
Yes, on any view as to the meaning of the word 'technical'" (paragraph 59).

IP-Kitten has a software patent happy story about this:
http://ipkitten.blogspot.com/2008/10/symbian-appeal-dismissed.html

EPO seems to increasingly rebell the EPC at the same time. In the latest EPO Gazette there is an article about patenting "presentation of information", where EPO seems to grant them just like software patents, using the 'technical' effect trick. The EPO is still mixing up problem with contribution in its shady business model.

The patent system seems too greedy to save itself from self destruction.

UPDATE: Article that I missed about this in times:
http://business.timesonline.co.uk/tol/business/law/article4907993.ece

UPDATE2 22/10, FFII comment on judgement:
http://news.zdnet.co.uk/itmanagement/0,1000000308,39171034,00.htm

Cost of running European patent litigation under European Court of Justice?

2008-10-04T19:07:00.024+02:00

Special patent courts should have a more general court watching in the interest of a more balanced interpretation. But proponents of a new European patent court seem eager to stand clear of any oversight, arguing that it would only cause economic harm. I disagree.

Having the European Court of Justice (ECJ) as top court for the proposed European patent courts (EPLA) could perhaps avoid broad patent where they cause harm to innovation. The US Supreme Court has been critical to the same kind of federal special patent court and its record in granting ever broader patents. But some member states of Europe disagree with the idea of ECJ as top instance, amongst them Sweden, arguing that the cost of having an extra instance would be a high burden on litigants. But would the cost really be that high?

Lets compare the extra costs with the same setup at the EU Trademark Court where ECJ is the top instance:
Here are all ECJ-rulings on trademarks: (2008=5 2007=8 2006=8, 2005=4, 2004=11)
http://oami.europa.eu/ows/rw/pages/CTM/caseLaw/ECJCases.en.do
Court of First instance (CFI, under ECJ): (2008=14 2007=18 2006=12 2005=4 2004=15 )
http://oami.europa.eu/ows/rw/pages/CTM/caseLaw/appealsCFI.en.do
Appels at first instance (2008=113 2007=68 2006=45 2005=63 2004=35)
http://oami.europa.eu/ows/rw/pages/CTM/caseLaw/appealsOffice.en.do
Judgements in national (community) trade mark courts: (2008=73 2007=100 2006=77 2005=62 2004=42)
http://oami.europa.eu/ows/rw/pages/CTM/caseLaw/judgementsCTMCourtsList.en.do

Run down:
2008: 73 -> 113 -> 14 -> 5
2007: 100 -> 68->18->8
2006: 77 -> 45->12->8
2005: 62 -> 63->4->4
2004: 42 -> 35->15->11
So the risk of a ECJ appeal is about 5-10% in trademarks. Is that such a terrible risk in comparison with the cost of patent inflation?

Off topic research on patents vs copyrights in software

2008-10-01T20:22:00.015+02:00

I would like to see more real patent claims and more nuts and bolts examples of what should be protected to serve progress and innovation.

Yesterday I went to a seminar where Sanna Wolk, law scholar at the Stockholm University, made a presentation of her software protection research so far. She made quite a thorough presentation on the difference in patent vs copyright infringements, but without assuming any real borders for patents at all.

This is quite worrying, since the possible extent of patentable subject matter make a huge difference on how the patent legislation overlap with copyright. [like in: Can I patent this film?]

It's as if many academic patent researchers completely ignore the first test in European patent law, the test on if then contribution falls within the exclusions from what we call patentable invention...

Perhaps its too hard to understand what is practical when it sounds technical. Perhaps its the T in IT that does it? It feels as if some law scholars just decide that some things are more technical than other things that are creative and bag them without understanding the art in this matter. This is perhaps what upsets software developers the most in the issue of software patents.

Several core issues in software patents where not mentioned, such as:

Interoperability exceptions, as asked for by Sun and Google during the EU-directive on software patents.
Program claims, where publication is a direct infringement, not even suggested by the EU-commission.

It seems to me that the broad patent perspective is in line with the theories that argue that investments is the core requirement for patents rather than real invention. Its probably more simplistic in a legal perspective, but devastating when it comes down to awarding actual progress.

But then again - she is not done with her paper yet. I do hope that she asks the professionals, those skilled in the art. Just as those skilled in the art can learn from lawyers.

High demand for patents on software

2008-09-29T14:12:00.012+02:00

These are the usual arguments for software patents.
For more patent inflation lobbying, read the latest brochure fr om the European patent office...

We should reward innovative software with patents because:

Solutions for things like media detection, compression and encryption are very hard to come up with.
Software solutions are easy to imitate and not well protected under copyright.
There is no real surge in litigation and the demand is still growing.
More and more stuff is controlled by software - and those things have always been protected by patents.

What are the best arguments against? My Pick:

Patenting data processing, how to work with information, is too abstract and just the same as patenting business methods and office work.
The effort in software development is foremost getting the code to work well in a complex environment, and this work is mostly covered under copyright.
Insurances against software patent infringement got too expensive, litigation is too expensive and kills smaller players
Software should be irrelevant to patents on any computer controlled process that is patented.
It's quite easy to understand if you think about what the invention might be in a computer controlled Anti-lock Breaking System.

Then I need to make it shorter...

Brian Kahin about the patent crisis

2008-09-27T17:03:00.017+02:00

Prof. Brian Kahin, former Senior Policy Analyst in the White House, writes about the patent crisis effect on investment and banking: "Just like the market bubble of the 1990s and recent real estate bubble, it's hard to tell a bubble when it's growing. And too many stakeholders, including politicians, benefit from widespread belief that a growing bubble is grounded in reality and will continue indefinitely. You have undoubtedly read some of thousands of guest columns by patent attorneys explaining how you, everybody, needs patents in an economy driven by innovation. When Microsoft announces that it's going to increase its patenting 50% next year, everybody wonders, "why aren't we doing that?""

h ttp://www.huffingtonpost.com/brian-kahin/the-patent-bubble-still-g_b_129232.html
more from Brian at Huffington Post here: http://www.huffingtonpost.com/brian-kahin

The inflation in the US patent system is much a result of the same specialized federal court system for patents that Europe is trying to create now. There is a high risk that a similar court system in Europe will suffer the same self serving interest of the patent industry, unless it can be tested in a higher and independent court.

Kahin wrote about the European Patent Courts in 2006 on EDRI:
http://www.edri.org/edrigram/number4.20/patents

UPDATE:
There is another article here titled "Subprime Patents".
Also a paper by Dr. David Martins http://www.eupaco.org/report:david-martin

UPDATE2:
EPOs head Brimelow warns of a "global patent warming"

European Patent Office staff on strike over poor patent quality

2008-09-25T20:15:00.008+02:00

Patent examiners working at the EPO are again on strike bringing attention to the dangers EPO impose with patent inflation. This is very important to highlight now that EPO is trying to avoid propper scrutiny under the ECJ in a new EU-court system for patents called EPLA. EPO has broken its own rules and conventions, the EPC, to grant abstract patents on information and business management.

Source: http://www.out-law.com/page-9453

EPO = European Patent Organization, EPC = European Patent Convention

Remember, remember, the 24:th of September

2008-09-25T17:09:00.006+02:00

The Telecom vote was at the same date as the first reading vote of the software patent directive.

Summary of important amendments yesterday:

http://www.iptegrity.com/index.php?option=com_content&task=view&id=173&Itemid=9

"The key amendments in this regard were Amendment 166 to the Harbour report and Amendment 138 to the Trautmann report, which  were both carried. They state that users' access may not be restricted in any way that infringes their fundamental rights, and (166) that any sanctions should be proportionate and (138) require a court order. They both
reinforce the principle established on April 9th in the Bono report, that the Parliament is against cutting off people's Internet access as a sanction for copyright infringement. Cutting off Internet access was not explicitly in the Telecoms Package, but it did open the door to 3-strikes. These amendments close that door. "

Summary of important amendments in 2003-07-24:
http://eupat.ffii.org/log/03/plen0924/index.en.html

"With the new provisions of article 2, a computer-implemented invention is no longer a trojan horse, but a washing machine", explains Erik Josefsson from SSLUG and FFII, who has been advising Swedish MEPs on the directive in recent weeks. That the majorities for the voted amendments had support from very different political groups - this reflects the arduous political discussion that had led to two postponements before."

A day to celebrate software innovation!

2008-09-24T21:17:00.007+02:00

PR: September 24 Is World Day Against Software Patents

Brussels, 2nd September 2008 -- A global coalition of more than 80 software companies, associations and developers has declared the 24th of September to be the "World Day Against Software Patents". Five years ago, on 24 September 2003, the European Parliament adopted amendments to limit the scope of patent law and thereby protect small software companies from the harmful effects of broad and trivial software patents. A global petition asking to effectively stop software patents worldwide will be launched on 24 September 2008, together with specific additional requests for certain regions such as Europe, the UnitedStates or India.

More at: http://stopsoftwarepatents.org/
FFII PR at:
https://press.ffii.org/Press_releases/September_24_Is_World_Day_Against_Software_Patents

BBC report on study that patents at universities are blocking innovation

2008-09-24T21:11:00.005+02:00

BBC reports that Canada-based Innovation Partnership, a non-profit consultancy, states in a newly released report that "`Blocking patents' are delaying advances in cancer medicine and food crops" and that "the full benefits of synthetic biology and nanotechnology will not be realised without urgent reforms to encourage sharing of information".
http://news.bbc.co.uk/2/hi/science/nature/7632318.stm

the full report is available (pdf, CC-license) at
http://www.theinnovationpartnership.org/en/ieg/report/

UPDATE:Don't miss this presentation:
"The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives." 
Professor Michael Heller visits Google to discuss his book.

Erik Josefsson is KING! Telecom package voted in EU-parliament

2008-09-24T17:59:00.005+02:00

Erik Josefsson is fantastic.
Erik got the votes through for the most important amendment, #166, and against all odds in the Telecom package.

Oscar Swartz has this nice picture at Erik after todays vote.

/jonas

blogg-row

2005-12-16T09:43:00.000+01:00

On it, in it.