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?"

Bliski works in practice!

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?

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

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!

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?

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

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

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?

- 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

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

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