08.13.08

Patent News: The Big Myth, Microsoft vs. Avistar, Trolls, and Urgent Reform

Posted in Deception, FOSS, Microsoft, Patents at 9:08 am by Dr. Roy Schestowitz

Patents as a tool that protects the ’small inventor’ may be a Big Myth. They only protect monopolies and feed patent trolls that are not the ’small inventor’ but are rather the ‘vicious lawyer’. It’s about the investor, not the inventor, but that’s not what many people were led to believe. Investors further monetary agenda, whereas inventors create new work and thus further science.

Here is the Big Myth again, from the latest issue (August) of IEEE Spectrum.

Patent attorneys charge between US $7000 and $15 000 to prepare and file a ­patent application. If only there were a cheaper way, a kind of poor man’s patent. But it just doesn’t exist.

Some people think they can protect their ­invention by writing a ­patentlike description of it and ­mailing the ­document to ­themselves, but this is no substitute for patent ­pending. At best, the letter shows that you ­conceived an ­invention by a certain date, but you’ll ­probably be able to prove that with ­engineering notebooks, e‑mails, dated PowerPoint presentations, and the like. Moreover, ­evidence of an ­invention’s conception date is ­useful only in a limited set of ­circumstances, most of which involve actually ­filing for a patent at some point in time. So save yourself the paper and the postage stamp.

[...]

Patents are expensive, no doubt about it, and the requirements are fairly strict. But as my grandmother used to say, you get what you pay for.

This ending says a lot about insidious attitudes against Free software and pro patents. But there’s a perfect example right from the news to squash this tired myth.

Microsoft-Avistar

Avistar is a rather small business. Can its patents protect it from Microsoft? Haha, of course not. It’s just how Richard Stallman put in it his good talks on this subject. His prose aside, you can’t beat a Beast in ‘Mexican shootouts’.

Earlier this year, Avistar Communications Corp. was in talks to license some patents to Microsoft Corp. when Microsoft threw it a curveball. The software giant asked the U.S. Patent and Trademark Office to re-examine all 29 of Avistar’s patents.

[...]

Indeed, about a month after it disclosed Microsoft’s challenge, Avistar, a San Mateo, Calif., maker of videoconferencing and collaboration software, cited the potential impact on its financial outlook as it announced plans to cut 25% of its work force, or 27 employees.

Needless to stress, this pretty much defeats the whole purpose of this system, which clearly does not protect the ‘little guy’. It’s just draining his/her money while making solicitors a helluva lot richer. Avistar, by the way, has just been awarded a couple of more stones US patents. They are junk, as usual, and they probably won’t serve it well in this David-versus-Goliath duel. Here’s the description:

The two new patents cover systems and methods for login-based routing of real-time communications (such as text instant messaging, VoIP and two-way video conferencing) between users employing a quick-dial panel (such as a buddy list) or a screen-displayed list or rolodex. Users can flexibly login at any number of devices or locations and can choose from a number of real-time communications options, including text-based real-time messaging.

Trolls

Trolls and small businesses are totally different creatures. The latter is developing, whereas the former is only ever litigating. Making money using infringements alone makes one a ‘toxic leech’ that’s clung onto the patent system. The patent trolls to the USPTO are like ECMA to ISO. They are self-serving parasites that suck out money using loopholes and room for manipulation that exists.

Here is a good example of a company that turned from a developer into a leech, just like SCO. It gets its way, too.

RIM Pays Off Wi-LAN To Get Rid Of Another Patent Suit

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Wi-LAN is a Canadian company that did some early work in the wireless field, but was unable to actually make much of a business out of its work, so it took the loser’s route: it started suing lots of companies for patent infringement. It’s the same old story: winners innovate, losers litigate — and litigate seems to be about all that Wi-LAN does these days.

Guess where they are suing?

Wi-Lan filed the suit in the U.S. District Court for the Eastern District of Texas, Marshall Division — a court that is favored by patent-license companies seeking big judgments.

Watch the description of this company.

Wi-LAN, founded in 1992, is a leading technology innovation and licensing company.

Hold on to that thought. “Innovation and licensing company.”

Time for Change

Digital Majority has found this good explanation of why it’s time to call it quits.

Patent Weakness #1: The patent office is filled with lawyers not scientists/engineers.

The patent office has, for the past decade or so, been giving out patents for genes and software like Amazon’s One Click.

Pharma companies didn’t invent DNA or genes. They simply discovered the gene for a disease and thereby a possible path to cure. Why should anyone have to pay royalties for studying said gene or discovering a cure independent of the pharma that identified the gene.

In my opinion Amazon’s One Click patent was the epitomy of the stupidity of the patent office. The patent clerks kept arguing for prior artwork deomonstrating that someone else had already developed a One Click feature. This is ludicrous. The point of software is automate mundane tasks with a minimal amount of information and work by the user. So what does One Click do fundamentally different than any other button on any other piece of software?

Mike Masnick has explained why there should not be such thing as “intellectual property” simply because abstract intellect is not a property. It’s ideas, which are not concrete, except for in the La-La land where monopolists desperately try to establish more monopolies that transcend implementation (already protected by copyrights) and brands (protected by trademark law). Masnick’s assertion is backed by others:

We’ve pointed out in the past why it doesn’t make much sense to treat “intellectual property” as “regular property,” since it ignores some very important differences between the two. James Bessen and Michael Meurer, who wrote the recent book Patent Failure have always taken a slightly different approach.

Over at the European patent system. Dr. Berthold Rutz argues that collaboration pretty much renders the notion of patents moot. But here are his exact words [PDF]:

The powerful paradigm of open and collaborative innovation is no longer limited to the area of software development but has found proponents in other technical fields such as consumer goods, pharmaceuticals and automotive. Are traditional forms of intellectual property protection such as patents, copyrights or design rights still appropriate in a world where knowledge is increasingly shared and innovation becomes a collaborative process? What role will IP rights play in the future and what challenges will they face?

Also worrisome is the ACTA, which is a great risk to Free software. Glyn Moody explains once again
why it must be shot down.

Basically, it is an attempt to bring in yet more punitive measures against alleged infringements of intellectual monopolies, with less judicial oversight and no pesky European privacy protection.

But the trouble with these kinds of crude instruments, cooked up in haste without much deep consideration of their knock-on effects, is that they can backfire.

Here, for example, is a letter to the US Trade Representative from a bunch of big names, including Amazon, eBay and Yahoo. They have noticed a few tiny probs with ACTA:

We appreciate your objective of protecting the intellectual property of American rightsholders from infringement overseas. However, in light of these European decisions, there is a very real possibility that an agreement that would require signatories to increase penalties for “counterfeiting” and “piracy” could be used to challenge American companies engaging in online practices that are entirely legal in the U.S., that bring enormous benefit to U.S. consumers, and that increase U.S. Exports.

Is this rich, or what? Here we have a trade agreement that is essentially trying to export the insanely aggressive US system for dealing with alleged infringements to the rest off the world, but when it works the other way – with European norms exported to the US – suddenly, that’s a problem.

The DHS, realising that people are unhappy with the idea of laptop confiscation or warrantless probes, has just issued this ‘damage control’ page [via Simon Phipps]. The comments are more interesting than this face-saving post.

For more information about the ACTA and its impact, consider reading the articles below. █

• ACTA threatens free software
• The right to peer inside your iPod
• Microsoft could force your mobile into silence
• Digital copyright: it’s all wrong
• FSF organizes against Anti-Counterfeiting Trade Agreement
• Embattled ACTA Negotiations Next Week In Geneva; US Sees Signing This Year

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