10.14.08
Nokia, Apple, Microsoft, and Other Software Patent Brats
Latest Damage Assessment
A few days ago we wrote about the derailing of the Indian and English patent systems, partly due to Nokia (Symbian). The monopolists want software patents even where the law explicitly forbids it. Microsoft does this too, e.g. in South Africa and in India.
To change laws by breaking them — thus potentially setting a precedence — is still a felony; it’s not a victory and people should be furious. As ORG puts it, in relation to the latest debacle in the UK:
“Unlike copyright, patents can block independent creations,” said ORG. “Software patents can render software copyright useless. One copyrighted work can be covered by hundreds of patents of which the author doesn’t even know but for whose infringement he and his users can be sued.”
Companies that are in favour of software patents include Microsoft, which encourages companies to licence software from patent owners.
Ciaran from the Free Software Foundation Europe wrote: [via Digital Majority]
[I]f the drafters intended the exclusion to be meaningless, why did they bother adding it? Of course, the EPO’s interpretation isn’t at all what was intended.
A second obvious problem with the EPO’s interpretation is that it doesn’t just render meaningless the exclusion of computer programs. It renders all the exclusions meaningless, so games, doing business, scientific theories, “rules and methods for performing mental acts” (yes, ways of using your brain), and all the other things listed in Paragraph 2 of Article 52 should be patentable. Which is completely absurd.
Unfortunately, a UK appeal court has recently upheld this bizarre twisting of patents - and that article mis-reports the patent dangers as “protection” for software developers.
Developers want copyrights. They don’t want to work inside an unfamiliar minefield (patents). Polls consistently suggest so.
Nokia
Let us look a little more closely at what Nokia, the sole owner of Symbian, is now doing. Over in India, where the situation [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11] is already turning complex due to Microsoft, BT, and some other companies like Symantec (mostly dependent on Microsoft), there is this attempt by Nokia is trying to sneak in some software patents too.
New Delhi, Oct 12: World’s largest mobile phone maker Nokia has filed a patent application in India for its networking solution which allows a user group to share multimedia contents during a group communication.
And this is the owner of Qt?
Glyn Moody has just published an article to explain this catastrophic landmark ruling, attributed to Symbian (Nokia).
Although I’ve written elsewhere about the recent court case of Symbian v Comptroller General of Patents, noting that it was bad news, I hadn’t realised quite how bad the news was until I went through the complete judgment.
It’s plain that the judges in question, who to their credit tried their level best to understand this mysterious stuff called software, failed to grasp the central issue of what software is. As a result, they have passed down a judgement that is so seriously wrong it will cause a huge amount of damage in the future unless it is revoked by a higher court.
[…]
Basically, the UK patent office appealed against an earlier appeal against its own refusal to grant a patent to Symbian for a programming technique. Yes, you read that correctly: the Patent Office was trying to get an appeal against its refusal to grant a patent struck down, because it didn’t believe that the original patent application should be allowed. Through its own appeal, the UK Patent Office was trying to establish what could and could not be patented in the world of code.
There are so many more articles about this subject, including ones that propose an overhaul due to economic reasons.
No matter what the degree of adequacy or inadequacy of the system to today’s technology markets, a situation that is based on deliberate abuse of the law cannot be desirable. Therefore, either the law as it is should be more strictly enforced, or it should be adapted to better fulfil its economic purpose.
On the other side of things, Nokia has just been sued by a patent troll called Azure Networks. The case was filed in Texas, as usual.
A patent-holding company has sued Nokia Inc. for allegedly infringing two patents related to computer network security appliances, according to a new lawsuit.
Nokia may attempt to argue that its software patents are intended to defend it under such circumstances. Well, too bad that according to Azure Networks’ Web site, the company has no products. The renders such an argument for software patents totally moot.
Apple
Apple may be recognised an easy target to pick on, but the matter of fact is that its patents are hurting GNU/Linux desktops. Here is Apple’s latest (among very many) patent.
As per the patent, one of key components is a hardware component called “voice-to-command analyzer” which would determine whether the audio is meaningless or represents an action request. This would save other processors the burden of deciphering speech.
How can Apple be labeled a friend of open source when a lot of what it does is obtain intellectual monopolies which act as fences against programmers? █
“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… some large company will patent some obvious thing… take as much of our profits as they want.”
–Bill Gates
Highlight: Novell was the first to acknowledge that Microsoft FUD tactics had substance. Novell then used anti-Linux FUD to market itself. 
Highlight: Xandros let Microsoft make patent claims and brag about (paid-for) OOXML support. 
Highlight: Linspire's CEO not only fell into Microsoft arms, but he also assisted the company's attack on GNU/Linux. 
Highlight: Microsoft craves pseudo (proprietary) standards and gets its way using proxies and influence which it buys. 
Highlight: The invasion into the open source world is intended to leave Linux companies neglected, due to financial incentives from Microsoft. 
Analysis: Xen, an open source hypervisor, possibly fell victim to Microsoft's aggressive (and stealthy) acquisition-by-proxy strategy.
Needs Sunlight said,
October 14, 2008 at 7:12 am
Patents hurt all desktops, not just GNU/Linux. This case has been made again and again. It’s not an open source issue, it’s not a developer issue, it’s a home-user and business user issue.
pcole said,
October 14, 2008 at 7:25 am
Granted it that this sounds simple;
If it’s illegal, by law, to submit a patent, where software patents is not legal, shouldn’t the submitter be fined by the judge for filing the patent in the first place?
Monopolies, like microsoft, apple, etc; want developers. They have plenty in their own “backyard” yet they do not want to pay the developer properly, that is, they want the developer to work practically for free. Maybe that’s ms definition of free open source software. Seems they want to corral the developers, herd them into a box, and just take developer ip as if they’re picking apples from an orchard.
Roy Schestowitz said,
October 14, 2008 at 7:32 am
It’s an interesting question. They appear to be using loopholes where they are available.
http://www.tectonic.co.za/view.php?id=1331
““Does Microsoft intend to continue to break the law by filing software patents in South Africa?” This was the question Derek Keats of the University of the Western Cape asked Microsoft national technical officer, Potlaki Maine, in an open debate held at Freedom to Innovate South Africa’s workshop on software and business method patents last Friday.
“Maine’s responded that all Microsoft’s patents had been filed through government channels and were completely legal. Keats retorted that although Microsoft had found a gap in the process of filling patents, they were still guilty of breaking the law.
“This issue summed up the the problem FTISA wants to address: although software patents are not allowed in South Africa, this is not being enforced and software patents are still being filed.
“South African law does not allow for patents on computer programs (section 25 (2) of the Patents Act No. 57 of 1978). Yet the problem is that, as a non-examining country, the patent office does not check the validity of the patent. The patent office only checks that payment has been made and that the correct forms are filled out. For this reason, software patents slip through the process illegally.“
AlexH said,
October 14, 2008 at 10:47 am
@pcole: in Europe, they’re not “illegal” per se, but they are supposed to be invalid if they are software “as such”.
That “as such” clause is the root of the problem, because it’s a matter of interpretation. The current judiciary has the interpretation that if there is some kind of technical contribution - a computer runs faster, for example - then it’s patentable. In general, though, it’s relatively tough to get a “pure” software patent (but obviously possible, as many companies demonstrate).
pcole said,
October 14, 2008 at 11:07 am
I’m still trying to get an understanding of this. Patents are for something which is tangible, i.e. hairbrush, comb, etc; Copyrights for arts, ideas, publication, etc.
How does intangible, mathematical expressions figure into patents?
If the system resorts to a non dedicated appliance, that is, when you turn off all power to a computer (forgetting RAM traces and semi volatile memory), doesn’t the algorithm become moot at this point?
Doesn’t it then becomes a publication if it must be read from storage for the system to get back to a known state?
AlexH said,
October 14, 2008 at 11:14 am
@pcole: actually, they’re not “for” tangible things. What they’re used for, and what their history was, varies from country to country.
So, for example, in Germany there was this concept of “natural forces” - anything which revealed new insight into the physical world was patentable, which is close to what you’re saying.
But these aren’t bright lines. One early patent was that of a rubber curing process (turning the liquid into a solid, basically). There is a way you can cure rubber which is better than older methods, but which requires precise (= computer) temperature control. So, the computer-controlled rubber curing process became patentable.
Now, in theory, the abstract stuff isn’t patentable in most places - methods, games, algorithms, etc. were all traditionally non-patentable. But those things are rarely useful in abstract, and it’s the context of those things - their actual uses - which makes them arguably patentable.
To put it succinctly, it’s not what the thing is made out of, but what the result is which makes something patentable. There’s an extremely philosophical argument in there, but that’s basically the problem.
pcole said,
October 14, 2008 at 11:36 am
Thanks, Alex, really appreciate the response. I’m 2nd generation brazilian american, not so well versed in the intricacies of laws, trying to put this into the lowest common denominator for understanding and be able to explain it for my boys. They are abstracts in themselves but I got the copyright.
Roy Schestowitz said,
October 14, 2008 at 11:48 am
Bilski is to be concluded later this month. Might be interesting.
http://www.patentlyo.com/patent/2007/02/microsoft_v_att_2.html
“MR. OLSON [For Microsoft]: The ‘580 patent is a program, as I understand it, that’s married to a computer, has to be married to a computer in order to be patented.
JUSTICE SCALIA: You can’t patent, you know, on-off, on-off code in the abstract, can you?
MR. OLSON: That’s correct, Justice Scalia.
JUSTICE SCALIA: There needs to be a device.
MR. OLSON: An idea or a principle, two plus two equals four can’t be patented. It has to be put together with a machine and made into a usable device.”
pcole said,
October 14, 2008 at 11:49 am
@Roy: Then the law in S.A. (section 25 (2) of the Patents Act No. 57 of 1978) is clear, but bureaucracy muddies the water in it’s search for revenue.