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Big Step in the Right Direction for Software Patenting in the US

Posted in America, GNU/Linux, IBM, Intellectual Monopoly, Kernel, Law, Patents at 7:29 am by Dr. Roy Schestowitz

Invention in dictionary

JupiterMedia is rerunning a story from the former Managing Editor of LinuxToday. It explains very clearly why so-called ‘innovation’ is nothing but an accumulation of knowledge that we already have and therefore the idea of software patenting is rather ludicrous.

All technology, computer or otherwise, is based on something that came before it. It doesn’t just come out of thin air. Did Windows magically appear in the mind of some Microsoft engineer from the ether? Not hardly! They based the interface on work done by prior developers and slapped the whole thing on top of the DOS operating system that itself was a copy of CP/M. Microsoft didn’t even make DOS themselves: it was built by a third-party development house and bought by Microsoft when the House of Bill made a deal with IBM.

Oh yeah, that’s innovative.

The whole scientific method, the current fad of looking at the universe, is based on this philosophy. Take the work of others and refine it to better fit the way we perceive the universe to work. Technology is the same way: it took 100,000 years for human beings to figure out how to build the microwave oven.


The patent question is one which makes it difficult to totally escape a dose of politics. Here, for example, is a video accusing the USPTO of fraud and corruption. There’s always need for vigilance and appropriate response. As Carla put it yesterday:

Free/Libre software itself is political. The GPL is called a copyleft license, which is wordplay on copyright. It is a clever use of existing copyright laws to protect software freedom, and copyleft has expanded to include a number of creative works, such as books, articles, photos and other images, movies, and music. Which is in direct opposition to the fierce attacks on existing copyright law, especially the insanely over-the-top attempts at exterminating fair use, and turning minor copyright violations into crimes of the century.


So there are a few examples of important political issues that Linux/FOSS users can address and influence knowledgably. It doesn’t matter who is in whatever elected office, or what party they belong to, because these issues affect everyone. Our elected persons are hearing mostly one side of the story, and that is the side that gets rich off corruption and abuse. They need to hear from the good guys, too.

The encouraging news is that the new administration of the United States seems determined to address the patent problem — one that has become a catastrophe which Republicans seemed unwilling to ultimately tackle [1, 2, 3, 4], perhaps because it favours 'generous' monopolies.

The new US-President wants to improve “predictability and clarity” in the patent system as well as “patent quality”. His reforms would “reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation”

Here is some more related information.

What an Obama Presidency Means for Technology


Begin Intellectual Property Reform: rather than just the usual extension of copyright terms, Obama’s staff recognizes the “need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.” That includes “opening up the patent process to citizen review [to] reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation.”

Obama’s running mate has been criticized for supporting current policy on copyright, but an exposure of government policy to sources of light outside of the lobbyists currently illuminating the dark caves of Washington is likely to change things dramatically.

In other news, this newly-announced FTC hearing which involves Intellectual Monopolies drew some attention because, as Groklaw put it, “Note that the keynote will be given by Paul Michel, Chief Judge of the U.S. Court of Appeals for the Federal Circuit, the judge who wrote the recent Bilski decision.” The FTC has an abysmal reputation when it comes to regulation, especially in recent years.

Patent Abuse Resumes

To demonstrate the problem at hand, consider claims that Halliburton is now trying to patent a form of patent-trolling, much like IBM and its darnest of patents, e.g.:

  1. IBM Wants Patent On Finding Areas Lacking Patents
  2. The IBM ‘Patent Troll’ Patent

From Masnick:

We see all sorts of ridiculous patent applications and patents, but my favorites tend to be the patents that have to do with patents themselves (such as the patent app on a method for filing a patent). However, the folks over at Patently-O have highlighted a fascinating patent application from an attorney at Halliburton, which appears to be an attempt to patent the process of patent trolling.

For vivid illustration of the impact, witness this new $3-billion lawsuit against Google. It’s about software patents.

Profy reports that a Russian company is suing Google for $3 billion over Google’s contextual ad program, AdSense.

Masnick responded to this too.

The concept of contextual advertising was hardly a new idea. In fact, from the early days of web advertising, it was always a target. Plenty of other companies tried to do it, but what made Google so successful was that it actually implemented the process in a way that worked. It was about putting it into practice, not the grand scheme that ended up in a patent somewhere. This seems like nothing more than a company trying to shakedown Google.

The Maginot of Linux

Linux too is susceptible and sensitive to patent-trolling, but some people find comfort in the existence of OIN. Here is a new article about this patent pool, which the likes of Acacia [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11] render futile.

The OIN is refining the traditional IP model by acquiring strategic software patents and making them available royalty-free, for any use, to any organization that agrees not to assert its patents against the Linux system. This frees organizations to make significant corporate and capital expenditure investments in Linux — helping to fuel economic growth and technological innovation.

The proliferation of open source hardware and software platforms is an irreversible trend, Bergelt added. As open source continues to accelerate beyond the enterprise to mobile devices and the desktop, the OIN would continue to work for the common good, creating a Linux IP “No-Fly Zone” that ensures the Linux ecosystem will not be impaired by intellectual property rights issues.

As pointed out repeatedly by the folks at FFII, OIN is a replication of a Maginot Line, which arguably makes it a big mistake.

The opensource folks have mirrored the French in WW II. Basically they have created a Maginot Line called the Open Invention Network (OIN). The OIN have been amassing patents so they could counter-sue any tech company that sued open source. But like the French, the OIN has been prepping for the wrong war. IP Innovation is not a tech company, they make nothing, they are not infringing on any patents. OIN is sidelined with their pants down while the battle moves elsewhere.

We wrote about this problem quite recently. OIN is not to be trusted much, at least until IBM changes its ways and OIN’s strategy along with it.


Analyses of the re Bilski decision we have thus far accumulated in [1, 2, 3, 4, 5, 6, 7]. Here are some newer clarifications that shed light on updated scope of patenting:

1. In re Bilski and Business Method Patents

Under the new standard, a process must either be tied to the use of a machine or be a transformation of something physical to be patentable, which would include a transformation of data that represents something physical.

2. Patent-Eligible Subject Matter in the United States – The Court of Appeals Decision in In re Bilski

Since the claims before it did not relate to any particular machine, the court did not address further what was required to meet the first of these options and in particular did not consider whether a general purpose computer when programmed could become “a particular machine or apparatus”.

On the second option, the majority did attempt some guidance as to what it meant by “articles” that were to be the subject of transformation.

This is definitely a step in the right direction. It’s better for the economy, according to this new article, but elimination of software patents as a whole would not be better for IBM. It is, after all, still a software company, not a business methods company (despite the name which contains “Business Machines”). They also vend hardware, so it’s unlikely that they will push for broader elimination and reduction of scope.

It’s what everyone has been talking about lately. No, not the election—software patent reform. (Bear with me, non-IP folks.) Last Thursday, the U.S. Court of Appeals for the Federal Circuit rejected a patent application from a company called WeatherWise for a method of managing the risk involved with energy costs. The court ruled that in order to be patentable, a process must be tied to a “machine or apparatus, or transform a particular article into a different state or thing.” That means abstract processes known as “business methods” can no longer be patented. A classic example of a patented software business method is Amazon’s one-click process for online purchases.

So how will this ruling impact software innovation, particularly for startups and investors? The news has caused quite a stir in the Seattle tech community (and elsewhere), with some entrepreneurs worrying about their ability to protect their fledgling intellectual property. Meanwhile, some venture capitalists view the ruling in a positive light, as protection against “patent trolls” that acquire business method patents and then sue software startups for infringement. As Fred Wilson of New York-based Union Square Ventures puts it in a blog post, “It’s a huge tax on the startup/technology ecosystem and it’s hurting innovation.”

The huge efforts to stop software patents are finally paying off and the action taken by the United States government is an important one to watch. In the next post, we will turn our attention to Europe.

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