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02.04.09

Patents Roundup: Linux, Microsoft, Apple, Patent Trolls and Reform

Posted in America, Apple, Europe, GNU/Linux, IBM, Law, Microsoft, Patents at 9:48 am by Dr. Roy Schestowitz

Rusty barbwire
An apparatus for stifling competition

Linux

THE LINUX Defenders initiative makes a small comeback [1, 2, 3, 4, 5, 6] with this IDG article that puts it among the headlines. It doesn’t really present any new information, though.

Are you tired of hearing of patents granted for obvious innovations? Are you weary of hearing about old patents that are purchased by firms like Niro, Scavone, Haller & Niro which “concentrates its practice in intellectual property law” and became notorious as a hugely successful “patent troll”? Do you think that the people suing Google, Apple and Microsoft for infringement of a patent ludicrously granted for “a system and method for iconic software environment management” that they claim covers thumbnail images should be granted their day in court?

Linux Defenders faces challenges not only from Linux foes like Microsoft but also from its trolls, which we’ll come to in a moment.

Microsoft

Microsoft has meanwhile patented the utterly trivial.

Microsoft has asked for a patent to protect its idea for a smartphone docking cradle that would turn your handheld into a mini-laptop.

This was also covered in:

The more one reads, the more laughable it seems. This is also covered here and it’s preposterous.

A few days ago we wrote about patent hawks and Microsoft. Well, here is a decent analysis from Mike Masnick, who is always hostile towards software patents.

Microsoft Claims Patent Holder Got A Job At Microsoft To Get Info Used In Patent Lawsuits

We see all sorts of strange patent-related lawsuits around here, but this one probably qualifies for the most extreme attempt by a patent holder to come up with info for the sake of a patent lawsuit. Apparently (and this is according to Microsoft), Miki Mullor, CEO of a company called Ancora Technologies, applied for a job at Microsoft while still working for Ancora.

There are still some more articles where Microsoft’s charges are being publicly denied.

Here is another silly Microsoft patent.

Last week, the U.S. Patent & Trademark Office made public a new Microsoft patent application titled “Content Management System and External Data Storage System Data Synchronization.” (Interestingly, it specifically mentions SharePoint by name.)

Microsoft is basically trying to patent the idea of letting data synchronization be triggered by administrator actions in a content management system. According to the Abstract of the application: “In one example, an administrator creates or modifies an event at the content management system, and if the event is coordinated with the external data storage system, the content management system is synchronized with the external data storage system.”

Microsoft Trolls

The bigger among patent trolls, Acacia, is still on a mission to collect more software patents and then use them for extortion or litigation. It is a form of racketeering and it remains very relevant to us because Acacia may be close to Microsoft [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11] and it is not reluctant to attack Free software. Since if offers no products, it just hasn’t a reputation to harbour. Here is the company’s latest extortion:

Acacia Research Corp. (ACTG: News ) said its Hospital Systems Corp. subsidiary has entered into a license agreement with Intelerad Medical Systems covering a portfolio of patents that apply to medical picture archiving and communication system technology.

Nathan Myhrvold

An even bigger troll (probably the world’s biggest troll) is Nathan Myhrvold and his company which is backed by Microsoft. We wrote about this Übertroll some days ago and now comes this report.

Transmeta IP sold to not-patent troll

[...]

IV said it grabbed 140 US patents and “a substantial number” of pending patent applications issued in the US and abroad. The firm intends to license the technology to other vendors on non-exclusive terms. IV is run by former Microsoft chief technology officer-turned-IP collector, Nathan Myhrvold. It claims to have more than 2,000 patents in the semiconductor field.

It’s funny how the press is scared of labeling IV a “troll”, despite all the extortions it quietly engaged in (e.g. with Cisco).

Apple

There is great deal of hypocrisy in Microsoft which used to dislike patents and began hailing them when it needed fences to defend a monopoly. The same goes for Apple, as the following good analysis shows rather vividly using actual quotes.

For all the talk among patent system defenders about how patents are most necessary for young startup companies that need to grow, most tech startups couldn’t care much less about patents (other than as a bogus currency to increase their valuation in talking to VCs). Startups are focused on actually building a product and getting it out to the market. Instead, what we see time and time again is that it’s the big, more established companies that use patents to stifle startups, rather than the other way around. Startups innovate, while big companies litigate.

[...]

The company was incredibly open in sharing ideas and concepts, and wasn’t going around threatening others for ripping off its IP (that did come later… especially with the graphical user interface, which Jobs himself admitted “ripping off” from Xerox… which had “ripped it off” already from SRI). It’s really only when you’re afraid of competing in the marketplace that you rely on patents. When you’re young and innovative you focus on the possibilities and opportunities in front of you, rather than on ways to block others from innovating.

These days, Apple is too busy supposedly “innovating”.

In a newly published patent filing (#20090022329) known as the “Method and Apparatus for Using a Sound Sensor to Adjust the Audio Output for a Device,” Apple is working on a system that automatically adjusts the volume of the iPhone, iPods, and Macs based on a combination of ambient noise and user feedback.

Does that sound sophisticated? Is it an idea worthy of ownership and assignment to a person or one company? As TechDirt correctly points out, Apple might be doing itself more harm than good by sheltering this antiquated attitude towards software patents.

After Palm showed off its new Pre smartphone, including the device’s multitouch interface, at the Consumer Electronics Show last month, Apple made some threatening noises about how it would go after anybody who “ripped off” its intellectual property. As always, we didn’t see how this would benefit anybody in the marketplace, since competition pays benefits to consumers, and drives participants, even Apple, to continually innovate and improve their products. Now, a wireless industry analyst has called Apple’s threats into question. He makes the point that a long, drawn out IP fight won’t help Apple’s business in the long run: “Building on the company’s legacy as one of the greatest innovators in the technology industry may be a smarter business model than taking on the rest of the industry in a battle that may be impossible to win.”

Why does Apple make itself enemies?

More Patent Trolls

To demonstrate the failure of the patent system, trolls are pretty handy. Here are some new reports of interest:

1. Coughlin Files Major Patent Infringement Suit

Coughlin Stoia Geller Rudman & Robbins LLP, the world’s leading plaintiffs’ law firm, representing IntusIQ, announced that it has filed a major patent infringement suit against Oncor, Reliant Energy, Comverge, Datamatic, EKA Systems, Sensus, Tantalus, Tendril Networks, and Trilliant on behalf of its client IPCO LLC d/b/a IntusIQ.

2. Will the ITC Become the New Troll Hangout?

Each year a growing number of IP lawyers heads to the International Trade Commission, asking officials there to enforce Section 337 of the Tariff Act of 1930. That Depression-era law forbids various “unfair trade practices,” including the importation of products that infringe a U.S. patent–the goal is protecting domestic industries and jobs.

3. Troll Tracker update: Frenkel told the truth, says Cisco

There’s a lot of information here, but the takeaway point is this: Cisco says Frenkel’s articles were accurate. And in the United States, of course, you’re allowed to publish true information, even if it hurts someone. What Albritton said was defamatory was either true (the docket was altered), or fell into the categories of opinion and rhetoric (words like “conspiracy”) or just wasn’t about him, says Cisco’s lawyer, Charles Babcock of Jackson Walker.

For those who are interested, we already have a complete copy of the Patent TrollTracker blog, which was pulled because of the trolls. We also wrote about Rick Frenkel in [1, 2, 3, 4, 5].

US Reform

Software patents may actually vanish from the United States rather than expand to other countries. Here is an interesting analysis.

As I noted at the time it was decided, people care about Bilski largely because of what it says about legality of software patents. Software patents are intensely controversial, with many geeks arguing that the software industry would be better off without them. What I found striking about the conversation was that both guests (and perhaps the host, although he didn’t tip his hand as much) took it as self-evident that there needed to be patents on software and business methods

Here is a more formal page about the Bilski petition and some new coverage about Peer-to-Patent, courtesy of Mark Webbink.

Earlier, the United States Patent and Trademark Office (USPTO) opened the patent examination process for online public participation. With the consent of the inventor, the Peer-to-Patent: Community Patent Review pilot, developed by the New York Law School Institute for Information Law and Policy in cooperation with the USPTO, enables the public to submit prior art and commentary relevant to the claims of pending patent applications in Computer Architecture, Software, and Information Security (TC2100).

Europe

The Enlarged Board of Appeal will be handling ambiguity or mixed messages with regards to software patents in the European continent. We’ve mentioned all this in [1, 2, 3, 4, 5, 6, 7], but the main reports are in [1, 2]. Here are the latest two updates: [via Digital Majority]

1. G 3/08: Have your say

This month’s Official Journal of the EPO contains an announcement relating to the EPO President’s referral under Article 112(1)(b) EPC on software patents. As well as reproducing the questions first announced back in October 2008 (commented on by the IPKat here, here and here) and the composition of the board, the announcement says the following:

“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).”

2. EPO Enlarged Board of Appeal to Clarify Software Patentability

The President of the European Patent Office (EPO) has referred several questions of law to the EPO’s Enlarged Board of Appeal (EBoA) in an attempt to clarify the patentability of software-based inventions.

Philosophy

Patents are a partly philosophical issue. At the end of the day, let’s ask ourselves, what’s it all good for? Some people already ask this sort of question.

Are My Ideas Being Stolen? If So, What Then?

[...]

“…Folks, it’s not the ideas; it’s design, implementation, and especially hard work that make the difference.”

Considerable difference in opinion is also expressed in the Web site NewEconomyPatents.org.

After hearing oral arguments on May 8, 2008, in the patent case In re Bilski, the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit) reached a 9-3 decision on Oct. 30, 2008 to uphold the ruling by the U.S. Patent and Trademark Office (USPTO). The appeal followed the rejection by the USPTO of a patent application for a process for hedge fund risk management, filed by inventors Bernard Bilski and Rand Warsaw.

In Re Bilski is not over yet. As FFII had correctly predicted, lobbying was bound to ensue.

“IBM is proud of its patent portfolio, and the fact that they produce patents at a rate of 10 a day. With such an extensive arsenal of patents, backed by unlimited legal funds – what chances are left for the VC backed company? This is like the US going to war against Micronesia.” —Daniel Cohen, Gemini Israel Funds

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7 Comments

  1. Jose_X said,

    February 4, 2009 at 11:49 am

    Gravatar

    >> “Method and Apparatus for Using a Sound Sensor to Adjust the Audio Output for a Device,” … Does that sound sophisticated? Is it an idea worthy of ownership and assignment to a person or one company?

    No, that sounds like a small project (or even a weekly assignment) in an undergraduate feedback/controls engineering course.

    Maybe Apple engineers reminisce for the college days. Or maybe they skipped out.

    >> Earlier, the United States Patent and Trademark Office (USPTO) opened the patent examination process for online public participation .. enables the public to submit prior art and commentary .. in Computer Architecture, Software, and Information Security.

    Finding prior art saves USPTO face and saves money of those attacking. Why would I want to contribute to that and waste my time and money doing so?

    What is prior art after all? That someone published their solution 1 year ahead of you instead of 1 year after? Why would the government grant a 20 year monopoly on this sort of foolishness?

    Software patents are so messed up and this is the best they can come up with for reform?

    All the more reason I worry about this http://boycottnovell.com/2009/02/04/the-api-trap-part-1/ despite Bilski.

    >> “…Folks, it’s not the ideas; it’s design, implementation, and especially hard work that make the difference.”

    Ideas are important but 20 year monopolies? Any length monopoly seems wrong, at least for fields with low costs to invent, develop, etc (as is the case for software, as demonstrated through FOSS).

    Those that have great ideas have a lot of time to work on their solution ahead of everyone else. They can be first to market and enjoy those advantages.

    Even if you could find some cases where you might think some length of monopoly might be acceptable, our current system is so far from that. We’ve been so unable to get it right. Every day we continue down the same path, so far away from the perfect balance, is another day of damage inflicted on everyone besides the monopolists.

    And what about all the contributions given by FOSS to the community? Not only are the implementations more useful than the ideas alone, but much that would qualify for patents aren’t exploited by the FOSS world, yet others can track FOSS development from the sidelines and then jump out a little ahead of them to block them off from the next stage of development in the most natural direction. Talk about a real loss to society and to innovators!

    Maybe we should start giving patents for innovation in arguing and executing court cases and settlements. IP lawyers need a small taste of their medicine.

    Oh, and actions taken by CEO’s and board of directors should also be patented.

    >> With such an extensive arsenal of patents, backed by unlimited legal funds – what chances are left for the VC backed company?

    Wait. Maybe to stifle competition is the point of accumulating patents.

    Eureka! I can’t believe it took us this long to discover the raison d’etre of the patent system.

    Wow! Now all the madness can end.

    Stop the presses! Get the word out. Lawmakers will be shocked. Quick before more damage is done. Perhaps this nightmare will all be over by next week. [I'm so glad I visited boycottnovell for this inspiration.]

  2. zeke123 said,

    February 4, 2009 at 12:17 pm

    Gravatar

    Apple is the same company who released an MP3 player with the name Nano when Creative was already using the name for their MP3 player.

    And if Im not wrong the word iPhone was used by some company for some kind of wireless VOIP handset I believe.

    It seems that the language skills at Apple are sorely lacking.

    Ok, let the fanbois now foam at the mouth now that ive insulted their precious.

    I have an idea for a web service and I like the name MobileMe, I presume Apple wont have any problems if I borrow this name.

  3. Roy Schestowitz said,

    February 4, 2009 at 12:28 pm

    Gravatar

    Just make sure your name does not begin with a small ‘i’. Apple is actively running after companies that do this. I sometimes wonder if they applied to an ‘i’ trademark. It’s like a small stripe simpler than the Nike logo.

  4. Shane Coyle said,

    February 4, 2009 at 12:40 pm

    Gravatar

    Wasn’t there a lady who had come up with the iGasm, a – shall we say – specially crafted speaker that could be hooked to a headphone port and ladies (or men, I suppose) could groove with…

    IIRC, Apple went after her cuz she used black and white ads similar to the dancing sillhouette ads they had for the iPod at the time.

  5. Roy Schestowitz said,

    February 4, 2009 at 12:43 pm

    Gravatar

    Yes, I don’t recall the details exactly. Was that the only case that reached the news?

    BTW, it seems like we’re going to make another Digg front page. I’ll use Coral just in case.

  6. Shane Coyle said,

    February 4, 2009 at 12:51 pm

    Gravatar

    Yeah, still haven’t heard from the ‘abuse’ department over at the host, they’re due to contact me as I understand it, when I do then we’ll have to see what our next step is.

    We may need to at least consider the possibility of an orderly transition to a bigger machine, just don’t know what that will cost yet. If that occurs, we’ll have to really rap about how to migrate safely and maybe at that point try to plan in more resiliency from the start.

  7. Roy Schestowitz said,

    February 4, 2009 at 1:08 pm

    Gravatar

    We can test a new server account while the old one is live before the ‘switchover’. I did this in 2008 with schestowitz.com and it’s nothing to panic about (I had to migrate 22 E-mail accounts and 12 DBs and it’s just a little time consuming). I also did this with 2 domains in 2007. The hosts/admins can help too.

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