Mayo Collaborative Services v. Prometheus – Commentary

 

American Patent law is a mess. When a small section of law ends up being appealed to the United States Supreme Court so often, it is an indication that:

1. The law is badly written
2. Powerful interest groups are trying to bend the law
3. There is a lot of money at stake

This is the seventeenth patent case the court has ruled on since 2005. The Supreme Court has broad powers to choose which cases that it takes. It selects cases that it believes will have a significant impact on the law in the United States. That it has taken so many patent cases implies that the Supreme Court sees problems with the Patent System.

A Response to 'The Meaning of “Open Source”: Patented by Microsoft'

Understanding and Misunderstanding

I want everyone to understand – I’m not picking on Gene. While Gene and I disagree on a lot of issues, he’s a nice guy. But this time he’s wrong (link to his article is above).

In Defense of Software Patents – Part 2 – With Commentary On Why Martin Goetz Is Wrong

It was with some amusement that I read Martin Goetz’s ‘In Defense of Software Patents – Part 2‘. I was even more amused when the post was apparently pulled from Patently O. Curiously there’s no statement as to why it was pulled. It just disappeared. Unfortunately for them, I kept a copy.

I don’t agree with Martin Goetz. In fact, as most people know, I don’t agree with anyone. Martin Goetz however in this post demonstrates the lack of education that I’ve found all to often in arguments on the subject of patents. Specifically his lack of historical knowledge has affected his reasoning.

How has it affected his reasoning? Simple. He is unaware of the background behind law in the United States. Let’s take a look at his article. I’ll fill in the historical background at the end.

Guest Post: In Defense of Software Patents – Part 2

Guest Post by Martin Goetz

Back on November 30, 2009, PatentlyO published my article “In Defense of Software Patents” in response to the editorial “Abandoning Software Patents” by Ciaran O’Riordan, Director of End Software Patents (posted on PatentlyO on November 6, 2009) which had as its premise that software companies are trying to protect “software ideas”.

In this article I comment on the Bilski Opinion as well as give some concrete examples of software-only patents as well as hardware/software patents. Also, my previous article received hundreds of comments, many being negative, and part of this new post is in response to those negative comments.

Since the June 28^th Supreme Court Bilski decision there have been many articles on what the Opinion stated and inferred about the patentability of software.

The first paragraph is probably the most accurate one. Yes, there’s been a lot of ink burned discussing Bilski, and there will continue to be a lot of ink burned. Even among patent attorneys there appears to be many views on what it means, not only in regards to patenting of software, but patenting of hardware as well.

The Opinion restated what previous Supreme Courts concluded: that laws of nature, physical phenomena, mathematics, mathematical formulas (by themselves), algorithms (by themselves), and abstract ideas (which would include software ideas) are not eligible for patent protection.

While the Bilski Opinion never directly questioned the patentability of software, the Justices wrote extensively about the meaning of Section 101, the meaning of the term “process” and why the test for patent eligibility should not exclusively be “the machine-or –transformation test”. Justice Kennedy, with the concurrence of all other Supreme Court members, wrote that the Information Age puts innovation in the hands of more people and raises new difficulties for the patent law (and the Patent Office) to determine who should or should not receive patent protection.

This is where in my opinion he starts to loose it. The ‘machine or transformation test’ did definitely put some limits on patentability. And the Supreme Court recognizes that there have to be limits. He appears to think that by stating that the ‘machine or transformation test’ is not the only method of determining whether or not something can be patented, that the court in effect is leaving the field wide open. This is not true. The court in it’s questions appeared to be quite troubled by the extending of the bounds of patent law to cover wider and wider ranges of subject matter, and wished to set some limits on what could or could not be patented. At the same time the court didn’t want to tie the Patent Office’s hands with a ruling that couldn’t be justified.

Having the ‘machine or transformation test’ as the sole means of deciding of a patent could be issued must have struck the court as too limiting, which is why the court said it shouldn’t be the only test, but the court appears to have left the decision as to what other tests should be used to the Patent Office.

My November 2009 PatentlyO article “In Defense of Software Patents” produced hundreds of comments. Many wrote that they were against the patenting of software because software was an “algorithm” or “mathematics”. In that article my primary argument was that a computer software invention is as patentable as a computer hardware invention and the only difference is the mode of implementation. My thesis was that Software Product companies in the Software Industry are looking to patent a machine process and not a computer program, which is protected by the copyright law. I showed why software product companies can be viewed as high technology manufacturing entities and should be just as eligible for patent protection as computer hardware companies.

In this article I give examples of patents where the preferred implementation of an inventive machine process is in software (via a computer program), hardware (via circuitry), or a combination of both software and hardware.

Here he seems very confused. Software, be definition, is intangible (though it may be fixed on tangible media). Hardware by definition is tangible. Let’s take Microsoft for example. He describes them as a high technology manufacturing company. Manufacturing is defined in Wikipedia as the use of machines, tools and labor to make things for use or sale. Microsoft’s manufacturing cannot be considered high technology, since they simply use Compact Disc and Digital Video Disc pressing equipment that they have purchased. This is true of all software companies. The software that they make may be high technology, the method of making distribution media isn’t.

There is little argument that “processes” and “machine processes” are patentable subject matter The question has always been about the nature of software and what one is trying to patent. For over 40 years I have been involved in that argument since I received the first software patent in 1968 for an innovative way to sort large amounts data on a computer that had tape drives that could only read and write data in a forward direction (See Patent # 3,380,029, Sorting System, Issued April 23, 1968).

Actually there is a fair amount of argument about whether processes of machine processes should be able to be patented. Since he apparently hasn’t heard of the arguments, it appears that he has been sleeping.

The Sorting System patent was dubbed a software patent but it could also have been a computer hardware patent. It was dubbed a software patent solely because the preferred implementation (the disclosure) was a logic chart (which is recognized by the patent office as a proper disclosure). My Sorting System patent would not have been controversial if the disclosure had been hardware circuitry since there were many hardware patents for sorting data on special-purpose computers and special apparatus. In my patent application I referenced six of those patents which all had unique hardware circuitry in their patent disclosure. Three of them are available online, courtesy of Google Patent Search.

Yes, you can often implement something in more than one way. A good example is the comparison hardware level and software level DVD playback. But there’s other considerations. Anything that is implemented in software, can by definition be done mentally. I know a lot of people will argue with me on this point, however it is true. If you can’t do the function mentally, you can’t write the software.

As to his assertion that his Sorting System wouldn’t have been controversial if it had been a hardware implementation, I’d like to refer him to KSR v. Teleflex, where the hardware implementation was considered controversial, and the court ruled against it’s patentability.

From 1968 through 1980 my previous company, Applied Data Research filed Amicus briefs in the Prater & Wei, Benson, Johnson, Flook, and Diehr cases in which we argued that a machine process patentable in hardware is equally patentable in software. Here is exactly how we posed a “Question of Law” “in our 1980 Diehr brief

Whether a computerized machine or industrial process that is patentable subject matter under 35 USC 101 when constructed with a hardware program (wired circuits) would also be patentable subject matter when constructed with a stored computer program (i.e., firmware or software)?

The USPTO is currently in agreement with that “Question of Law” when in 1996 it published its Examination Guidelines for Computer-Related Inventions (Final Version). The Guidelines stated in its Introduction the following: “The Guidelines alter the procedure office personnel will follow when examining applications drawn to computer-related inventions and are equally applicable to claimed inventions implemented in hardware or software.”

Now he’s making a circular argument. An invention is patentable, if U.S. Patent and Trademark Office decides it is patentable. This is manifestly not true, again see KSR v. Teleflex where an invention that the USPTO decided was patentable was later ruled unpatentable by the United States Supreme Court.

In that 1980 Diehr brief we also posed the following argument to the Supreme Court:

An inventor demonstrates his new invention to his patent attorney with great pride; he has developed a cabinet for     reading books out loud to the blind. The cabinet contains both a reading and talking computer. After the demonstration, the patent attorney responds:

What’s inside the cabinet? Did you build it with software or hardware (a stored program or hardware circuitry)? If built with     a hardware program, your machine would be patentable. But if you built it with a stored program, the Patent Office would say it     was merely mathematics and, therefore, unpatentable.

The example above of a hypothetical “cabinet for the blind” invention was back in 1980 in our Diehr Amicus brief.

Twenty years later, in 2000, a renowned inventor, Ray Kurzweil received a patent named Reading System which Reads Aloud From An Image Representation Of A Document. The patent disclosure shows a diagram of a monitor, scanner, speakers, and a PC computer composed of a processor, storage and a keyboard. The essence of the disclosure and the invention is a logic chart describing a machine system which interacts with a speech synchronizer and the various devices.

The first sentence of the abstract in the patent stated “a reading system includes a computer and a mass storage device including software comprising instructions for causing a computer to accept an image file generated from optically scanning an image of a document.”

At that time, Ray Kurzweil’s company, Kurzweil Educational Systems marketed a special purpose hardware/software system called the Kurzweil 3000 Reading Machine which was marketed to the blind and poor readers. Their 2000 year patent protected this product from imitators. Today the company sells a software only system called Kurzweil 3000 and continues to have the protection of the patent system thru his original 2000 patent and with additional patents e.g., Reducing processing latency in optical character recognition for portable reading machine (which is a software-only patent).

Few would argue that the Kurzweil 3000 Reading Machine was not an invention and not deserving of a patent.

Actually a lot of people would argue this for several reasons.

1) Prior Art. I know of a description of a similar system dated to 1965.

2) Obviousness. The invention is an amalgamation of existing parts, that would be obvious to someone skilled in the field. Apple and Microsoft both produced technology that did most of this as early as 1990. All that Kurzweil did was take off the shelf components, cobble them together, and write some software, which did what existing software already could do.

This is one of the reasons I am so skeptical of the Patent system. All too often I see patents being issued for ‘inventions’ that do not appear to have required any inventiveness. Rather than being a source of innovation, the patent office more often seems to act as a method to exclude competition from a market, by making the cost of entry too high (prosecuting or defending a patent suit costs millions of dollars).

This is not to say that people don’t invent things. They do. But there are people who are gaming the system, and the way the system is set up, even if someone has been proved to be gaming the system, there is no punishment. Because there is no punishment, there is no incentive to act in an ethical manner, in fact acting in an ethical manner can be dangerous when your competition isn’t acting ethically.

While I am a strong advocate for software-related patents I have always been opposed to the patenting of Business Method Patents (BMPs). In my 2006 article Patents: Where’s the Invention? I stated that the Patent Office should do what the European Patent Convention did when it ruled that anything that consists of “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers” is not an invention and therefore not patentable.” Justice Stevens, in his Opinion also wanted to ban BMP’s from being patentable subject matter when he concluded that a method of doing business is not a “process” under 101.

Although the Bilski Opinion disallowed the Bilski application they stated that under certain conditions business methods could still be patentable subject matter. On July 27^th the USPTO set up more stringent rules for the issuance of BMPs in their Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos. In many ways those guidelines are similar to the way computer software and hardware patents are currently being treated under the 1996 Guidelines for Computer-Related Inventions.

You will note that he doesn’t define the difference between software patents and business method patents. In many cases the two overlap. This makes his opposition to business method patents somewhat self serving in my opinion. He appears to be trying to say that his software patent deserves protection because it isn’t a business method patent.

Part of the problem is he is arguing that anything that consists of schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers shouldn’t be patentable, however a sorting algorithm is a mental act, which would make his ‘invention’ not patentable.

One of the greatest challenges facing the Patent office today for BMPs, software or hardware patent applications is in discovering prior art and determining if there is an invention. The USPTO “Peer to Patent” pilot project” which allows the public (including professionals in their respective fields) to comment on patent applications is still in its infancy, but offers the potential to assist the Patent Office in rejecting the large number of applications that are filed each year. The stated goal of the pilot project was to “connect the USPTO to an open network of experts online.” Also, private companies e.g., the Article One Partners, a patent research firm, have the potential to significantly reduce the large number of patent litigation cases.

I am in partial agreement with what he has said. Prior Art is a huge issue. For example several attempts have been made to patent natural plants. The problem is less of discovering the prior art, than it is adding rules to the Patent System which punish misbehavior.

The other issue is that the USPTO seems to believe that it exists to help inventors to get patents, and to err on the side of the inventor if there is any question. It is abdicating it’s responsibility to act as a gate keeper, to ensure that the patents which are issued deserve to be issued. The USPTO is supposed to serve the public, and by not screening patents more rigorously it is not doing so.

In conclusion, while I am a strong proponent of software patents I am very aware, and agree with, many of the arguments against patents because of patent trolls, frivolous patents, e.g. Amazon’s one-click patent, and frivolous patent litigation that can put companies out of business. And I support changes in the Patent Law to reduce those problems. But if one believes in the how the Patent System has fostered innovation and helped the US grow and prosper, then there is no rational reason to eliminate technology inventions that use software as its implementation.

In my previous article there were many comments from diehards that continued to believe that software companies are trying to patent a computer program. Whether those diehards still believe that a computer program is mathematics, or a mathematical formula, or an algorithm, or an abstract idea, so be it. Computer software programs are not what software companies are trying to patent. A software patent invention is on a unique machine process —- nothing more and nothing less. And the criteria should be 1. Innovation 2. A proper disclosure and 3. Usefulness — the same requirement that is the criteria for all patentable subject matter.

What he’s saying is, See? I’m a nice guy. I oppose the Amazon one-click patent. Yeah, right.

Like most Americans, Martin is rather uneducated. Seriously. Americans really don’t know the history of their country. Oh, they can often rattle off the names and dates of battles, but they miss more important things.

Why did the Thirteen Colonies rebel against the British Empire? Most people will say that freedom is involved, but when you push, you quickly find out that they don’t know how.

The Thirteen Colonies rebelled against the English for economic reasons. The Empire was set up as a supplier of raw materials for English factories. Raw materials were shipped to England, and manufactured goods were shipped back. To keep this profitable setup in operation, it was necessary to pass legislation limiting the ability of the colonies to set up their own manufacturing plants.

A group of rich inhabitants of part of North America, including the very wealthy George Washington, didn’t like this. They wanted to set up their own factories in North America, so they could grab a slice of the huge market themselves. Factories in North America would have dramatically lower shipping costs than factories in England, which would be a huge advantage. The English merchants of course were opposed to this, as it would cost them money.

It ended up costing them money anyway, when the Colonies actually managed a successful rebellion against the Crown. Did you ever notice how many of the Founding Fathers were be-wigged aristocrats? Now you know why. The Founding Fathers were in it for the money, honey.

Their experiences with the British Empire model also made the Founding Fathers extremely skeptical of intellectual property protection. They had, after all, been on the short end of the stick, as one of the weapons that the British used against the colonies was patent law. Thomas Jefferson was particularly skeptical as this page at Monticello.org shows, though his attitudes changed later, possibly because he was able to make money from the patent system.

For another example of how the British Empire used the colonies as suppliers of raw materials, consider India. Before the British takeover of India, there were a lot of manufacturing operations. After the British took over, they closed most of them, and forced India to buy manufactured goods from England.

In closing, either Martin Goetz doesn’t know what he’s talking about, or he’s lying. I can’t see any other options.

Regards

Wayne Borean

Tuesday September 14, 2010

Oracle v. Google – Software Patents In Play

I’ve mostly been ignoring this up till now, but I think it’s time to take a look at it.

This is an interesting situation. Oracle is suing Google over the Java programming language. There are several issues that neither has to the present addressed. First, there’s an article that Jonathon Schwartz published on his blog while he was President and CEO of Sun, the predecessor in interest of Oracle (Oracle purchased Sun in April 2009) titled Congratulations Google, Red Hat and the Java Community! A careful read of the article, which was published eighteen months before the purchase, would give one the impression that Sun was pleased that Google had adopted Java, and was giving IMPLICIT AND PUBLIC PERMISSION FOR GOOGLE TO DO SO. Out of curiosity I emailed the link to Gene Quinn over at IPWatchDog to get his response. All he came back with was ‘thanks.’ If the article is taken as permission, then Oracle loses.

Another question involves the ‘specific machine’ issue. Pamela Jones wrote about this, and it could be very important. When I read the patents I didn’t see any tie them to a specific machine. The issue surrounds the constantly shifting U.S. Patent rules, which change every time a major patent court case happens. If it is deemed that a patent must be tied to a specific machine, then the patents are invalid, and Oracle looses.

Even if the patents don’t have to be tied to a specific machine, there is a good chance that they will fail, due to the subject matter being predated by something else, or by being ruled obvious, in which case Oracle loses. I’ve read the patents, and the things that they are talking about were implemented at least fifteen to twenty years previously in Unix.

If you are interested in reading the court filings, Pamela Jones is collecting all of the public ones at Groklaw, and they can be found here.

According to the case documents which have been released, Sun and Google had carried out negotiations over Java, and the negotiations broke down. The documents were less than clear on why the negotiations broke down, and you cannot trust court filings to give you an unbiased viewpoint, a court is after all an adversarial environment. And now that things have progressed to the lawsuit stage, both companies are remaining quiet, so as to not damage their chances in court.

A big question is why Oracle did this? We may find out in future court filings.

The last issue is, what do Java programmers do? Bradley M. Kuhn has suggested that no one should use a language that is controlled by any one company, no matter how friendly that they appear. We’ve already heard a lot of complaints about the C# implementation in Mono, which revolve around the same sort of situation. If programmers leave Java, the way Bradley has suggested, Oracle’s lawsuit may kill the golden goose.

The problem is that corporations are effectively sociopaths. They have no morals. They see no tomorrow. The only thing that matters is today’s profits. While certain individuals controlling corporations are less short sighted, the vast majority aren’t. The corporation may be your ally today. Tomorrow, it may be your enemy.

Regards

Wayne Borean

Saturday September 4, 2010

Patents – Why They Exist, And Why They Possibly Shouldn’t Exist – Part Two

This is a continuation of an earlier article, if you haven’t already you should read Patents – Why They Exist, And Why They Possibly Shouldn’t Exist.

One issue is that Americans think that their patent system is the be all and end all, and that everyone else should imitate them. Curiously a lot of Americans even believe that their Constitution requires that a patent system exist, due to a misreading of it. Here’s a typical comment:

Of course patents will never be abandoned in the US as they are enshrined in the constitution and are a bedrock principle of personal rights, freedom, and entrepreneurialism. But of course they need to be remodeled to engender their original form, function, and purpose.

Let’s take a look at what the Constitution actually says in Section Eight.

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The important word is shall. The definition of shall from Dictionary.com says:

–auxiliary verb,present singular 1st person shall, 2nd shall or (Archaic) shalt, 3rd shall, present plural shall; past singular 1st person should, 2nd should or (Archaic) shouldst or should·est, 3rd should, past plural should; imperative, infinitive, and participles lacking.

1. plan to, intend to, or expect to: I shall go later.

2. will have to, is determined to, or definitely will: You shall do it. He shall do it.

3. (in laws, directives, etc.) must; is or are obliged to: The meetings of the council shall be public.

4. (used interrogatively in questions, often in invitations): Shall we go?

What this means is that Congress has the power to take action on the following lines. For example Line one states:

To borrow money on the credit of the United States;

If we follow the argument that those who claim the Constitution requires a patent system, this would also require the United States Government to borrow money. I’m sure that the banks would love this. Let’s take a look at another line:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

If we take the argument that Congress MUST do everything under Section Eight, would someone please explain to me why Congress has not issued a Letter of Marque in over a hundred years? Obviously Congress isn’t following the Constitution! Quick, impeach them! For that matter they have to declare WAR – they don’t have any choice in the matter, that’s what the Constitution says. And the line that everyone squeals about is worded in the same way.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The point being that the Constitution gives Congress these powers, but Congress is not required to exercise them. And the Constitution also leaves the execution totally open to Congress. Congress could decide that the appropriate duration of a patent is one year for example, or thirty days. Or three hundred years. It’s all up to Congress. Also Congress gets to define certain things, for example the term ‘exclusive right’ could be interpreted in many ways, and has to be defined by Congress.

Just think – if the founders had wanted to require that patents exist the wording would have been:

The Congress will lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The wording isn’t that different, but there is a huge difference in meaning.

Now going back to the original wording, someone said to me:

…but number three, the legal definition, is “must, is or are obliged to”. Surely that means “must”?

Yep, that’s what it says. But look at the original wording again – ‘shall have the power’ – so they have the power, but there is no requirement to use it. It’s very carefully worded. It amazes me how a country that is so backward in so many ways (Health Care for example), could have a Constitution that is so well written. Really, as an American friend of mine put it

you poor Canadians – it must be like living next door to the Simpsons

his comment came from a discussion about the new Republican website where they are taking suggestions. Read this:

The Republican voter base speaks out on the House GOP website. My favorite example: “A ‘teacher’ told my child in class that dolphins were mammals and not fish!” a third complains. “And the same thing about whales! We need TRADITIONAL VALUES in all areas of education. If it swims in the water, it is a FISH. Period! End of Story.”

The above is from an article published by the Washington Post which would be hilarious if it wasn’t so damned scary.

In closing, here’s another quote from a friend, and it’s a damned important one:

It appears that for Disney & Co. “two or three milleniums” is still “limited.”

Legally Congress could do that. Wouldn’t that be wonderful?

This is the end of Part Two – Part Three to Follow.

Regards

Wayne Borean

Thursday May 27, 2010

Patents – Why They Exist, And Why They Possibly Shouldn't Exist

As an aside, my thanks to PJ for her article ‘Who Should See the Film ‘Patent Absurdity’? – Pick Your Brain‘ which inspired this. Also my thanks to the makers of the film ‘Patent Absurdity‘ which can be watched online or downloaded freely here. Note that you will need Firefox or another browser that can handle OGG files to watch it online. If you download it the best option for watching it is VLC (neither Windows Media Player nor Apple Quicktime are capable of working with open standards for some reason – you should ask Microsoft and Apple why).

Patents are another interest of mine. I’ve been following the arguments for and against software patents in the United States and European Union closely. In the United States at the current time software is patentable due to a change in case law. In the European Union a recent court case in Germany has made software patentable (see this article by Florian Mueller). In Canada software cannot be patented, and the courts have been very definite on this as has the Canadian Intellectual Property Office.

I’m a cynical old bastard – and that’s the polite way of putting it. The first question I always ask is who is stealing from whom? Let’s take a look.

First we need to define what a Patent is. From Wikipedia we get:

The word patent originates from the Latin patere, which means “to lay open” (i.e., to make available for public inspection), and more directly as a shortened version of the term letters patent, which originally denoted an open for public reading royal decree granting exclusive rights to a person.

In simple terms a patent is a trade by society – society gives the patent holder an exclusive right to manufacture the patented device for a period of time, while the patent holder discloses how the device is made and works. Exact details vary from jurisdiction to jurisdiction. The World Intellectual Property Organization is attempting to standardize the rules worldwide. ACTA is an attempt by certain countries to bypass the WIPO, so that they can enact rules that are more favorable to them.

Modern Patent Law can be traced back to the Statute of Monopolies of 1623. Again I’m going to quote Wikipedia:

The Parliament of England‘s Statute of Monopolies of 1623 (21 Jac. 1, c.3) provided strict rules on the circumstances in which the first inventor of a given item could be given exclusive rights to that invention, provided that it was not “contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient”.

The Statute of Monopolies is now seen as the origin of patent law respectively.^[1] It was introduced in the reign of James I in response to abuse of the previous system whereby the king could grant of arbitrary monopolies for the production of particular goods or the provision of particular services by letters patent to the detriment of commerce. The act attempted ineffectively to mitigate the many previous grants of monopolies of trade.

The first such monopoly was granted in England to an innovator was by Henry VI in 1449 to the inventor of a new technique for the the manufacture of stained glass.

As it says above, one of the major reasons that patent law was standardized was so that ‘arbitrary monopolies’ couldn’t be granted. Say that somehow I gain a patent on table salt, even though it’s been in use for thousands of years. That patent would be an unearned license to print money, since I didn’t invent table salt, and that’s one of the things that patent law is designed to prevent.

The legal profession (specifically the ‘Patent Bar‘) has a vested interest in how the patent system works, just like any other specialists will have a vested interest in the laws that effect their field of endeavor. Some patent lawyers are trying to expand the range of patentable items. The usual reason stated is that without patent protection no one will expend resources in Research and Development, and that innovators deserve to make a profit. Through court cases such as State Street Bank v. Signature Financial Group they have attempted (and sometimes succeeded) in expanding the range of patentable items. One case that is very important to the U.S. Patent Bar is in re Bilski wherein the Supreme Court of the United States has agreed to hear a patent case. Depending upon the ruling, it could either expand or contract patentable subject matter in the United States.

At the same time, many large companies have a vested interest in patent law. Consider Steve Ballmer’s recent claim that Android isn’t free. The company that Steve Ballmer heads, Microsoft, has been filing a lot of patents recently. His argument in respect to Android, is that they’ve patented key technologies that Android has to be using. If Steve Ballmer is right, Android is infringing on Microsoft’s patents. But are Microsoft’s patents valid? Microsoft’s patents are mostly related to software. If the Supreme Court decides that software patents are not valid, then Microsoft has just wasted a lot of money on patents that aren’t valid.

And there’s also various technology consortiums like MPEG LA. MPEG LA holds a variety of patents which cover video display among other things, and licenses them to technology companies. But what do those patents really cover? If the patent is for a hardware system to display video, and someone builds a software implementation to display video, does the software implementation infringe the patent? Since the two implementations are totally different, legally it is hard to see how a software implementation could infringe a hardware patent, as differing hardware implementations are often ruled not infringing (for example if a hardware patent used platinum as a component, and a differing implementation used palladium, the palladium implementation would not infringe – and yes, I know of a case where this was the ruling). MPEG LA is claiming that it would infringe. Since MPEG LA appears ready to test this in court, and defending patent suits in the United States usually costs several millions of US dollars, it is possible that MPEG LA could win by running their target out of money. While this sort of action may be legal, it may not be ethical. However ethics are one of the things that the law of the United States seems to have not considered. Of course MPEG LA may be distracted at present, since they are facing Antitrust Allegations in the United States.

In the United States the following text from Section Eight the Constitution forms the basis of patent law and copyright

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The stated reason is to ‘promote progress’. The question is whether or not the current patent law regime in the United States promotes or impedes progress? My sometime sparring partner and member of the patent bar, Gene Quinn, is of the opinion that an exceptionally strong patent law does indeed promote progress. Ronald Riley, founder of the Professional Inventors Alliance, also favors extremely strong patent law protection. Both are of the opinion that software should be patentable.

Most software engineers don’t agree. Richard Stallman, one of the truly elite software developers has spoken out many times about the dangers of software patents. Curiously those most in favor of software patents appear to be lawyers from the Patent Bar.

This is the end of Part One, Part Two is to follow.

Regards

Wayne Borean

Thursday May 27, 2010

How Much Did Microsoft Pay HTC To Sign The Patent Licensing Agreement?

Microsoft issued a press release claiming that HTC will be paying royalties on shipments of Android phones. Most news organizations took Microsoft’s statement at face value, but it left me puzzled, so I did a little bit of digging.

First, HTC has a fair number of patents. Unlike Microsoft’s patents, HTC’s are almost all for handheld devices, like mobile phones. Now I didn’t read all of the patents on both sides (I don’t have the time) however you can be sure that HTC knows what they hold, and they also know that Microsoft has a new phone that will be released this fall. Quite frankly based on what I could see, Microsoft is far more exposed than HTC is.

So why would HTC pay Microsoft? They wouldn’t. What I suspect happened (and we’ll never know the truth because there’s a non-disclosure agreement in place) is that Microsoft paid HTC a large sum of money, and then HTC agreed to pay a small sum of money per phone sold. Just for the argument, assume that Microsoft paid HTC $25,000,000.00 for access to HTC’s patents, and HTC is to pay Microsoft $0.001 per phone sold…

Now I don’t know that this is what happened, but from what I can see, it’s the only thing that makes sense with the patents that HTC holds. Microsoft pays HTC a lot of cash, so that HTC will pay Microsoft a small amount of cash per phone. Oh, there’s a bit of accounting work involved, but HTC comes out well ahead financially, and Microsoft can scream at everyone that HTC is paying it for using Android, and actually be telling the truth (the SEC gets upset if you don’t tell the truth).

That Microsoft isn’t telling the whole truth, well, that doesn’t matter, does it?

Regards

Wayne Borean

Wednesday May 19, 2010

Why I Will Not Link to Amazon Anymore

My thanks to Doctor Roy Schestowiz of Boycott Novell for his article which mentioned that Microsoft and Amazon had signed a Patent Licensing Agreement. If I hadn’t read his article, I wouldn’t have known about this. So I guess you can blame Roy for making me write this 🙂

I’ve linked to Amazon a lot in the past. I often mention books, and always provide a link to where the book can be bought. I often talk about computer sales numbers, and Amazon’s top selling list is really handy. But then Amazon signs a deal with Microsoft. A deal in which Microsoft claims that the agreement covers Amazon’s use of Linux based servers. Let’s take a look at Microsoft’s Press Release:

REDMOND, Wash. — Feb. 22, 2010 — Microsoft Corp. today announced that it has signed a patent cross-license agreement with Amazon.com Inc. The agreement provides each company with access to the other’s patent portfolio and covers a broad range of products and technology, including coverage for Amazon’s popular e-reading device, Kindle™, which employs both open source and Amazon’s proprietary software components, and Amazon’s use of Linux-based servers. Although specific terms of the agreement are confidential, Microsoft indicated that Amazon.com will pay Microsoft an undisclosed amount of money under the agreement.

“We are pleased to have entered into this patent license agreement with Amazon.com,” said Horacio Gutierrez, corporate vice president and deputy general counsel for Intellectual Property and Licensing at Microsoft. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates our mutual respect for intellectual property as well as our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.”

The licensing agreement is another example of the important role IP plays in ensuring a healthy and vibrant IT ecosystem. Since Microsoft launched its IP licensing program in December 2003, the company has entered into more than 600 licensing agreements and continues to develop programs that make it possible for customers, partners and competitors to access its IP portfolio. The program was developed to open access to Microsoft’s significant R&D investments and its growing, broad patent and IP portfolio. In recent years, Microsoft has entered into similar agreements with other leading companies, including Apple Inc., HP, LG Electronics, Nikon Corp., Novell Inc., HOYA CORPORATION PENTAX Imaging Systems Division, Pioneer Corp., Samsung Electronics Co. Ltd. and Fuji Xerox Co. Ltd.

Curiously Amazon did not issue a press release about this – at least if they did it’s not in the Amazon Media Room. From what I can see so far, it looks like the deal that Microsoft signed with Amazon probably includes a clause that allows Microsoft to be the only party to speak about it. This sort of clause is dangerous, since the party that’s speaking can lie about what exactly is covered. I am sending an inquiry to Amazon, with a link to this article, and will post their response.

Microsoft claimed several years ago that Linux infringes on 235 of it’s patents. Curiously they didn’t say what patents. Quite probably this is because Microsoft is not confident that the patents in question would hold up under examination. Linus Torvalds, who started the Linux Kernel project, and runs it to this day, said in response to the claim that the Kernel infringes on 42 patents that

‘If Microsoft were to actually tell people what patents they claim we violate, we could either laugh in their face and show prior art, or just show them to be obvious, or we could do things differently.’

By signing a deal with Microsoft, for technology that the Free and Open Source Community developed, Amazon has shown a lack of respect for the ‘Intellectual Property’ of the Free and Open Source Software Community. Amazon’s action is an attack on the community. It can also be considered an attack on the Constitution of the United States of America, which states

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The wording above makes mention only of the Authors and Inventors. The drafters of the U.S. Constitution clearly meant that only the Author or Inventor of a work or invention can speak for that work or invention. Therefore if there are issues with a work or invention, the party who has the issues must approach the Author or Inventor, not a third party such as Amazon. In simple terms, Amazon has no right to admit that the Linux Kernel infringes on Microsoft’s patents, only the Authors or Inventors of the Kernel have that right. By making an admission that they have no right to make, Amazon has engaged in what is known as ‘Slander of Title.’

Someone will of course point out that Microsoft made the announcement, not Amazon. The issue here is that Microsoft is implying that Amazon agrees with Microsoft’s statement, since they have not issued a clarification.

Since Amazon has shown a lack of respect for the Community’s Intellectual Property, the Community should remove their support from Amazon. Many members of the community have links to Amazon on their websites. Many members of the Community buy from Amazon. Many members of the Community use Amazon’s e-commerce system. Since Amazon has acted against the best interests of the Community, the Community should act against the best interests of Amazon. Stop linking to Amazon. Stop buying from Amazon. Stop using Amazon’s e-commerce systems.

It’s often argued that a boycott is a bad way to fight a problem. Those who argue against using boycotts do so for a very good reason. Boycotts work. Boycotts work really well, in that they hit the offending company where it really hurts, in their sales. And that’s why so often you hear arguments about boycotts. Because they do work, and the offenders are terrified of the results.

So I won’t link to Amazon any more. I can’t stop buying from them, because I never have (I prefer Indigo). If enough people stop using Amazon, they will respond. They’ll have to. Think of it as Evolution in Action.

Or of course Amazon could just issue a statement that the agreement they signed wasn’t about Linux, and that Microsoft has been less than truthful.

Wayne Borean

Thursday March 18, 2010

Apple Sues HTC For Patent Infringement – Mad Hatter Article Confuses Everybody

My wife tells me that I don’t have to explain everything to everyone, that they aren’t stupid. The problem is that she’s used to me, and my sometimes wild conceptual swings, and the rest of the world isn’t. So let’s take a look at the things that people have questioned me about over the last twenty-four hours.

1) I was accused of attacking IBM. This has me really confused. I didn’t mean to attack IBM (not that I wouldn’t if I felt like it). I don’t see where I attacked IBM. And I haven’t heard back from the person who says I did. So I don’t know what he meant.

2) A bunch of people thought that I was advocating stealing from Apple. After talking to a couple of the people who accused me of that, I understand what their problem is. They think, that since Apple has patents that were issued by the United States Patent and Trademark Office (USPTO) that Apple owns the ‘Intellectual Property’ covered, and that attacking the validity of Apple’s patents meant stealing from Apple. I pointed out that if the patents were invalidated by a previously issued patent that it would be Apple that was stealing the ‘Intellectual Property’ from someone else.

2.1) When they asked how it was possible that a patent could be issued to cover technology that had already been patented, I pointed out that people make mistakes, and that the USPTO was staffed by people.

2.2) When they asked what the situation was if the technology hadn’t been previously patented, I pointed out that the wheel had never been patented, and that patenting a technology like the wheel was illegal. Again, the USPTO is staffed by people, and people make mistakes, and it was possible that Apple had been issued a patent that they legally should not have been issued.

3) Another argument was that Apple has made a lot of contributions to the Free and Open Source Software Community, and that therefore Apple should get special treatment. After all, the community isn’t involved, Apple is suing HTC. But what if the technologies that Apple is suing HTC over originated in the community? Should Apple be able to attack HTC for using things that the community invented?

4) Why should the community be allowed to sue over non-compliance with the General Public License (GPL), if Apple can’t sue to protect it’s patented inventions? This is the best argument that anyone has given me. Apple has the same right to protect it’s ‘Intellectual Property’ that the community has. But there are some significant differences between copyright infringement and patent infringement. Both are incorrectly lumped under the catch-all term ‘Intellectual Property’, along with Trademarks. Richard Stallman has written an excellent article called ‘Did You Say ‘Intellectual Property’? It’s a Seductive Mirage‘ on why the term is wrong and shouldn’t be used.

4.1) It’s a lot easier to prove Copyright Infringement than it is Patent Infringement. The GPL lawsuits have had very solid proof behind them. The Apple suit against HTC may or may not have this level or proof behind it. At this point we don’t know.

4.2) Patents protect a specific way of doing something. Let’s assume that I am issued a patent on a four stroke spark ignited reciprocating internal combustion engine, and you are building a two stroke spark ignited reciprocating internal combustion engine. You don’t infringe on my patent. It is quite possible that the patent that Apple has been issued isn’t infringed by the technology in the HTC phones. Or for that matter I’m issued a patent for one type of sort, and you’ve invented another. We both based our sort on an earlier type, but we implemented the our sorts using different algorithms, and therefore your sort doesn’t infringe on my patent.

As I said in the original, I haven’t read Apple’s patents yet, and I have no idea how strong their case against HTC is. That doesn’t matter. What matters is the perception that by suing HTC for it’s use of Android, which is based on technology developed by the community, that Apple is attacking the community. The community doesn’t like being attacked, and is taking action against Apple.

So if you are considering a lawsuit against a competitor who uses Free and Open Source Software in the product you claim infringes on your patents or copyrights, don’t expect the community to like what you are doing, and do expect them to do something about it.

Wayne Borean

Tuesday March 16, 2010

Apple Sues HTC For Patent Infringement, Shoots Self in Foot in Front of Information Technology Staffers Worldwide

People who aren’t in IT are going to read the title and respond WTF, but everyone in Information Technology (IT) knows what I mean. Let’s go back. Way back. To 1980, when CP/M was the Operating System of Choice.

Back in the good old days, thirty years ago, technology companies suing each other wasn’t something that IT staff really concerned themselves about on a personal level. Oh, if you worked for one of the companies involved, you were concerned. Otherwise? No.

Since then things have changed a lot. There is a far better sense of community now, enabled by the conversion of the Arpanet into the Internet. People talk to each other a lot more now. Thirty years ago most people I knew lived within a hundred miles of my home. Now I know people all over the world. So does everyone else.

And then there has been a series of legal cases – cases which have made IT cynical about the legal system, and the companies that use it. Especially the companies that use it.

Unix System Laboratories v. BSD Incorporated and the University of California – in many ways this was one of the seminal cases which changed the attitude of IT towards companies that use the legal system against their competitors. It ended in a sealed settlement. A settlement that left the community unsure, and very unhappy. Ten years later using California’s Public Records Law, a Groklaw member called dburns obtained a copy of the settlement, which Groklaw dissected, to the delight of the community. Tis case may have directly been responsible for the success of Linux, in that people who might have worked on the BSD kernel worked on the Linux kernel instead due to the legal uncertainty.

SCO Group v. International Business Machines, Inc. – the actions of the SCO Group (previously known as Caldera International) were regarded by most of the community as a direct attack on the community, even though IBM was the legal target. SCO claimed that IBM had copied millions of lines of source code directly from the Unix Operating System into GNU/Linux. When SCO turned down the community’s offer to re-write the supposedly infringing parts of GNU/Linux, the initial confusion in the community was replaced by a dogged determination to strike back. The community quickly determined that SCO’s claims were bogus by checking every claim that SCO made against the source code files in the Linux kernel. The fact that SCO (when it was still called Caldera) had open sourced an earlier version of the Unix Operating System helped. Groklaw was one of the nodes of resistance that formed, and the line by line dissection of the various filings by Pamela helped confirm that SCO was lying . One of the things that really got IT upset was how the two major players, Ralph Yarro and Darl McBride attempted to use the ‘religion’ card (both claimed to be devout Mormons – claimed – their lies prove that they weren’t).

Gordon v. Microsoft and Comes v. Microsoft – two of the Anti-Trust cases brought against Microsoft, the public filings made very interesting reading, and showed that Microsoft was no friend of the IT community, regarding them as little more than sheep to be fleeced.

Jacobsen v. Katzer – This case aroused a lot of anger. Jacobsen was part of a group that wrote the JMRI Open Source program to control model trains. Katzer infringed on the copyright, and also illegally filed for patents on the JMRI project work. Katzer then sent threatening letters to Jacobsen. Jacobsen launched a suit against Katzer in self defence. After six years the case was finally settled, with Jacobsen winning. Kind of. It cost him a lot of money to defend himself (remember, the suit was launched in self defence after he was threatened by Katzer.)

Microsoft Patent Claims – Microsoft claims that Free/Open Source Software infringes on 235 of it’s patents. Microsoft won’t say what patents, assuming that they really know themselves, and that ‘He Who Throws Chairs‘ (Steve Ballmer) didn’t dream the entire thing up. Microsoft’s patents are software patents. The community regards software patents as bogus, because Mathematics aren’t patentable in the United States, and software is mathematics. Also in every case where a software patent has been used in litigation, the community has been able to find prior art, or proof that the patent was ‘obvious.’ Much to the community’s annoyance, the US Patent Office recently confirmed the Amazon ‘One Click‘ Patent, which has been a poster boy for ‘worst patent ever’ to the community.

There are other cases as well, but these are some of the ones that angered the community most. Most of them were seen as direct attacks on the community, and like any community it doesn’t like to be attacked, and has a tendency to attack back.

And now we’ve got Apple. Apple had generally been regarded as an OK company. It makes code contributions to the community, uses Free and Open Source Software in it’s core products (OSX is based on FreeBSD, Safari is based on Webkit, etc). Apple has been somewhat litigious, but the lawsuit against HTC is the ‘straw that broke the camel’s back.’ Whether the lawsuit has any legal or technical merits doesn’t matter. What matters is that Apple has taken an action that the IT Community doesn’t approve of.

Legally Apple’s suit may have merits (another article will deal with this). That doesn’t matter. Apple has, by launching this suit, proven a disdain for the IT Community’s mores. The community has had to deal with a lot of issues, especially over the last ten years, and as The SCO Group found out, if you piss off the community, the community will come after you.

A company like IBM, while big, is easy to fight. Compare IBM to an elephant. Large. Singular. You only have one target, and because of it’s size, it’s damned hard to miss. Which is why elephants are an endangered species. You only need one gun to kill an elephant.

The IT Community is made up of individuals. Lots of individuals. Millions of individuals. Compare the community to mosquitos. You can kill a mosquito with a gun, but if you do it will be more luck than skill. And like mosquitos the community doesn’t attack all from one direction, or all in one way. But they do attack, and they keep on attacking, until the target is dead.

And this is what Apple is facing. Apple doesn’t know it yet, but Apple (unless it settles with HTC really quickly) is probably dead.

For those of you who don’t understand what I’m talking about, I’m going to list actions. Actions that the community is already taking.

1. Recommend that people not buy Apple. Remember that the IT Community controls a huge proportion of the IT spending in North America, Apple’s home turf. When your IT staff recommend you avoid a vendor, you listen, because they know what they are talking about (if they don’t, why did you hire them?) And for those who will argue that Apple is a very small part of corporate spending, don’t forget that many IT people have been recommending Apple to their family and friends as an excellent and safe alternative to the disaster that is Windows.
2. Researching ‘Prior Art’ to invalidate the patents Apple is using against HTC. HTC’s legal team now has several million technical experts working to kill Apple’s patents for free. After all, if the patents are invalidated, then the lawsuit dies.
3. Building bigger and better Free and Open Source Software applications so that users have alternatives to Apple software. A good example is Garage Band – the reason I own and use Mac’s is that they are the best option if you own a recording studio, and I own a recording studio. None of the Free and Open Source Software available at present will do what I need, which is why I switched from GNU/Linux to Mac OSX three years ago. Since the IT Community is mad at Apple, a lot of programmers are going to look at what they can do to make Apple’s Value Proposition disappear. Garage Band won’t be the only target, but it’s the one that would make the most difference to me.

And of course Apple is vulnerable. While Apple has done a good job of integrating hardware and software in all of it’s product lines, Apple is extremely vulnerable to the three attacks listed above (and other attacks that I haven’t mentioned because I haven’t thought of them – but some clever person has…) Sure, Apple has a lot of money in the bank, and it builds a good product, but what does Apple do if people stop buying?

I think Apple has just shoot themselves in the foot. Badly. Oh, the damage won’t be visible for a while, but it’s there, and unlike Microsoft, Apple doesn’t have a monopoly to rely on.

Wayne Borean

Monday March 15, 2010