FFII news Pipes Output http://pipes.yahoo.com/pipes/pipe.info?_id=EBIGYHOU3BGAxjFMn0artA Fri, 27 Nov 2009 12:46:50 -0800 http://pipes.yahoo.com/pipes/ News: Kalow and Springut: Patentable Subject Matter After 'Bilski' http://www.digitalmajority.org/forum/t-196581/kalow-and-springut:patentable-subject-matter-after-bilski The machine or transformation test is the current analysis that the courts and the Patent Office will take when considering whether subject matter is patentable. As both Bilski and Prometheus show, this question is not industry specific, but it is particularly important when an inventor is trying to obtain patent rights directed to processes. Because of the changing landscape, and the likelihood that whatever the Supreme Court does, there will remain unanswered questions about where the boundaries lie, the patent practitioner should always consider trying to claim processes both broadly and as tied to devices and/or causes one or more transformations. http://www.digitalmajority.org/forum/t-196581 Fri, 13 Nov 2009 09:03:03 -0800 "The machine or transformation test is the current analysis that the courts and the Patent Office will take when considering whether subject matter is patentable. As both Bilski and Prometheus show, this question is not industry specific, but it is particularly important when an inventor is trying to obtain patent rights directed to processes. Because of the changing landscape, and the likelihood that whatever the Supreme Court does, there will remain unanswered questions about where the boundaries lie, the patent practitioner should always consider trying to claim processes both broadly and as tied to devices and/or causes one or more transformations."

Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202435413110&Patentable_Subject_Matter_After_Bilski

]]> News: The H: New Microsoft patent may put Linux security components at risk http://www.digitalmajority.org/forum/t-196513/the-h:new-microsoft-patent-may-put-linux-security-components-at-risk Microsoft has been granted a patent on a privilege escalation system which appears to cover the functionality of PolicyKit, which is used for fine grain authorisation on Ubuntu, Fedora, openSUSE and other Linux systems. http://www.digitalmajority.org/forum/t-196513 Fri, 13 Nov 2009 02:51:38 -0800 "Microsoft has been granted a patent on a privilege escalation system which appears to cover the functionality of PolicyKit, which is used for fine grain authorisation on Ubuntu, Fedora, openSUSE and other Linux systems."

Source: http://www.h-online.com/security/news/item/New-Microsoft-patent-may-put-Linux-security-components-at-risk-857848.html

]]> News: Groklaw: Microsoft Patents Sudo?!! http://www.digitalmajority.org/forum/t-196282/groklaw:microsoft-patents-sudo It appears that Microsoft has just patented sudo, a personalized version of it. Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft. http://www.digitalmajority.org/forum/t-196282 Thu, 12 Nov 2009 11:45:00 -0800 "It appears that Microsoft has just patented sudo, a personalized version of it. Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft."

Source: http://www.groklaw.net/article.php?story=20091111094923390

]]> News: Ciaran O'Riordan: Bilski’s hearing and software patents http://www.digitalmajority.org/forum/t-195608/ciaran-o-riordan:bilski-s-hearing-and-software-patents At Monday’s hearing, neither party had the objective of abolishing software patents. The Bilski case is about a business method patent, so there was Mr. Jakes arguing that business methods should be patentable, and Mr. Stewart arguing that they shouldn’t. For software to be excluded, we’re relying on the judges (to whom we wrote an amicus brief, as did many others). There’re a few worrying statements, but there’s also a lot of hope. http://www.digitalmajority.org/forum/t-195608 Tue, 10 Nov 2009 08:09:48 -0800 "At Monday’s hearing, neither party had the objective of abolishing software patents. The Bilski case is about a business method patent, so there was Mr. Jakes arguing that business methods should be patentable, and Mr. Stewart arguing that they shouldn’t. For software to be excluded, we’re relying on the judges (to whom we wrote an amicus brief, as did many others). There’re a few worrying statements, but there’s also a lot of hope."

Source: http://news.swpat.org/2009/11/bilski-hearing-software-patents/

]]> News: Minutes of the Bilski Hearing http://www.digitalmajority.org/forum/t-195606/minutes-of-the-bilski-hearing Official transcript of the hearing Bilski vs. Kappos before the US Supreme Court, Nov 9 2009 http://www.digitalmajority.org/forum/t-195606 Tue, 10 Nov 2009 08:08:55 -0800 "Official transcript of the hearing Bilski vs. Kappos before the US Supreme Court, Nov 9 2009."

Source: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-964.pdf

]]> News: IPWatchdog: Bilski Arguments Complete at the US Supreme Court http://www.digitalmajority.org/forum/t-195268/ipwatchdog:bilski-arguments-complete-at-the-us-supreme-court At 2pm ET on November 9, 2009, Chief Justice John Roberts gaveled the session to a close announcing that the case had now been submitted. The arguments were good, and the Court was most assuredly hot, peppering both sides with question after question seeking to probe the issues. It is clear that the Supreme Court did their homework http://www.digitalmajority.org/forum/t-195268 Mon, 09 Nov 2009 13:23:01 -0800 "At 2pm ET on November 9, 2009, Chief Justice John Roberts gaveled the session to a close announcing that the case had now been submitted. The arguments were good, and the Court was most assuredly hot, peppering both sides with question after question seeking to probe the issues. It is clear that the Supreme Court did their homework."

Source: http://www.ipwatchdog.com/2009/11/09/bilski-arguments-complete-at-the-us-supreme-court/id=7217/

]]> News: IPWatchdog: Argument Day in Bilski at US Supreme Court http://www.digitalmajority.org/forum/t-195239/ipwatchdog:argument-day-in-bilski-at-us-supreme-court The Supreme Court will hear oral arguments in the Bilski matter. It is not an overstatement to say that the fate of much future innovation rests squarely on the Supreme Court getting this one right. [...] In a to the point dissent Judge Rader of the Federal Circuit said virtually all that needs to be said about Bilski: "This court labors for page after page [...] to say what could have been said in a single sentence: 'Because Bilski claims merely an abstract idea, this court affirms the Board’s rejection.'" Instead [Federal Circuit] seemed to dust off an opinion that had been previously written to be unveiled when the time was right, regardless of the facts of the case. [Why else] didn’t address the single issue presented by the Bilski patent application, but rather opined about methods in general. http://www.digitalmajority.org/forum/t-195239 Mon, 09 Nov 2009 11:20:17 -0800 http://www.ipwatchdog.com/2009/11/09/argument-day-in-bilski-at-us-supreme-court/id=7209/

]]> News: Business Method Patents: Technological Change, Not Judicial Activism http://www.digitalmajority.org/forum/t-195235/business-method-patents:technological-change-not-judicial-activism The last two decades have seen an extraordinary growth in the number of patent applications for business technologies and methods. Critics of business method patents tend to assign responsibility for this development to judicial activism by the judges of the Federal Circuit especially those responsible for the decision in State Street [...] The judicial activism thesis may have a superficial appeal. [...] Yet the judicial activism thesis suffers from multiple glaring problems and plainly cannot account for the timing of the rise in business method patenting, which plainly began well before State Street. http://www.digitalmajority.org/forum/t-195235 Mon, 09 Nov 2009 10:58:50 -0800 "The last two decades have seen an extraordinary growth in the number of patent applications for business technologies and methods. Critics of business method patents tend to assign responsibility for this development to judicial activism by the judges of the Federal Circuit especially those responsible for the decision in State Street […] The judicial activism thesis may have a superficial appeal. […] Yet the judicial activism thesis suffers from multiple glaring problems and plainly cannot account for the timing of the rise in business method patenting, which plainly began well before State Street."

Source: http://www.patentlyo.com/patent/2009/11/business-method-patents-technological-change-not-judicial-activism.html

]]> News: USA Today: Software patent case arrives at Supreme Court http://www.digitalmajority.org/forum/t-195223/usa-today:software-patent-case-arrives-at-supreme-court With the tech industry looking on, the Supreme Court today will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software. A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software. http://www.digitalmajority.org/forum/t-195223 Mon, 09 Nov 2009 10:18:52 -0800 "With the tech industry looking on, the Supreme Court today will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software. A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software."

Source: http://www.usatoday.com/money/companies/regulation/2009-11-09-patents09_ST_N.htm

]]> News: Rob Tiller (Red Hat): Patent law must not stifle innovation http://www.digitalmajority.org/forum/t-195222/rob-tiller-red-hat:patent-law-must-not-stifle-innovation In a world of constantly accelerating technological change, economic prosperity depends on innovation. To support such innovation, it is vital that our patent system be well-calibrated, so that overly broad patent monopolies do not choke innovation. In the last several years, patent standards have been relaxed by the courts, which has created a patent system that hinders innovation in the software industry. The Supreme Court now is considering a case, Bilski v. Kappos, that may address this critical problem. http://www.digitalmajority.org/forum/t-195222 Mon, 09 Nov 2009 10:18:03 -0800 "In a world of constantly accelerating technological change, economic prosperity depends on innovation. To support such innovation, it is vital that our patent system be well-calibrated, so that overly broad patent monopolies do not choke innovation. In the last several years, patent standards have been relaxed by the courts, which has created a patent system that hinders innovation in the software industry. The Supreme Court now is considering a case, Bilski v. Kappos, that may address this critical problem."

Source: http://www.newsobserver.com/business/story/178809.html

]]> News: High Court Must Lower Bar For Patents http://www.digitalmajority.org/forum/t-195221/high-court-must-lower-bar-for-patents In upholding a lower court ruling, the federal circuit wrote that a business process (like online banking) must be `tied to a machine' or transform `a substance into a different state or thing' in order to qualify for patent protection. This `machine or transformation' test, as it is called, is too rigid to incite innovation. If the circuit court ruling is upheld, it could have a negative effect on Connecticut technology companies where the ability to patent innovations in business systems is critical to be competitive and maintain customers. http://www.digitalmajority.org/forum/t-195221 Mon, 09 Nov 2009 10:16:27 -0800 "In upholding a lower court ruling, the federal circuit wrote that a business process (like online banking) must be ‘tied to a machine’ or transform ‘a substance into a different state or thing’ in order to qualify for patent protection. This ‘machine or transformation’ test, as it is called, is too rigid to incite innovation.
If the circuit court ruling is upheld, it could have a negative effect on Connecticut technology companies where the ability to patent innovations in business systems is critical to be competitive and maintain customers."

Source: http://www.courant.com/news/opinion/editorials/hc-chaclas-pitney-patent.artoct30,0,5438710.story

]]> News: Eben Moglen: An Important Patent Law Precedent Approaches http://www.digitalmajority.org/forum/t-195220/eben-moglen:an-important-patent-law-precedent-approaches The SFLC and I recently filed a brief in Bilski v. Kappos, along with plenty of other lawyers, and I gave a talk about the case, and the future of patent law, this morning at Cardozo Law School. The outpouring of amicus briefs in this case, which will be heard by the Court on November 9, must be particularly noticeable to the Justices and their law clerks: a stack of dozens of third-party briefs seeking attention would have been the lunchtime talk of that inner core of the Court back when I worked there, and I'm pretty sure that hasn't changed. A high stack of amicus briefs [...] means people outside the Supreme Court think the case is important. Bilski is very important indeed. http://www.digitalmajority.org/forum/t-195220 Mon, 09 Nov 2009 10:14:54 -0800 "The SFLC and I recently filed a brief in Bilski v. Kappos, along with plenty of other lawyers, and I gave a talk about the case, and the future of patent law, this morning at Cardozo Law School. The outpouring of amicus briefs in this case, which will be heard by the Court on November 9, must be particularly noticeable to the Justices and their law clerks: a stack of dozens of third-party briefs seeking attention would have been the lunchtime talk of that inner core of the Court back when I worked there, and I'm pretty sure that hasn't changed. A high stack of amicus briefs […] means people outside the Supreme Court think the case is important. Bilski is very important indeed."

Source: http://www.huffingtonpost.com/eben-moglen/an-important-patent-law-p_b_342962.html

]]> News: A Math Geek's Ride to the High Court in Landmark Patent Fight http://www.digitalmajority.org/forum/t-195218/a-math-geek-s-ride-to-the-high-court-in-landmark-patent-fight Bernie Bilski and Rand Warsaw were just a couple of "math geeks for hire" from Pittsburgh when they applied for a patent in 1997. They had an idea for making the unpredictable predictable for utility companies: a way to make energy bills consistent, month to month, no matter what Mother Nature had in store, weatherwise. WeatherWise USA Inc. is the name of their company, in fact. What Bilski and Warsaw did not predict is that their patent application would be rejected and, on appeal, would make its way to the U.S. Supreme Court 13 years later. http://www.digitalmajority.org/forum/t-195218 Mon, 09 Nov 2009 10:13:42 -0800 "Bernie Bilski and Rand Warsaw were just a couple of "math geeks for hire" from Pittsburgh when they applied for a patent in 1997. They had an idea for making the unpredictable predictable for utility companies: a way to make energy bills consistent, month to month, no matter what Mother Nature had in store, weatherwise. WeatherWise USA Inc. is the name of their company, in fact. What Bilski and Warsaw did not predict is that their patent application would be rejected and, on appeal, would make its way to the U.S. Supreme Court 13 years later."

Source: http://www.law.com/jsp/article.jsp?id=1202435264768&A_Math_Geeks_Ride_to_the_High_Court_in_Landmark_Patent_Fight

]]> News: Finnegan Lawyer Challenging 'Machine or Transformation' Patent Test Says He's Ready http://www.digitalmajority.org/forum/t-195215/finnegan-lawyer-challenging-machine-or-transformation-patent-test-says-he-s-ready If the Litigation Daily were prepping for our first Supreme Court argument--no snickering, please--in a case that's considered one of the critical business controversies of the Court's term, we would be a damn sight more nervous than J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner. On Monday, Jakes is arguing Bilski v. Kappos, a closely watched IP case that will help decide whether business methods are patentable. But last Thursday afternoon, when we called him, Jakes was at his desk, sounding decidedly unfazed about his first U.S. Supreme Court argument. http://www.digitalmajority.org/forum/t-195215 Mon, 09 Nov 2009 10:12:11 -0800 "If the Litigation Daily were prepping for our first Supreme Court argumentno snickering, pleasein a case that's considered one of the critical business controversies of the Court's term, we would be a damn sight more nervous than J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner. On Monday, Jakes is arguing Bilski v. Kappos, a closely watched IP case that will help decide whether business methods are patentable. But last Thursday afternoon, when we called him, Jakes was at his desk, sounding decidedly unfazed about his first U.S. Supreme Court argument."

Source: http://www.law.com/jsp/tal/digestTAL.jsp?id=1202435239067

]]> News: Christian Science Monitor: Supreme Court to decide: What kind of innovations get a patent? http://www.digitalmajority.org/forum/t-195214/christian-science-monitor:supreme-court-to-decide:what-kind-of-innovations-get-a-patent The US Supreme Court on Monday takes up the most fundamental question in patent law: Which innovations deserve the protection of a patent? The answer holds billion-dollar implications for the American economy. At issue is whether US patent protection must be limited to inventions involving machines and transformative processes, or whether patent law also embraces nonphysical inventions like improved business methods and software innovations. http://www.digitalmajority.org/forum/t-195214 Mon, 09 Nov 2009 10:11:08 -0800 http://www.csmonitor.com/2009/1108/p02s13-usju.html

]]> News: Ciaran O'Riordan: Abandoning software patents? http://www.digitalmajority.org/forum/t-194494/ciaran-o-riordan:abandoning-software-patents On Monday, November 9th, the Supreme Court will hear the case of Bilski's business method patent. Being the first review of patentable subject matter since 1981, this decision could make the rules for decades to come. The court will review the 2008 ruling of the CAFC which created the "particular machine or transformation" test. This test, depending on who's reading it, could significantly narrow the scope for patenting software ideas. The Supreme Court isn't obliged to rule on the patentability of software ideas. Bilski's patent is a business method patent, not a software patent. So why might the court make a broad ruling which would cover software? For people who are already aware of the legal arguments, I'd like to offer a review of the socio-economic arguments for abandoning software patents. http://www.digitalmajority.org/forum/t-194494 Fri, 06 Nov 2009 12:16:06 -0800 "On Monday, November 9th, the Supreme Court will hear the case of Bilski's business method patent. Being the first review of patentable subject matter since 1981, this decision could make the rules for decades to come. The court will review the 2008 ruling of the CAFC which created the "particular machine or transformation" test. This test, depending on who's reading it, could significantly narrow the scope for patenting software ideas. The Supreme Court isn't obliged to rule on the patentability of software ideas. Bilski's patent is a business method patent, not a software patent. So why might the court make a broad ruling which would cover software? For people who are already aware of the legal arguments, I'd like to offer a review of the socio-economic arguments for abandoning software patents."

Source: http://www.patentlyo.com/patent/2009/11/abandoning-software-patents.html

]]> News: SD Times Editors: Let’s hope for a court ruling writ large http://www.digitalmajority.org/forum/t-194492/sd-times-editors:let-s-hope-for-a-court-ruling-writ-large When the U.S. Supreme Court rules in the now-famous Bilski case, it should take the opportunity to level the playing field for entrepreneurs whose work has been impeded by patent trolls and broad corporate patent portfolios. http://www.digitalmajority.org/forum/t-194492 Fri, 06 Nov 2009 12:02:31 -0800 "When the U.S. Supreme Court rules in the now-famous Bilski case, it should take the opportunity to level the playing field for entrepreneurs whose work has been impeded by patent trolls and broad corporate patent portfolios."

Source: http://www.sdtimes.com/FROM_THE_EDITORS_LET_S_HOPE_FOR_A_COURT_RULING_WRIT_LARGE/By_SD_TIMES_EDITORIAL_BOARD/About_PATENTS_and_JAVA_and_ORACLE/33879

]]> News: What has happened to the RSS feed http://www.digitalmajority.org/forum/t-193347/what-has-happened-to-the-rss-feed Where are all the news stories gone??? Is this site still operating? http://www.digitalmajority.org/forum/t-193347 Mon, 02 Nov 2009 01:16:39 -0800 Where are all the news stories gone??? Is this site still operating?

]]> Digimaj: FFII and IP Justice file Bilski Amicus Brief to the U.S. Supreme Court http://www.digitalmajority.org/forum/t-187043/ffii-and-ip-justice-file-bilski-amicus-brief-to-the-u-s-supreme-court The Foundation for a Free Informational Infrastructure (FFII) and IP Justice filed an Amicus Curiae Brief to the U.S. Supreme Court. The case Bilski v. Kappos is expected to become a landmark ruling on the future of the U.S. patent system. The joint Brief explains the interlink of software and business methods, and points out alternatives to the so called Machine-or-Transformation test used for categorizing patents. http://www.digitalmajority.org/forum/t-187043/ffii-and-ip-justice-file-bilski-amicus-brief-to-the-u-s-supreme-court Wed, 07 Oct 2009 05:14:29 -0700 Washington DC, 6 October 2009 — The Foundation for a Free Informational Infrastructure (FFII) and IP Justice filed an Amicus Curiae Brief to the U.S. Supreme Court. The case Bilski v. Kappos is expected to become a landmark ruling on the future of the U.S. patent system. The joint Brief explains the interlink of software and business methods, and points out alternatives to the so called Machine-or-Transformation test used for categorizing patents.

Bilski v. Kappos, currently pending before the U.S. Supreme Court, is considered the single most important decision worldwide on the issue of patents on business methods, software and algorithms since the rejection of the Software Patents Directive by the European Parliament.

"In Europe there still exists a myth of 'anything goes' as far as patentability in the US is concerned, although the Supreme Court has laid down rather strict rules on what is eligible subject matter - and what is not." says Laura Creighton, a Swedish entrepreneur.

"Software literally consists of abstract ideas", explains Dr. Peter Gerwinski from the FFII Bilski Working Group. "We have asked the Supreme Court to consider some practical realities and to formulate a test that preserves the traditional exclusion of abstract ideas from the field of patentable material."

FFII Secretary André Rebentisch highlights the transatlantic significance: "It is a delicate challenge of the U.S. Supreme Court: to find an applicable tests for patent examination of business methods. We lack a definite yardstick, a 'quadrature of the patent'. We cannot wait to see the Supreme Court's approach because it will shape the international harmonization debate."

Links

Contact

Benjamin Henrion
FFII Brussels Office
+32-2-414 84 03
+32-484-566109
bhenrion at ffii.org
(French/English)

About

The Foundation for a Free Information Infrastructure (FFII) e. V. is a charitable association registered in Munich, Germany which is dedicated to the spread of data processing literacy. It funds the development of public information works based on copyright, free competition and open standards. The FFII attained broad international recognition for its phrontistery role in the European debate on a software patent directive (2002-2005) and software-related patent reform.

IP Justice is an international California-based civil liberties organization for the furthering of a balanced intellectual property law.

]]> Software Patents Digimaj: IBM says software patents drive OSS development http://www.digitalmajority.org/forum/t-179907/ibm-says-software-patents-drive-oss-development In its Amicus Brief to the US Supreme Court on the Bilski case, IBM is arguing that "patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development." http://www.digitalmajority.org/forum/t-179907/ibm-says-software-patents-drive-oss-development Wed, 02 Sep 2009 15:30:25 -0700 In its Amicus Brief to the US Supreme Court on the Bilski case, IBM is arguing that

patent protection has promoted the free sharing of source code […] which has fueled the explosive growth of open source software development.

IBM also argue that the machine-or-tranformation test allow software to be patented, and that:

software patent protection provides significant economic, technological, and societal benefits.

IBM also "finds alarming decisions in the wake of Bilski concluding that software is excluded from patentable subject matter" making references to the BPAI decisions on Ex Parte Altman. IBM also says that they are "committed to ensuring that such technology [software] is and remains patentable"."

]]> Software Patents NoOOXML: OOXML as a response http://www.noooxml.org/forum/t-179085/ooxml-as-a-response Why did OOXML come into existence? http://www.noooxml.org/forum/t-179085/ooxml-as-a-response Sat, 29 Aug 2009 11:59:49 -0700 James D. Mason says:

I spent 22 years as the chairman of what is now ISO/IEC JTC1/SC34. SC34 is the committee that standardized SGML in the 1980s and now is responsible for both ODF, supported by many open-source products, and OOXML, the XML released by Microsoft in response to ODF. Neither ODF nor OOXML has anything to do with ODA/ODIF, which have been dormant since the turn of the current century but were still under development in the 1990s in a committee that was parallel to the one that became SC34.

Our past analysis: OOXML is a response. Thank you very much for the confirmation. Stronger language from Mason found in this article.

]]> Front-page News: BrusselsBubble: The new European Parliament: too close to business? http://www.digitalmajority.org/forum/t-178892/brusselsbubble:the-new-european-parliament:too-close-to-business The committee on economic and monetary affairs (ECON), responsible for regulating the financial sector, will be chaired by British MEP Sharon Bowles. Bowles was previously accused of having a conflict of interests after pushing for software patents while also being partner in a law firm run by her husband representing clients with a direct interest in software patent protection. There has also been controversy over the newly-elected chair of the Legal Affairs Committee, Klaus Heiner Lehne. During the previousl administration, Lehne was one of the MEPs pushing strongly for software patents. At the same time he was a partner at Taylor Wessing, a law firm with a large patent department advising clients on patenting strategy in the software sector. http://www.digitalmajority.org/forum/t-178892 Fri, 28 Aug 2009 05:04:27 -0700 "The committee on economic and monetary affairs (ECON), responsible for regulating the financial sector, will be chaired by British MEP Sharon Bowles. Bowles was previously accused of having a conflict of interests after pushing for software patents while also being partner in a law firm run by her husband representing clients with a direct interest in software patent protection. There has also been controversy over the newly-elected chair of the Legal Affairs Committee, Klaus Heiner Lehne. During the previousl administration, Lehne was one of the MEPs pushing strongly for software patents. At the same time he was a partner at Taylor Wessing, a law firm with a large patent department advising clients on patenting strategy in the software sector."

Source: http://brusselsbubble.blogspot.com/2009/07/new-european-parliament-too-close-to.html

]]> News: Ubuntu: Patent Policy http://www.digitalmajority.org/forum/t-176488/ubuntu:patent-policy The Ubuntu project strives to deliver a free and complete Operating System fit for general use. Over the years the topic of software patents and their impact on Open Source have been controversial in some parts of the world. This policy outlines the agreed set of standards and procedures surrounding software patents and Ubuntu. http://www.digitalmajority.org/forum/t-176488 Mon, 17 Aug 2009 08:12:16 -0700 "The Ubuntu project strives to deliver a free and complete Operating System fit for general use. Over the years the topic of software patents and their impact on Open Source have been controversial in some parts of the world. This policy outlines the agreed set of standards and procedures surrounding software patents and Ubuntu."

Source: https://wiki.ubuntu.com/PatentPolicy

]]> NoOOXML: Softpatent trolls OOXML and Word http://www.noooxml.org/forum/t-175409/softpatent-trolls-ooxml-and-word The Amageddon of Open XML. Redmond graps the bitter fruits from nuturing the software patent troll legislative environment. Soft patents are a nightmare for software companies and prohibit the company to sell MS Word. http://www.noooxml.org/forum/t-175409/softpatent-trolls-ooxml-and-word Wed, 12 Aug 2009 02:07:56 -0700 The Seattle PI reports about a tragic patent ruling in the United States.

A Texas judge ruled Tuesday that Microsoft cannot sell one of its flagship products, Word, in the United States because of patent infringement. …Judge Leonard Davis.. ordered a permanent injunction that "prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML," according to an announcement by the plaintiff, Toronto-based i4i Inc.

i4i? Ah, the world famous inventor of the "Method and system for manipulating the architecture and the content of a document separately from each other" which is so basic to our digital societies?

PERMANENT INJUNCTION
In accordance with the Court’s contemporaneously issued memorandum opinion and order
in this case, Microsoft Corporation is hereby permanently enjoined from performing the following
actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more
than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing
and Future Word Products”) during the term of U.S. Patent No. 5,787,449:
1. selling, offering to sell, and/or importing in or into the United States any
Infringing and Future Word Products that have the capability of opening a .XML,
.DOCX, or .DOCM file (“an XML file”) containing custom XML;
2. using any Infringing and Future Word Products to open an XML file
containing custom XML;
3. instructing or encouraging anyone to use any Infringing and Future Word
Products to open an XML file containing custom XML;
4. providing support or assistance to anyone that describes how to use any
infringing and Future Word Products to open an XML file containing custom XML;
and
5. testing, demonstrating, or marketing the ability of the Infringing and Future
Word Products to open an XML file containing custom XML.
This injunction does not apply to any of the above actions wherein the Infringing and Future
Word Products open an XML file as plain text.
This injunction also does not apply to any of the above actions wherein any of the Infringing
and Future Word Products, upon opening an XML file, applies a custom tranform that removes all
custom XML elements.
This injunction further does not apply to Microsoft providing support or assistance to anyone
that describes how to use any of the infringing products to open an XML file containing custom
XML if that product was licensed or sold before the date this injunction takes effect.
This injunction becomes effective 60 days from the date of this order.
__________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 11th day of August, 2009.

Patent problems

We may add that while Microsoft always pays lip service to patent reform and patent quality, it effectively obstructed even moderate steps of pragmatic reform in the field of software patenting with massive lobbying investment and an ideological agenda. An ideological motivation you don't find among all the other players which have a real business. The massive lobbying also applies to colonial attitudes towards patent regimes of third nations in which the American company operates, or the European Union, our main area of operations as the FFII e.V. Ironically Microsoft itself is a favourite target of troll challenges and no one knows how much profits Marshall Phelps actually generates by selling their Microsoft FAT patents. In the spectacular case of TomTom we were told it was a very small amount. Some American critics as Brian Kahin speak of a patent bubble of low value patents but how is it going to burst? When you have a licensing business a good patent is one that hurts. Maybe the Encyclopedia Brittannica is an example, it failed commercially and now became an (unsuccesful) patent enforcement agency against actual market players.

In the recent referral G03/08 about software patentability an European Patent Office case named T 424/03 (Microsoft) was center to the debate. Find the Amicus letters here. Currently you also have a pending referral on Bilski in the US Supreme Court which is more far reaching than software. In the US many examination tests were dismantled such as the machine or transformation box test which opened the flood gates and unbalanced the system. It was reintroduced under the Bilski ruling but appealed at the supreme court. The Bilski test does not rule out software or business method patents but provides means to reduce the pressure within the examination system in later stages.

First you wreck the law, then the trolls wreck you.

Software Patents are a pain for market players of all sizes. In Europe some people from the FFII Community run a new Petition and we also prepare an international effort. The FFII, a charity under German law financed by membership fees and donations, has a lot of expertise and proposals on how to overcome the current troll problems and improve the examination and litigation system. Unfortunately learning the hard way does not guarantee a quick learning process.

What does it mean to Open XML?

Right now ISO/IEC 29500 ("OOXML") is patent encumbered and cannot be called an "open standard" according to conventional definitions and looks unusable for the public sector. Microsoft's own patents and lack of licensing clarity were a real concern, but i4i's enforcement efforts are on another level. ISO Open XML is currently in a critical situation as you can expect more enforcement attempts of i4i to follow in order to sqeeze money out of the market, in particular once Microsoft is forced to pay. On the other hand Microsoft will be forced to use all legal means to get rid of the patent. We need to keep a close eye on the upcoming developments but i4i may not prevail.

Expect the FFII, Eurolinux and many others to fight for that.

]]> Front-page NoOOXML: Open XML is a foul apple http://www.noooxml.org/forum/t-174351/open-xml-is-a-foul-apple So you are using Mac MS-Office? Giant fail! http://www.noooxml.org/forum/t-174351/open-xml-is-a-foul-apple Fri, 07 Aug 2009 05:45:37 -0700 Imagine that, Apple supported Microsoft's Open XML standardisation. Last week’s Microsoft Office 2008 Service Pack 2 (SP2) release wasn't so great for Mac Office users, a giant fail. You know, when you have a multibillion office applications business who would dare to test for crossplattform compatibility of file formats before you release the service pack? No one does, and Apple users of the Mac Office were absolutely outraged about Open XML.

The recommendation from Microsoft is that users roll back to an earlier version. So here is the official workaround for Office users:

• Remove Office manually, reinstall Microsoft Office 2008 for Mac from the original installation media, and then upgrade to Office 2008 for Mac 12.1.9 Update. Do not upgrade to Microsoft Office 2008 for Mac Service Pack 2 (12.2.0) from Microsoft AutoUpdate.
• Use Time Machine to roll back to Office 2008 for Mac 12.1.9 Update or an earlier version.
• Convert your document to .doc, .xls, or .ppt, by using Open XML Converter.

There is a more simple fix: Open file formats as ODF and more competition. Maybe you'd better try other word processors for instance Openoffice for Mac or Neooffice?

]]> Front-page NoOOXML: 800 pages of defect for OOXML, here it is http://www.noooxml.org/forum/t-174349/800-pages-of-defect-for-ooxml-here-it-is 800 pages of defect for OOXML, here it is. ISO is such a transparent organisation that they are afraid of the web, and the public light of the blogosphere. Here is the leak for you. http://www.noooxml.org/forum/t-174349/800-pages-of-defect-for-ooxml-here-it-is Fri, 07 Aug 2009 05:41:09 -0700 800 pages of defect for OOXML, here it is. ISO is such a transparent organisation that they are afraid of the web, and the public light of the blogosphere. Here is the leak for you [3.9MB, PDF].

ooxmldefect800pagesv2-400x.png

If you have time to read it, there are probably nice bits in there.

]]> Front-page NoOOXML: ISO will meet in Redmond, dinner paid by Microsoft http://www.noooxml.org/forum/t-174347/iso-will-meet-in-redmond-dinner-paid-by-microsoft The capture of the ISO process by the vendor is not finished. The next ISO SC34 meeting, who should review more then 800 pages of defects of OOXML. will be held in Redmond, at a stone throw of Microsoft's headquarters. Remember the dinner in Korea? http://www.noooxml.org/forum/t-174347/iso-will-meet-in-redmond-dinner-paid-by-microsoft Fri, 07 Aug 2009 05:24:17 -0700 The capture of the ISO process by the vendor is not finished. Microsoft is organising the next ISO SC34 meeting in Redmond on OOXML maintenance. The next ISO SC34 meeting, who should review more then 800 pages of defects of OOXML, will be held in Redmond, at a stone throw of Microsoft's headquarters. Remember the dinner in Korea?

Microsoft will be the "social host" of the Seattle meetings, hosting the reception and dinner, etc. They will also be organizing a Document Interoperability Initiative (DII) event to occur the day after the SC34 Plenary, at Microsoft, to announce how they intent to support Office 2010 as extensions to OOXML.

The previous DII event organised by Microsoft in Brussels was basically a meeting of the Microsoft ecosystem.

Here is the announcement of the meeting on the SC34 website:

For general questions about Westin meeting logistics, or things to do around Seattle, please contact Dave Welsh, moc.tfosorcim|hslewmd#moc.tfosorcim|hslewmd, cell phone +1 206 313 0879.

[…]

More hotel options, at different rates, are also available. For more hotel options in the immediate Bellevue area and the Seattle vicinity, please try Live.com.

[…]

Located in downtown Bellevue, just twenty minutes outside Seattle, The Westin Bellevue is situated minutes from major corporate offices including Microsoft, Nintendo of America, T-Mobile, and Expedia.

You can expect a lot of people member of the Microsoft ecosystem at the next SC34 meeting in Redmond.

]]> Front-page NoOOXML: New Wordprocessing Patent http://www.noooxml.org/forum/t-174344/new-wordprocessing-patent Does it make you feel comfortable to sit on mined grounds? http://www.noooxml.org/forum/t-174344/new-wordprocessing-patent Fri, 07 Aug 2009 04:45:43 -0700 Word-processing document stored in a single XML file that may be manipulated by applications that understand XML

A word processor including a native XML file format is provided. The well formed XML file fully represents the word-processor document, and fully supports 100% of word-processor's rich formatting. There are no feature losses when saving the word-processor documents as XML. A published XSD file defines all the rules behind the word-processor's XML file format. Hints may be provided within the XML associated files providing applications that understand XML a shortcut to understanding some of the features provided by the word-processor. The word-processing document is stored in a single XML file. Additionally, manipulation of word-processing documents may be done on computing devices that do not include the word-processor itself.

Inventors: Jones; Brian M. (Redmond, WA), Bishop; Andrew K. (Redmond, WA), Snyder; Daniel R. (Bellevue, WA), Sawicki; Marcin (Kirkland, WA), Little; Robert A. (Redmond, WA), Krueger; Anthony D. (Woodinville, WA)
Assignee: Microsoft Corporation (Redmond, WA)
Appl. No.: 11/005,183
Filed: December 6, 2004

]]> Front-page Digimaj: What's wrong with the United Patent Litigation System (UPLS)? http://www.digitalmajority.org/forum/t-167729/what-s-wrong-with-the-united-patent-litigation-system-upls A journalist of WorldIPReview recently asked FFII what were its views of the proposed United Patent Litigation System (UPLS), which is now being questioned by the Council in a submission to the ECJ. FFII had already published a press release mentioning the new push for software patents in Europe via a centralised and trusted court. http://www.digitalmajority.org/forum/t-167729/what-s-wrong-with-the-united-patent-litigation-system-upls Wed, 08 Jul 2009 04:54:44 -0700 A journalist of WorldIPReview recently asked FFII what were its views of the proposed United Patent Litigation System (UPLS), which is now being questioned by the Council in a submission to the ECJ. FFII had already published a press release mentioning the new push for software patents in Europe via a centralised and trusted court.

Here are some answers to the questions of the journalist, note that I did not touch on the subject of "Where is the European Parliament?" in the legislator section.

Q1: What particular element of the United Patent Litigation System (UPLS) proposal has initiated concern regarding software patents?

1. Centralisation

The United Patent Litigation System (UPLS) is heavily inspired from the European Patent Litigation Agreement (EPLA). They have a lot of similarities, inside the FFII we call the UPLS the EU-EPLA, which is the EPLA rebranded with a EU flag on top to make it look like an EU project.

The UPLS and EPLA have in common that they are both international treaties, and not EU regulation (directive, council framework decision, etc…) per se. It means that other countries that are non-EU (such as Turkey, Iceland or even the United States) could potentially join the treaty. The fact that it is not an EU piece of law means that the legislator won't be the European Parliament. As we saw with other international treaties such as ACTA, those treaties are typically negotiated behind closed doors, and the Parliaments (the European one or the nationals ones) typically do not have a say over their content. The UPLS is mainly a piece of legislation written by bureaucrats of the Commission and Government officials, with no input whatsoever from members of those parliaments.

The pro-software patent lobby, mainly represented by EICTA members (mainly Philips, Siemens, Alcatel, Nokia, Ericsson) or BSA (heavily driven by Microsoft) called members of the EPP party some days before the vote of failed software patent directive, asking them to vote for rejection, and push for a central patent court instead.

The divergence of opinions of several courts in Europe (mainly Germany and UK) was the argument the Commission used in 2002 to issue a directive proposal on the subject:

http://web.archive.org/web/20000818230031/www.freepatents.org/agree/images/pat1.png

With the elimination of different courts and creation of a central patent court for validity cases, the disparity of interpretations by different courts has been abolished.

This disparity is important, because it shows to the legislator where there is conflict of interpretation, and where the legislator should intervene to clarify.

2. Legislator

The problem with creating a international patent court between several countries is to balance it with a legislator, who would be competent to correct the behaviour of such court.

In the present state, the legislator would be the government officials signatory of the European Patent Convention, among which you find often that they belong to National Patent Offices.

This conflict of interests has been denounced during the strike of EPO examiners a while ago.

The influence of National Patent Office was also very important during the software patent directive in the Council, where the decision to support software patents was motly made by officials from National Patent Offices.

3. Trusted patent judges

Specialized patent judges have a tendency to favour the patentee, and in the case of the UPLS, they will be handpicked.

The main reason to avoid the creation of patent tribunals inside the ECJ legal system is to be able for the patent establishment to be able to handpick their judges.

Among the top patent judges in Europe, it is pretty easy to see which judges favour software patentability and which do not. The pro software patents will be a criteria for selecting judges. You can expect for example that the delegation of Germany will propose candidates that will favour a narrow and hair-stretched interpretation of the EPC, like the EPO technical board of appeal is doing with "software … as such", software is technical, further technical effect, and so on.

4. No judicial review by the ECJ

One of the main battle right now is the competence by the ECJ to review the behaviour of such court.

The UPLS is a seperate legal system from the EU legal system, and is not connected to it in any meaningfull way.

The US experience with specialized patent courts shows that those courts have interpreted the law broadly, they have notably lowered the threshold of obviousness, allowed software and business method patents, or granted automatic injunctions.

Rencently, the US Supreme Court is taking more and more case for review, in order to correct the abuse behaviour of such specialized patent courts. Such mecanism would not be available in the present draft of the UPLS. It is not surprising to hear that the patent establishment is heavily lobbying against it.

Q2: If software patents are enabled by the UPLS, what might be the effects on how computer programmers work? Please give examples

1. Higher total costs of litigation

The fact that a regional court can issue EU-wide injunctions to stop a potentially infringing product is quite a powerful instrument.

You can expect damages to be calculated in function of the size of the market, in this case the whole EU, plus other countries which will be part of the UPLS agreement.

This is basically what is happening in the United States, where district courts issue US-wide injunctions with US-wide damages.

The patent industry, when trying to justify the need for the UPLS, mostly never mention this.

EU-wide injunctions and damages will be an incentive for patent trolls to enforce their patents.

The other problem with the UPLS is the cost of the procedure. Right now, 90% of cases are not cross-border cases (in one country only), and the Commission and other UPLS proponents try to solve a problem encountered in 10% of cases.

The UPLS, with its system of specialized patent courts, and its international dimension, carries a high probability to raise the lawyer's fees for the majority of non-cross border disputes (90% of cases). Since the system will be fully specialized, patent lawyers will definitely raise their prices. This might be sensitive for Eastern countries, where the cost of litigation is pretty low, compared to western standards.

2. EU-wide injunctions to stop a software product

The main risk with such system is to have a very favourable regional court issuing quasi-automatic EU-wide injunctions in order to stop the diffusion of a suspected infringing product.

There has been recently a hearing in the European Parliament about the IPRED1 directive, where a french expert said french judges were now forced to issue injunctions in the case of "suspicion" of infringement, instead of "quasi-certainty" of infringement.

Right now, it is very complicated for a patentee to obtain an EU-wide injunction, because he has to go to every jurisdiction, and this has never happened up to now. The "lis pendens" mecanism has also provided that a court in one member state has to wait for the outcome of a case in another country if the same patent and the same facts are involved in a pending procedure.

A typical example is the RIM case in the US, where the Blackberry was very close to be wiped out of the US market with a US-wide injunction.

3. Out of court settlements for most of European players

There will be a strong pressure for most software players in Europe to bow to out-of court settlements. It can be expected that in most cases, the cost en entry to go to court will still be too high, especially for very small companies (1 to 10 employees), which represent the majority in the software sector.

The result of this will be the near obligation to sign unfavourable out-of-court settlements.

While large software companies has the means and the ability to defend themselves and go until the end of the court procedure, most of the european software players don't have the financial ressources nor the time to afford litigation in court. This is what we explained in the FFII's submission in July 2006 at the public hearing organised by the Commission on the consultation:

http://press.ffii.org/Press_releases/FFII_statement_given_at_EU_patent_policy_hearing

"[…] if you are an SME and accused of patent infringement, it becomes harder to defend yourself because litigation just became more expensive. And if you cannot defend yourself, you will be forced to license, even if the patent is weak or invalid."

4. Loss of legal certainty

It is merely impossible for software producers and users to know if the software they are producing/using/reusing is not infringing a patent. The whole software patent system makes the software development impossible, by creating a situation where producers and users are under a constant threat of being sued. It is not surprising to see that 85% of companies who were questionned in the issue in a survey in Germany fear that software patents might impede their work.

The copyright system provides a legal system where there are very few lawsuits, and when there might be infringement, those are most of time clear and sharp, and thus quickly resolved. This is the total opposite with software patents, since most of them are very broad and thus, which maximise the probability of infringement for the patentee.

Q3: Aside from the software patents element, what is your perspective on the UPLS as a whole?

I don't think it will fly. The main reasons are:

1. Location of the courts: member states don't agree for more then 30 years about where to locate the courts. The UPLS do not provide any indication where the courts will be located, and this is left out of the agreement because it is a too hot potato.

2. Lack of judicial review by the ECJ: I think several member states wants to see a judicial review by the ECJ, notably to avoid the risk of pro-patent courts that would not be "correctable" by a senior court. The US example is very telling about what the EU system would look like with the UPLS, without the fact that you would have a kind of US Supreme court to correct abusive behaviours.

3. Other legal problems, such as:
a. link with national constitutions: in most countries, parties have the right to appeal to a constitutional court, which won't be the case with UPLS cases; this is sensitive in the case where judges might be biaised in favour of one of the parties; you can think to the recent Piratebay case in Sweden where the judges are member of copyright lobby groups.
b. some constitutions of some member states require that the judge is of the nationality of such state: this is the case for France or Bulgaria for example.
c. languages: it is not given that citizens will be able to use their language to defend themselves.
d. impossibility for the EU to join the EPC: the amendments proposed by the Commission do not talk about how the EU (which is not a state as such) would have access to the International Court of Justice (which is only accessible to states member of the UN) in the Hague in case of disputes around the interpretation of the treaty.

Q4: What advantages and disadvantages can you foresee if the UPLS is implemented?

Advantages

  1. EU-wide injunctions and damages for patent holders
  2. EU-wide revocation of a patent for defendents
  3. Possible invalidation of software patents EU-wide (not very likely, but possible)
  4. High costs of litigation, good for the patentee to reach a deal out of court
  5. Uniform caselaw developed for software and biotech patents
  6. No diverging decisions over the same patent by multiple courts

Disadvantages

  1. No real legislator to correct decisions of such international patent court
  2. No divergence of decisions which might show to the legislator where to intervene
  3. Possible validation of software patents EU-wide (very likely)
  4. Possible forum-shopping with a pro-patent court located in Turkey, Latvia or somewhere else
  5. More incentives for patentees to litigate and enforce their patents
  6. Pro-patentee courts
  7. Raise of the costs of litigation for most member states and stakeholders, due to the specialisation of the courts
  8. Possible EU-wide injunctions to stop a product (think to the Blackberry removed at the scale of the EU)
  9. No judicial review to correct the eventual deviance of such specialized courts
  10. Potential higher costs of litigation for the patent holder
]]> Software Patents Digimaj: The Bilski test was invented by IBM http://www.digitalmajority.org/forum/t-166887/the-bilski-test-was-invented-by-ibm By reading the Amicus Brief of IBM to the CAFC, it is pretty clear that the machine tranformation test which allows software patents and ban business method patents was invented by IBM lawyers. http://www.digitalmajority.org/forum/t-166887/the-bilski-test-was-invented-by-ibm Fri, 03 Jul 2009 10:34:31 -0700 By reading the Amicus Brief of IBM to the CAFC, it is pretty clear that the machine tranformation test which allows software patents and ban business method patents was invented by IBM lawyers:

IBM respectfully submits that the gravamen of that precedent, as informed by the constitutional objective of "promot[ing] the Progress of Science and useful Arts," is that a patentable "process" within the meaning of § 101 is one that involves a technological contribution — namely, a process that either (i) is tied to a particular machine or apparatus, or (ii) causes transformation or reduction of an article to a different state or thing, and in either instance produces technologically beneficial results. This test sets forth a reasonable and balanced standard for subject matter eligibility.

This test is now being interpreted by several US courts and the Board of Patent Appeals and Interferences (BPAI) as allowing software patents (read the article "Bilski at the BPAI - What a Mess (Part 1)" on 271patent blog):

Claim: (Ex Parte Buhan) A method for storing content encrypted by control words in a receiver/decoder unit having a local storage unit and being connected to a security unit, said control words as well as a necessary right for the access to the content being transmitted in entitlement messages that can be decrypted by system keys, the method comprising …

BPAI: We note a receiver/decoder unit having a local storage unit is mentioned in the preamble, which storage unit is embodied in the first step of storing the encrypted content. We also note in the preamble a security unit, which is embodied in the second step of storing the system keys. Both the local storage unit and the security unit constitute tangible, solid, real-world machines, the former exemplified by a magnetic hard disk, and the latter by a smart card (See Fig. 1). We find these elements sufficient for satisfying the “particular machine” prong of the Bilski machine or transformation test, and thus find the Examiner erred in rejecting these method claims.

The Bilski test to validate software patents is an invention of IBM. Now let's guess what the new USPTO president David Kappos will defend at the US Supreme Court against Bilski. Conflict of interests, no one?

See also the IAM article:

IBM welcomes today's en banc Federal Circuit decision in the In re Bilski case, as it excludes from patent eligibility business method inventions that are not tied to a machine or transformative of an article. The Federal Circuit's "machine-or-transformation" test was a primary component of the test that IBM advocated in our amicus brief.

]]> Software Patents Digimaj: USPTO refuses to disclose Bilski's pending patent application http://www.digitalmajority.org/forum/t-164353/uspto-refuses-to-disclose-bilski-s-pending-patent-application The US Supreme Court will soon hear Bilski on why software and business method patents are so good for the US economy. I was trying to find out where the Bilski's pending patent application was published, and I ended up writing to the new USPTO President and ex-IBM David Kappos. I finally got an answer from a USPTO official that the Bilski's pending patent application cannot be seen by the public. http://www.digitalmajority.org/forum/t-164353/uspto-refuses-to-disclose-bilski-s-pending-patent-application Mon, 22 Jun 2009 05:34:41 -0700 The US Supreme Court will soon hear Bilski on why software and business method patents are so good/harmful for the US economy. I was trying to find out on Google and other search engines where was the Bilski's pending patent application, and I end up writing to the new USPTO President and ex-IBM David Kappos. I finally got an answer from a USPTO official that the Bilski's pending patent application cannot be seen by the public:

Bahr, Robert <vog.otpsu|rhaB.treboR#vog.otpsu|rhaB.treboR>
to gro.iiff|noirnehb#gro.iiff|noirnehb
date Mon, Jun 22, 2009 at 12:31 PM
subject Copy of the Bilski pending patent application

Dear Mr. Henrion,

I understand that you have a question as to why the USPTO's administrative file of the Bilski application is not available to the public. The application at issue in Bilski is not a published or patented application, and thus must be maintained in confidence under 35 USC 122(a). The Bilski application was the subject of an appeal to the US Court of Appeals for the Federal Circuit (Federal Circuit), and the relevant portions of the USPTO's administrative file of the Bilski application was filed with the Federal Circuit during this appeal. These portions of the USPTO's administrative file of the Bilski application are part of the Federal Circuit's records, and any member of the public may inspect the Federal Circuit's records. The USPTO's administrative file for the Bilski application, however, is not open to public inspection. This is explained at MPEP 1216.01.

I hope you find this information useful

Regards,

Robert W. Bahr
Senior Patent Counsel
Office of the Deputy Commissioner
for Patent Examination Policy

For those who wants to submit an Amicus Brief to the US Supreme Court, this is nearly mission impossible without the pending patent application. Some blog mention claim 1, but this is not enough to understand what the patent is about:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate correspoding to a risk postion of said consumer; (b) identifying … (c) initiating a series of transactions between said commodity provider and…

]]> Software Patents Digimaj: Patent expert Alison Crofts says EPLA is pushed by pro-software patents lobby http://www.digitalmajority.org/forum/t-161598/patent-expert-alison-crofts-says-epla-is-pushed-by-pro-software-patents-lobby In its edition of IP Value 2007, the Intellectual Asset Magazine (IAM) was publishing an article about the Reform of European Patent System, where an expert mentions that the push for the EPLA is coming from the pro-software patents lobby. http://www.digitalmajority.org/forum/t-161598/patent-expert-alison-crofts-says-epla-is-pushed-by-pro-software-patents-lobby Tue, 09 Jun 2009 03:49:07 -0700 In its edition of IP Value 2007, the Intellectual Asset Magazine (IAM) was publishing an article about the Reform of European Patent System, where an expert (Alison Crofts from Dorsey & Whitney) mentions that the push for the EPLA is coming from the pro-software patents lobby:

The industry-based driving force behind the EPLA comes from the pro-software patent group as a way to ensuring that their software or potential software patents are fully enforceable across Europe.

]]> Software Patents Digimaj: European Patent Office refuses spanish amicus brief against software patents http://www.digitalmajority.org/forum/t-160636/european-patent-office-refuses-spanish-amicus-brief-against-software-patents Alberto Barrionuevo, CEO of the small spanish software company OpenTIA and ex-president of the FFII, had submitted an amicus brief to the Enlarged Board of Appeal in spanish. The European Patent Office has notified him that they are refusing his letter because it was not written in one of the 3 official languages of the EPO. http://www.digitalmajority.org/forum/t-160636/european-patent-office-refuses-spanish-amicus-brief-against-software-patents Thu, 04 Jun 2009 13:24:13 -0700 alberto_barrionuevo_small.jpg

Alberto Barrionuevo, CEO of the small spanish software company OpenTIA and ex-president of the FFII, had submitted an amicus brief to the Enlarged Board of Appeal in spanish. The European Patent Office has notified him that they are refusing his letter because it was not written in one of the 3 official languages of the EPO (French, English or German):

From: DG3registry_eba <gro.ope|abe_yrtsiger3gd#gro.ope|abe_yrtsiger3gd>
To: Alberto BARRIONUEVO <se.aitnepo|oirraba#se.aitnepo|oirraba>
Date: Thu, 7 May 2009 15:10:18 +0200
Subject: Re: Amicus Curiae Brief contribution to referral G03/08

Dear Sirs,

Any written statement filed to our proceedings should be in one of the official languages of the EPO = German, Enlish or French.
To ensure that your statement can be given due consideration you are kindly requested to file it in one of the these languages.

You may file it as a signed pdf.file or by signed fax.

Best regards
W. Roepstorff
Registrar

As of today, the letter is still available in the online register of the EPO, see also a copy of it in PDF or HTML.

Why discriminate citizens in function of their language? Basically Spain should go out of the European Patent Convention if its citizens cannot talk to the authority granting patents for their territory.

The EPO has tried automatic translation for spanish, and a while ago, I submitted a link to a spanish automated translation of the Amazon Gift patent to the es-parl discussion list (Es-parl — Coordinación y debate anti-patentes en España). Here are some of the results:

[es-parl] Automated translation of Amazon 1-click patent from english to spanish
Benjamin Henrion bh en udev.org
Mie Nov 12 14:49:48 CET 2008

Hi,

Automated translation is proposed by the EPO as the magic bullet to
solve the Community Patent problem.

Can you tell me if this looks like comprehensible spanish:

http://epo.worldlingo.com/wl/epo/epo.html?SEED=EP0927945&SEED_FORMAT=E&ACTION=Claims&OPS=ops.espacenet.com&LOCALE=en_V3&TRGLANG=ES&T=1

It is the automated translation of the Amazon 1-click patent:

http://v3.espacenet.com/publicationDetails/claims?CC=EP&NR=0927945&KC=&FT=E

which is currently being appealed at the EPO TBA.

Best,

—
Benjamin Henrion <bhenrion at ffii.org>
FFII Brussels - +32-484-566109 - +32-2-4148403

Here is the answer I got:

Hu Benjamin,

Definitely the text is not compressible in Spanish.

Best regards,

Javier

It is time for EU citizens to put some sand into the EPO machine and challenge its accessibility in front of constitutional courts, or courts of human rights. Such language discrimination cannot exist at the time we want to build a patent system for Europe.

If such basic human rights considerations cannot be satisfied, some people will take care of the future of the EPO:

The European Patent Office is a corrupt malicious organisation which should not exist. (Applauds)

]]> Software Patents Digimaj: European Commission pushes for software patents via a trusted court http://www.digitalmajority.org/forum/t-155211/european-commission-pushes-for-software-patents-via-a-trusted-court The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents. http://www.digitalmajority.org/forum/t-155211/european-commission-pushes-for-software-patents-via-a-trusted-court Tue, 12 May 2009 06:30:50 -0700 Brussels, 12 May 2009 — The European Commission is pushing for software patents via a centralised trusted patent court that would be created with the United Patent Litigation System (UPLS), an international treaty that would remove national courts. This court system would be shielded against any review by the European Court of Justice (ECJ). Thus patent judges would have the last word on software patents.

At the next Competitiveness meeting of May 28-29, the Council of Ministers will request a legal opinion to the ECJ about potential conflicts of the UPLS with the EU treaties. The current draft mentions that the ultimate power to interpret patent law will rest with hand-picked patent judges.

Hartmut Pilch, founder of the Foundation for a Free Information Infrastructure (FFII) predicted this already in 2007: "I don't think EU joining European Patent Convention (EPC) would automatically mean that ECJ can intervene on substantive patent law questions. If there is a ECJ above the European Patent Judiciary (EPJ), then probably only for very special questions relating to areas outside patent law, such as EU treaties, and it would not be accessible to the litigating parties but only to the EPJ itself."

Benjamin Henrion, President of the FFII and leader of its litigation working group, says: "A central patent court forbidding any petition right for review to the ECJ means the patent court has the last word over software patents. The Agreement is drafted in a way to avoid the ECJ intervention on substantive patent law."

Brian Kahin, senior fellow of the Computer & Communications Industry Association, says: "Given the U.S. experience with the Court of Appeals for the Federal Circuit and the many areas where the Supreme Court has recently stepped in to provide balance, it is clear that the European Court of Justice needs to be able to oversee the evolution of patent law. Otherwise, there is constant danger that a self-interested patent community will successfully press to expand the scope, volume, and power of the patent system."

The UPLS carries the risk that specialized patent courts will have the last word for important questions such as limits of patentability. This is typically what happens in Germany where the Senates of the Federal Patent Court should refer basic questions to the Supreme Court but do not do this.

Benjamin Henrion concludes: "This specialized patent court will be shielded against external intervention and won't be an EU institution. Those patent judges want to have the last word over European patent law."

Background

The proposed United Patent Litigation System (UPLS) is an international treaty which is heavily inspired by the now defunct European Patent Litigation Agreement (EPLA).

In 2005, large companies asked the European Parliament to drop the software patent directive, and push for a central patent court instead.

The German Federal Ministry of Economics and Technology clarified that the validation of software patents goes via central caselaw: "We must moreover continue to attempt to harmonise the practise of granting patents for computer-implemented inventions at the European level. This is to be attempted by a common European patent court system (EPLA) in which the member states can voluntarily participate. Thereby a unified procedure and legal certainty are achieved."

The current UPLS draft is shielded against ECJ intervention in software patents and substantive patent law. The centralised patent court won't be an EU institution.

The Court of Justice of the European Communities would only "rule on preliminary questions asked by the court structure established in the framework of the Unified Patent Litigation System, […] on the interpretation of EC law and on the validity and interpretation of acts of the institutions of the Community." The UPLS itself would not be a "institution of the Community" (the EPO is not either) and thus not fall under ECJ jurisdiction.

On the other side of the Atlantic, specialized patent courts in the United States (CAFC) have watered down the patentability requirements, allowing software patents, business method patents and lowered the threshold for patent quality. The poster child of the lowering quality is the Dembiczak case, where the specialized patent court allowed a patent over a plastic bag with a pumpkin drawing. The Supreme Court judges overturned the patent, heavily criticising the obviousness threshold of the specialized patent court: "This is gobbledygook. It really is, it's irrational. It's worse than meaningless."

Links

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

]]> Software Patents NoOOXML: Microsoft now attempts to sabotage ODF http://www.noooxml.org/forum/t-154383/microsoft-now-attempts-to-sabotage-odf Users should react loudly to the latest attempt of Microsoft to sabotage ODF and fragment the corpus of ODF files http://www.noooxml.org/forum/t-154383/microsoft-now-attempts-to-sabotage-odf Fri, 08 May 2009 08:39:16 -0700 By releasing MS Office SP2 with a formula syntax incompatible with most of the applications supporting ODF, Microsoft tries to sabotage ODF and fragment the corpus of ODF files.

The supporters of ODF should react to this. I therefore propose the following actions:

- Ask the ODF Alliance to publish a press release recommending not using the "Save as ODF" facility included MS Office SP2, due to the bad quality of the produced ODF files.

The ODF Alliance issued a press release on 28-Apr-09 saying:

The ODF Alliance today welcomed the release of Microsoft’s Service Pack 2 for Office 2007, a software update that provides long-awaited support for the OpenDocument Format (ODF), while cautioning governments to evaluate the new software to ensure sufficient interoperability with other ODF-supporting applications.
[…]
"Microsoft has dragged its feet for over three years now. The key test will be whether Microsoft’s support for ODF plays well with other ODF-supporting software,” continued Marcich. “Governments will want to further evaluate the support for ODF provided by Microsoft and whether it sufficiently meets their needs for greater openness and interoperability.”

The initial tests made by Rob Weir shows the very bad interoperability delivered, and I think that a warning to the users is deserved.

- Start a petition asking Microsoft to make MS Office SP2 unavailable until the design flaws in the product have been corrected.

We must make it clear to Microsoft that their attitude is not acceptable, and force them to behave in a better way.

]]> Front-page Digimaj: Conference on "Make software patents work for SMEs" http://www.digitalmajority.org/forum/t-150652/conference-on-make-software-patents-work-for-smes The European Commission is organising a conference dedicated to "Make IPR work for SMEs" next Monday in Brussels. You can here submit your questions for next Monday on how to "Make software patents work for SMEs". http://www.digitalmajority.org/forum/t-150652/conference-on-make-software-patents-work-for-smes Wed, 22 Apr 2009 04:25:23 -0700 ipr_picture.jpg

The European Commission is organising a conference dedicated to "Make IPR work for SMEs" next Monday in Brussels. You can submit your questions by email to me for next Monday on how to "Make software patents work for SMEs". I might be interested to submit them.

Here is the mail sent to participants:

from ue.aporue.ce|FNOC-RPI-TSEB-RTNE#ue.aporue.ce|FNOC-RPI-TSEB-RTNE
date Wed, Apr 22, 2009 at 1:11 PM
subject Welcome to the Conference Making IPR work for SMEs

Dear Conference Registrant,

We look forward to welcoming you on next Monday, 27 April 2009, to the conference "Making IPR work for SMEs".

Attached please find form which you can use to submit questions to the conference speakers. These forms will be collected periodically in the conference room, so please feel free to prepare questions now and during the conference.

«Template for Questions to the Panels 220409.doc»

For any further details, including the up to date programme of the conference, please see the conference website:
http://ec.europa.eu/enterprise/enterprise_policy/industry/ipr_conference.htm

Best regards,

The Conference Team

European Commission
Enterprise Directorate General
Industrial Policy and Economic Reforms Directorate
Development of Industrial Policy Unit
Tel. : + 32 (0)2-29.53611
Fax. : + 32 (0)2-29.98020
mail: ue.aporue.ce|FNOC-RPI-TSEB-RTNE#ue.aporue.ce|FNOC-RPI-TSEB-RTNE

Here is the form:

Conference Making IPR work for SMEs
Brussels, Monday, 27 April 2009
Venue: Charlemagne Building (Salle Alcide de Gasperi), 170 Rue de la Loi (Wetstraat)

First Name:
Last Name:
From (City/Country):
Working for/Interested in/Affiliated to/
E-mail Address:
My Question is:
I want to put my question to (name(s) of speaker(s) or panellist(s)):

The conference might be biaised in favour of patent holders who needs more tools to enforce their software patents:

Intellectual Property Rights (IPR) can be a vital competitive advantage for small and medium sized European businesses. Their competitiveness, creativity and innovative abilities are threatened by counterfeiting, piracy and uncertainty about enforcing their rights.

Small and medium enterprises are particularly vulnerable to these risks. They often lack resources and knowledge to act against fake products or are convinced it is impossible to do so.

This kind of conference remembers me the intervention of a guy in the audience at a patent conference organised by CGPME, where he said that the patent system was a burden for SMEs (too hard to navigate, SMEs don't understand it).

In the context of the Small Business Act, you will find nothing about those problems, because the patent lobby managed to put some bits in there in order to favour the applicant. They fail to mention the burden on all those companies that have to deviate a significant part of their R&D budget in order to comply with the claims of others.

]]> Software Patents Digimaj: Stallman: "The EPO is a corrupt and malicious organisation which should not exist" http://www.digitalmajority.org/forum/t-150098/stallman:the-epo-is-a-corrupt-and-malicious-organisation-which-should-not-exist Last Wednesday, farmers and software developers were demonstrating in Munich in front of the European Patent Office. Richard Stallman was describing the European Patent Office as a "corrupt and malicious organisation which should not exist". http://www.digitalmajority.org/forum/t-150098/stallman:the-epo-is-a-corrupt-and-malicious-organisation-which-should-not-exist Mon, 20 Apr 2009 05:25:41 -0700 Last Wednesday, farmers and software developers were demonstrating in Munich in front of the European Patent Office. Richard Stallman was describing the European Patent Office as a "corrupt and malicious organisation which should not exist":