Writing in a special Wired series on patent reform, Free Software Foundation founder Richard Stallman proposes to limit the harms that patents do to computers, their users, and free/open development by passing a law that says that running software on a general purpose computer doesn't infringe patents. In Stallman's view, this would cut through a lot of the knottier problems in patent reform, including defining "software patents;" the fact that clever patent lawyers can work around any such definition; the risks from the existing pool of patents that won't expire for decades and so on. Stallman points out that surgeons already have a statutory exemption to patent liability -- performing surgery isn't a patent violation, even if the devices and techniques employed in the operation are found to infringe. Stallman sees this as a precedent that can work to solve the problem. Though it seems to me that it might be easier to define "performing surgery" than "operating a general purpose computer."
This approach doesn’t entirely invalidate existing computational idea patents, because they would continue to apply to implementations using special-purpose hardware. This is an advantage because it eliminates an argument against the legal validity of the plan. The U.S. passed a law some years ago shielding surgeons from patent lawsuits, so that even if surgical procedures are patented, surgeons are safe. That provides a precedent for this solution.
Software developers and software users need protection from patents. This is the only legislative solution that would provide full protection for all.
We could then go back to competing or cooperating … without the fear that some stranger will wipe away our work.
Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them
(Image: DSC09309, a Creative Commons Attribution (2.0) image from 25734428@N06's photostream)
When you pull out a laser pointer and get your cat to chase the dot of light around your house*, you are using a patented method of cat exercise. The rights are owned by Kevin Amiss and Martin Abbott (both of Virginia), who patented it in the early 1990s. In the abstract, they describe this method of cat exercise as:
A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct.
In other words, they own the rights on doing this with ferrets, as well.
This might also be a good time to note an NPR story from this week, which documents IBM and Halliburton attempting to patent the process of patent trolling.
Method of exercising a cat: United States Patent 5443036
*Fact: This game becomes more fun if you have a rug. Just run the light up to the edge of the rug and then turn it off. The cat will become convinced that the little red light has gone under said rug and you will get to amuse yourself watching your cat try to lift the corner of something heavy without the use of opposable thumbs.
Thanks, Sam Ley!
Image: Gotcha!, a Creative Commons Attribution Share-Alike (2.0) image from drregor's photostream
Days after CEO Thorsten Heins promised that Research In Motion was not "in a death spiral," it lost a patent litigation case filed by Mformation, maker of remote wireless management software. The jury awarded Mformation $147.2m.
The verdict on Friday in a San Francisco federal court comes at a bad time for RIM, whose stock has fallen more than 70 percent in the past year as customers abandon the BlackBerry in favor of Apple's iPhone and a slew of devices using Google Inc's Android software. Amar Thakur, an attorney for Mformation, said the jury directed RIM to pay an $8 royalty for every BlackBerry device connected to RIM's enterprise server software, which brings the total award to $147.2 million. The verdict only covers U.S. sales through trial, Thakur said, and not future or foreign damages.
When people use the term "death spiral", it implies the existence of a useful aerodynamic characteristic influencing the descent. RIM's looks more like a death plunge.
Purdue Pharma is testing OxyContin on children six and up.
Oxy's gonna go out of patent some day, and shut down Purdue's gravy train. But if they test it on kids -- even it's never approved for use on kids! -- the folks at the FDA will extend their patent by another six months. "Dr. Elliot Krane, director of pain management at Lucile Packard Children’s Hospital at Stanford University" says "They are doing (the pediatric trial) for patent exclusivity, there’s no doubt about it in my mind.... That’s important for their bottom line." (via Techdirt
In the UK, Taiwan's HTC challenged four Apple patents covering "slide to unlock"
and other touchscreen-related features. The High Court agreed today, describing them as either too obvious, or foreshadowed by earlier patents
. Analysts expect the outcome to significantly influence the many other patent battles
taking place between Apple and its competitors worldwide. — Rob
Hugh sez, "Today, EFF launched a new campaign against software patents. In this campaign, we outline seven proposals that we think will address some of the greatest abuses of the current software patent system, including making sure that folks who independently arrived at an invention can’t be held liable for infringing on a software patent. But our campaign isn't just about our proposals — we also want to hear, and amplify, the views of the technical community. Many engineers, researchers, and entrepreneurs have suggested that reform is not enough and that software should not be patentable, period. We want to record these views, which is why our Defend Innovation campaign is designed to solicit comments from all of the stakeholders. We'll incorporate what we learn into a formal publication that we can take to Congress that reflects the views of innovators, academics, lawyers, CEOs, VCs, and everyone else who is concerned about the software patent system."
Ars Technica's Jon Brodkin has an in-depth look at the "Defensive Patent License," a kind of judo for the patent system created by my former EFF colleague Jason Schultz (who started EFF's Patent Busting Project) and my former USC colleague Jen Urban (who co-created the ChillingEffects clearinghouse). As you'd expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It's a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you're ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.
“The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing,” Schultz said today in Boston at the Usenix conference on cyberlaw issues. “As long as they don’t offensively sue anyone else in that network, everything’s cool.”
The commitment is both daunting in that it requires submitting all of a member company’s patents to the pool, and forgiving in that members can still sue the pants off non-members. Schultz said his team thought long and hard about the exact implementation of the Defensive Patent License.
The “all-in” provision was put in place to prevent companies from joining the network while only providing their lamest patents. The ability of DPL members to sue non-members, meanwhile, preserves the right to monetize inventions. It also keeps members on a level playing field with non-members.
“Defensive Patent License” created to protect innovators from trolls
Google defeated Oracle's claims regarding Java in the Android operating system. But at what cost
? Google's general council writes: "The case illustrates the cost when the patent system doesn't work well. It costs millions of dollars to invalidate bad patents. That's money we'd rather spend on great new products for people to use." [Ars Technica] — Rob
In Wired, Robert McMillan profiles Rockstar, a world-class patent troll based in Canada, which was capitalized to buy up Nortel's "defensive" patent portfolio for billions of dollars and now does nothing but look for companies that make stuff that people like and use, so it can send them legal threats. Rockstar itself has no products, aside from legal threats. Reading this left me with the taste of sick in my mouth, and a sense that the patent system has to be reformed or taken down altogether, before it turns parasitism and lawsuits into the only viable technology business-models.
But Widdowson is a specialist. He’s one of 10 reverse-engineers working full time for a stealthy company funded by some of the biggest names in technology: Apple, Microsoft, Research In Motion, Sony, and Ericsson. Called the Rockstar Consortium, the 32-person outfit has a single-minded mission: It examines successful products, like routers and smartphones, and it tries to find proof that these products infringe on a portfolio of over 4,000 technology patents once owned by one of the world’s largest telecommunications companies.
When a Rockstar engineer uncovers evidence of infringement, the company documents it, contacts the manufacturer, and demands licensing fees for the patents in question. The demand is backed by the implicit threat of a patent lawsuit in federal court. Eight of the company’s staff are lawyers. In the last two months, Rockstar has started negotiations with as many as 100 potential licensees. And with control of a patent portfolio covering core wireless communications technologies such as LTE (Long Term Evolution) and 3G, there is literally no end in sight.
“Pretty much anybody out there is infringing,” says John Veschi, Rockstar’s CEO. “It would be hard for me to envision that there are high-tech companies out there that don’t use some of the patents in our portfolio.”
How Apple and Microsoft Armed 4,000 Patent Warheads
"AOL has not said exactly what the patents cover," writes Dominic Rushe in The Guardian
. "Under the terms of the transaction it will retain a licence for them." — Rob
Eolas, a notorious patent troll who partnered with the University of California in a shakedown scheme that claimed royalties for all "interactive web sites" that featured rotating images, streaming video, and other practices that had been widely established before their patent was filed, has lost a key lawsuit. A jury in Tyler, Texas (the sleepy town where the shell-companies used by patent trolls have their nominal offices) found that the Eolas patent was invalid, after hearing testimony from Web inventor Tim Berners-Lee and other luminaries of the open web.
If the jury had upheld the patents, there would have been a potentially brutal damages phase in which Google, YouTube, Yahoo, Amazon, Adobe, JC Penney, CDW Corp. and Staples would have been sued for infringement and been asked for more than $600 million in damages, with the majority of that coming from Google and Yahoo.
The Eolas patents were denounced for years before this week’s landmark trial, but managed to survive repeated re-exams at the United States Patent and Trade Office.
However, Thursday’s verdict is likely a setback Eolas can’t overcome. It may well be appealed, but that will be a long process, and in the meantime Eolas won’t be able to go after new targets.
Texas Jury Strikes Down Patent Troll’s Claim to Own the Interactive Web
Luma Labs is a small company that sells a camera sling with a sliding clip. When a competitor of theirs filed for a patent on the idea, they weren't concerned. After all, Luma knew of prior art for their mechanism stretching all the way back to 1885. So they were surprised when the USPTO recklessly granted the patent to their competitor. And they were aghast when their lawyers explained that getting the patent overturned in the course of a lawsuit would bankrupt their company.
So they're giving up.
In short, the idea of a sliding camera sling isn’t an amazing new invention. It’s just a really good idea that’s been around for a while and which has been iteratively developed. Neither we nor our lawyers believed that the USPTO would grant a patent for the claims related to this concept. It was a surprise, then, when our competitor was granted a patent covering the concept on November 1st, 2011. To say that we’re disappointed that the USPTO couldn’t find the prior art around the idea is an understatement.
Our disappointment doesn’t matter much in the scheme of things, however. Our competitor now has a legal tool and we’re pretty sure that they desire to use it. This is, as they say, a problem. We and our counsel are more than confident that we can defend ourselves, and will do so vigorously if necessary. On the other hand, we’re a very small company that sells our products in limited volumes and mounting such a defense would consume the majority of our resources. After all, it took three years to rescind a patent about a method of using a swing. In other words, we have a Hobson’s choice on our hands. We could very well lose everything even if we won.
Therefore, we’re acting unilaterally and conceding the market by immediately discontinuing the Loop and LoopIt. Full stop. We apologize for the sudden nature of this decision and our implementation of it, but we feel like our options on this matter are limited.
They've got another camera strap idea that they're hoping to bring to market. But of course, they'll only be able to sell it until the USPTO recklessly grants another ridiculous patent against it.
An open letter to our customers, past and future
(via O'Reilly Radar)
The Supreme Court are poised to rule in Mayo v Prometheus, a case that concerns whether medical procedures for adjusting the dosage of an out-of-patent drug can be patented. If the Supremes rule in favor of the patentability of adjusting drug doses and other common medical procedures, it will make doctors liable as patent infringers merely for practicing medicine. What's worse, judging from the hearings, the justices are ready and willing to make this loony idea into the new standard for patentability.
The American Medical Association’s brief on the matter argues that ”If claims to exclusive rights over the body’s natural responses to illness and medical treatment are permitted to stand, the result will be a vast thicket of exclusive rights over the use of critical scientific data that must remain widely available if physicians are to provide sound medical care.”
“Conscientious physicians will be unwilling and unable to avoid considering all relevant scientific information when reviewing test results. Thus, as medical knowledge accumulates, patent licenses increasingly will be required for physicians to conduct even well established diagnostic tests.”
Supreme Court Takes a Look at Medical Patents
Reader iainmclean works in research and development, which means iainmclean reads a lot of patent-ese. Via the new, awesomer Submitterator, iainmclean sent us an excellent example of how the language used in a patent application can make it very difficult to tell what, exactly, is being patented.
Here's how the game is played. First, read the paragraph below:
An apparatus, comprising: a flexible elongate member that defines at least one lumen and is configured to be inserted within a body passageway of a patient, wherein the flexible elongate member includes a proximal portion, a distal portion, and a medial portion disposed between the proximal portion and the distal portion, and wherein the distal portion is movable between a substantially linear configuration and a curved configuration; and a stiffening member coupled to the flexible elongate member, the stiffening member being movable to a selected location along a length of the flexible elongate member to modify the flexibility of the selected location of the flexible elongate member, and wherein the stiffening member includes a first portion and a second portion, the first portion having a first stiffness and the second portion having a second stiffness different than the first stiffness.
Next, check out the attached image and see if it matches up with what you imagined. Hint: The image is much more safe for work than I guessed it would be.