taint.org: Justin Mason’s Weblog

Dutch free knowledge and culture advocacy group ScriptumLibre.org has called for a worldwide boycott of Trend Micro products. Their chairman, Wiebe van der Worp, claims Trend Micro’s aggressive use of litigation is “well beyond the borders of decency”.

Also, this Linux.com feature has a great quote from Jim Zemlin, the executive director of the Linux Foundation:

“A company that files a patent claim against code coming from a widely adopted open source project vastly underestimates the self-inflicted damage to its customer and community relationships. In today’s world, all of our customers in the software industry are enjoying the benefits of a wide variety of open source projects that provide stability and vendor-neutral solutions to the most basic of their computing needs. I talk to those customers every day. They consider these claims short-sighted and those that assert them to be fearful of their ability to compete in today’s economy.”

Well said.

Tags: antivirus, barracuda, clamav, patents, scriptumlibre, swpats, trend-micro

Trend Micro are demanding that Barracuda Networks pay licensing fees, alleging that they infringe U.S. Patent No. 5,623,600 with their use of the open-source anti-virus tool ClamAV. Here’s a Barracuda press release, and here’s some details from Barracuda:

Trend Micro alleges that Barracuda Networks and ClamAV infringe on Trend Micro’s U.S. Patent No. 5,623,600. Barracuda Networks believes that the patent is invalid due to prior art and further believes that neither its products nor the ClamAV software infringe the patent.

On Sept. 21, 2006, Trend Micro sent Barracuda Networks a letter regarding a license to Trend Micro’s ‘600 patent. After several discussions on paying a license for the patent, Trend Micro demanded Barracuda Networks either remove ClamAV from its products or pay a patent license fee. Barracuda Networks felt it had no choice other than to file for a declaratory judgment in early 2007 in U.S. Federal Court to invalidate Trend Micro’s ‘600 patent and end continued legal threats against Barracuda Networks for use of the free and open source ClamAV software.

Trend Micro subsequently responded to that declaratory action and more recently, Trend Micro filed a claim with the International Trade Commission (ITC). The ITC voted to investigate the claim in December 2007. Trend Micro’s ITC claim alleges that Barracuda Networks infringes on Trend Micro’s ‘600 patent, but effectively implies that anyone using the free and open source ClamAV software at the gateway infringes the patent.

The interesting aspects of this case, from my point of view, are twofold — the patent is a classic bad software patent, very broad and totally obvious both now and at the time it was issued; and it hinges on Barracuda’s use of the free software antivirus product, ClamAV. Given Apache SpamAssassin’s prevalence in many anti-spam mail filtering appliances (including Barracuda!), this is a very worrying precedent for us — our product could be next, for some other patent troll company’s extortion scheme.

For what it’s worth, it appears this patent has long been a licensing moneyspinner for Trend. In 1997, once the patent was issued, Trend went on a spree; McAfee, Symantec and Integralis were sued, eventually buying licenses, as did Electric Mail Company. 2 years ago, Fortinet were sued and settled in their case.

I happily gave Barracuda a quote for their press release on this:

“Trend Micro’s actions are clearly an attack on free and open source software and its users, as well as on Barracuda Networks. The ‘600 patent covers a trivial method, one which was obvious to anyone skilled in the art at the time the patent was written, and should be rendered invalid as soon as possible. I hope that Barracuda Networks is successful in its attempts to defend all users from this patent shakedown.”

If you know of prior art for this patent, please head over to Barracuda’s site and provide details — helping to fend off this protection racket would be good for all of us. Barracuda say:

People should look for art dated prior to Trend Micro’s filing date of September 26, 1995. The ‘600 patent is entitled “Virus Detection And Removal Apparatus For Computer Networks.” We are interested in all material, including software, code, publications or papers, patents, communications, other media or Web sites that relate to the technology described prior to the filing date.

In particular, this prior art should show antivirus scanning on a firewall or gateway. However, many of the claims do not require virus detection at a gateway. So any material that illustrates virus scanning on a file server is also of interest.

We also believe that a product called MIMESweeper 1.0 from a company called Clearswift, Authentium, or Integralis anticipates several claims of the ‘600 patent. We have yet to locate a copy of this product and would appreciate anyone who has a copy sending it our way.

Some more coverage:

• Don Marti at LinuxWorld: ‘Regardless of the decision in this case, software patent trolls will continue to be a problem for all software companies, Eben Moglen says. “Getting them to [not operate] in your neighborhood is the best you can do.”‘

• Matt Asay at C|Net: ‘Antivirus and antispam innovation has tended to come from open source, not the large proprietary vendors. Trend Micro’s lawsuit is designed to put cash in its pocket but will end up hurting the consumer.’ (Matt led with my quote ;)

• GrokLaw: ‘Anyone using ClamAV, should Trend Micro be successful, is potentially a target.’

• Ars Technica: ‘The patent is very clearly without merit, but that hasn’t stopped Trend Micro from using it to threaten ClamAV and extort money from several companies. Situations like this demonstrate a very urgent need for patent reform and illuminate the risks posed by broad software patents, particularly in the area of security.’

Tags: antivirus, barracuda-networks, filtering, gateways, patents, prior-art, scanning, swpats, trend-micro

Miguel de Icaza quotes Dave Winer, pointing out two patent applications from Apple which seem intended to grab major chunks of the feed syndication space as Apple “IP”.

The first application is news feed viewer, 20050289147, filed April 13 2005:

A computer-implemented method for displaying a plurality of articles, the method comprising: storing a first feed bookmark in a folder, the first feed bookmark indicating a first feed, the first feed comprising a first plurality of articles; storing a second feed bookmark in the folder, the second feed bookmark indicating a second feed, the second feed comprising a second plurality of articles; aggregating the first feed and the second feed to form a third feed; and displaying the third feed.

I think there were many RSS readers that implemented this, and others from the patent application, before April 2005. I know Liferea, the one I use, has had UI-level aggregation since September 2004, with its VFolders.

Next, news feed browser, 20050289468, filed April 13 2005. This one contains a wide range of claims, but here’s one that stands out as particularly trivial:

A computer-implemented method for discovering a feed, the method comprising: receiving a request to display a file; determining that the file includes relationship XML; determining that a Uniform Resource Locator (URL) within the relationship XML indicates a file that comprises the feed; and displaying one of a group containing the feed and a link to the feed.

That’s pretty much RSS autodiscovery, as described in 2002.

The listed inventors in both patents are: Kahn, Jessica; (San Francisco, CA) ; Alfke, Jens; (San Jose, CA) ; Wilkin, Sarah Anne; (Menlo Park, CA) ; Howard, Albert Riley JR.; (Sunnyvale, CA) ; Forstall, Scott James; (Mountain View, CA) ; Lemay, Stephen O.; (San Francisco, CA) ; Melton, Donald Dale; (San Carlos, CA) ; Loofbourrow, Wayne Russell; (San Jose, CA).

Thanks, Apple! and thanks, “inventors”!

It’s important to note that this is still in the application stage, and as such can be invalidated, or narrowed down to a saner level, by using the techniques described here. I strongly recommend that people working in the syndication field with sufficient knowledge and expertise who feel strongly enough about this should spend a little time doing so, before the patent is issued and it becomes a multi-million-dollar task to invalidate it. (however, IANApatentL of course ;)

Tags: apple, feeds, patent-applications, patents, rss, uspto

Another day, another absurd IBM software patent. Via the IP list, here’s United States Patent 7,003,497:

1. A method for confirming an electronic transaction, comprising the steps of: performing an electronic transaction between a first party and a second party; providing, by the first party to the second party, contact information of a third party service provider associated with the first party; contacting, by the second party, the third party service provider to obtain a location of a predetermined, private mailbox associated with the first party; sending, by the second party, a request for confirmation of the electronic transaction to the predetermined, private mailbox associated with the first party; accessing the private mailbox by the first party; and sending, by the first party, a reply message to the request for confirmation to thereby confirm authorization of the electronic transaction, wherein information regarding the private mailbox is not communicated to the second party during the electronic transaction.

There’s lots of waffle in the background section about this being for electronic e-commerce transactions, but that claim, and claims 2 and 3 at least, are easily sufficiently broad to cover simple “confirmed opt-in” email subscription systems — in other words, the system whereby a potential newsletter subscriber clicks on a link in order to “confirm” that they want to subscribe to a newsletter. That’s the current best practice email subscription method used by pretty much everyone.

Filed December 31, 2001. There was plenty of prior art before this date, but who would want to go up against IBM, no less, to attempt to get this invalidated, especially now that it’s been issued?

Thanks USPTO, you’re doing a heck of a job!

Tags: email, ibm, mailing-lists, patents, subscription, uspto

Passing this on for readers in Ireland — this sounds like an interesting event. From the FSFE-IE mailing list:

On the morning of Friday November 18th, IFSO is organising an event hosted by MEP Proinsias De Rossa about preventing software patents in the EU. Topics covered will be:

• An analysis of the software patent directive;
• a discussion of Free Software and computer security;
• an introduction to IFSO/FSFE and their work;
• the future of legislative obstacles to the development and distribution of software.

The event will be held in the European Parliament Office in Ireland, and spaces are limited. Participants are therefore asked to register their intent to attend. See here for more details.

Tags: dublin, free-software, fsfe, ifso, ireland, labour, open-source, patents, swpats

Over at O’Reilly Radar, a question came up as to whether Roche’s patent on Tamiflu should be respected if, in the event of a pandemic, people were dying on a large scale due to an inability for Roche to produce Tamiflu in sufficient quantities.

James Love of cptech.org recently pointed out that the WTO made an exception for a situation like this, allowing importation of medicines from foreign countries in violation of local patent licenses in the case of an emergency, in a 30 August 2003 decision:

Your country would benefit from importing generic medicines produced under a compulsory license, in order to build up adequate stockpiles or to obtain needed medicines in the event of a crisis.

However, many developed-world countries have explicitly made a commitment never to use this limited TRIPS waiver, namely the following:

Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom and the US.

Another 10 countries about to join the EU said they would only use the system to import in national emergencies or other circumstances of extreme urgency, and would not import once they had joined the EU: Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic and Slovenia.

So there you have it; the trade representatives for many developed-world countries took some kind of ’strong IP’ high moral stand, and gave up this ability. I’ll bet national health authorities are, right now, wandering government halls around the world, looking for trade representative asses to kick…

Tags: h5n1, ip, patents, trade, wto

I’ve just finished Sir John Sulston’s inspiring book about the Human Genome Project, The Common Thread, in which he discusses how he found himself on one front line of the battle between intellectual ‘property’ maximalism attempting to grab ‘property rights’ over the human genome, and the common good, preserving such rights for all humanity and unfettered research. (Thankfully, he — and therefore the latter side — won.)

I’ve been meaning to post a few choice quotes here about it at some stage, but haven’t had the time — I’ve had to just limit myself to correcting the Wikipedia entry for the Human Genome Project instead. ;)

Anyway, Sir John is in the news again, as part of a new international initiative — the Adelphi Charter:

Called the Adelphi charter, it is an attempt to lay out those principles. Central among them are the ideas that policy should be evidence-based and that it should respect the balance between property and the public domain, not eliminate the latter to maximise the former.

Coverage:

• The Economist
• BBC
• The Guardian
• raw notes from Suw Charman of the ORG

Very encouraging to see something taking off at this level. I hope it does well, and I hope Ireland and the EU’s lawmakers take note, since I’ve been hearing a lot of IP maximalist party-line from there recently…

Tags: adelphi-charter, ip, law, patents, politics, sir-john-sulston, uk

So, I’ve just bought myself an RFID implant reader.

However, don’t jump to conclusions — it’s not that I’m hoping that possession will put me on the right side of the New World Order 21st-century pervasive-RFID-tracking security infrastructure or anything — it’s for my cat. Here’s why…

Many years ago, back in Ireland, we had an RFID chip implanted in our cat, as you do. Then 3 years ago, we entered the US, bringing the cat with us, and started looking into what we’d have to do to bring him back again.

Ireland and the UK are rabies-free, and have massive paranoia about pets that may harbour it; as a result, pets imported into those countries generally have to stay in a quarantine facility for 6 months. Obviously 6 months sans kitty is something that we want to avoid, and thankfully a recent innovation, the Pet Travel Scheme allows this. It allows pets to be imported into the UK from the USA, once they pass a few bureaucratic conditions, and from there they can travel easily to Ireland legally. (BTW Matt, this still applies; we checked!)

One key condition is that the pet be first microchipped with an RFID chip, then tested for rabies, with those results annotated with the chip ID number. Once the animal arrives in the UK on the way back, the customs officials there verify his RFID implant chip’s ID number against the number on the test result documentation, and (assuming they match and all is in order) he skips the 6 month sentence.

So far, it seems pretty simple; the cat’s already chipped, we just have to go to the vet, get him titred, and all should proceed simply enough from there. Right? Wrong.

We spent a while going to various vets and animal shelters; unfortunately, almost everyone who works in a vet’s office in California seem to be incompetent grandmothers who just work there because they like giving doggies a bath, couldn’t care less about funny foreign European microchips, and will pretty much say anything to shut you up. Tiring stuff, and unproductive; eventually, after many fruitless attempts to read the chip, I gave up on that angle and just researched online.

Despite what all the grannies claimed, as this page describes, the US doesn’t actually use the ISO 11784/11785 standard for pet RFID chips. Instead it uses two alternative standards, one called FECAVA, and another FECAVA-based standard called AVID-Encrypted. They are, of course, entirely incompatible with ISO 11784/11785, although, to spread confusion, the FECAVA standard appears to be colloquially referred to in parts of the US vet industry, as “European” or even “ISO standard”. I think it was originally developed in Europe, and may have been partially ISO-11784-compliant to a degree, but the readers have proven entirely incompatible with the chip we had, which is referred to as “ISO” in the UK and Ireland at least. They don’t even use the same frequencies; FECAVA/AVID are on 125 KHz, while ISO FDX-B is on 134.2 KHz.

(BTW, a useful point for others: you can also tell the difference at the data level; FECAVA/AVID use 10-digit ID numbers, while ISO numbers are 15-digit. Also, “FDX-B” seems to accurately describe the current Euro-compatible ISO-standard chip system.)

Now, a few years back, it appears that one company attempted to introduce ISO-FDX-B-format readers and chips to the FECAVA-dominated marketplace, in the form of the Banfield ‘Crystal Tag’ chip and reader system.

That attempt foundered last year, thanks to what looks a lot like some MS-style dirty tricks — patent infringement lawsuits and some ‘your-doggy-is-in-danger’ FUD:

what we have here is a different, foreign chip that’s being brought in and it’s caused a lot of confusion with pet owners, with shelters, and veterinarians.

(Note ‘foreign’ — a little petty nationalism goes a long way.) The results can be seen in this press story on the product’s withdrawal:

Although ISO FDX-B microchips are being used in some European countries and parts of Australia, acceptance of ISO FDX-B microchips is not universal and the standard on which they are based continues to generate controversy, in part due to concerns about ID code duplication.

FUD-bomb successful!

Anyway, this left us in a bad situation; our cat’s chip was unreadable in the US, and possibly even illegal given the patent litigation ;) . We had two choices: either we got the cat re-chipped with a US chip, paying for that, or we could find our own ISO-compatible reader.

We sprung for the latter; although the re-chipping and re-registration would probably cost less than the $220 the reader would cost, we’d need to buy a US reader in addition, since the readers at London Heathrow airport are ISO readers, not FECAVA/AVID-compatible. On top of that, this way gives me a little more peace of mind about compatibility issues when we eventually get the cat to Heathrow; we now know that the cat’s chip will definitely be readable there, instead of taking a risk on the obviously-quite-confusing nest of snakes that is international RFID standardisation.

Anyway, having decided to buy a reader, that wasn’t the last hurdle. Apparently due to the patent infringement lawsuit noted above, no ISO/FDX-B-compatible readers were on sale in the US! A little research found an online vendor overseas, and with a few phone calls, we bought a reader of our very own.

This arrived this morning; with a little struggling from the implantee, we tried it out, and verified that his ID number was readable. Success!

Tags: patents, pets, quarantine, rabies, rfid, travel

Forbes: Box Office Patents.

It’s the kind of plot twist that will send some critics screaming into the aisles: Why not let writers patent their screenplay ideas? The U.S. Patent and Trademark Office already approves patents for software, business methods — remember Amazon.com’s patent on ‘one-click’ Internet orders? — even role-playing games. So why not let writers patent the intricate plot of the next cyberthriller?

So in other words, a law grad called Andrew Knight actually wants to see the world RMS described in his ‘Patent Absurdity’ article for the Guardian, where Les Miserables was unpublishable due to patent infringement. Incredible.

He himself plays the classic lines, familiar to those who followed the EU software patenting debate:

Knight agrees, up to a point. He won’t reveal the exact details of the plots he’s submitted to the Patent Office, other than to say they involve cyberspace. And he says patents would apply only to ideas that are unique and complex. But he worries that without patent protection, some Hollywood sharpies could change ideas like his around and pass them off as their own.

”I’m trying to address a person who comes up with a brand-new form of entertainment who may not be a Poe, may not be a Shakespeare, but still deserves to be paid for his work,” Knight says. ”Otherwise, who will create anything?”

A perfect pro-patent hat trick!

Tags: andrew-knight, patents, storyline-patents, uspto

Patents: This has come up twice recently in discussions of software patenting, so it’s worth posting a blog entry as a note.

There’s a common misconception that a patenter does not necessarily need to enforce a patent in the courts, for it to remain valid. This isn’t true in the US at least, where there is the legal doctrine of ‘laches’, defined as follows in the Law.com dictionary:

Laches - the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of ‘legal ambush’.

The Bohan Mathers law firm have a good paragraph explaining this:

…the patent holder has an obligation to protect and defend the rights granted under patent law. Just as permitting the public to freely cross one’s property may lead to the permanent establishment of a public right of way and the diminishment of one’s property rights, so the knowing failure to enforce one’s patent rights (one legal term for this is laches) against infringement by others may result in the forfeiture of some or all of the rights granted in a particular patent.

See also this and this page for discussion of cases where it was relevant. It seems by no means clear-cut, but the doctrine is there.

Tags: blog, claim, doctrine, entry, laches, law, patent, patents, property, right, software

Patents: A great outcome! The proposed Directive has been dropped, in the face of massive opposition. Coverage: /., FFII, FT.com, VNUnet, FSFE.

Unfortunately, Rocard’s proposed amendments which would have turned this directive into a major win for us, didn’t pass — but it’s still a good win. Software patents are not explicitly legal throughout Europe; although some jurisdictions do permit them, they’re in a legal grey area, and prosecution is therefore hard (and very expensive for patent holders). This is a much better situation than if the directive as proposed by the Council had passed, since that would have explicitly legalised them throughout the EU.

On top of this win, what I find significant is that we’ve now brought the issue from where it was a few years ago, as a minor concern known only to a few uber-geeks, to a major political issue that made headlines around the globe. Even my local NPR affiliate reported on this decision! That’s a far cry from the mid-90’s, when I had a hard time explaining the point of theLeague for Programming Freedom to my hacker friends in the TCD Maths Department.

A great quote from the VNUnet article:

‘This represents a clear victory for open source,’ said Simon Phipps, chief open source officer at Sun Microsystems. ‘It expresses Parliament’s clear desire to provide a balanced competitive market for software.’

Yes, that’s Sun saying that less software patenting is a good thing. Believe me, that’s a great leap forward. Or check out Irish MEP Kathy Sinnott’s amazing comments. She hits the nail right on the head; I’m very impressed by that speech.

Tags: directive, face, issue, opposition, outcome, patents, software, source, sun, vnunet, win

Patents: I’m just back from a fantastic holiday weekend, totally offline, hiking through Catalina Island. I’m a little bit sunburnt, my nose is peeling, but it was great fun. I got a fantastic picture of the sun setting over hundreds of boats bobbing at their moorings in Two Harbors, which I must upload at some stage.

Anyway, it seems that over the weekend, the EU software-patents debate has swung back heavily towards the anti-swpat side. Fingers crossed — the vote is this week.

Also, today, EUpolitix.com has an interview with Charlie McCreevy, quoting him as saying:

‘The theme, or the background music, to both of these particular directives (the CII and Services Directives) you could see as part of, anti-globalisation, anti-Americanism, anti-big business protests – in lots of senses, anti-the opening up of markets’

This is standard practice for the Irish government — they did exactly the same thing with the e-voting issue, painting the ICTE as ‘linked to the anti-globalisation movement’. (I have a feeling they think that any group organised online must be ‘anti-globalisation’, at this stage.)

Of course, with these accusations of being anti-free-market, it’s important to remember that a patent is a government-issued monopoly on an invention (or in the software field, on an idea), in a particular local jurisdiction. If anything, being against software patenting is a pro-free-market position, one shared by prominent US libertarians; and nothing gets more pro-free-market than those guys. ;)

Tags: bit, fun, hiking, holiday, nose, offline, patents, software, stage, sunburnt, weekend

Patents: yes, I keep rattling on about this — the vote is coming up on July 6th. I promise I’ll shut up after that ;)

UEAPME has issued a statement regarding the directive which is strongly critical of its current wording (UEAPME is the European small and medium-sized business trade association, comprising 11 million SMEs). Quote:

‘The failure to clearly remove software from the scope of the directive is a setback for small businesses throughout Europe. UEAPME is now calling on the European Parliament to reverse yesterday’s decision at plenary session next month and send a strong message that an EU software patent is not an option,’ Hans-Werner Müller, UEAPME Secretary General, stated.

‘There is growing agreement among all actors that software should not be patented, so providing an unequivocal definition in the directive that guarantees this is clearly in the general interest. We are calling on the Parliament to support the amendments that would ensure this,’ said Mr Müller.

‘The cacophony of misinformation and misleading spin from the large industry lobby in the run up to this vote has obscured the general consensus on preventing the patenting of pure software.’

That’s all well and good. So presumably the Irish members of UEAPME, ISME and the SFA, are agreeing, right? Sadly, neither of these have issued any press releases on the subject, as far as I can see, and approaches by members of IFSO have been totally fruitless.

Since both have made recent press noting that Irish small businesses face difficulties with the rising costs of doing business, this would seem to be a no-brainer — legalising software patents would immediately open Irish SMEs up to the costs associated with them: licensing fees, fighting spurious infringement litigation from ‘patent troll’ companies, the ‘chilling effects’ on investors noted by Laura Creighton, and of course the high price of retaining patent lawyers to file patents on your own innovations. One wonders why they aren’t concerned about these costs…

Tags: business, directive, july, parliament, patent, patents, press, smes, software, ueapme, vote

Patents: One of the key arguments in favour of the new EU software patenting directive as it’s currently worded, from the ‘pro’ side, is that it doesn’t ‘allow software patents as such’, since it requires a ‘technical’ inventive step for a patent to be considered valid.

Various MEPs have tried to clarify the meaning of this vague phrase, but without luck so far.

Coverage has mostly noted this as meaning that ‘pure software’ patents are not permissible, for example this Washington Post article, FT.com,and InformationWeek.

But is this really the case, in pragmatic terms? What does a ‘technical inventive step’ mean to the European Patent Office?

Well, it doesn’t look at all promising, according to this report from the Boards of Appeal of the European Patent Office from 21 April 2004, dealing with a Hitachi business method patent on an ‘automatic auction method’. The claims of that patent application (97 306 722.6) covered the algorithm of performing an auction over a computer network using client-server technology. The actual nature of this patent isn’t important, anyway — but what is important is how the Boards of Appeal judge its ‘technical’ characteristics.

The key section is 3.7, where the Board writes:

For these reasons the Board holds that, contrary to the examining division’s assessment, the apparatus of claim 3 is an invention within the meaning of Article 52(1) EPC since it comprises clearly technical features such as a “server computer”, “client computers” and a “network”.

So in other words, if the idea of a computer network is involved in the claims of a patent, it ‘includes technical aspects’. It then goes on to discuss other technical characteristics that may appear in patents:

The Board is aware that its comparatively broad interpretation of the term “invention” in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

So even writing with a pen and paper has technical character!

It’s a cop-out, designed to fool MEPs and citizens into thinking that a reasonable limitation is being placed on what can be patented, when in reality there’s effectively no limits, if there’s any kind of equipment involved beyond counting on your fingers.

The only way to be sure is to ensure the directive as it eventually passes is crystal clear on this point, with the help of the amendments that the pro-patent side are so keen to throw out.

(BTW, I found this link via RMS’ great article in the Guardian where he discusses software patenting using literature as an analogy. recommended reading!)

Tags: appeal, article, board, computer, european, meaning, network, patent, patents, software, step

Patents: An anonymous contributor writes:

‘I just received this letter and these pre-addressed postcards in the post this morning. I was surprised when I saw the envelope, because I’d never received anything from the BSA before. It turned out that they had extracted my name and address from the European Patents database, because I registered a software patent once. So a lot of these letters have been probably been sent out.

According to the letter, from Francisco Mingorance, the draft directive is being turned around to ‘rob small businesses of their intellectual property assets’.

I find it hard to see how that could be true. However the BSA’s letter has an important message you should heed - it is critical to contact your European representatives (your MEP and your country’s Commissioner) within the next two weeks. Let them know that the European Union should curtail software patents for once and for all.

Get out your best stationery and write to your MEP at the address given on this page.

Make sure your message is short and clear. SME’s don’t benefit from patents. Few patents are held by SME’s and the cost of applying for, maintaining and defending them is crippling.’

jm: I would suggest noting that you support the position of rapporteur
Michel Rocard MEP, and/or the FFII — details here. Please do write!

• scanned JPEG of cover letter
• scanned JPEG of some of the postcards

BTW, the contributor also offers: ‘if anyone is interested in doctoring up the BSA postcards, I can provide the hi-res scans.’ ;)

Tags: bsa, contributor, european, jpeg, letter, mep, message, patents, post, sme, software

Patents: Ian Clarke copied the FSFE-IE mailing list with a good mail he sent to Mairead McGuinness MEP, detailing the current state of proposed fixes to the European software patenting directive. He discusses a comment from an Ericsson employee asking for software patentability:

It may be the case that this employee was concerned about Ericsson’s ability to compete against smaller competitors if Ericsson cannot use software patents against them. I would argue that it is not the responsibility of any EU institution to protect Ericsson against legitimate competition from other companies, indeed competition must be encouraged. Software patents will have a stifling effect on competition in Europe, and this is why some large companies like Ericsson are strong advocates for this directive.

And a brief overview of the amendments we want:

The Foundation for a Free Information Infrastructure, an organisation whose line we endorse, has prepared an analysis of the amendments, indicating which will help to ensure that software patents do not become patentable, and which will not. This document may be downloaded here.

In particular, we support the position and amendments of Piia Noora Kauppi MEP, who has taken a strong position against the introduction of software patents within the EPP group, and also the position of Michel Rocard MEP who is the rapporteur for this Directive.

The only other thing it misses, in my opinion, is a paragraph discussing the ‘as such’ loophole that has been heavily relied upon by most pro-swpat politicians recently — the trick of saying ‘this directive does not permit software patenting, as such‘.

Indeed, it does not permit patenting of all software techniques, but instead permits the patenting of software techniques as long as it is of ‘a technical nature’ — without defining what that means. Given that it’s clearly arguable that all software is technical, and since patent offices earn money based on the patents they accept, rather than those they reject, this is a loophole the size of a bus. Many of the desired amendments concern cleaning up this obvious omission.

Anyway, here’s the full text of Ian’s mail from the list archive.

Tags: competition, directive, employee, ericsson, fsfe-ie, list, mailing, mep, patents, position, software

Patents: in a recent discussion about games and patents, it emerged that these common elements are patented:

• streamed loading
• minigames during a loading screen
• ghost cars in racing games

Looks like software patenting is coming to computer games in a big way. I’m not sure how any game on a modern platform can avoid the ’streamed loading’ patent.

Naturally, I can remember playing games on the Commodore 64 in the 1980s that included these…

Tags: computer, discussion, game, ghost, loading, looks, patents, platform, screen, software, way

Patents: New Scientist: Sony patent takes first step towards real-life Matrix:

IMAGINE movies and computer games in which you get to smell, taste and perhaps even feel things. That’s the tantalising prospect raised by a patent on a device for transmitting sensory data directly into the human brain - granted to none other than the entertainment giant Sony.

It’s a very lame ‘first step’ though — Sony has done no research and development on this invention whatsoever, it’s just a patent form of the old ‘in the future, we’ll wear tinfoil suits! And here’s how they’ll probably work!’ speculation. Sony’s comment:

Elizabeth Boukis, spokeswoman for Sony Electronics, says the work is speculative. ‘There were not any experiments done,’ she says. ‘This particular patent was a prophetic invention. It was based on an inspiration that this may someday be the direction that technology will take us.’

That’s nice; I’m sure they have some in the pipeline for flying cars, too.

It’s good to know that if an inventor does eventually come up with an ultrasound-based human-computer brain interface, they’ll have to pay license fees to Sony so they can use their ‘prophecy’ in their invention. The USPTO’s high standards are being maintained, as usual…

Tags: brain, computer, imagine, invention, matrix, new, patent, patents, scientist, sony, step

Patents: It seems the Irish Software Association has a new chairperson, namely Bernadette Cullinane. Whether this has anything to do with Cathal Friel’s ‘out of line’ statements, who knows…

John McCormac passed on some interesting quotes from an Irish Times interview, which were also syndicated here:

‘The incoming chairwoman of the Irish Software Association (ISA), Bernie Cullinane, has pledged to support the introduction of a proposed European Union directive on software patents.

She also warned members of the European parliament against blocking the controversial new directive or weakening it by proposing a host of amendments. …

Ms. Cullinane, a former chief operating officer of the Irish company Performix said European firms needed to protect their intellectual property in a similar manner to the way US firms can.

‘We don’t want any further dilution of the current situation on patents,’ she said in an interview with The Irish Times following her ratification as chairwoman of the ISA last night.’

My emphasis — given that the current situation is that they are unenforceable in Europe, that’s good, because we on the other side don’t want a dilution either!

‘We do need to look at how the US is developing its software industry and a removal of the patent (sic) could weaken venture capitalists’ appetites for investing in new innovative companies.’

The whole ‘venture capital requires patents’ line is easily debunked. I’m sure the VC companies are telling Ms. Cullinane that they want patents, of course; it’s just that they’re wrong. ;) Laura Creighton, a European investor, gave a fantastic speech in Brussels in 2003 about investment and patents:

Software Patents (in the US in the 1990s) encouraged venture capitalists to make foolish investments, because they believed the patents were worth something. Venture capitalists often do not mind if the companies where they have invested go bankrupt — as long as they hold title to the patents. They can start over again with a different team.

Sadly, when the bubble burst, the venture capitalists discovered that their patents were only good for a trip to court — or at least some legal wrangling with a bunch of lawyers. A software patent is not like a hardware patent, where typically one, or at most a few covers the whole invention. Dozens, sometimes hundreds of patents, are relevant to any piece of software. So an investor, who now owns the assets of a defunct company — cannot take its patents and hand them to a new development team and say ‘build this’. It is impossible to develop software today without infringing somebody’s American patent.

The venture capitalists, having lost fortunes backing companies which had no real product, are now uninterested in investing in any software companies whatsoever. Right now the American economy could benefit from more investment — but the capital is not going into software companies. Again, part of the problem is software patents. The venture capitalists have learned that all software is in violation of somebody’s patent. So they do not want to touch the stuff. Thus on the up side, and the down side, the existence of software patents have contributed to creating the stock bubble, and making the recovery slower and harder than it needed to be. So #4 is right out — the existence of software patents are inhibiting investment right now, and for very good reason.

In other words, the presence of software patents has ‘weakened venture capitalists’ appetites for investing in new innovative companies’, as Ms. Cullinane put it.

Anyway — to keep the VCs happy, small companies can still obtain software patents in the US, and spend the tens of thousands of dollars required to register and enforce them in court, if they so desire. They can bring the US software industry to a legal standstill if they like, as they seem to have done, as long as European software developers can quietly carry on developing software for use outside the US ;)

But at least things aren’t as bad as the situation with my neighbours — I live a few miles from the offices of Acacia Research, the notorious patent trolls, who’ve just initiated a new lawsuit against Intel and TI.

Reportedly however, they’re planning to open a European office this quarter…

Tags: association, chairwoman, dilution, directive, interview, irish, patents, situation, software, times, venture

Patents: DCC (Distributed Checksum Clearinghouse) is a venerable, and widely-used anti-spam system created by Vernon Schryver; we’ve supported it in SpamAssassin for yonks.

It now appears that DCC is now no longer open source software; it’s still free for personal and noncommercial use, but this clause has been added to the new license text:

This agreement is not applicable to any entity which sells anti-spam solutions to others or provides an anti-spam solution as part of a security solution sold to other entities, or to a private network which employes DCC or uses data provided by operation of DCC but does not provide corresponding data to other users.

So there’s talk that those commercial users should now license it – interestingly, from another company called Commtouch, not Vernon’s Rhyolite Software. (More info).

It appears that the license change is part of an agreement with Commtouch, owner of US Patent 6,330,590, a patent on the idea of hash-sharing antispam techniques. (I haven’t read the patent due to ASF and other policies so I can’t tell you what it really covers.)

It looks like we’ll be disabling DCC’s use in SpamAssassin by default, as we did with Razor, as a result. (Our policy is that the default ruleset used in SpamAssassin be usable by anyone who can use our software, so that the normal usage is open source by default, rather than subsets of the overall functionality.)

Tags: commtouch, dcc, default, license, part, patent, patents, software, solution, spamassassin, use

Patents: So the Conference of Presidents has ratified the JURI decision to throw out the flawed software patents directive text. Phew! That’s a lot more pressure on the European Commission. Charlie McCreevy could still carry on his attempt to steamroller European democracy on this one, but it looks likely that he wouldn’t get away with it now — possibly facing sanctions as a result.

Found in a Slashdot comment — an amazing quote from Michel Rocard (former French Prime Minister, now European Deputy), recounting a meeting with Microsoft representatives on the software-patent issue:

“We never could (speak) a common language with the companies representatives we met - in particular those from Microsoft. Speaking about (the free circulation of ideas), free access to knowledge, was like speaking chinese to them. In their way of thinking, everything that is not usable for immediate profit ceases to be an engine of growth. They don’t seem to be able to understand that an invention which is a pure spirit creation (sic) can’t be patented. It’s simply terrifying. Many of us, at the Parliament, agree to say that they never have know such a pressure and such a verbal violence during their parliamentary work. It is a huge case.”

In addition, he takes aim at the Irish Presidency’s tactics:

“To adopt it formally, there is an expeditious procedure — the (A-item) at the Council of Ministers, where the it is adopted without discussion. The Irish and Dutch presidencies attempted this tactic three times, twice at meetings of the (Fisheries Council)! This is simply scandalous.”

Blimey, he’s really pissed off. Great! Go Rocard! ;)

See here for the original interview (in French), and here for a bad Babelfish translation.

In happier news — take a look at some pictures from the presentation of 30,000 verified signatures (and flowers!) from people around the world, thanking the Polish Government for their repeated stands against the flawed directive in December.

Tags: conference, council, decision, directive, european, microsoft, patents, phew, pressure, software, text

Patents: Børsen: Bill Gates threatened to kill 800 Danish jobs if Denmark opposed software patent directive:

Danish financial newspaper Børsen reports that Microsoft founder Bill Gates threatened the Danish government in connection with software patents. According to the article, Gates told Rasmussen and two Danish ministers in November that he would kill all 800 jobs in Navision, a Danish company acquired by Microsoft in 2002, unless the EU were to quickly decide to legalize software patents through a directive. Denmark is a country with only 5 million inhabitants and a relatively small high-tech sector to which the loss of 800 jobs would have significant implications.

Lovely — a blunt blackmail attempt. The article goes on:

It would not be the first threat of its kind. A group of large corporations including Philips is reported to have previously threatened European governments to outsource all of their European software development jobs to low-wage countries unless the EU were to allow patents on software through the directive that is currently being worked on.

In January, leading Polish daily Gazeta Wyborcza reported on a letter addressed by the Polish subsidiaries of Siemens, Nokia, Philips, Ericsson and Alcatel to Poland’s prime minister Marek Belka … it is said to have indicated that the respective companies would reconsider making investments in Poland if the Polish government upheld its resistance to the legalization of software patents in the EU.

Again, note the FUD-busting on this point. I notice that Florian Mueller of NoSoftwarePatents.comhas a a good one-liner response along the same lines — ‘The country in which you develop a technology has nothing to do with where you can take out patents.’ He goes on:

If they move jobs to Asia, they won’t get a single additional patent, neither in Asia nor in Europe. If you warn politicians of consequences that are directly related to a legislative issue, that’s acceptable. If you threaten with causing damage that has no factual connection whatsoever, then it’s blackmail. Plain and simple.

Tags: article, brsen, country, directive, government, microsoft, newspaper, patent, patents, philips, software

Patents: an interesting FUD-busting point from the FSFE-IE mailing list today. Malcolm Tyrrell wrote:

Why does the following point keep coming up? Do I misunderstand the issue, or is this just plain nonsense: (quoting this ENN article)

‘Indeed, the big businesses that backed the directive — such as Philips, Nokia, Alcatel and Microsoft (…) also say, in somewhat ominous terms, that without patent protection, big companies will be less inclined to spend cash on European R&D projects, because the governments of Europe cannot offer any guarantees that commercially useful technology will be protected. In the US, those much-needed safeguards are in place, patent supporters note.’

I presume that these big companies will obtain patents in all territories where patents are available, regardless of where the R&D is performed. Unless they are threatening this merely as revenge (and I would think that there responsibility to their own shareholders precludes this), there would be no more or less reason to do R&D in Europe whether software is patentable there or not. Am I wrong?

He’s right; in my experience, software patents are applied for world-wide, in as many regions as possible (and as funds and time permit) — and there’s very little barrier for an inventor in one country to obtain patents in other countries (apart from money to pay for all those billable hours).

However, Fergal Daly had a more interesting additional point:

‘As far as I can see you’re right and in fact this is a plus for Europe, as labs in Europe would be free to use other people’s patents during their research, whereas in other regions they would have to license them before they could implement them, even for private use.’

He’s right, too, as far as I can see. This would be quite a big win for European R&D, since it would also mean they could develop an algorithm similar to a patented algorithm, as long as the patented technique was only implemented in software inside their European labs. This would be illegal to do anywhere else in the world where software patents were legal, hence is a competitive advantage over their international competitors.

In addition, it would mean that in the scenario where a product is produced using a patented algorithm, but the algorithm doesn’t appear in the final product, that would allow them to perform production in Europe without paying the license fees that would be payable elsewhere.

In summary — the ‘patents needed for R&D’ line is FUD, and the reality is in fact the opposite!

Tags: algorithm, fsfe-ie, fud-busting, list, mailing, patent, patents, point, right, software, today

Patents: FFII are reporting that ‘the Legal Affairs Committee of the European Parliament (JURI) has decided with a large majority to ask the Commission for a renewed referral of the software patents directive. With only two or three votes against and one abstention, the resolution had overwhelming support from the committee, and all-party backing.’

Michel Rocard MEP gave a very strong speech at the meeting with the Commissioner. Apart from noting several “inelegancies” by the Commission, such as not taking into account any of the Parliament’s substantive amendments in its recommendation to the Council, he also took issue with the Dutch and German governments ignoring their respective parliaments, the Irish Presidency’s sponsorship by Microsoft and the attempted ratifications of the political (dis)agreement at several fishery Council meetings.

He mentioned that at a meeting with the Polish government, the industry players confirmed that the Council text allowed pure software patents, and wondered how the Commission could continue claiming the reverse. He was also curious about how the Commission’s perfectly tautological definition of the concept “technical” could help in any way to distinguish between what is patentable and what is not. Despite his own abstention when voting on the restart later that day, the fact that almost everyone else supported it is probably his personal achievement.

The Commissioner made clear that “any agreement will need to strike a fair balance between different interests”, and that “a constructive dialogue between the Council and Parliament will be vital for an agreement”. He does have the option to deny a new first reading. But given the strength of feeling in the Parliament and the concerns of so many member states in the Council, the Parliament request looks like the best way to achieve a clean way forward for this Directive that everyone has been looking for.

This is good news for the anti-swpat side. Nul points for the Irish Commissioner, Charlie McCreevy, who ‘had in the morning assured the JURI Committee that the Council would finally adopt its beleaguered Common Position text. He announced that “the Luxembourg Presidency has now received written assurances concerning the re-instatement of this issue as an A point at a forthcoming Council”. Given that A points are to be adopted without discussion, this left no possibilities for renewed negotiations in the Council’.

Tags: abstention, agreement, commission, committee, council, everyone, meeting, parliament, patents, software, way

Patents: wow, this is amazing news! ‘IBM today pledged open access to key innovations covered by 500 IBM software patents to individuals and groups working on open source software. IBM believes this is the largest pledge ever of patents of any kind and represents a major shift in the way IBM manages and deploys its intellectual property (IP) portfolio.’

Even better, they are hoping to begin a ‘patent commons’ for other companies to join, and the OSI definitions of which licenses are judged ‘open’ apply.

More details:

• IBM’s press release
• PDF list of patents
• the list, as plain text (fixed!)

Of course, it would be better if it were also safe for commercial software development. But this is a valuable bulwark against Microsoft-style patent tactics.

Tags: access, ibm, kind, list, news, patent, patents, pledge, software, source, today

Patents: here’s an interesting technique I heard recently. (credit: I’m not sure who told me about it, but I think it may have come from or via John Levine.)

If you become aware of a patent application (note: not an issued patent!) for which you are aware of possible prior art, you may be able to help invalidate it, or at least ensure any resulting patent is narrow enough to be relatively sane. Here’s how.

• If you have knowledge of techniques that you believe may be prior art, you can send them on to the filers or the patent examiner. At this stage, the onus is on them to prove that the technique is not prior art for the application (once it’s granted, the onus would be on you to prove that it is).
• The filer also must indicate techniques that they are aware of, that may be prior art, during filing; so CC’ing a public forum with a copy of whatever you send to them, may at some point in the future help indicate that they did not do this.

Of course, you have to go find the patent application number, the contact addresses of the filers, and the contact address for the patent examiner to do this ;) But it beats posting a whinge to Slashdot.

An unnamed patent agent comments:

‘I believe an examiner is not under obligation to review art sent directly to them, but certainly the applicant and his agents are required to report any art they come across. That means the inventor as well as the law firm representing them.

You should include a cover letter that you saw their application (give details), and that you believe that what you are sending them is prior art, and that now that they have it, they are obligated to report it to the PTO. The same can be done to their counsel.

Probably, anything sent should be sent with some sort of delivery confirmation, and to make sure that the sending of the prior art is of public record, create a Web site where all sent art is listed, along with destination and confirmation information. This would help show inequitable conduct should the patent later be asserted and the art you provided not be shown as of record in the examination.

Mind you - I have not heard of these being done before (bombarding listed inventors and their agents with prior art, forcing them to have to disclose it), but I think it’s a great idea. One caution - if you send too much, you over inundate the examiner, and then really good art could get overlooked during examination.

Separately, please keep in mind that the claims in a published application have probably not yet even been seen by the examiner at the PTO. These are the claims that the applicant would love to have the examiner accept, but until prosecution of the application actually commences (and completes), there’s no way to know what claims will ultimately result.’

Update: some good additional points:

‘The prior art must have been published or been publicly available at least as early as the earliest priority date of the patent. The priority date is either the filing date, or the filing date of a parent application. This information can be found on the cover page of a patent.

A patent’s scope is covered by the claims. The claims define what the invention is. All other material in the patent is supporting material, and usually non-binding. In order to be anticipatory (the best kind) prior art for a particular claim, the piece of art must contain or described every element of the claim you are seeking to invalidate. Note that dependent claims add additional elements that the prior art needs to contain if you want to invalidate the dependent claims as well.

Prior art which is not anticipatory may be used in combination with other art or knowledge at the time to show obviousness. This type of art may have some impact during prosecution of a patent, but if a patent has already been issued, obviousness is a real uphill battle to fight in the courts. Few patents have been invalidated because of obviousness in trials.’

Another attorney notes: ‘You can actually send it anonymously if you want. Just keep the certified receipt to prove they got it. As long as they know it exists, the onus is on them to disclose it to the PTO.’

‘It’s best to send them something printed out or on tangible media, along with a brief note explaining what it is and most importantly, when it was first publicly available. Certified means using certified mail or FedEx or something where you have a valid receipt.

As far as (discovering) who the (filer’s patent lawyers) are … it’s usually listed on the patent applications. you can search the USPTO website for them.’

And a report that