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Archive for the 'Software Patents' category

Linux Defenders

On the front lines in the battle against patent trolls, is Linux Defenders.

Architected to eliminate poor quality patents and ensure that only high quality patents issue, the Linux Defenders program enables individuals and organizations to efficiently contribute to:

1. “Defensive Publications” that codify ‘known’ inventions that have not previously been patented so that they can be brought to the attention of the patent office to ensure that later developed patent applications claiming such inventions do not issue. In general, defensive publications are a vehicle which allows the Linux and broader open source community to create valuable prior art that enables Linux and freedom of action/freedom to operate for those active in utilizing Linux to drive innovation in products, services, and applications;

2. “Peer to Patent” which solicits prior art contributions from the Linux and broader open source community to ensure patent examiners are aware of prior art relevant to published applications that are currently under review. In this way, the patent office is alerted to relevant prior art and only the most innovative and novel ideas are actually patented.

3. “Post-Issue Peer to Patent” which solicits prior art contribution from Linux and the broader open source community to permit the invalidation of previously issued patents that were issued in error because of the patent office’s lack of awareness of relevant prior art.

Use of Linux Defenders is free of charge to contributors and the hosting of Defensive Publications on databases accessible by patent and trademark office examiners around the world is borne by the program’s sponsors.

via Linux Defenders.

Go Ogg, go!

Mozilla contributes $100,000 to fund Ogg development – Ars Technica

Mozilla has given the Wikimedia Foundation a $100,000 grant intended to fund development of the Ogg container format and the Theora and Vorbis media codecs. These open media codecs are thought to be unencumbered by software patents, which means that they can be freely implemented and used without having to pay royalties or licensing fees to patent holders. This differentiates Ogg Theora from many other formats that are widely used today.

via Mozilla contributes $100,000 to fund Ogg development – Ars Technica.

On software patents and the need for reform

The Brookings Institution, a think tank in Washington, D.C., recently held a conference on software and business method patents, and while there wasn’t unanimity, there was general agreement that the current system is dysfunctional and in need of reform.

This has been Red Hat’s position for a long time, and yet again, we see that conventional wisdom is finally catching up to us. Slowly, but surely, truth is happening.

From the Red Hat News Blog, here’s part of an account of the conference from Rob Tiller, Red Hat Vice President and Assistant General Counsel, IP

At a minimum, history suggests that patents are not a significant incentive to innovation in the software field. As I pointed out in my remarks at the conference, the Federal Circuit case law finding software to be patentable mostly dates from the mid-1990s, and the software patent explosion has occurred in the last ten years or so. However, a great deal of software now in everyday use was created earlier. Free and open source software programs such as GNU Emacs, GCC, and Linux date from the 1980s and early 1990s. Some of the most widely used proprietary software programs, like Lotus 1-2-3, Microsoft Word, and Oracle were released in the early 1980s. There’s no reason to think that the developers of those and other successful software programs would have been more innovative if they could have obtained patents.

It is theoretically possible that some software developers today are motivated by the hope of a new patent, but the likelier impact of our current patent system is to distract developers with anxieties about being sued over preexisting patents. We know beyond question that the the incentives of the patent system are not encouraging free and open source software developers. A patent entitles the holder to exclude others from making, using, and selling an invention. FOSS developers don’t want to exclude others this way – they want to share their code – and so FOSS developers in principle have no interest in obtaining patents.

via Red Hat News | Brookings Conference on Software and Business Method Patents Highlights Need for Reform.

Mark Webbink On the Settlement

Former Red Hat Counsel Mark Webbink and Duke Law professor offers his take on the Red hat patent Settlement

Walking With Elephants

Although I had to repress my initial gag reflex at even settling these cases (the amount of prior art identified against the original patent asserted by FireStar was/is almost mind boggling), the settlement is a rational response to such claims. Red Hat disposed of the claims in a fiscally responsible manner given the cost of patent litigation. However, that is the far less interesting aspect of the settlement. The truly admirable part of the settlement were the terms that Red Hat and its legal team extracted from DataTern and its financial backers. Not only did Red Hat obtain license terms that protect its products, including Hibernate, it did so in a manner that I believe is entirely consistent with both versions of the GPL. That is no small feat. And we are not talking about a Microsoft/Novell style license. On top of that, Red Hat didn’t stop with the asserted patents; they made sure that DataTern and its portfolio of patents aren’t going to be a problem for Red Hat and its licensees for a long time to come.

Here are some videos about software patents that Mark made with Red Hat just before he moved on to academia.

Mark Webbink On: Software Patents

Mark Webbink On: The Red Hat Patent Promise.

Mark Webbink + Alan Cox On The Red Hat Patent Promise

Groklaw on In re Bilski

Groklaw – In re Bilski — Red Hat files amicus brief saying software patents are a brake on innovation

So there is quite a lot at stake, and the tide appears to be turning away from the profligate issuing of patents in such categories. At least the right questions are being asked. But to what extent will they reach a decision to modify or pull back? This case will help to decide. Of course, the Supreme Court is higher than this court, but having already given some direction, the Bilski case gives the appeals court the opportunity to undo what many view as damage by some decisions that opened the floodgates to all kinds of crazy patents. And that is why suddenly a large crowd of interested parties are submitting amicus briefs. The list at the court is impressive. Unfortunately, the court does not make the briefs digitally available, but Red Hat’s announcement says it will be on that page soon. And thankfully, Patently-O provides some descriptions of positions taken and explains the process.

EFF Asks Court to Limit What Is Patentable

EFF Asks Court to Limit What Is Patentable | Electronic Frontier Foundation

In re Bilski is an appellate court case that provides an opportunity to eliminate business method patents and curtail efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski is challenging the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading. EFF submitted an amicus brief (in conjunction with The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law, Public Knowledge, and Consumers Union) supporting the rejection of Bilski’s patent application and setting forth a framework for determining patentable subject matter that focuses on the use of technology in the claimed invention.

ACLU: Patenting Abstract Ideas Violates The Constitution

Docudharma:: ACLU: Patenting Abstract Ideas Violates The Constitution

“The court must ensure that any test it uses in determining whether to award a patent is in line with the Constitution,” said Christopher Hansen, senior staff attorney with the ACLU First Amendment Working Group, who filed the brief. “If the government had the authority to grant exclusive rights to an idea, the fundamental purpose of the First Amendment – to protect an individual’s right to thought and expression – would be rendered meaningless.”

Red Hat Asks Federal Court To Limit Patents On Software

Red Hat News | Red Hat Asks Federal Court To Limit Patents On Software

Today, Red Hat took a public stand challenging the standards for patenting software. In the Biliski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account. Here is a quick summary of our brief.

Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.

Then they fight you…

This is a real shame. Patent Troll Tracker was a great blog that did most of my work for me. Quite a loss.

The Prior Art

The Daily Journal’s Tuesday edition (not linkable) reports that Troll Tracker author Rick Frenkel, and his employer Cisco, have been sued for defamation by two East Texas attorneys who are players in that district’s patent litigation scene, Eric Albritton and T. John Ward, Jr.

John “Johnny” Ward, Jr. is a Texas lawyer who has filed a large number of patent infringement lawsuits in recent years. Between January and mid-October of 2007, his name was attached to 54 separate lawsuits by my count; in all but four, he represented the plaintiff. He is also, as I reported in October, the son of Judge T. John Ward, the judge who is largely responsible for making the Eastern District of Texas a hotspot for patent litigation.

There’s a lot more on this, here.

Lawyering Up

Red Hat Puts More Muscle On Its Legal Staff — Linux — InformationWeek

Red Hat is beefing up its legal staff with two appointments to strengthen its hand in patent disputes and open source licensing issues.

Company spokesman on Wednesday declined to comment on whether Microsoft (NSDQ: MSFT)’s claims in early and mid-2007 that its patents cover parts of Linux had anything to do with the expansion.

“We are helping pave the way for open standards and changes in the IP regime needed for the future,” responded Robert Tiller, VP and assistant general counsel for IP, one of the new hires at Red Hat’s legal department. “We feel a responsibility to lead these efforts and to encourage projects that support open, multi-vendor standards,” he wrote in an email response.

Red Hat announced Wednesday that it was adding Tiller and Richard Fontana, a former associate of Eben Moglen at the Software Freedom Law Center, to its legal staff. Fontana will be Red Hat’s open source licensing and patent counsel.

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