Robert Pogson

One man, closing all the windows.

Posts Tagged / software-patents

  • Apr 01 / 2014
  • 5

Software Patents On The Ropes In SCOTUS

When the Supremes beat the patent-troll over the head with obviousness and lack of novelty, we can expect that they will shoot him down.
“JUSTICE KENNEDY: Well, let me put it this way. If you describe that to a second­ year college class in engineering and said here’s ­­ here’s my idea, now you go home and you program over this weekend, my guess is that that would be fairly easy to program.

So the fact that the computer is involved, it seems to me, is necessary to make it work. But the innovative aspect is certainly not in the creation of the program to make that work. All you’re talking about is ­­ if I can use the word ­­ an “idea.””

What Justice Kennedy is going on about is that with just the idea, anyone reasonably skilled could solve the problem without referring to any software or patent-application. That’s sort of what I have been harping about for years now. Putting anything into a computer does not add any novelty or creativity. It’s logic, maths, language… not invention. Hence, software is not patentable. It’s a writing after all, something you claim copyright, not letters patent.

See Oral Argument – ALICE CORPORATION PTY. LTD. Petitioners, No. 13­298 v. CLS BANK INTERNATIONAL, ET AL..

  • Mar 04 / 2014
  • 1

Supremes Wind Up To Hit Software Patents Out Of The Park

I’ve been waiting years for US Supreme Court to do its job and kick out software patents. It’s about to happen.
“The flood of software patenting that began in the 1990s has included many thousands of patents with vague and uncertain boundaries that create major litigation risks. A Supreme Court decision recognizing that software patents are essentially abstract could eliminate many of those risks.
The Alice Corp. case is scheduled for oral argument on March 31. The Court will issue a decision before it ends its term in June. It’s possible that the Court will issue a course correction that removes a major barrier to technology innovation.”
Hearing this month. Decision in the middle of summer. It’s going to be a great year. It would be absolutely wonderful if manufacturers of */Linux devices could shake off the last vestige of M$’s “tax”.

Just in case any of the supremes read this blog, perhaps I will close with yet another reason software patents are silly. Is a patent application patentable? That would be silly. Anything that just describes an invention is not patentable. That’s obvious and abstract. Well, software is just like a book. It’s a writing, a list of abstract ideas/information/bits. The software itself, the code, the machine-instructions are just the book, contents and words contained in the software. No one can patent that. It’s abstract. It’s mathematical. It lacks any kind of innovation, although there may be some skill involved in a good productions. Let’s get over this silly idea that software is patentable. It’s not. Putting some ideas about how something is already done in the real world into a machine and calling it an invention is not patentable either. It’s obvious to anyone skilled in the art. If not, the software would not work because computers only work on obvious things, ones and zeros, truth and falsity. Supremes, go for it!

See U.S. Supreme Court decisions about software patents.

  • Feb 26 / 2014
  • 5


I don’t see what all the fuss is about. Nokia is producing some Android/Linux smartphones “Within Microsoft what I see happening is that the company will start backing off Windows Phone. Kendrick’s right, you see. It is too much to ask Microsoft to support two mobile operating systems, so I think they’ll slowly and quietly drop the least-profitable of them: Windows Phone.”that look and feel like “phoney 7″ smartphones. Certainly, it is interesting that Android/Linux apps will run on them, but this is just like GNU/Linux distros that look like XP or “7″. No one is very excited about those…

I don’t often disagree with SJVN but I think his argument that M$ makes $billions from Android/Linux taxes is extreme. If that were happening, there would be some mention of it in M$’s SEC filings. There’s only this, “D&C Licensing, comprising: Windows, including all original equipment manufacturer (“OEM”) licensing (“Windows OEM”) and other non-volume licensing and academic volume licensing of the Windows operating system and related software (collectively, “Consumer Windows”); non-volume licensing of Microsoft Office, comprising the core Office product set, for consumers (“Consumer Office”); Windows Phone, including related patent licensing; and certain other patent licensing revenue;”. Would M$ dare risk not mentioning something substantial here? I don’t think so. Their case against Motorola is still up in the air: “Motorola litigation
In October 2010, Microsoft filed patent infringement complaints against Motorola Mobility (“Motorola”) with the International Trade Commission (“ITC”) and in U.S. District Court in Seattle for infringement of nine Microsoft patents by Motorola’s Android devices. Since then, Microsoft and Motorola have filed additional claims against each other in the ITC, in federal district courts in Seattle, Wisconsin, Florida, and California, and in courts in Germany and the United Kingdom. The nature of the claims asserted and status of individual matters are summarized below.
International Trade Commission
In May 2012, the ITC issued a limited exclusion order against Motorola on one Microsoft patent, which became effective on July 18, 2012. Microsoft appealed certain aspects of the ITC rulings adverse to Microsoft, and Motorola has appealed the ITC exclusion order, to the Court of Appeals for the Federal Circuit. In October 2013, the Court of Appeals ruled in Microsoft’s favor on one additional patent (since expired) and, in December 2013, affirmed the ITC’s exclusion order.
In July 2013, Microsoft filed an action in U.S. District Court in Washington, D.C. seeking an order to compel enforcement of the ITC’s May 2012 import ban against infringing Motorola products by the Bureau of Customs and Border Protection (“CBP”), after learning that CBP had failed to fully enforce the order.
In November 2010, Motorola filed an action against Microsoft in the ITC alleging infringement of five Motorola patents by Xbox consoles and accessories and seeking an exclusion order to prohibit importation of the allegedly infringing Xbox products into the U.S. At Motorola’s request, the ITC terminated its investigation as to four Motorola patents, leaving only one Motorola patent at issue. In March 2013, the administrative law judge (“ALJ”) ruled that there has been no violation of the remaining Motorola patent. Motorola sought ITC review of the ALJ’s determination, which the ITC denied in May 2013. Motorola has appealed the ITC’s decision to the U.S. Court of Appeals for the Federal Circuit.
U.S. District Court
The Seattle District Court case filed in October 2010 by Microsoft as a companion to Microsoft’s ITC case against Motorola has been stayed pending the outcome of Microsoft’s ITC case. In November 2010, Microsoft sued Motorola for breach of contract in U.S. District Court in Seattle, alleging that Motorola breached its commitments to standards-setting organizations to license to Microsoft certain patents on reasonable and non-discriminatory (“RAND”) terms and conditions. Motorola has declared these patents essential to the implementation of the H.264 video standard and the 802.11 Wi-Fi standard. In the Motorola ITC case described above and in suits described below, Motorola or a Motorola affiliate subsequently sued Microsoft on those patents in U.S. District Courts, in the ITC, and in Germany. In February 2012, the Seattle District Court granted a partial summary judgment in favor of Microsoft ruling that (1) Motorola entered into binding contractual commitments with standards organizations committing to license its declared-essential patents on RAND terms and conditions; and (2) Microsoft is a third-party beneficiary of those commitments. After trial, the Seattle District Court set per unit royalties for Motorola’s H.264 and 802.11 patents, which resulted in an immaterial Microsoft liability. In September 2013, following trial of Microsoft’s breach of contract claim, a jury awarded $14.5 million in damages to Microsoft. Motorola has appealed.
Cases filed by Motorola in Wisconsin, California, and Florida, with the exception of one currently stayed case in Wisconsin (a companion case to Motorola’s ITC action), have been transferred to the U.S District Court in Seattle.”

There’s not much there, IMHO. Even M$ calls Motorola’s patent charge “immaterial”. Those are on the same magnitude as M$’s patent claims are they not? The fact is that the producers of Android/Linux devices that have settled with M$ did so to avoid litigation and the amounts are likely less than the cost of litigation, $millions not $billions. Google is not backing down and could well win against M$ in a big way. M$ is not considering that revenue in its manipulation of Nokia. This is all about the applications, nothing more. That UI looks like M$’s phoney OS to me and to users. M$ doesn’t charge itself licensing fees so using Android/Linux is not about saving money on licensing just cost of production and importing apps. When they ship standard Android, then we can believe that M$ plans to migrate to */Linux one way or another, not before. That isn’t going to happen as long as Gates and Ballmer are around. That isn’t going to happen until the whole house of cards falls.

See Hello, MS-Android. Good-bye, Windows Phone.

  • Dec 10 / 2013
  • 2

M$’s Tax On Android/Linux

Here we go again. The soon-to-expire-of-old-age software patent on long filenames is bouncing around German courts and was ruled invalid…
“Microsoft’s FAT (File Allocation Table) patent, which concerns a "common name space for long and short filenames" was invalidated on Thursday, a spokeswoman for the Federal Patent Court said in an email Friday. She could not give the exact reasons for the court’s decision before the written judicial decision is released, which will take a few weeks.”

M$ has been raking in $billions on the basis of this patent as licensing fees ~$5 per unit. That’s pretty close to the crime of the century if you ask me, but it has all been perfectly legal until someone actually challenged M$ in court. Thank you, Google, for defending folks’ right to use the hardware they own.

See German court invalidates Microsoft patent used for Motorola phone sales ban.

  • Dec 07 / 2013
  • 2

Supremes Take Aim At Software-patents, Finally

Finally, the uproar about software-patents has penetrated to the inner sanctum of the US Supreme Court.

They can no longer fiddle while Rome burns. Being able to repatent the entirety of human history by putting some idea into software will soon become refuse in the trash-bin of IT. M$’s last grip on Free Software will be gone. Markets for IT will finally be free to run on price/performance rather than the size of legal budgets. Apple and M$ will both be cut down to size and become normal businesses instead of gangs of thugs terrorizing the planet.

“In the Federal Circuit’s decision, five judges saw Supreme Court precedent as guiding them toward a path that would narrow what kind of software and financial services are allowed to be patented. They saw Alice Corp.’s patent on a method of using "shadow accounts" in foreign currency exchange as being the kind of "but do it on a computer" patent that should be thrown out under Supreme Court guidance. "Abstract methods do not become patent-eligible by being clothed in computer language," wrote Judge Alan Lourie.”

See Supreme Court will take up messy software ruling from top patent court.

  • Sep 09 / 2013
  • 1

Death-Spiral Of Software Patents

You know the story. Give flies, mice, baboons or patent-lawyers the perfect environment and they will be fruitful and multiply until we all starve to death or something drastic happens.Cheetah_Baboon_LV

  • “Between 2007 and 2011, two-thirds of defendants in patent litigation were sued over software-related patents.”
  • “Among the most important factors contributing to patent litigation abuse are the prevalence of unclear and overly broad patents.”
  • “Lawsuits involving software-related patents accounted for 89% of the total increase in defendants from 2007-2011.”
  • “By "2011 patents related to software made up more than half of all issued patents," meaning the problem and challenges we face today are going to get worse before they get better.”…

see In-depth look at Government Accountability Office report on Non-Practicing Entities.

The US GAO has studied the matter and software-patents stick out like a sore thumb. They just don’t make any sense in the modern world. They are sand in the gears of progress. They are knee-deep syrup on the race track. Their report does not ensure elimination of software-patents but I expect something clarifying SCOTUS and GAO findings will emerge and bring US R&D back onto a firmer footing.

  • Sep 03 / 2013
  • 20

M$ Goes All-in As a Patent Troll

Unlike some patent-trolls who do nothing but sue and threaten to sue, M$ now has a token-smartphone factory, Nokia. 2-3% share is “practising” but the announced deal is really about the patents, valid or not…
“Microsoft will have the most cost-effective patent arrangements for smart devices”. Cheaper and less-contested access to intellectual property is another major theme of the presentation, possibly signalling an escalation in the ugly intellectual property disputes that have attracted government attention in the USA and beyond.”

see Microsoft's Nokia plan: WHACK APPLE AND GOOGLE.

M$ has shown great ineptitude at actually producing what people want to buy in a competitive environment but it has taken the gloves off and will try to sue folks who are successful, either to kill or to tax the still-growing smartphone market. The profits of Nokia are nowhere near enough to justify an “investment” of $billions. This is not about buying the company but buying the patents to clog the courts and to stifle innovation. “Want to produce a smart thingy? You need protection…”. It’s an old game, one long ago developed by organized criminals. M$ is more like a criminal gang than any business.

  • Aug 28 / 2013
  • 13

Banning Software Patents

Governments shouldn’t have to do this. It’s obvious that software is obvious and subject to copyright. Software has to be obvious or stupid computes wouldn’t be able to figure out what has to be done. Software is obvious like telephone books and recipes are obvious. They are not innovative in that they are just a sequence of data and instructions with myriad combinations. Software is subject to copyright. That’s the right way to protect the developer’s ideas.

There’s a reason we have copyright and patent law. They are two distinct and protectable realms. People who spend years creating a work should have a monopoly on its use for some years. That’s reasonable and promotes such valuable contributions to humankind. People who find a way to make a better mouse-trap should also be rewarded. The world needs better mouse-traps and few have the ability or interest to create them. Software is not a mouse-trap, however. The computer is the mouse-trap. Software is information like speech or writing. It can take seconds to create or years depending on the size of it but it is not protectable by patents.

New Zealand finally figured this out and banned software patents. What about the rest of us?

“The patents system doesn’t work for software because it is almost impossible for genuine technology companies to create new software without breaching some of the hundreds of thousands of software patents that exist, often for very obvious work”

see New Zealand bans software patents.

  • Aug 07 / 2013
  • 1

When Is Prior Art Not Prior Art? When The US Federal Circuit Ignores It.

“Secondary considerations evidence can establish that “an invention appearing to have been obvious in light of the prior art was not” and may be “the most probative and cogent evidence in the record.” Transocean, 699 F.3d at 1349 (quoting Stratoflex, Inc. v. Aeroquip Corp., 713 F.3d 1530, 1538 (Fed. Cir. 1983)). This evidence guards against the use of hindsight because it helps “turn back the clock and place the claims in the context that led to their invention.” Mintz, 679 F.3d at 1378. Apple presented compelling secondary considerations evidence that may have rebutted even a strong showing under the first three Graham factors, and the ITC failed to grapple with it.

For example, Apple presented evidence of industry praise by business publications. Time Magazine hailed the iPhone as the 2007 “Invention of the Year” in part because of the phone’s touchscreen and its multitouch capabilities. J.A. 7483–84. Bloomberg Businessweek issued a 2007 article entitled “Apple’s Magic Touch Screen,” in which it labeled the “sophisticated multipoint touch screen” as “[t]he most impressive feature of the new iPhone.” J.A. 7826. Around the same time, Wired Magazine recounted that, after Apple demonstrated the iPhone and its “brilliant screen,” an AT&T executive praised the iPhone as “the best device I have ever seen.” J.A. 8259 (internal quotation marks omitted). The ITC failed to address this evidence and the record does not appear to contain any contrary evidence.

Apple also presented evidence of copying. The ITC failed to address this evidence as well.

Lastly, Apple presented evidence that the iPhone has achieved a high degree of commercial success. Apple presented financial information that showed that the iPhone and related products received billions in dollars of revenue from 2008 to 2010. J.A. 14184. Apple also presented evidence showing a nexus between the undisputed commercial success of the iPhone and the patented multitouch functionality, namely evidence that Apple’s competitors copied its touchscreen and that those in the industry praised the iPhone’s multitouch functionality. The ITC did not address any of this evidence.4

For the foregoing reasons, we vacate the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand the case for further proceedings.”

see Groklaw – Apple, Motorola, ITC – Federal Circuit Remands – The Beat Goes On ~pj.

You couldn’t make this up. It’s too strange. The law specifically excludes issuing patents for stuff that’s obvious, yet the Federal Circuit in USA want press coverage to be considered instead of prior art… This nonsense is on top of software patents being invalid anyway.

  • Jun 13 / 2013
  • 1

Another Chink In The Wall Of Software Patents

“On Friday the 7th of June the German Parliament decided upon a joint motion to limit software patents (see English translation by BIKT). The Parliament urges the German Government to take steps to limit the granting of patents on computer programs. Software should exclusively be covered by copyright, and the rights of the copyright holders should not be devalued by third parties’ software patents.  The only exception where patents should be allowed are computer programs which replace a mechanical or electromagnetic component. In addition the Parliament made clear that governmental actions related to patents must never interfere with the legality of distributing Free Software.”
see German Parliament tells government to strictly limit patents on software

With USA’s Supremes soon to revisit software patents, this should indicate a cure for this cancer and further freedom from the tyranny of M$ and Apple restricting competition in the markets of IT.

  • May 30 / 2013
  • 2

Google And Apple Cooperate

It’s cute to see Apple and Google cooperating, at least on applications for mobile devices:

That’s the way IT/tech companies should work. It’s much more efficient than suing each other. Only a couple of years ago, Apple’s Steve delayed death just to spite Samsung, in part for using Android/Linux, Google’s operating system.

Now, both companies seem to value the usefulness of the other’s platform for doing business. It’s all good.

  • May 12 / 2013
  • 31

Diagnosis From USA Federal Circuit – Software Patents Are Sick

“Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.”
see Groklaw – Federal Circuit, en banc, rules in CLS Bank

Quoting from the ruling, ” It is also important to recognize that § 101, while far-reaching, only addresses patent eligibility, not overall patentability. The statute directs that an invention that falls within one of its four enumerated categories “may” qualify for a patent; thus, inventions that are patent eligible are not necessarily patentable. As § 101 itself explains, the ultimate question of patentability turns on whether, in addition to presenting a patent-eligible inven-tion, the inventor also satisfies “the conditions and requirements of this title,” namely, the novelty, nonobvi-ousness, and disclosure requirements of 35 U.S.C. §§ 102, 103, and 112, among others. See 35 U.S.C. § 101.”

Of course, if a computer can “understand” a piece of software that software surely must be “obvious”… chuckle.

” The computer-based limitations recited in the system claims here cannot support any meaningful distinction from the computer-based limitations that failed to supply an “inventive concept” to the related method claims. The shadow record and transaction limitations in Alice’s method claims require “a computer,” CLS Bank, 768 F. Supp. 2d at 236, evidently capable of calculation, storage, and data exchange. The system claims are little different. They set forth the same steps for performing third-party intermediation and provide for computer implementation at an incrementally reduced, though still striking level of generality. Instead of wholly implied computer limitations, the system claims recite a handful of computer components in generic, functional terms that would encompass any device capable of performing the same ubiquitous calculation, storage, and connectivity functions required by the method claims.”

Yup. Merely needing a computer to do the thing doesn’t make it patentable. Chuckle.

” Therefore, as with the asserted method claims, 4 such limitations are not actually limiting in the sense required
under § 101; they provide no significant “inventive concept.” The system claims are instead akin to stating the abstract idea of third-party intermediation and adding the words: “apply it” on a computer. See Mayo, 132 S. 1294. That is not sufficient for patent eligibility, and the system claims before us fail to define patent-eligible subject matter under § 101, just as do the method and computer-readable medium claims.”


“The question we must consider is whether a patent claim that ostensibly describes such a system on its face represents something more than an abstract idea in legal substance. Claims to computers were, and still are, eligible for patent. No question should have arisen concerning the eligibility of claims to basic computer hardware under § 101 when such devices were first invented. But we are living and judging now (or at least as of the patents’ priority dates), and have before us not the patent eligibility of specific types of computers or computer components, but computers that have routinely been adapted by software consisting of abstract ideas, and claimed as such, to do all sorts of tasks that formerly were performed by humans. And the Supreme Court has told us that, while avoiding confusion between § 101 and §§ 102 and 103, merely adding existing computer technology to abstract ideas–mental steps–does not as a matter of substance convert an abstract idea into a machine.”


For those unable to parse the legalese, I will paraphrase: “You can’t reinvent painting a work of art by doing it with a paint-brush.”

“We are faced with abstract methods coupled with computers adapted to perform those methods. And that is the fallacy of relying on Alappat, as the concurrence in part does. Not only has the world of technology changed, but the legal world has changed. The Supreme Court has spoken since Alappat on the question of patent eligibility, and we must take note of that change. Abstract methods do not become patent-eligible machines by being clothed in computer language. “

Isn’t that a hoot? Can you hear the patent-FUD rushing out of M$’s collapsing balloon? Can you hear the “partners” who have signed up to pay M$ per Android/Linux smart thingy calling their lawyers and accountants? Can you see the small cheap computers becoming even less expensive? I can.