Softwarepatenten.be

http://www.businessweek.com/news/2010-03-03/apple-starts-nuclear-war-in-patent-fight-with-htc-update2-.html

The complete documents for the suit are available here:
http://gizmodo.com/5483632/apple-sues-htc-for-infringing-on-20-iphone-patents?skyline=true&s=i

Jonas Bosson comments in his blog on this topic:
http://bosson.blogspot.com/2010/03/apple-makes-war-with-silly-broad.html

No Mr Jobs, Those patents require no innovation.

Most software and Internet firms have pledged not to sue unless someone first sues them. Sun, Google, Oracle, Cisco and many more think that patents would have an ugly effect on the market otherwise. Apple appears to have left that defensive ideal by waging patent war with Android using HTC as its proxy.

By threatening companies that deliver with Android software - they probably hope scare them off. Perhaps like when Microsoft sued Tom Tom or used SCO to ram Linux. Apple uses 20 patents that are terribly week to any person skilled in software, but as with many patents take their toll on common sense in litigation.

Engadget has the full list of Apple patents in this suit and they represent the sorry standard for what is patentable today. This has little to do with innovation, but rather by pushing overly broad claims on what is possible trough a patenting office unfit to manage or deal with abstract matters such as software.

This is yet another reason, after EOLAs return, why we need to scrap software patents to save innovation.

Shame on Apple.
/Jonas Bosson

http://thepriorart.typepad.com/the_prior_art/2010/02/patent-litigation-weekly-inside-googles-first-patent-trial.html#more

Alexander Alvaro (Member of the European Parliament, ALDE, Germany) has asked 9 questions about ACTA, notably about the access by the INTA committee to the drafts documents. He is also asking about changes to substantive patent law (read software patents here):

Parliamentary questions
22 January 2010
E-0147/10
WRITTEN QUESTION by Alexander Alvaro (ALDE) to the Commission

Subject: Anti-Counterfeiting Trade Agreement (ACTA)

1. It was reported that 38 different nations have participated in discussions about the text of the proposed Anti-Counterfeiting Trade Agreement (ACTA). Why should that text be withheld from the public?

2. If there is consensus to make the proposed ACTA public, how promptly can it be made public? And had the Chairperson and Coordinators of the responsible INTA committee full access to the documents?

3. Can an approximate timeline for the negotiation of the proposed ACTA be given?

4. Will the proposed ACTA address issues other than counterfeiting? If so, why?

5. Will the proposed ACTA make changes to substantive intellectual property law, or will it be limited to harmonising enforcement measures? If the former, why?

6. If the proposed ACTA make changes to substantive intellectual property law, why is this initiative being discussed in secret, instead of at the World Intellectual Property Organisation (WIPO)?

7. Will the proposed ACTA impose obligations with respect to the Internet, and if so, why?

8. Some commentators have claimed that the proposed agreement requires a so-called ‘Three Strikes’ approach, whereby Internet services or Internet access providers must terminate the access of Internet users accused of having violated copyright law. Can it be stated authoritatively that the agreement will not require or recommend a ‘Three Strikes’ requirement being implemented by Internet services and/or Internet access providers?

9. Certain US officials have claimed that the agreement will impose no new obligations upon the United States Government. Is it the case that the US Government would undertake no responsibilities as a result of this instrument, and if so, what benefit would accrue to the Commission by entering into such an agreement with the United States of America?

Some Member of the European Parliament are asking the Commission and the Council when they plan to respect the Lisbon Treaty on ACTA, where the next Trade Commissioner Karel DeGucht said in a hearing that the Lisbon Treaty does not apply to the ACTA negotiations, because the confidentiality rules were negotiated before the entry into force of the Treaty.

Here is the full text of the question, Mr Josefsson is publishing it in a proprietary Microsoft Word format (which is used by EU bureaucrats) on his website, but not in a plain text or html, so here it is:

EUROPEAN PARLIAMENT
FORM FOR TABLING PARLIAMENTARY QUESTIONS
To the: COUNCIL , COMMISSION

ORAL QUESTIONS

Oral Question with debate (Rule 115)

Question Time (Rule 116)

WRITTEN QUESTIONS

Written Question (Rule 117)

Priority Written Question (Rule 117 (4))

AUTHOR(S): Carl SCHLYTER, Eva LICHTENBERGER, Christian ENGSTRÖM, Niccolò RINALDI, Daniel CASPARY, Syed KAMALL, David MARTIN, Helmut SCHOLZ, Bernd LANGE, Robert STURDY

SUBJECT: Anti-Counterfeiting Trade Agreement (ACTA)

TEXT:

The plurilateral negotiations on an Anti-Counterfeiting Trade Agreement (ACTA) are being conducted under a premise of confidentiality agreed upon by participants on a request by the US Government.

At a hearing on 12 January 2010, Commissioner-designate Karel De Gucht said that he will respect the confidentiality agreement among ACTA participants.

In preliminary discussions with Parliament on a new Inter-Institutional Framework Agreement, the Commission agreed on 27 January that it is committed to a reinforced association with Parliament through immediate and full information of the Parliament at every stage of negotiations on international agreements (including the definition of the negotiation directives), in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU of Parliament, while respecting each institution's role and safe compliance with new procedures and rules for the respect of the necessary confidentiality.

- How will the Commission honour its commitment to a reinforced association with Parliament with regard to the ACTA negotiations?

- When will the Commission grant Parliament access to all documents relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters?

- Given that the Spanish EU Presidency aspires to an ACTA agreement within the first half of 2010, and given that many Parliamentarians see ACTA as an early example of EP's new role under the Lisbon TFEU, would Commission think that full access to ACTA documents should be given to Parliament prior to the coming into effect of the new Framework Agreement?

Signature(s): Date: 03.02.2010

EN

Let's see if the European Parliament have to go to the ECJ to get the documents, and test the Lisbon Treaty, but there is a high chance that the Commission and the Council will say that the Lisbon Treaty does not apply here, or they won't give full transcripts of the meetings, neither access to the documents.

"For society, however, the loss of competition through the granting sole rights to an individual or organisation is justified only if it stimulates the economy and delivers goods that change people’s lives for the better. […] Instead of stimulating innovation, such [business method] patents seem more about extracting “rents” from innocent bystanders going about their business. […] If truth be told, few inventions are really worth patenting. Time and again, surveys show that in both America and Europe companies rate superior sales and service, lead time and secrecy as far more important than patents when it comes to profiting from innovation. […] Pursuing patents aggressively for cross-licensing agreements has little to do with encouraging innovation, though. Indeed, by increasing transaction costs, such deals are in effect a tax on innovation. By the same token, how much of a contribution have the 12,000 or so business processes patented annually in America (but few places elsewhere) made to innovation? Precious little, by all accounts. It is hard enough to find evidence (outside the pharmaceutical and biotech industries) showing that the patent system generally spurs innovation. It is harder still to find justification for business-process patents."

Source: http://www.economist.com/sciencetechnology/displayStory.cfm?story_id=15479680

"Kappos said that the project “got a good level of interest. It got positive responses from examiners and the public. [The project's participants] found significant prior art, especially in non-patent literature. That's important in software, where so often it's not patented prior art. Our mission as an agency is to get the best prior art in front of examiners. There clearly is value [in the project]." "

Source: http://www.sdtimes.com/link/34113

Jeremy Allison at LCA2010

"One of the worst things that happened out of that, [is that the ISO] which was previously respected by people that didn't know it so well, became absolutely despised," he said. "There are some countries now thinking of pulling out [of ISO] because it is simply not worth participating in a process that is so obviously corrupted."

I have long kept an eye on IPWatchdog, a popular patents law blog authored by Gene Quinn, a patent attorney in the US. I have valued his reports for some time even though we have quite different ideas about what should be patentable. But sadly now, in the wake of the Supreme Court Bilski case, it seems he has gone over the edge with blatant statements like:

"Those in the software industry who are not interested in software patents are not innovators, they are copiers. They steal the work of others. " in The Fundamental Unfairness of Retroactively Applying Bilski

I think this started when Mr Quinn totally flipped in his comments in this previous post where Ian Clark, a highly regarded software engineer and entrepreneur took issue with the attorneys ideas.
However blatant, this kind of proves him wrong on so many levels it also gives me good hope for reforms in the patent area in 2010! Innovation is not just about patents Mr. Quinn and certainly proven so in the software field.
/jonas

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16 Dec 2009; Microsoft Statement on European Commission Decision

(17) Office Open XML. The “.docx, .xlsx and .pptx” file formats used in the Office 2007 version of Microsoft’s Primary PC Productivity Applications shall implement the ECMA 376 Specification. This commitment shall apply to successor versions of Microsoft’s Primary PC Productivity Applications with respect to IS 29500. This means that Microsoft shall support the relevant standard and provide a warranty as specified in the general provisions in Section B.I of this Undertaking, effective 1 January 2010.

(18) Microsoft shall publicly document Additional Information for the ECMA 376 Specification that meets the requirements of paragraph (15) above. This commitment shall apply to successor versions of Microsoft’s Primary PC Productivity Applications with respect to IS 29500. Microsoft shall provide a warranty as specified in the general provisions in Section B.I of this Undertaking, effective 1 January 2010.

So Paragraph 15 seems interesting:

(15) This paragraph describes how Microsoft shall implement paragraphs (16) to (18) and Section 2.2. Microsoft shall make Interoperability Information available to interested undertakings relative to file formats used by Microsoft Office Word, PowerPoint and Excel that allows third-party Software Products to open, manipulate, save, exchange and share documents created by Microsoft’s PC Productivity Applications without a loss of container structure information or any instructions in the file that describe the document's formatting characteristics. For these purposes, file formats are understood as containers to hold data created by users of those Microsoft’s PC Productivity Applications and information describing associated properties of that data, and the Interoperability Information in the foregoing sentence does not include information about the functionality of these applications or the underlying operating systems that could be used to clone or port Microsoft products in whole or in part.

Now the patent pledge for open source… developers!

Patent Pledge for Open Source Developers

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you as an open source software developer ("You") for making, using, importing, or distributing any implementation of the Technical Documentation ("Covered Implementation"), subject to the following. This is a personal promise directly from Microsoft to You, and You acknowledge it is a condition of benefiting from it that no Microsoft rights are received from suppliers, distributors, or otherwise by any other person in connection with this promise. To benefit from this promise, you must be a natural or legal person participating in the creation of software code for an open source project. An "open source project" is a software development project the resulting source code of which is freely distributed, modified, or copied pursuant to an open source license and is not commercially distributed by its participants. If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities.
To clarify, "Microsoft Necessary Claims" are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the Technical Documentation. … Where a software development project has in all other respects the characteristics of an open source project, distribution among the participants of that project of source code developed by natural persons under an employment contract or by natural or legal persons under a contract to develop is not considered to be commercial distribution, and that software development project does not lose its character as an open source project merely because such distribution takes place among participants. Software is deemed to be commercially distributed within the meaning of this promise when the distributor derives revenues in connection with the distribution, such as from subscriptions, updates, or user-based connection fees or from services that are contractually required for a customer to obtain the current version and/or updates of the software product in question.
This promise is not an assurance either (i) that any of the Microsoft-issued patent claims cover a Covered Implementation or are enforceable or (ii) that a Covered Implementation would not infringe on patents or other intellectual property rights of any third party. No other rights except those expressly stated in this promise shall be deemed granted, waived, or received by implication, exhaustion, estoppel, or otherwise.

I wonder how much fun Brad Smith and his colleagues had with this…

ANSI/S. Joe Bhatia responds to Congressman Gordon

Unlike the standards development systems of many other countries, the U.S. system systematically considers the views of all interested parties in a balanced way, leading to some of the most robust standards in the world. And the openness of our national standards system to new participants means that their needs can be met quickly and through innovative, collaborative solutions.

Question 3 With the globalization of technology development and business, is it time to assess an international standards system developed 50 years ago?
ANSI believes that the current international standards system is working well. It would be helpful to have an opportunity to better understand any concerns that you may have about the system so that we may work to address them. A meeting request letter has been sent under separate cover so that we may pursue this discussion.

As a founding member of ISO and a participant in the IEC for over a century, the U.S. enjoys a position of significant leadership within these organizations. Americans have served and continue to serve as officers and as influential members of all ISO and IEC governance bodies. We work very hard to garner broad support for the suggested improvements we put forward, and have developed strong relationships with many of our global partners within the international standardization community. As a result, we have been very successful in suggesting increased coordination and multiple process changes to the global system that benefit U.S. stakeholders.

And when U.S. constituents were concerned about new ISO and IEC standards that could been seen to usurp governmental authority, ANSI led the development of a set of principles to ensure that ISO and IEC standards provide solid tools to support the implementation – not set the direction – of public policies.