There has recently been a lot of rumors about the article Gnome goes Mono and jumps into the patent trap. There are some things that should be clarified about this.

• Gnome did not go Mono. At least so far. The plans towards that direction appear to have been quite fruitless.
• There are people stating that the Microsoft .NET patents only cover the System.Data and System.Windows.Forms namespace. This implies that no patents cover the concept of .NET per se.
  There has been no thorough patent analysis on this subject, and it should also be noted that patents, other than copyright, are a very broad so that rewriting the subsystem or class in question does not suffice. The class must be modified to make it work in a way that is not described in the patent claims. This means that, for a sufficiently unclear patent, it may not be possible to provide affected classes in nay way because any implementation would constitute a patent infringement.
• Nobody is saying that Mono or .NET per se are evil; the point of criticism is that the legal situation is very unclear and potentially tainted.

And that’s all I have to say about that.

The Canadian Patents Appeal Board has ruled that business methods are not eligible for patent protection.

Hopefully this will add some weight in the same direction to the Bilski case.

The international computer manufacturer IBM has filed an amicus brief to the Bilski case in the USA, a case which is considered decisive for the future direction of software patents in the United States and potentially larger parts of the world.

The message was very clear: IBM stated that software patents are not needed to create or protect innovation. In fact they are hindering it and damaging the overall economy: «You’re creating a new 20-year monopoly for no good reason.»

This position came as a bit of a surprise considering that IBM is part of the Business Software Alliance, an organization who promoted software patents very openly during the Software Patent debate in the European Union. However, IBM lawyers have stated repeatedly on various unofficial occasions since then that the patents have not served the wealth of the company in any way.

Cold Patent War: Productivity considered harmful

The problem IBM is facing with software patents is very easy. The few actors in the world who had a sufficiently large budget to equip their operations with software patents are now standing unable to use them against each other because the patent portfolios are so vast that both companies would suffer serious consequences in any dispute. The reason for this is simple: IBM, just like other large companies, has a large amount of so-called «prior art», which means pre-existing software in this case.

This prior art however offers other patent holders a chance to attack IBM in revenge, because it most likely infringes on a number of patents held by the competitor. In the sum of hundreds or even thousands of patents, this means that they cannot practically be enforced, except as a defensive measure.

The only companies which are not susceptible to this type of dilemma are companies which never actually produced anything at all — so-called «non-producing entities» (NPE), or shorter, patent trolls. These companies solely exist for the purpose of holding and enforcing a software patent. As such, they contribute nothing to the state of the art while causing damage to companies that do.

Summarizing this effect, the patent system has a very negative effect on the economy indeed: it discourages innovation and productivity as a whole while promoting litigation. Thus, it is much less surprising that IBM finally realized that software patents are damaging — even to them.

References

• Amicus Brief by IBM to the Bilski case
• The FFII on software patents

In this blog:

• EU commission takes another shot at software patents
• John Tehranian: No life without IPR infringement

After their failure to introduce software patents in Europe directly through two directives, then through the community patent and then finally through the «European Patent Litigation Agreement» (EPLA), the European Commission has come up with a new way to legalize software patents: the «United Patent Litigation System» (UPLS).

The proposal displays a vast amount of similarity with the EPLA, except that the highest instance is moved to a specialized patent court. Instead of judges, this court is run by «patent judges», who, just like in the EPLA, do not have a legal degree but are only trained by the European Patent Office. The European Court of Justice (ECJ) has no role to play in this and no right to review the decisions of the patent court.

This is another attempt of the patent system to move all control over patents and their applicability to the participants.

Why software should not be patentable

The big problem with regard to software patents is the question of invested effort. The whole debate about software patents usually evolves around the question whether or not copyright is a sufficient protection for software. In my opinion it is, which can be shown very easily:

1. First you have an idea. This costs you nothing.
2. Then you sit down and invest work in an implementation of your idea. This implementation is fully covered by copyright, and is your first real investment into the idea.

Surely, anybody could look at your product and clone it, but that requires that person to start at step 2 and re-do your entire investment in implementing the idea. Thus, this person has no competitive advantage of taking your idea. The investment software patents protect is essentially zero. This is a large difference from developing e.g. a machine, where a lot of material is usually invested into prototypes.

At the same time, the impact is not: software patents would forbid the competitor to implement his own variant of your idea. The idea is essentially monopolized, and the cost is carried by the community.

Links

• The draft agreement of the Commission
• The roadmap of the Commission for the introduction of patent litigation
• The FFII press report about the matter

After a long work in that area, the Foundation for a Free Information Infrastructure (FFII) has finally succeeded to get a court to invalidate Amazon’s One-Click Patent.

In the press release, the FFII representatives explain how the patent has been invalidated in two steps: first, the current claims were invalidated on the basis of lack of an inventive step, thus allowing Amazon to postulate new claims. However, these claims were dismissed as an infringement of Art. 123 EPC, revoking the patent in its entirety. 

The entire debate is a clear sign that clarification of the EPC provisions would improve the situation of legal uncertainty which we’re currently suffering.

After the death of the European Patent Litigation Agreement (EPLA) as an international treaty, EU-EPLA has been introduced, promising the same undesirable litigation to only the European Union. The core of the proposal is the creation of an European Judge Academy and a specialized Patent Court under the pillar of the European Court of Justice (ECJ).

Brigitte Zypries, the German minister of Justice, wants this court not to be lead by regularly appointed judges, but by so-called technical experts. She promises better examination of the technical substance of the patents in corresponding processes. These technical experts are basically just another name for Patent Agents who have passed the Judge Academy. But what are those Patent Agents anyway?

The Patent Agents

A while ago, the European Patent Office (EPO) created a new class of working men called patent agents. These patent agents act as “technical experts” (Zypries definition) in lawsuits where a patent is challenged, and provide their expertise to the judge in trying to assess the validity of a given patent.

So what does it take to become a Patent Agent? The straightest way to find out is to apply as a Patent Agent to the European Patent Office. The response from the EPO is short and clear: all that is required is a degree in a field of Engineering. Law degrees are not required, since Patent Agents are currently only functioning as experts in court cases, and thus competence in legal questions is not a criterion.

This renders the whole idea quite absurd to send these patent professionals to a Judge Academy for some short period of time and to appoint them as judges who have to make legally valid decisions. A large number of legislations even require judges to have a law degree. A patent professional cannot be expected to make legally intelligent decisions.

Still no Division of Powers at EPO

But the problem in terms of legal issues goes even further. Currently, the EPO is one of the few international agencies which does not adhere at all to the principles of Division of Powers. Patents are granted by the EPO, which constitutes the legislative branch, and part of the enforcement process is also going through the EPO, which is the executive branch.

If EPO-educated Patent Agents are now entering the judicative branch, this means that this branch is also going to be under control of the European Patent Office. This means that the third pilar of a democratic society, the judicative branch, is going to be held by the same organization which holds the legislative and executive branch. This constitution of powers should be considered highly undemocratic, as the Division of Powers is one of the main principles of a democratic society.

There is no problem with Patent Agents as experts to judges which provide them with facts about the assessed validity of the patent in question (Well, it is still a bit problematic since these experts are coming from the same entity which originally granted the patent), but there is a serious problem if one organization gains total power over their entire legislative process.

What must also be considered is that the European Patent Office is not an EU institution, and as such not under democratic control by the European Parliament. This makes the entire constellation even more problematic, since there is basically no democratic body controlling the EPO.

Pseudo Decentralization

Another issue with the proposal is that it introduces some artificial decentralization by establishing local patent courts. The idea is that a number of countries share one patent court, which might give a decentralized impression at first glance but is not decentralized at all on the second. A real decentralized patent court would mean that every country has its own patent court which elects its own set of judges.

In the case of EU-EPLA however, the European Union provides the regional courts with the technical judges, whose identity and meaning has been outlined some paragraphs above. This means that the individual member countries have no control over their local courts.

Dividing and Conquering

The last problem is more on the economic side as well as a problem with harmonization. Currently, there is no clear regulation in the European Union on how to deal with processes where patents are challenged. Thus, there are two different ways to deal with such challenges.

The first way is rather straightforward and is deployed in countries like Sweden. The procedure is rather easy: if the validity of the patent is challenged, then it will have to be decided on during the same process, along with the applicability of the same patent. This means that the plaintiff has to balance the scope of his patent very well because if his claims are too broad, the patent will be invalidated, and if they are too narrow, the patent will simply not be applicable in the proceedings because it will not cover the committed infringement.

However, in Germany and some other countries, a different procedure is in place. This procedure defines that a second process is created, potentially even at a different court. This means that potentially a different judge will be handling the patent validity case. This again means that the plaintiff could assume a very narrow set of claims for the patent validity case, while a very broad set of claims can be used in the applicability question in order to have a very broad infringement of the patent. This is only possible because the two cases are disjunctive.

This is just one more case of harmonization with the hammer. There are clear economic advantages of the first procedure, but nevertheless the second procedure is supposed to be harmonization but without any proper discussion of the issues. With all these problems, it is clear that this proposal is not in the best interest of the member states to accept this proposal. It is desirable that these issues are cleared up before the proposal can be accepted or rejected. Once there is a proposal which adheres to the democratic principles, a pan-european patent agreement is certainly warmly welcome.

History of IPRED2 

Back in 2004, the European Commission announced that, following the Intellectual Property Rights Enforcement Directive part 1 (IPRED1), a second part would be released to refine the measures as appropriate. This second part, IPRED2, would be released once IPRED1 would be implemented in the entirety of Europe, and once the experiences of the impact of IPRED1 would have been gathered.

But it appears that the Commission got impatient after this, and IPRED2 was already drafted early in 2005. However, objections had been raised in front of the European Court of Justice (ECJ) as to whether the European Commission had the competence at all to create criminal legislation for the entirety of the European Union. The ECJ decided that the Commission did not have this competence, and sent several legal documents back to the drafting table, including the IPRED2 directive proposal.

Despite the fact that IPRED1 still was not implemented in all member states and no experience had been gathered, the Commission started anew in 2006 with a new IPRED2 draft. This draft is presented to the European Parliament by Rapporteur Nicola Zingaretti, and has passed the European Council as well as the parliamentary expert gremia JURI, ITRE and LIBE and the plenary vote.

However, the law is not final yet. Due to express requests from parliamentarians, the release of the law in the official journal of the European Union, which would make it legally binding, has been postponed, in order to allow the issues which have been raised to be discussed.

Issues with IPRED2

The main problem with IPRED2 is that it is formulated in a way too broad fashion. During the conciliation phase, the legal proposal has already been improved in some way, but the problems remain: IPRED2 imposes criminal sanctions on undisclosed infringements on intellectual property rights. The problems with this have been outlined in a FFII paper called “To Lisbon or to Prison” by the FFII.

There is also a detailed analysis of IPRED2 from Vrijschrift.

A sign of lack of harmonization?

IPRED2 is also often referred to as a piece of “Italo-legislation”. This is of course not meant as an insult, but it is a consequence from the fact that the Italian legal system works differently from, for example, the German legal system.

In Italy, legislation is always formulated in a very excessive way and then the jurisdiction sorts out the problems with their judgment on the applicability of the legislation. However, in Germany, what is written in law is always applicable and will be applied, so the impact of such broad formulations will be a lot higher in some European countries than in others.

The only possible interpretation for this problem is that the European Union is not ready yet for legislation of such immense importance. Before criminal sanctions can be harmonized, there must be a common basis for interpretation of the legislation.

A couple of years back, the Gnome desktop environment developers have taken the decision to reengineer the Gnome desktop around the Mono framework. This decision has mainly been influenced by the main Mono developer Miguel de Icaza, who is a very vocal employee of Novell. Recent developments thus request us to recall the pieces of the puzzle in order to understand what might really be going on.

Reasonable doubt has been rased to whether or not Mono can actually be deployed freely. Mono itself is basically a free and halfway portable implementation of the .NET framework developed by Microsoft. However, the .NET framework itself is subject to a large amount of software patents, which cover the concepts used within the .NET framework. Since these are concepts and not individual implementations (which are covered by Copyright, which is certainly untouched by a reimplementation), they most likely also apply to the Mono framework.

To Novell itself, Icazas employer, this is not a significant problem, since Novell has closed a patent deal with Microsoft not so long ago which undoubtedly also covers the .NET patents. However, all conventional Linux and Open Source vendors would not be able to distribute Gnome as it would be covered by the .NET patents Microsoft owns.

This amounts to an easy way for Novell to effectively lock in Gnome users to their own products. Gnome would no longer be a real Free Software project, even though the code remains freely available. It is expected that this type of patent issues will be raised many times, causing severe damage to the economy with the time. The only way of mitigation will be a transatlantic patent agreement which clarifies Art. 52 EPC: Software is not patentable.

John Tehranian has released a paper stating that life without IPR infringements is not possible. Tehranian is describing the average day of an imaginary, but average person, all with respect to intellectual property rights infringements. The liabilities for such an average day would already amount to several million Dollars.