Tonnerre Lombard

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 petition against censorship which was filed to the German parliament from April 24th, 2009 has finally passed the 100’000 signers. On June 4th, 12 days before the end of the petition, 110’298 people have signed it.

The powers that be however decided to ignore the petition so far. Apart from a lapsus of the German minister of economy, von Gutenberg, who declared that everybody who was against censorship is a pedophile, none of the politicians of the social democrats (SPD) or the christian union (CDU), the governing parties in Germany, has mentioned the petition in any way. Family minister Ursula von der Leyen, who is currently campaining for her reelection, even removed the time for questions from her campaign events.

Since the petition has passed the necessary limit of 50’000 signers, the petition committee of the German parliament will at least have to consider it. The result of this will be very interesting.

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