Patent Absurdity Becomes Absurdly Patent

Something wonderful has happened over the last few weeks: more people have woken up to the threat that patents represent to innovation.

I'd like to think that it was my call to abolish patents completely that started this, but it's more likely to have been the NPR feature that got people aware of this.

As well as NPR's own follow up, Forbes joined in with a call for software patents to be invalidated, and we even saw The Economist belatedly waking up to the reality of this intellectual monopoly.

And still they're coming. Here's Mark Cuban putting his oar in [update: and here's his solution - abolish software and process patents], while Dave Winer concluded a piece with the memorable line:

These guys [referring to Nathan Myhvold et al.] are so perfectly evil and on such a huge scale, it's as if they were out of a DC Comic.

Finally, we even had Dilbert on the subject.

So, now that everyone with a brain agrees there's a problem with patents, how about really trying to solve it?

Follow me @glynmoody on Twitter and identi.ca, or on Google+

Oh, Tell Me the Truth about Patents

One of the pernicious effects of the highly-successful campaign to re-brand intellectual monopolies as "intellectual property" is the abiding belief that whatever the local faults, globally the system is working well. Well, maybe not:

For those with a principled, libertarian view of property rights, it is obvious that patent and copyright laws are unjust and should be completely abolished. Total abolition is, however, exceedingly unlikely at present. Further, most people favor IP for less principled, utilitarian reasons. They take a wealth-maximization approach to policy making. They favor patent and copyright law because they believe that it generates net wealth — that the value of the innovation stimulated by IP law is significantly greater than the costs of these laws.

What is striking is that this myth is widely believed even though the IP proponents can adduce no evidence in favor of this hypothesis. There are literally no studies clearly showing any net gains from IP. If anything, it appears that the patent system, for example, imposes a gigantic net cost on the economy (approximately $31 billion a year, in my estimate). In any case, even those who support IP on cost-benefit grounds have to acknowledge the costs of the system, and they should not oppose changes to IP law that significantly reduce these costs, so long as the change does not drastically reduce the innovation gains that IP purportedly stimulates. In other words, according to the reasoning of IP advocates, if weakening patent strength reduces costs more than it reduces gains, this results in a net gain.

Well, $31 billion: that's a high price to pay for something we don't need... (Via Tim Bray.)

Follow me @glynmoody on Twitter or identi.ca.

Why Does Amazon Want to Be Evil?

I like Amazon's services. Indeed, judging by the amount I spend with the company, I'm probably a suitable case for treatment for Amazon addiction (whatever you do, don't sign up for Amazon Prime, which makes getting stuff *far* too easy).

And yet despite the fact that it offers an incredible service, Amazon seems hell-bent on proving that it is not a cuddly new-style company, but just as rapacious and obsessed with "owning" commonplace ideas as all the bad old ones.

Specifically, it is *still* trying to get a European patent on things that are both obvious and manifestly just business methods, neither of which can be patented in Europe:

The Board of Appeal of the European Patent Office (EPO) has recently heard an appeal against revocation of one of Amazon's "one-click" patents following opposition proceedings. The Board of Appeal found that the decision to revoke the patent should be set aside and that the patent should be returned to the opposition division for further consideration of an alternative set of claims.

Here's that brilliant "invention" that Amazon is so keen to claim as its very own:

The particular patent in issue is concerned with allowing a first individual to send a gift to a second individual when the first individual knows only the second individual's email address but not their postal address.

Wow, you can tell that Jeff Bezos and his crew are geniuses of Newtonian proportions from the fact that they were able to conceive such a stunningly original idea as that.

Undettered by its rejection, Amazon is now trying an even more pathetic track:

The Appeal Board decided that revocation of the patent as granted was correct, but that more limited claims relating to details of technical implementation of the invention should be considered further.

That is, having failed to patent the idea itself, it is now trying to claim that a "computer implementation" of the idea is patentable - as if implementing an obvious, trivial idea in a computer stops it from being obvious and trivial.

*Shame* on you, Amazon.

Follow me @glynmoody on Twitter or identi.ca.

McDonald's Sandwich Patent

You can't make this stuff up:

The present invention relates to a sandwich assembly tool and methods of making a sandwich, which may be a hot or cold sandwich, quickly by pre-assembly of various sandwich components and simultaneous preparation of different parts of the same sandwich. The sandwich assembly tool is composed of a member preferably having one or two cavities for containing a quantity of garnish. The cavities are used for the assembly of the sandwich. The tool may have a raised ridge adjacent one or both cavities for placement against the hinge of a bread component. Methods of making a sandwich] are disclosed. The methods may include one or more of the use of preasseribled sandwich fillings, assembly of garnishes in advance of a customer's order or while ether portions of the sandwich are being heated using the sandwich assembly tool, the simultaneous heating of a bread component and the sandwich filling, placing the bread component over the tool containing garnish, and inverting the tool and bread combination to deposit the sandwich garnish onto the bread component.

And don't miss the flowchart that explains how to make a sandwich. (Via Against Monopoly.)

Why Patents Are Broken, Part 4783678

The European Patent Office (EPO) is warning of "Global Patent Warming" in light of the growing number of patent applications it is receiving. At the AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle) Congress that closed today in Boston, EPO head Alison Brimelow said that the increasing number of patent applications is currently the biggest problem that patent offices face and is slowing down the issue of patents.

..


An EPO spokesperson told heise online that the increasing number of patent applications does not mean that the world is coming up with more innovations. Rather, inventors and companies that already hold patents in one country are lining up at many other national patent offices to get patents for other markets.

In other words, more patents that are even more worthless.

AT&T: Proud of its Pathetic Patent Pathology

I thought the image in this post was only vaguely amusing, and so didn't bother pointing it out. But now that AT&T wants to add bullying to greed and stupidity, I feel obliged to urge you all to rush over and look at it *really* hard.... (Via Boycott Novell.)

Mighty Mike vs. Nugatory Nathan

As readers of this blog may have gathered, I am not the biggest fan of Nathan Myhrvold. I am, however, a big fan of Mike Masnick, especially when he writes posts like this:

And here Myhrvold is either outright lying or he's ignorant (he can let us know which one). First of all no one has ever said that patent litigation is threatening to stop all innovation. They've just said that it is slowing the pace of innovation. And there's plenty of evidence to support that, despite Myhrvold's claim that there's none. James Bessen and Michael Meurer just came out with a whole book detailing much of the evidence, and David Levine and Michele Boldrin also have a book with even more evidence. Did Myhrvold simply not know about these? Or is he lying to PC World?

Go on, Mike, tell us what you *really* think....

Venezuela Gets It on Eye-Pea

Who doesn't want intellectual prosperity?

The term “intellectual property” is a new-speak propaganda word. First, the topic it covers varies from copyright, patents, trade secrets and trademarks to a variety of other things, all of which are very different and unrelated. Second, it is based on the premise that you can give someone something intangible and yet control it as if it or they were your physical property, even the ideas they may have in their mind.

The consequences of treating ideas as if they are tangible property are the very destruction of science and education, and the elimination of individual rights and freedoms.

The consequences of treating ideas as if they are tangible property are the very destruction of science and education, and the elimination of individual rights and freedoms. Science is in part built upon the idea that new knowledge is created by incrementally improving ideas.

Education is based on the idea that one can learn from existing things and then use that knowledge to create new works. The idea behind “intellectual property” is barbarism, and could well lead to a new dark ages, where only a privileged few are allowed to learn, under the exclusive control of greedy intellectual monopolies.

SAPI, the Independent Service ministry of Propiedad Intellectual, was the ministry that used to define Venezuela’s so called “Intellectual Property” laws. The current Director General of SAPI has very different ideas for the purpose of SAPI. Rather than creating new intellectual restrictions, the Director General proposes that the mission of SAPI should instead become that of promoting “intellectual prosperity” by creating laws and services that promote the ability to share knowledge as the common heritage of all mankind, rather than hoard it to make a few people wealthier.

Sick Idea: Using Patents to Kill People

How, er, sick is this?

Of all the exclusions from patentability, most poignant is the bar on patenting methods of surgery, therapy or diagnosis practised on the human or animal body. While it seeks to release medical practitioners from the shackles of commercial monopoly and legal liability when choosing how best to treat their patients, many argue that its true effect is to stifle the creation, publication and promulgation of new techniques that save lives or improve their quality.

Poignant? It's basic human decency. Imagine being unable to use a life-saving technique on a patient simply because it was "patented", and the licensing fees were exorbitant. Imagine, indeed, the situation in developing countries that can't even afford medical equipment, much less absurd, intellectual monopolies.

There's a reason we don't have patents on such things: they represent basic human knowledge of the kind whose invention and transmission down the generations lies at the heart of our civilisation and humanity. The day we start charging for this kind of thing is the day we as a race are in deep, deep trouble.

End Software Patents Now!

One of the most remarkable - and heartening - changes in recent years has been in the attitude to software patents. Until a few years back, there was a certain fatalism regarding these particularly pernicious intellectual monopolies, as if they belonged, with death and taxes, to the inevitable and immutable. But people have started fighting back, both in terms of seeking to have patents revoked, and trying to get the entire category abolished.

The latest manifestation of this is the End Software Patents site:

Every company is in the software business, which means that every company has software liability. We estimate $11.4 billion a year is spent on software patent litigation (see our resources for economists page), and not just by Microsoft and IBM—The Green Bay Packers, Kraft Foods, and Ford Motor are facing software patent infringement lawsuits for their use of the standard software necessary for running a modern business.

Software innovation happens without government intervention. Virtually all of the technologies you use now, was developed before software was widely viewed as patentable. The Web, email, your word processor and spreadsheet program, instant messaging, or even more technical features like the psychoachoustic encoding and Huffman compression underlying the MP3 standard—all of it was originally developed by enthusiastic programmers, many of whom have formed successful business around such software, none of whom asked the government for a monopoly. So if software authors have a proven track-record of innovation without patents, why force them to use patents? What is the gain from billions of dollars in patent litigation?

Best of all on what is sure to become one of the central sites in the fight against patents, are the resources. Even though I follow this area closely, I was amazed at just how much hard evidence there is that software patents are harmful from just about every point of view. Victory just got closer.

Still Not Learning from Past Experience

The intellectual monopolies lord giveth, and the intellectual monopolies lord taketh away:

Blackboard has prevailed in an e-learning patent dispute against Desire2Learn. A federal jury in Lufkin, TX made the determination Friday afternoon, following a two-week trial. Blackboard was seeking $17 million in lost revenue, as well as an injunction against the company, which is based in Canada.

As you may recall, Blackboard is claiming a ridiculous broad patent on a wide range of obvious ideas:

A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online, the courses including assignments, announcements, course materials, chat and whiteboard facilities, and the like, all of which are available to the students over a network such as the Internet. Various levels of functionality are provided through a three-tiered licensing program that suits the needs of the institution offering the program. In addition, an open platform system is provided such that anyone with access to the Internet can create, manage, and offer a course to anyone else with access to the Internet without the need for an affiliation with an institution, thus enabling the virtual classroom to extend worldwide.

(Via Techdirt.)

Patents to Stifle Competition? - Surely Not

Another judge gets it:

A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.

U.S. District Senior Judge Richard P. Matsch sanctioned attorneys Terrance McMahon and Vera Elson of the firm McDermott, Will and Emery, of Chicago and San Francisco, for "cavalier and abusive" misconduct and for having a "what can I get away with?" attitude during a 13-day patent infringement trial in Denver.

He ruled that the entire trial was "frivolous" and the case filed solely to stifle competition rather than to protect a patent.

(Via Slashdot.)

Bye-bye US Business Method Patents?

On Open Enterprise blog.

Submarines Ahoy

I've not been following the details of the US Patent Reform Act, but this sounds worrying:

The Electronic Frontier Foundation supports the Patent Reform Act of 2007, but the group does worry that the law in its present state could reform the EFF's Patent Busting Project right out of existence.

The EFF has sent a letter to Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) outlining its problems with the Patent Reform Act (the bill has already passed the House). Under the bill's current language, patents will be subject to a post-grant review process, but the current reexamination system would be scrapped.

The post-grant review system would allow nonprofits like the EFF to challenge bum patents for only 12 months after they are issued. In the EFF's view, this isn't nearly enough time to become aware of dodgy patents and the impact they will have on the tech community at large. The group would prefer to retain the current reexamination system and simply add post-grant review to the process.

In particular, this would seem to encourage "submarine patents" - those which aren't used for a while, and then sprung on an unsuspecting world. By which time, of course, it would be too late to challenge.

As the EFF points out:

The public has a right to defend itself against patents that should never have been granted, and organizations like EFF exist to assist in this process. Reexamination proceedings are essential for us to continue this work.

Against Intellectual Monopoly

On Open Enterprise blog.

Sick, Sick, Sick: The Sickness Deepens

I've warned you about this bloke before:

Intellectual Ventures LLC, a low-profile investment firm run by former Microsoft Corp. executive Nathan Myhrvold, is laying plans to go global: It hopes to raise as much as $1 billion to help develop and patent inventions, many of them from universities in Asia.

The move could help the firm, formed seven years ago to purchase patents and help inventors dream up new ones, expand its already-vast store of patents. But the new push also could exacerbate concerns that Intellectual Ventures will begin launching lawsuits to pressure companies to pay for use of its intellectual property.


Mr. Myhrvold said that his firm hasn't sued anybody for patent infringement but that he can't rule it out in the future.

That's a "yes", in case you were wondering. (Via Against Monopoly.)

Patently Outrageous

Europe does not allow software patents, but that doesn't stop some people - patent lawyers, mostly - from circumventing that clear and specific intention. One of them has not only written a book on how to sneak software patents through the system, but is now challenging an eminently sensible ruling on the subject by the UK authorities last year.

But the bits that stick in my craw are the following sections of the accompanying press release:

High-tech businesses can obtain a European-level monopoly over the distribution of computer disks and internet downloads of programs that configure an apparatus to perform a patented process. Now, in Britain, they cannot.

and

“A lot of people think there is no problem here because disks and downloads are protected by copyright,” noted Nicholas Fox, of Beresford & Co, the patent attorney acting for the high-tech five. “However, that is just not true. Copyright protection only protects code against copying. In contrast, patent protection enables a company to monopolise an invention even if competitors independently come up with the same idea.

Got that? These poor little companies just absolutely must have a monopoly on ideas to stop others from coming up with the same idea *independently*, because, you know, intellectual monopolies - like all monopolies - are just so good for society, and we can't allow other people to have the same ideas on their own without paying, oh my word no, because - heavens! - art and science might actually progress. And we can't have that, can we?

It's sad enough writing a book on how to get around a clear legal statement of intent; but brazenly demanding the right to a monopoly in what amounts to mathematical knowledge (as all software is, embodied in logical operations and algorithms) really takes the biscuit.

Amazon One-Click Patent Struck Down

Here's an amazing victory:

In a recent office action, the USPTO has rejected the claims of the Amazon.com one-click patent following the re-examination request that I filed on 16 February 2006.

My review resulted in the broadest claims of the patent being ruled invalid.

In its Office Action released 9 October 2007, the Patent Office found that the prior art I found and submitted completely anticipated the broadest claims of the patent, U.S. Patent No. 5,960,411.

I had only requested the USPTO look at claims 11, 14, 15, 16, 17, 21 and 22 but the Office Action rejects claims 11-26 and claims 1-5 as well!

What's particularly remarkable is that this has happened through the dogged perseverance of one individual: Peter Calveley.

Kudos, sir. (Via Boing Boing.)

Power to the (Young) People!

The Free Culture group are people after my own heart, so much so that their entire manifesto deserves quoting:

The mission of the Free Culture movement is to build a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure. Through the democratizing power of digital technology and the Internet, we can place the tools of creation and distribution, communication and collaboration, teaching and learning into the hands of the common person — and with a truly active, connected, informed citizenry, injustice and oppression will slowly but surely vanish from the earth.

We believe that culture should be a two-way affair, about participation, not merely consumption. We will not be content to sit passively at the end of a one-way media tube. With the Internet and other advances, the technology exists for a new paradigm of creation, one where anyone can be an artist, and anyone can succeed, based not on their industry connections, but on their merit.

We refuse to accept a future of digital feudalism where we do not actually own the products we buy, but we are merely granted limited uses of them as long as we pay the rent. We must halt and reverse the recent radical expansion of intellectual property rights, which threaten to reach the point where they trump any and all other rights of the individual and society.

The freedom to build upon the past is necessary for creativity and innovation to thrive. We will use and promote our cultural heritage in the public domain. We will make, share, adapt, and promote open content. We will listen to free music, look at free art, watch free film, and read free books. All the while, we will contribute, discuss, annotate, critique, improve, improvise, remix, mutate, and add yet more ingredients into the free culture soup.

We will help everyone understand the value of our cultural wealth, promoting free software and the open-source model. We will resist repressive legislation which threatens our civil liberties and stifles innovation. We will oppose hardware-level monitoring devices that will prevent users from having control of their own machines and their own data.

We won’t allow the content industry to cling to obsolete modes of distribution through bad legislation. We will be active participants in a free culture of connectivity and production, made possible as it never was before by the Internet and digital technology, and we will fight to prevent this new potential from being locked down by corporate and legislative control. If we allow the bottom-up, participatory structure of the Internet to be twisted into a glorified cable TV service — if we allow the established paradigm of creation and distribution to reassert itself — then the window of opportunity opened by the Internet will have been closed, and we will have lost something beautiful, revolutionary, and irretrievable.

The future is in our hands; we must build a technological and cultural movement to defend the digital commons.

I was particularly pleased to see from this New York Times article that they have also realised that the ramifications of defending the digital commons reach much further than merely demanding read-write media:

But in recent months, the group has made a point of branching out beyond music copyrights. At its first national conference, held at Harvard in May and attended by more than 130 people, speakers gave presentations on topics like enhancing Internet access in impoverished countries, and loosening patent regulations for pharmaceutical drugs.

“File-sharing may have brought these issues to public consciousness, but it’s not our only inspiration,” said Elizabeth Stark, founder of Harvard’s Free Culture group.

Some chapters have rallied around the Federal Research Public Access Act, a bill that would make it mandatory for government-financed research to be published in online journals, free to the public.

Young idealism: don't you just love it?

IBM Makes Good on Patent Bloop

Not something you see everyday - yet:

IBM has put into the public domain and withdrawn its application for patent number US2007/0162321 - Outsourcing of Services. This patent application covers analyzing work flows, skills, economic costs, etc. Here’s why we are withdrawing it — IBM adopted a new policy a year ago to sharply reduce business method patent filings and instead stress significant technical content in its patents. Even though the patent application in question was filed eight months before the policy took effect in September, 2006, had the policy been in place at the time, IBM would not have filed the application. We’re glad the community pointed this application out so IBM could take swift action.