Mark Webbink On: Software Patents

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| This week Mark Webbink, former Red Hat General Counsel discusses software
| patents, their absurdity and the business climate and “judicial activism”
| that helped create them.


(Mis)understandings of the words “intellectual property”

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| Then there’s the Lone Cypress, a tree along California’s famous 17-Mile
| Drive. It’s probably the most infamous example of someone trying to exert
| ridiculous intellectual property rights. They must’ve made it sound like a
| good idea, though, because it seems that the idea of copyrighting trees is
| catching on.


Can developers reclaim donated IP?

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| I asked Richard E. Fontana, counsel for the Software Freedom Law Center,
| three basic questions about intellectual property in the free software world,
| based on a hypothetical situation in which I have written and distributed an
| application, licensed under the GPL, and now wish to transfer my IP to
| others. * *

A Patent Lie

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| Microsoft sang a very different tune in 1991. In a memo to his
| senior executives, Bill Gates wrote, "If people had understood how
| patents would be granted when most of today's ideas were invented,
| and had taken out patents, the industry would be at a complete
| standstill today." Mr. Gates worried that "some large company will
| patent some obvious thing" and use the patent to "take as much of
| our profits as they want."

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| ...Thanks to Mr. Gates, we now know that an open Internet with protocols
| anyone can implement is communism...
| *
| ...Mr. Gates' secret is out now--he too was a "communist;" he, too,
| recognized that software patents were harmful-until Microsoft
| became one of these giants...

Big businesses boast of patent benefits, for small businesses

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| A report published by an EU task force on intellectual property claims
| that small businesses benefit from a patent system, despite lacking
| almost any participation by the small business community.
| Instead, the report, titled IPR (intellectual property rights) for
| competitiveness and innovation, was written up almost entirely by
| large corporations and the patent industry.
| [...]
| The report does note objections from the likes of and
| Sun Microsystems, which were recorded at some length in the report.
| But this does not appear to have impacted the conclusion of the
| report in any way
| [...]
| Jean-Pierre Laisne, of ObjectWeb, an open source software community,
| said that he found the report useless: participants were told that
| all their contributions would be recorded but at the end only
| those of Business Software Alliance and Microsoft were used.

Ethics @ Work: Are property rights in ideas unethical?

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| Business ethics usually have little to do with ethics. In most practical
| cases the ethical value is agreed upon, and the ethics professional is
| charged with making sure they are reflected in practice. However,
| occasionally we are privileged to encounter a truly innovative ethical
| doctrine that seeks to challenge existing paradigms. A fascinating example is
| the "free content" movement, often identified with programming pioneer
| Richard Stallman who leads the related "free software movement." * * *

If you thought software patents were bad...

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| Instead, he's talking about what amounts to the instructions for making a
| specific movie: a script.
| A script defines the appearance of sets, lines for actors to read, camera
| angles and lighting to be used during the production, and a specific sequence
| of scenes that express a story. By any reasonable standard, a script is a
| description of a process. It seems to meet the requirements of 35 USC 101:
| it's new (in the sense of being original or novel), and it's useful because
| it tells us how to make a movie.

Critic of Software Patents Wins Nobel Prize in Economics

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| doom writes "You've probably already heard that the Nobel Prize
| for Economics was given to three gents who were working on advances
| in mechanism design theory. What you may not have heard is what one
| of those recipients was using that theory to study: 'One recent
| subject of Professor Maskin's wide-ranging research has been on the
| value of software patents. He determined that software was a market
| where innovations tended to be sequential, in that they were built
| closely on the work of predecessors, and innovators could take many
| different paths to the same goal. In such markets, he said, patents
| might serve as a wall that inhibited innovation rather than
| stimulating progress.' Here's one of Maskin's papers on the
| subject: Sequential Innovation, Patents, limitation (pdf).

EFF lawyer warns of e-learning patent dangers

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| Although Blackboard has publicly pledged not to enforce its patent
| against open-source software distributors, universities, or
| non-commercial entities, there are many gray areas that make it
| difficult to guess what is permissible and what is not. For
| instance, Schultz points out that the pledge allows Blackboard
| to sue proprietary software vendors that incorporate open-source
| software components into their offerings.
| Comparing Blackboard to "a schoolyard bully who holds a huge club
| over your head and promises not to hit you as long as you don't
| play with certain other kids on the playground," Schultz believes
| that Blackboard's pledge is "a nice gesture" but lacks the efficacy
| and legal significance of an official royalty-free patent license.

Analysis: Less patent shield for code

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| Clearing the way for wider worldwide distribution of computer
| software code, and saving Microsoft Corp. millions of dollars in patent
| damages, the Supreme Court ruled on Monday that it is not illegal to send
| Windows code abroad for copying and installing in foreign-made computers,
| even if the code incorporates a part of someone else's patented invention.

Supreme Court to Patent Appeals Court: Drop Dead

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| Then the justices cupped their hands astride their mouths and
| shouted in unison: Fewer patents!

Patently wrong

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| Every schoolyard has a bully who uses his size to intimidate the
| other kids, or a rich brat who threatens to take his ball home if
| he doesn't get his way.