If you want to know what the current patent battle is about the answer is simple: money. The bottom line is that Apple and Microsoft’s litigation against Google are nothing more that attempts to undermine the Android mobile operating system, which, for those who don’t know, the search giant gives away free, gratis and for nothing to mobile phone manufacturers such as Samsung, HTC, LG and Motorola. This is unacceptable behaviour in Cupertino and Redmond, where serious cash is generated by “selling” operating systems – but I digress.

The bottom line is that I applaud Google’s acquisition of Motorola’s mobile phone business because has potential to defuse the ridiculous patent litigation from Apple and extortionate license fees demanded by Microsoft. You see, Motorola has been around a lot longer than either of those two and has a portfolio of over 17 000 patents. That gives Google the option to threaten litigation of its own and, thereby, keep Android free-of-charge and unburdened by unreasonable licensing.

Which brings me to the point of this post: the current patent battle put me in mind of a piece I wrote about software patents for Brainstorm more than six years ago. Since most of the patents involved in the current furore are also software patents, that story also involved the litigious crowd in Redmond. I read through the story again this morning and found, to my astonishment, that very little has changed and much of what I wrote then is still relevant today. See for yourself but please bear in mind that when I say “last month” in the text, I mean February 2005:

Protection or exploitation? Opinions are divided on whether patents encourage innovation or over-protect intellectual property. Online dictionary and encyclo-paedia http://www.wikipedia.com defines a software patent as: “A patent intended to prevent others from using some programming technique”. But SA’s Companies and Intellectual Property Registration Office (CIPRO) offers such a general definition for the term “patent” that it allows software patents to be filed.

 Stifling innovation

Richard Stallman, founder of the Free Software Movement (FSM) and outspoken critic of software patents, said in an article published on LinuxWorld last month: “Any software patent holder, including the pirates, can sue computer users as well as software developers. Threatening the users is a common technique for an unscrupulous patent holder to put the screws on a developer.” Bob Jolliffe, senior lecturer at Unisa’s School of Computing, says: “Software is already protected by copyright. It’s a bit like taking a book and protecting it by copyright, but also registering a patent to protect the plot, or the style, or the genre,” he says.

Adding to the debate, Alexis Apostolidis, patent attorney with DM Kisch, says: “Copyright provides protection in respect of the source code per se, but may not extend to cover the idea embodied in the source code. Accordingly, I believe that copyright does not protect the functionality that one would seek to protect by way of a patent.”

Nhlanhla Mabaso of the CSIR disagrees: “Patents were designed to reward innovation, not suppress it Software patents could result in the latter, and a monopoly on knowledge for dominant players.”

Since much of the argument against software patents is from members of the open source software (OSS) community and commercial software vendors usually offer counter-arguments, the dispute is often misrepresented as a fight between legitimate software developers and Stallman’s FSM. Nothing could be further from the truth.

Patent commons

Attention focused on IBM last year when it released 500 of its 40 000+ patents to what it called a “patent commons” for use by the OSS community. Joe Ruthven, business development manager: Linux and OSS at IBM SA, clarifies: “This is a pledge, not a donation. It is about IBM’s view on patents and refers to the fact that we are completely re-examining how we manage IP [intellectual property] with an eye to greater balance between proprietary and collaborative innovation. Many greeted the move enthusiastically.”

Stacey Quandt, an analyst with the Robert Frances Group (RFG), wrote recently about IBM’s pledge: “RFG believes this represents the largest bequest of software patents to the open source commons. If other software vendors follow IBM and pledge open access to the patent commons, this could result in the creation of a virtual patent pool.

“Since individual developers and companies will be able to copy, modify, and redistribute technology covered by 500 IBM patents without payment of fees or royalties, this could lead to new open source products and innovations.”

Stallman was more cautious in his LinuxWorld article: “This announcement does not cover all of IBM’s software patents. And there are other areas where IBM does not yet co-operate with the free software community … and they are still pursuing Treacherous Computing. Nonetheless, this is a real step.” PR stunt?

Following IBM’s move, Sun Microsystems made a similar announcement regarding 1 600 of its patents. Stallman again: “It said that Sun had given us ‘free access to Sun OpenSolaris related patents under the Common Development and Distri- bution License’ [CDDL]. But those words do not really make sense. The CDDL is a license for the copyright on software, not a policy for licensing patents. It applies to specific code and nothing else.

“We can be quite sure that not all large patent holders will do this. In fact, there is one company with lots of patents that surely won’t take such a step. That is Microsoft, which says it is our enemy. Microsoft would love to make useful free software effectively illegal, and has plenty of money to pay lawyers to use whatever avenues governments provide them.

“But the danger is not only from those that specifically consider us their enemies. It also comes from patent holders, who are the enemy of everyone,” he says.

Jolliffe believes others will follow IBM, but urges caution: “HP, for example, has a large commitment to OSS … all these companies, IBM included, are running with the hare and hunting with the hounds. Many see a significant part of their future as being entwined with the development of open source. [But] at the same time they’re sitting on patent portfolios.”

Local legalese

Gerard Verhoef, Director of IP: Stellen-bosch University, has studied local patent law: “The Patent Act is very clear in this regard and section 25(2)(f) states that no computer program is patentable. However, section 25(3) leaves the door open for patenting in very limited cases.”

He says that the provision has not yet been tested in SA courts and local patent attorneys refer to foreign court decisions when giving advice on the subject. “In SA the problem is avoided because no formal patent search or investigation is required.”

Apostolidis confirms this: “Patent applications are not examined in South Africa as to whether the invention is, inter alia, novel and inventive. A patent is presumed to be valid unless proven otherwise.”

He notes further that enforceability must be judged case by case. Sometimes, especially in a commercially important patented invention, the SA patent is amended to at least partially mirror one of its corresponding patents that have been examined regarding novelty and inventiveness internationally. “In such a case the enforceability of the patent may be greater than a patent wherein the novelty and inventiveness of the invention has never been assessed,” he says.

The inference is that software is indeed being patented in SA. The website of the World Intellectual Property Organisation (WIPO), an offshoot of the World Trade Organisation, confirms this. WIPO reports that 90 655 patent applications were submitted in SA in 2002 alone. (More recent figures were not available.) It is not clear how many of these have been granted.

Interestingly, SA residents made only 184 of these applications.

Internationalisation

Why are foreigners seeking local patents? Apostolidis explains that an international patent does not exist. You need to obtain patent protection in every country in which you would like to exploit your invention.

But this might change. WIPO’s mandate is the globalisation and normalisation of patents and copyrights, which is a complicated issue. Jolliffe says a motion that was put to WIPO last year by Brazil was “very important, particularly from the perspective of developing countries”.

Co-sponsored by Venezuela, India and South Africa, the motion calls for a new development agenda at the WIPO. Jolliffe points out that in the late 19th century, it was seen to be in the national interest for US intellectual property law not to respect any copyright or any patent that did not originate in the US. So the developing world is arguing, says Jolliffe, that they need the same advantages that developed countries once enjoyed.

On the ground

Meanwhile, he has followed developments in Europe and notes that Poland has been holding up the process. “Patents are seen as a threat to small, emerging national economies and it’s really not surprising to see Poland putting its foot down. I’m more interested really in seeing what its impact is going to be here.”

Apostolidis explains: “Article 52 of the European Patent Convention also excludes computer programs and methods of doing business as such, and to a large extent, the wording of the South African Patent’s Act mirrors the wording of Article 52. A court would thus likely follow the EU law with regard to software patents and the like.”

“My understanding is that software patents are being and have been granted in this country … because of the interpretation around what’s meant by a computer program,” says Unisa’s Jolliffe. “That’s a worry for me because we’re having the ideological debate in one direction, but meanwhile it’s all happening anyway.”

Apostolidis confirms this, saying that an informal patent name search reveals that during 2003 and 2004, Microsoft Corp- oration has filed about 90 patent applications, some of which are software related.

Jolliffe urges vigilance: “As a country we are obliged to pressure our politicians to legislate in the national interest in exactly the same way the US did in the 19th century. We’re under a lot of pressure from organisations like WTO to normalise patent and copy- right legislation – and we have to resist.”

Patently absurd

One of the arguments against software patents is that some applications are ludicrous. The Register ran a story last month, which mentioned a number of questionable applications to patent basics like basic programming instructions, the “y-axis”, interactive test feedback, and “reading ahead” 20 records at a time in a database, when the user clicks the Previous or Next buttons.

The US Patent and Trademarks Office (USPTO) website revealed that all the above patents have a connection to Microsoft. (This is not to say that Microsoft is the sole abuser of the US patent system.)

The response from Microsoft SA was: “Our focus is on making our IP more broadly available via licensing and working in a collaborative way. With our December 2003 IP Policy announcement, we have revised our approach to respond to industry feedback and requests that we make our IP portfolio more broadly available to others.

“Since then, Microsoft has entered into a number of cross-licensing agreements. In addition to SAP and Siemens, Microsoft also maintains agreements with companies such as Hewlett-Packard, Cisco, IBM, Sun Microsystems and Unisys, to name a few.”

Earlier this year the USPTO granted Microsoft as patent for a: “consumer-based system and method for managing and paying electronic billing statements”. The application was filed back in December 1999.

It is not clear whether Microsoft has applied for this patent locally.

On the subject of the US patent, Apostolidis adds: “The most important parts of the specification are the claims, as these determine the scope of one’s protection. Should a person carry out an infringing act, for example by using or selling a cashflow analyser user interface as claimed, one would infringe the patent.

“One can be proactive and apply for the revocation of the patent, if there is an SA one, on the basis, inter alia, that the invention is not patentable in terms of the Act, is not novel and/or not inventive. Alternatively, one could wait to be sued for infringement and either raise the invalidity of the patent as a defence, or counterclaim for revocation of the patent,” notes Apostolidis.

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