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Red Hat Urges USPTO To Deny Most Software Patents 175

Posted by samzenpus
from the stop-giving-it-away dept.
Julie188 writes "The United States Patent and Trademark Office asked for public input on how it should use the Supreme Court's Bilski decision to guide it when granting new patents. Not surprisingly, Red Hat took them up on it. The USPTO should use Bilski and the fact that the machine transformation test is 'important' to Just Say No to most software patents, it advised. Rob Tiller, Red Hat's Vice President and Assistant General Counsel, IP, is hopeful that the patent office will listen and put an end to the crazy software patent situation that has turned patents into weapons that hinder innovation."
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Red Hat Urges USPTO To Deny Most Software Patents

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  • by pablo_max (626328) on Thursday September 30, 2010 @02:42AM (#33744270)

    I'm sure that's what they will do. After all, they have a long history of putting the public ahead of big business and making sensible decisions.

    • Oh, nice delivery!

    • Re: (Score:3, Insightful)

      by Joce640k (829181)

      Not so long as they get paid per patent accepted they won't.

      • by Grond (15515) on Thursday September 30, 2010 @10:06AM (#33746556) Homepage

        Not so long as they get paid per patent accepted they won't.

        This statement ignores a ton of history and implies corruption where there is none. The Patent Office has historically fought tooth and nail to oppose the expansion of patentable subject matter. It opposed patents on genetically modified organisms all the way to the Supreme Court. Diamond v. Chakrabarty [findlaw.com], 447 U.S. 303 (1980) (the 'Diamond' in that case was Sidney Diamond, the Commissioner of Patents and Trademarks). It repeatedly opposed patents on software all the way to the Supreme Court. Diamond v. Diehr [justia.com], 450 U.S. 175 (1981); Parker v. Flook [justia.com], 437 U. S. 584 (1978) (Parker was the acting Commissioner of Patents and Trademarks); Gottschalk v. Benson [findlaw.com], 409 U.S. 63 (1972) (again, Gottschalk was the acting Commissioner). In Bilski v. Kappos, the Patent Office was fighting against the patentability of business methods, again, all the way to the Supreme Court.

        In most of these cases (all except Bilski, in fact) it was actually the Patent Office that appealed to the Supreme Court rather than acquiesce to the lower court's ruling, so the Patent Office has for decades consistently fought quite hard against the expansion of patentable subject matter despite being reliant on application and maintenance fees for its budget.

    • by sdnoob (917382)

      Yeah.. I don't expect any miracles out of the US federal government.

      However, it would be really funny if it was some nutjob like Bilski that ended up causing software patents to be invalidated.

  • by pesc (147035) on Thursday September 30, 2010 @03:08AM (#33744418)

    I am a software author. Software patents interferes with my right to publish texts that i write myself.

    • by Grond (15515)

      I am a software author. Software patents interferes with my right to publish texts that i write myself.

      Could you give an example? Have you been sued for patent infringement? Threatened? Did you decide not to market a program after discovering that it was covered by a software patent? Did you contact the patent owner to see if a free or inexpensive license was available?

      • Did you decide not to market a program after discovering that it was covered by a software patent?

        I have decided not to market a program after discovering that the boot process on the program's intended platform was covered by patents, enforced by the courts of at least one major country.

        I have also decided not to market a program after discovering a look and feel copyright whose owner is notorious for waving it around as if it were a patent. And yes, the owner of this copyright has threatened me and several of my beta testers with DMCA takedown notices about videos demonstrating the use of my progra

        • by Grond (15515)

          I have decided not to market a program after discovering that the boot process on the program's intended platform was covered by patents, enforced by the courts of at least one major country.

          I don't understand how that would have affected your program. Why would a patent on the boot process of the platform affect a program running on the platform? There are no doubt lots of patents related to a PC's BIOS or a Mac's EFI system, but that has nothing to do with someone writing a program for a PC or Mac.

          Did y

          • For your convenience, I have split my response into two separate posts: one related to appliance maker "N" and an application developer "T".

            Why would a patent on the boot process of the platform affect a program running on the platform?

            Such a patent, worded to claim the software card used with this boot process, lets the maker of the appliance sue makers of unlicensed software cards for the appliance.

            a PC or Mac

            Comparing the boot process of a PC or Mac to the boot process of a mainstream video game console or handheld is very much apples and oranges.

            Further, do you reside or have assets in the country in question (patent jurisdiction is generally not transnational)?

            I am not aware of such lawsuits targeting United States-based r

            • by Grond (15515)

              Such a patent, worded to claim the software card used with this boot process, lets the maker of the appliance sue makers of unlicensed software cards for the appliance....Comparing the boot process of a PC or Mac to the boot process of a mainstream video game console or handheld is very much apples and oranges.

              I see. Your original post didn't make the architecture of the system clear. Thank you for the clarification. Still, if the product is potentially lucrative you should consider contacting a patent a

              • by tepples (727027)

                The 'secure location' language is curious to me. That suggests that part of the license involves trade secrets or other confidential information. If so, that's a separate issue from patents.

                Suffice it to say that in the world of legitimate software for these appliances, the patents are licensed only to licensees of the trade secrets.

                • by Grond (15515)

                  Suffice it to say that in the world of legitimate software for these appliances, the patents are licensed only to licensees of the trade secrets.

                  So it sounds like the real problem for you here is not the patent but rather the trade secrets, since they're the reason you can't easily take a license. If your product idea is lucrative then why wouldn't it be worth it to invest in some tiny closet of an office in order to be able to take a license? There are lots of commercial buildings with one room offices.

          • Copyrights are a vastly more powerful form of IP than patents, at least in the US.

            The U.S. Code also has 17 USC 102(b), which appears to exclude methods of operation from the scope of copyright. For example, I believe LibreOffice (formerly OpenOffice.org) doesn't infringe the copyright in Microsoft Office 2003 because of this statute, and Quadrapassel doesn't infringe the copyright in Tetris because of this statute. It's called the "idea-expression divide", and as I understand it, it's roughly equivalent to the "functionality doctrine" of trademark law: just as a trademark can't be used

            • by Grond (15515)

              The U.S. Code also has 17 USC 102(b), which appears to exclude methods of operation from the scope of copyright....It's called the "idea-expression divide", and as I understand it, it's roughly equivalent to the "functionality doctrine" of trademark law: just as a trademark can't be used as an ersatz patent, nor can a copyright. But good luck for a startup company to pay a lawyer to convince a judge of that.

              That's a slight muddling of the idea/expression distinction and the ban on copyrighting the functiona

  • Patents only brought us one real innovation: litigation innovation.

  • by ciaran_o_riordan (662132) on Thursday September 30, 2010 @08:22AM (#33745610) Homepage

    The End Software Patents campaign also submitted a brief, a little more specific:

    http://news.swpat.org/2010/09/esp-to-uspto/ [swpat.org]

  • Or some other, less hypocritical company?

    Before anyone shrieks "DEFENESTRATIVE PORPOISES OWNLY!!!!!11!!!", please remind me: who now owns all of SUN's patent portfolio?

    What's it to be, Red Hat? Are you going to (not) put your patents where your mouth is?

    • by Anonymous Coward on Thursday September 30, 2010 @09:06AM (#33745918)

      Done. http://www.openinventionnetwork.com/index.php

    • They have a patent pool that protects the core of the GNU/Linux environment, and a presumably irreversible promise to not bring suits against FOSS under at least a certain group of licenses.
      • by Rogerborg (306625)

        Are you a Goddamn fucking retard? Seriously? You need it spelled out? OK, I'll type this r-e-a-l-l-y s-l-o-w-l-y to make it easier for you: whatever covenants Red Hat has made, when - not if, when - they get acquired by Oracle #2, those promises won't be worth the paper that they aren't written on, and the same patents that were "protecting" the "GNU/Linux environment" will become the ideal tools with which to attack it.

        Are you labouring under the bizarre misapprehension that it can't happen to Red Hat

        • Re: (Score:3, Informative)

          Licenses don't have to be revocable, and that applies to software and patents. When Oracle acquired Sun, they didn't have a chance to make OpenOffice, Virtualbox, and OpenSolaris not available under the FOSS licenses they were previously released under, even though they were the sole copyright holders of at least some of those. If Google had used something OpenJDK based instead of Dalvik, then Oracle wouldn't be able to sue. I'm pretty sure the same thing applies to a license Sun granted for any JVM that
  • Not just software patents should be denied, but lifeform patents as well. In fact, I would love to see all lifeform patents invalidated, as this would take the wind out of the sails of Monsanto.
  • Wake me up when U.S. citizens are ready to take back their country from the corporations.
    • by mcgrew (92797) *

      Wake me up when U.S. citizens are ready to take back their country from the corporations.

      Oh, we are -- everyone I know bitches about how the corrupt government is in corporate pockets. We just don't know how to do it without armed revolution. Nobody wants a war on their own land unless there are already a lot of casualties.

      A lot of people I know are simply ignoring government, regulations, and laws entirely unless forced to comply at the end of a gun barrel. Illinois has passed a "no smoking" law that outla

      • by Yfrwlf (998822)
        Bars having smoking and non-smoking areas that are adequately ventilated is by far enough I think, I know lots of places which have smoking sections and I'd never be the wiser as they don't bother me. I don't know if there should be regulation to force establishments to make sure there is adequate room between those sections for places in which that might be a bit of a problem, but that's neither here nor there. The point I was getting at is that citizens should be the government, not corporations. You h
    • by fnj (64210)

      OK, you will have a long, LONG snooze. Hope you have put on a good layer of fat.

    • by Abcd1234 (188840)

      That'll only happen after campaign finance is reformed... pity the people, particularly right-wingers, love to vote against their own interests on that topic.

      • by Yfrwlf (998822)
        I agree that in particular that is one of the biggest entrypoints money has into government. However there will of course be corruption even when there are fair non-monetary-based elections, so then you have to go after simply ensuring more transparency and democracy on every level and do more past that to hold accountable those in office. But yeah, money-based elections is definitely the main loophole. More like a tunnel, really. Okay, I guess it's basically the Grand Canyon.
  • "... hopeful that the patent office will listen and put an end to the crazy software patent situation that has turned patents into weapons that hinder innovation."

    Hindering innovation is exactly what patent is for, and that's what it's always been for. There's been enough written on the topic over the past few centuries; you'd think that people would understand this.

    The only thing you can do with a patent is to take it to the courts to prevent someone else from using it in something they're building. If t

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