Linked by Thom Holwerda on Wed 6th Jul 2011 14:00 UTC
Microsoft Well, paint me red and call me a girl scout, I totally did not see this one coming at all. This is so utterly surprising it made my brain explode. Hold on to your panties, because this will rock your world. After pressuring several smaller Android vendors into submission (and yes, HTC is still relatively small compared to other players), Microsoft is now moving on to the big one: Redmond is demanding $15 for every Samsung Android device sold. Samsung's choices are simple: pay up, or face another epic lawsuit.
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lemur2
Member since:
2007-02-17

That description of patents is outdated. In software there is no difference between a method and an idea, and patents are generally formulated so generic they can cover an entire field. So patents are awarded for ideas. The best example of this is not even software patents, but business plan patents.


Pure software patents and business plan patents are not allowed period.

http://en.wikipedia.org/wiki/Machine-or-transformation_test

"In United States patent law, the machine-or-transformation test is a test of patent eligibility under which a claim to a process qualifies to be considered for patenting if it (1) is implemented with a particular machine, that is, one specifically devised and adapted to carry out the process in a way that is not concededly conventional and is not trivial; or else (2) transforms an article from one thing or state to another."


A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process). Under this definition, for example, an application running on a general-purpose PC is not patentable (becaue the PC is general purpose).

In the EU, scientific discoveries, mathematics and software, aka as 'programs for computers', are all specifically mentioned as things which are not patentable.

http://en.wikipedia.org/wiki/Patentable_subject_matter

In the EU:
The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.


Canada:
According to the Canadian Intellectual Property Office (CIPO) patents may only be granted for physical embodiments of an idea, or a process that results in something that is tangible or can be sold. This excludes theorems, computer programs per se, or business methods.


Edited 2011-07-11 00:23 UTC

Reply Parent Score: 2

Alfman Member since:
2011-01-28

lemur2,

"Pure software patents and business plan patents are not allowed period."

That doesn't mean they haven't gotten through.

"A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process). Under this definition, for example, an application running on a general-purpose PC is not patentable (becaue the PC is general purpose)."

I really wish you were right, but the courts have permitted software patent holders to go after software developers. So long as this is the case, software patents are effectively valid in the US. It's one of the reasons unlicensed linux distros cannot directly include mp3 players (for one example).

If you read some of these software patents, you'll have to agree that software developers and their customers can infringe upon them. I don't like it any more than you do.

As far as I know congress has never said anything for or against software patents, and in the end it's up to them to overturn case law.

Reply Parent Score: 2

lemur2 Member since:
2007-02-17

lemur2, "Pure software patents and business plan patents are not allowed period." That doesn't mean they haven't gotten through. "A piece of software is not patentable (even in the US) unless it is part of a specific machine (one specifically devised and adapted to carry out the patented process). Under this definition, for example, an application running on a general-purpose PC is not patentable (becaue the PC is general purpose)." I really wish you were right, but the courts have permitted software patent holders to go after software developers. So long as this is the case, software patents are effectively valid in the US. It's one of the reasons unlicensed linux distros cannot directly include mp3 players (for one example). If you read some of these software patents, you'll have to agree that software developers and their customers can infringe upon them. I don't like it any more than you do. As far as I know congress has never said anything for or against software patents, and in the end it's up to them to overturn case law.


Patents awarded by the US Patnet Office are not necessarily valid. They are not shown to be valid until upheld in a court case.

A patent "getting through" does not actually mean that it is valid, it just means that the US Patent Office has awarded the patent. AFAIK this is like an "administrative stamp", it is not a legal approval.

There are many reasons why a given patent may not be valid, including prior art and obviousnesss, as well as not being a specific machine or transformation.

http://en.wikipedia.org/wiki/Peer-to-Patent

There are literally thousands upon thousands of US patents which are routinely used to threaten people and extort royalty payments which have never actually ever been validated in a court trial.

Normally this occurs because it is cheaper for the party accused of violating a patent to simply pay the royalty that is being asked for than it would be to challenge the validity of the patent in court. There is an inherent unfair bias, a presumption that the patent is valid, that is built in to the "burden of proof" in patent cases.

http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supreme-cou...

They fact that royalties are being paid does not make the patent in question valid.

The rules, and the original intent, of patentablitiy are actually reasonably clear. Patents are supposed to "encourage the useful arts". That original intent of patent law could be further from the actual current practical outcomes of the law today, especially in the field of software development.

The case of "Microsoft Demands $15 for Every Samsung Android Phone Sold" is a classic example of how patents are being used today to PREVENT new products and innovation in the market rather than foster them, as they were originally intended to do. Microsoft did not write any of the Android software, and Android itself is FUNDAMENTALLY different to any software of Microsoft's.

Edited 2011-07-11 07:04 UTC

Reply Parent Score: 2

lemur2 Member since:
2007-02-17

I really wish you were right, but the courts have permitted software patent holders to go after software developers. So long as this is the case, software patents are effectively valid in the US. It's one of the reasons unlicensed linux distros cannot directly include mp3 players (for one example).


Actually, a number of Linux distributions do in fact directly include mp3 players, and DVD players for that matter.

http://distrowatch.com/table.php?distribution=mint

http://distrowatch.com/table.php?distribution=ultimate

http://distrowatch.com/table.php?distribution=pclinuxos

http://distrowatch.com/table.php?distribution=sabayon

All of these distribute software only, none of them distribute a "specific machine". None of them have ever been challenged.

The owners of mp3 patents may or may not be able to sue any individual in the US who installed any of this software on a specific machine, but I can't see how doing that would be worth their while. Even then, the owner of the machine can simply point out that it is a general-purpose machine, it is not adapted or modified in any way to specifically function as an mp3 player.

AFAIK, this project has not been directly challenged either, and it still is active:

http://lame.sourceforge.net/about.php

http://en.wikipedia.org/wiki/LAME

LAME is distributed by the project as source code only, but you will find binary executables of LAME on the Linux distributions listed above.

Edited 2011-07-11 09:47 UTC

Reply Parent Score: 2