from the you-can't-do-that-here! dept.
The Federal Constitutional Court of Germany (FCC) has delivered a decisive win for software users and developers around Europe. In a recently-published court decision, 2 BvR 739/17 (in German) from February, it has declared that the Act of Approval to the Agreement on a Unified Patent Court (UPC) is void. The Unified Patent Court has been widely considered to be a shell for bringing software patents into Europe through the side door, in violation of international treaties which prohibit by name patents on programs for computers.
The Act of Approval to the Agreement on a Unified Patent Court ("the Act of Approval") to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority. This is what the Second Senate of the Federal Constitutional Court decided on a constitutional complaint in an order published today. In its reasoning, the Senate stated that, in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.
Once more for emphasis, software is protected by copyright law and that governs distribution. Patents govern usage and function, regardless of origin. So had the EPC gone through and forced software patents into Europe, neither clean room nor independent implementations would have protected either end-users, software-using businesses, or developers.
It is predicted that the European Patent Office (EPO) which, despite the name is outside the jurisdiction of the European Union, and which has long been a proponent of injecting software patents into the European market, will bemoan this decisive win for business and research. Their astroturfers are already engaged on spinning against the victory: Those that wish to continue to break the law see a lot of money on the table. The EPO has been illegally granting software patents in recent years in direct violation of the European Patent Convention of 1973, also known as the Convention on the Grant of European Patents of 5 October 1973. The EPC explicity prohibits granting of patents on many things including but not limited to scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.
Texas Court Upholds "Do It On A Computer" Check-Cashing Patent (2019)
A Case for the Total Abolition of Software Patents (2018)
The MP3 Format is now Patent Free (2017)
Microsoft Patents a Slider, Earning EFF's "Stupid Patent of the Month" Award (2015)
The chosen patent (PDF), numbered D554,140, would seem to be one of those things that's so simple it raises some basic philosophical questions about the patent system. That's because it's just a slider, in the bottom-right corner of a window, with a plus sign at one end and a minus sign at the other. That's it. [...]
And Microsoft has put the '140 patent into action, using it to sue Corel Software on December 18. In their complaint (PDF), Microsoft lawyers say that software like Corel Write, Corel Calculate, and Corel Show infringe nine Microsoft patents, of which four (including the slider bar) are design patents.
Microsoft's recent lawsuit is meant counter Corel's earlier one. Corel, which bought WordPerfect from Novell in 1996, sued Microsoft in July, saying that Microsoft Preview infringed on several Corel patents. Like many patent cases, Corel's complaint can be summarized as "we lost, but it's someone else's fault." Corel lawyers write that "WordPerfect has been reduced to minimal market share as a result of Microsoft's aggressive actions."
One wonders who is working in the patent office that would have issued such a nonsense patent.
MP3 decoding was already free and got recently included in Fedora. But now, encoding is also free according to Fraunhofer Institute for Integrated Circuits IIS: "On April 23, 2017, Technicolor's mp3 licensing program for certain mp3 related patents and software of Technicolor and Fraunhofer IIS has been terminated." The Wikipedia MP3 article confirms that.
So, do you still use an MP3 library or have you switched to another format or means of listening to music such as (spying built-in) streaming services?
Gervase Markham has a thorough blog post about a case for the total abolition of software patents. He makes his case based on their complete lack of promotion of innovation and aims at identifying the principles involved. The feasibility of eliminating them may be a ways off due to the heavy politics involved so the idea may seem like a very distant policy possibility.
One immediate question is: how does one define a software patent? Where is the boundary? Various suggestions have been made, but actually, this question is not as important as it appears, for two reasons. Firstly, if we can demonstrate that there is a group of clearly identifiable patents which are harmful, or harmful when enforced in particular situations, then we can adopt the principle that such patents should not be granted or should not be enforceable, and where one draws the exact line between them and other patents becomes a secondary, practical, definitional issue beyond the initial principle. Secondly, some methods proposed for dealing with the problem of software patents do not actually require one to define what a software patent is. For example, one proposal is that one could change the law such that no program written to run on a general purpose computer could ever be said to be infringing a patent. In this case, you need a definition of "general purpose computer", but you don't need one for "software patent". Given these two points, I don't intend to spend time on definitional issues.
Currently software patents are a problem affecting the US and prohibited in the EU due to Article 52 of the European Patent Convention in 1973 (EPC). However, they are currently being pushed by the European Patent Office (EPO) in the name of "harmonization" despite being invalid. Many consider the fact that Europe remains unafflicted by software patents to be a moderating influence on the US market, holding back a free for all.
In 2014, the Supreme Court ruled that you can't get a patent for implementing an otherwise abstract idea on a computer. The decision, known as CLS Bank v. Alice, has had a big impact over the last five years, invalidating a lot of broad software patents.
But a ruling this week illustrates the limits of that landmark ruling. The confusingly named United Services Automobile Association, which provides insurance and other financial products, sued Wells Fargo for infringing two patents on the concept of cashing checks with a mobile device. Wells Fargo argued that the patents were abstract—and therefore invalid—under the Alice rule.
[...] The patents cover check-cashing mobile apps that automatically snap a photo once a suitable image of the check is in the field of view.
A key claim of one of the USAA patents covers the concept of using a "processor" (aka a smartphone) to take a picture of a check and then send the check over a "communication pathway" (aka a network). USAA's supposed invention is the idea of monitoring "an image of the check in a field of view of a camera of a mobile device with respect to a monitoring criterion using an image monitoring and capture module of the mobile device"—and waiting until the image has met the criteria (is the entire check in the frame? Is there adequate light?) before snapping the picture. In other words, they patented the idea that you should wait until you have a good shot before snapping a picture.
[...] Wells Fargo argued that USAA had simply used a computer to perform the same steps any human being would take when snapping a photo of a check. Obviously if a human being was snapping a picture of a check, they would monitor the image in the viewfinder and only click the button once it showed an acceptable image.
But the court disagreed, noting that human eyes and human brains can't measure objective criteria like brightness as precisely as a computer can. USAA has argued that its approach leads to fewer bad check images being submitted. So in the court's view, the patent doesn't just cover an old-fashioned process being done on a computer—the use of the computer improves the process, yielding a patentable invention.
The Foundation for a Free Information Infrastructure has a call for donations against the Unitary Software Patent Trolls after Thursday's disastrous Bundestag vote. On Thursday in Germany, the Bundestag voted on ratification of a proposal for a Unified Patent Court, largely seen as purely a vehicle for introducing software patents into Europe. As software patents in the US were on the way out, introducing them into Europe would bring them back into the US after further "harmonization". Thursday's vote is the result of the software patent lobby changing its strategy in Europe by creating a central patent court outside of the control of the individual member states under which it would make its own rules and avoid democratically elected legislators.