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A casualty in the patent wars
Software patents have long been a concern in the free software development
community. For many years, though, that concern was of a theoretical
nature; few patents had actually been used (in a public way, at least) to
attack projects of interest. The mobile patent wars have changed that
situation; now systems based on free software are on the front line in a
highly visible legal battle. As a result, we are starting to feel the
sting of software patents; the situation is likely to get worse before it
gets better.
In late June, a US District Court granted a request by Apple to ban the sale of the Galaxy Nexus smartphone in the US due to the phone's alleged infringements of Apple's patents; the phone was then duly pulled from the Google store. That ban has since been lifted, but that should not be seen as a victory against software patents; indeed, the contrary is true. The only reason the Galaxy Nexus is available again is Google's short-term capitulation; the company has simply removed the offending features from the "Jelly Bean" Android release. Google's claim that the patents were no longer at issue was enough to get the handset back on the market—for now. What are those features? The biggest fight seems to be over patent #6,847,959, the so-called "Siri patent." This patent, filed in 2000, has the following as its first independent claim:
A method for locating information in a computer system, comprising
the steps of:
inputting an information identifier; providing said information identifier to a plurality of plug-in modules each using a different heuristic to locate information which matches said identifier; providing at least one candidate item of information from said modules; and displaying a representation of said candidate item of information. There are 17 dependent claims specifying that the "information identifier" may come from a dialog box or through voice input; the "heuristics" can involve searches on file names, file contents, local files, web pages, and so on. They narrow the scope of the patent, but do not change its fundamental nature. Even thinking back to the year 2000, it is hard to find a great deal of novelty in this concept. If one wants to search for something, one likely wants to search all of the available resources. If one wants to search multiple locations or with multiple algorithms, one creates an API by which independent search modules can be invoked. The method described here is obvious; it should come to the mind of any developer skilled in the art of software development. But this is the valuable innovation that allowed Apple to block the sales of a competing product in one of the largest markets on the planet. Google's response has been to cripple the functionality of its Android search bar, which will be restricted to searching the net only. Anybody running the Jelly Bean release will see that restricted functionality; it will also be pushed out to 4.0-based ("Ice Cream Sandwich") devices as an "update." And that is how things are likely to stand until the case runs its course, a process that could take years. So, to put it bluntly: software patents have allowed a manufacturer of highly closed devices to hold one of the most open handsets available hostage and to block it from the market entirely. They have allowed said corporation to force the removal of obvious functionality from a device (mostly) based on free software. To think that this kind of thing won't happen again, or that it won't strike code that is more interesting to the free software community, is to be optimistic indeed. That does not seem to be the way the wind is blowing. It would be nice to think that, somehow, the software patent problem will be solved in the near future. There are occasional encouraging signs, such as US appeals court judge Richard Posner tossing out another Apple case and speaking out against software patents. But actual attempts to reform the patent system never seem to get that far. What seems more likely is that the major players in the mobile industry will eventually come together around some sort of patent pool that lets them get on with their businesses. Perhaps this will be a voluntary action, or perhaps there will be a certain amount of governmental pressure applied first. Either way, the end result is likely to be a regime in which the established players are free to get on with the process of making money while new companies, like the just-announced Jolla Ltd, face additional barriers to entry. Such a situation is not likely to be good for the industry or for free software. But, then, one never knows. As bogus software patents threaten to take down products and services that people actually care about, we may yet see an increase in support for reforms. Perhaps the best strategy against software patents is the one we are already executing: make the best free system we can and ensure that it is widely diffused into systems that the world depends on. As patent litigation increasingly turns into a general denial of service attack against the economy as a whole, tolerance for the system may wane. One can always hope, anyway. (Log in to post comments)
A casualty in the patent wars Posted Jul 12, 2012 0:43 UTC (Thu) by JoeBuck (subscriber, #2330) [Link] As I understand it, there is a much lower standard Apple has to meet to get an import injunction; the judge is supposed to assume the patent, however bogus, is proper and is just asked whether there is infringement. I suspect that this is why Apple is "manufacturing" (OK, assembling) their new tablet in the USA, so that Apple can't get an import injunction and would have to win at trial to get it shut down. But IANAL so anyone who knows these matters better, feel free to correct me.
A casualty in the patent wars Posted Jul 12, 2012 7:22 UTC (Thu) by josh (subscriber, #17465) [Link]
It makes no sense to me that patents would meet the threshold for a preliminary injunction at all. An injunction can only occur in very specific circumstances: "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." (https://en.wikipedia.org/wiki/Preliminary_injunction) In the case of a patent suit, the harm seems by definition reparable: a losing defendant can write a large check to cover damages. And "in the public interest" seems laughable.
A casualty in the patent wars Posted Jul 12, 2012 11:18 UTC (Thu) by NAR (subscriber, #1313) [Link]
I'm not sure that there's a sufficiently large check that could repair lost market share...
A casualty in the patent wars Posted Jul 27, 2012 12:50 UTC (Fri) by shentino (subscriber, #76459) [Link]
This just creates a catch 22
The courts defer to the USPTO's judgement on validity, while the USPTO just rubber stamps everything and lets the courts sort it out.
With both of them passing the buck to each other, neither of them are weeding anything out and the lawyers win by default.
A casualty in the patent wars Posted Jul 12, 2012 7:29 UTC (Thu) by rsidd (subscriber, #2582) [Link]
It seems to me that these trivial-patent-related fights are a proxy for a deeper grievance: Apple feels that Samsung, specifically, ripped off the iPhone. And I agree. They are visually just too similar. Other Android phones, like those from Motorola and Sony, take care to look different from Apple's products -- why couldn't Samsung have done that too?
Apple's approach to this is certainly below-the-belt. But I think it is Samsung, with its mindless copying of Apple's visual elements, that has damaged the Android cause, by strengthening the impression that Android as a whole is a rip-off of Apple's iOS -- which is very far from the case.
(OT -- I have a cheap Android phone, the Micromax A78, that has a 3.5" screen AND a qwerty keyboard. That makes it much more useful, to me, than any Apple or Samsung device that I have seen. Micromax is an Indian brand, currently #3 in India after Nokia and Samsung; but made in China, like everything else.)
A casualty in the patent wars Posted Jul 12, 2012 8:13 UTC (Thu) by Seegras (subscriber, #20463) [Link]
Deeper grievance? This is not "grievance", this is either "greed" or "fear".
They fear that Samsung is making a better product than they do; so they try to quash the competition by means of artificial monopoly-rights. simple as that.
Indeed the whole system did not ever work as intended, except for chemistry (where CHOOH and CHOOH2 are considered totally different things, and CHOOH2 is NOT a derivative of CHOOH); it's been a tax on innovation since the 18th century when Watt stalled the development of steam engines by 20 years with his patents.
Who in his right mind would be giving out government-granted injunctions (patents are not a monopoly granting you a right to do something; they grant you a right to keep everyone else from doing it. BIG difference to copyright) to anyone who wants them and NOT expect everyone to totally screw up everyone elses life?
Difference between patent and copyright Posted Jul 14, 2012 0:08 UTC (Sat) by giraffedata (subscriber, #1954) [Link] (patents are not a monopoly granting you a right to do something; they grant you a right to keep everyone else from doing it. BIG difference to copyright) What difference do you see? Copyright grants an author a monopoly on copying his work. It grants him the right to keep everyone else from copying it (or publicly performing it or preparing a derivative work). Copyright doesn't give the holder any right he wouldn't have in the absence of copyright.
Difference between patent and copyright Posted Jul 19, 2012 3:24 UTC (Thu) by SEMW (guest, #52697) [Link]
I think the 'big difference' Seegras refers to is that, unlike copyright, patents work equally well against someone who actually copies an invention and someone who comes up with the same invention completely independently. Unlike copyright, whether they actually plagiarised it doesn't matter. So patents give you a monopoly in a much stronger sense.
A casualty in the patent wars Posted Jul 12, 2012 10:25 UTC (Thu) by NRArnot (subscriber, #3033) [Link]
It's long been accepted in book copyright that imitation is the sincerest form of flattery. Plagiarism requires copying of all the details, not mere imitation of the best ones. And it's copyright that should govern software, not patents.
There's also design registration, where there has to be freedom to do things differently before a design can be registered. For example, the external shape of a car exhaust pipe is dictated by the shape of the car it has to attach to. There's no freedom to do it differently, so the design cannot be protected. (This has been tested in the courts). With an Iphone or Tablet there is limited freedom to do things differently (limited, for example, by the shape of a pocket and a human finger). Android is indeed different, where external constraints do not dictate the design.
FWIW I'm so disgusted by Apple's recent antics that the company has joined Sony on my personal boycot list.
A casualty in the patent wars Posted Jul 12, 2012 11:32 UTC (Thu) by jezuch (subscriber, #52988) [Link]
> It's long been accepted in book copyright that imitation is the sincerest form of flattery.
Yup.
"Good artists copy. Great artists steal."
A casualty in the patent wars Posted Jul 12, 2012 16:00 UTC (Thu) by RobSeace (subscriber, #4435) [Link] Actually, he was quoting Picaso there... But, his follow-up statement is far more damning: "We [Apple] have always been shameless about stealing great ideas"...
A casualty in the patent wars Posted Jul 16, 2012 9:24 UTC (Mon) by liljencrantz (subscriber, #28458) [Link]
You're missing the point. He *stole* the quote. That's what makes it funny.
A casualty in the patent wars Posted Jul 18, 2012 15:27 UTC (Wed) by pboddie (subscriber, #50784) [Link] I think Banksy did this better myself. (Bonus related article: Good Artists Copy, Great Artists Steal)
copyright vs plagiarism Posted Jul 14, 2012 0:14 UTC (Sat) by giraffedata (subscriber, #1954) [Link] It's long been accepted in book copyright that imitation is the sincerest form of flattery. Plagiarism requires copying of all the details, not mere imitation of the best ones. Note that plagiarism and copyright infringement are different things. Plagiarism is passing off someone else's published work as your own, and all you have to do to avoid being a plagiarist is acknowledge the author. Copyright infringement is copying something without the author's permission, and just admitting you didn't write it doesn't help you at all. I presume you're referring to copyright infringement as requiring copying all of the details. Although I don't think there are legal definitions of plagiarism, I think copying any substantial amount of someone else's work and saying it was your work is plagiarism.
A casualty in the patent wars Posted Jul 12, 2012 11:06 UTC (Thu) by jospoortvliet (subscriber, #33164) [Link]
Oh, come on. Samsung's phones look like the iPhone? Tell me, how else would a phone look which is 90% screen?
You want a rectangular shape, with rounded corners so people don't hurt themselves on it, then you want it as thin as possible, you want it to be symmetric so people can turn it around, you want to have a volume button and an on-off button, you make it black because that's the least intrusive color (next would be white and/or shades of grey). You want it light, thin and sturdy so aluminum makes sense as a material. None of that has anything to do with design or is/should be patentable. It is common sense...
A casualty in the patent wars Posted Jul 12, 2012 12:26 UTC (Thu) by mpr22 (subscriber, #60784) [Link] Aluminium? Heck, Samsung don't even use that. The only exposed metal on my Galaxy S (which has much more enthusiastic corner-rounding than the iPhone line) is in the headphone and USB sockets (and possibly the bezel around the camera's lens protector); every other exposed surface of the phone is plastic or glass, and if you pop off the plastic backplate you find that the inner casing is plastic too.
A casualty in the patent wars Posted Jul 12, 2012 19:41 UTC (Thu) by rahvin (subscriber, #16953) [Link]
You want a light weight and strong material because weight is a premium on a portable device. Once you identify weight and strength as the constraint there are very few materials that meet that criteria where weight&strength/cost is the controlling factor. Aluminum and Magnesium alloys, carbon fiber and few other materials are your only choices. Then it becomes all about the cost and availability.
The fact is that in this category you have 2-3 materials that work and it's a matter of function and cost, not a patentable design element. You can't put a design patent on a functional item, that means if you have to use a certain material to meet the requirements you can't put a design patent on that material.
Apple's behavior in this is atrocious. Like another poster, they are on my list with Sony and I'll never purchase one of their products willingly.
A casualty in the patent wars Posted Jul 12, 2012 12:22 UTC (Thu) by hummassa (subscriber, #307) [Link]
> It seems to me that these trivial-patent-related fights are a proxy for a deeper grievance: Apple feels that Samsung, specifically, ripped off the iPhone. And I agree. They are visually just too similar.
Only to a person who never saw them. And only to the extent that they have 90% of the front surface taken by the screen.
Apple's design is flat, only with the rounded corners, smooth, glassy front and back and its trademark button. Samsung's is curved, with the distinctive bump behind (and the rugged back), no front buttons, the screen is slightly concave. Even the colors of the user interface and the brightness of the screen is completely different.
A casualty in the patent wars Posted Jul 12, 2012 19:27 UTC (Thu) by kh (subscriber, #19413) [Link] Seems like the iPhone is an HTC 8125 without the keyboard slider.http://www.mavromatic.com/images/8125.jpg
A casualty in the patent wars Posted Jul 15, 2012 5:13 UTC (Sun) by drag (subscriber, #31333) [Link]
> It seems to me that these trivial-patent-related fights are a proxy for a deeper grievance: Apple feels that Samsung, specifically, ripped off the iPhone. And I agree
That's bloated festering horse poo, IMHO.
Apple doesn't 'Feel' anything. It's publicly traded corporation. It's ran by a group of people who are directly responsible to a board of directors who care nothing about the technology or the market place except specifically how well they are profiting from it. (which isn't naturally a bad thing, but we don't live in a free society so everything is distorted.)
Apple is competing heavily with Samsung and in term of future market share in the smart phone market it's getting it's ass kicked by Android phones. Phones that are cheaper, faster, better designed, and can be created by anybody. HTC, Samsung, or whoever. It doesn't matter. They will use lawsuits against anybody that threatens their bottom line if at all possible. They don't care about the cheapies or hundred dollars phones with razor-thin profit margins... they care about upper end, about expensive high profit areas that Apple has successfully dominated in the PC world.
They have a walled garden they want to protect and they are willing to use any means possible. The patent lawsuit is just a means to a end and their goal is to use the government to damage competition in the market place as much as possible.
Pure and simple.
There isn't anything beyond this. It's all about just making as much as money as possible and preventing competition as much as possible. The people that get hurt the most by this is the consumers.
All this emotionality, this 'grievance', rhetoric is just Apple's marketing at work. They need to convince people that what they are doing is 'friendly' and whatnot. A classic case of Apple's almost inhuman marketing skills having a pervasive impact on public opinion in the tech community.
It's just corporate spin that is parroted by people all over the internet by people who don't want to come to grips with the fact that they are giving their money to a corporation that doesn't hesitate to their money to destroy software freedom and damage markets through government intervention in the name of higher profits.
A casualty in the patent wars Posted Jul 15, 2012 13:14 UTC (Sun) by nix (subscriber, #2304) [Link] a board of directors who care nothing about the technology or the market place except specifically how well they are profiting from it.That's true of some boards and less true of others -- although as far as I can tell most directors seem to have so many other seats on boards that I can't see how they could spend any useful amount of time on any of them. I suspect what we actually have is a much simpler system, where the CEO and/or Chairman are technically responsible to the Board of Directors, but the board members are too busy or the board is packed with milquetoasts, so the CEO and Chairman can do whatever they like (unless they screw up really badly, but the board will almost never notice this ahead of time, even if the CEO does something utterly idiotic). In turn the Board is theoretically responsible to the shareholders, but the shareholders are either proxy votes given to the chairman or institutional shareholders who don't care about anything but profits (which is reasonable given that they are almost certainly in a different field of business). And often shareholder votes have no power anyway, making a complete joke of the alleged power of the shareholder over the corporation. So what we have is a nice simple system with an almost-all-powerful dictator CEO/Chairman, a system for disposing of CEOs/Chairmen who foul up (by board vote), and another system for disseminating the profits in exchange for equity without conferring anything but technical 'ownership' and certainly not any real measure of control (unless you own the majority of the shares and kick out the CEO, in which case you're replacing one dictator with another who might be more amenable because you have a knife to his throat). This system works surprisingly well given what a lash-up it is, but shareholder democracy it is certainly not. I note that the one part of the system theoretically in place which sometimes does survive in practice is the fiduciary responsibility to the shareholders, probably because the shareholders can sue if they think you've violated it. This is another of those things that would be a good idea *if* all shareholders were very-long-term-holding saints who understood that immediate loss may lead to future profit or that burning down your neighbourhood isn't good if you're selling to your neighbours, but isn't working well in practice because most shareholders are too short-term for that. As far as I can tell, the only companies that don't get converted into short-term thinkers by this are those that are closely held (e.g. new firms), those that are doing so well that nobody dares protest (Apple in the last decade), or those that have sufficiently charismatic CEOs that shareholders don't dare protest. I suspect *this* is the real reason for the Cult of the Charismatic CEO: if you get one and you're lucky enough, for a while you can concentrate on long-term growth rather than the next quarter's numbers. Though even then, charismatic replacement CEOs with brains seem to be rare as hen's teeth and a lot harder to find than a founder nobody will dare interfere with.
A casualty in the patent wars Posted Jul 12, 2012 23:35 UTC (Thu) by jmorris42 (subscriber, #2203) [Link]
Input a search term and have a bunch of independent data sources look it up and present a unified result. That is it? Would Palm OS qualify as prior art? I can't see why not.
You would click the magnifiying glass, enter a search and every app (built in or add on) that had registered a search hook would launch one at a time and contribute results to the screen segregated by app and you could click a result to launch the app on that record. Each app was free to decide what information should be made available to the search feature.
A casualty in the patent wars Posted Jul 13, 2012 19:49 UTC (Fri) by price (subscriber, #59790) [Link]
Part of the game in writing patents is that you start with a very broad claim (like the one quoted in the article), and then add a number of so-called "dependent claims" that add more details. This technique allows you to have it both ways as the patent-holder: it's very hard for the defendant to say out of hand that the patent doesn't apply (because the first claim is so broad), but it's also hard for them to knock it down with an obvious bit of prior art (because the dependent claims are so specific.)
In this case, a lot of the dependent claims still look pretty laughably obvious and the old Palm OS may be prior art for them. (I never used one, so I don't really know.) But does it include "the steps of determining a context for the input of the information identifier, and varying [the] ranking [of modules to query] in accordance with the determined context" (claim 8)? Did it before 2000 have one of the heuristics "locate[] Internet web pages" (claim 15)? Android does. And even though the statute and every policy rationale for patents require that the claimed invention be non-obvious (unlike these), it's been hard to get that requirement applied seriously.
I certainly wish Google's litigators the best of luck in finding prior art and winning their case. This kind of patent hurts everyone who wants to actually innovate and make things.
A casualty in the patent wars Posted Jul 17, 2012 22:06 UTC (Tue) by jmorris42 (subscriber, #2203) [Link]
Well Palm devices in 2000 were too puny for much in the area of networking so that is a problem.
But since the "locate[] Internet web pages" part is nothing more than submitting the search term to Google I'd love to hear a Google lawyer put the question bluntly to the troll:
"So you assert that if Google writes code that submits a search query to Google; that Google owes you money for your patented invention?"
A casualty in the patent wars Posted Jul 13, 2012 13:13 UTC (Fri) by salimma (subscriber, #34460) [Link]
I wonder if that block is enforced at based on the detected locale, instead of being baked into the firmware. I just upgraded my phone manually to Jelly Bean, here in Indonesia, and search is not crippled (however, many ”unsupported" Google Play apps are "frozen" and had to be manually reactivated at boot - only possible on a rooted phone).
Region-based crippling is an awful concept.
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