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Mobile patent wars: Google goes on the attack

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By Jonathan Corbet
August 22, 2012
Whenever one looks at the mobile patent wars, it is natural to conclude that everybody is suing everybody else. Thus far, though, that has not actually been true. Google has been on the receiving end of a number of lawsuits, either directly or indirectly via attacks on manufacturers shipping Android devices, but Google has not, itself, launched patent attacks against others. That situation has just changed, though, with the report that Google has filed a case against Apple with the US International Trade Commission.

In short, Google is trying to use seven of its patents (just acquired from Motorola Mobility) to block the import of Apple's products into the US. Those of us who fear the effect of software patents on free software might be forgiven for feeling that it is only just for Apple to be on the receiving end of the sort of attacks it has launched against Android. But Google's transformation into a patent aggressor may not bode well in the long term, regardless of how the current cases end up.

So what is Google claiming? The seven patents asserted against Apple are:

(Credit is due to Florian Mueller, who found and posted the specific patents at issue).

As is so often the case, there is not much in these patents that appears to be particularly novel or worthy of protection. Once one concludes that a particular problem (moving video playback from the handset to the television, say) is in need of solution, the form of the solution becomes fairly obvious. The patents asserted by Apple against Android seem trivial, but it is hard to come up with a way to say that Google's patents are less so.

If one is concerned about attacks against Android and other platforms based on free software, one might be tempted to hope that Google will find some success against Apple and, in so doing, deter further attacks on the platform. The mobile patent wars could be declared to be a draw, and the companies involved could get back to their real business: running on the consumer electronics product treadmill and trying to create better products to sell to their customers. Barring real reform of the patent laws in the US, that might well be a best-case outcome.

What seems more likely, though, is that the companies involved, having shown that they can make each other hurt, will come to some sort of understanding involving the sharing of patents and, perhaps, the passing of undisclosed amounts of cash between some of the parties. Such an agreement would presumably make the world safer for Android and for at least some of the manufacturers who use Android in their products. But it's not at all clear that the situation would improve for free software as a whole, or for anybody who is outside of this agreement and who wants to break into the mobile market.

A worst-case scenario could involve Google asserting these patents (and others from the massive pile it acquired from Motorola) against devices based on Tizen, Nemo, Firefox OS, or other free platforms. Unlike some companies, Google has not pledged not to attack free software projects with its patents. Such an attack would certainly be widely considered to be "evil," but the sad fact is that, in an extended fight, one tends to become more like one's enemy. Having found that it can further its goals with patent attacks (assuming that is, indeed, the outcome), Google may find it hard to resist making more of them in the future.

In the end, that may be the environment we are stuck with until the software patent situation can be addressed. Until then, it will be impossible to achieve a certain level of success in the software area and not be subject to patent attacks, either from trolls or from competitors. Given the nature of the game, it is hard to fault Google for playing hardball. Hopefully, the company's recent suggestions that software patents should be eliminated entirely are sincere and we are not witnessing the birth of another patent problem.


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Mobile patent wars: Google goes on the attack

Posted Aug 22, 2012 20:44 UTC (Wed) by dlang (subscriber, #313) [Link]

I am a bit disappointed by the tone of this article. It sounds more like Florian's normal attack articles than the normal LWN articles do.

While I agree it would be a very bad thing if Google were to decide to start "making money from lawsuits", I don't see this as the start of that.

If Apple had sued Google directly instead of just suing the manufacturers who use Android in their products, this would be a simple counter-suit and nobody would be seriously questioning google about it (although the opposition in the lawsuit would be trying to scare people about it)

Since Apple has not sued Google directly, they have had no opportunity to respond directly, and so it is _very_ easy to see this as a strategic counter-attack rather than as an offensive move (which it is at a tactical level)

I also think it's worth noting that Florian's writing is sponsored by Oracle. He noted it in one post back in April (and Oracle listed him when asked by the Judge in the Oracle vs Google lawsuit asked who they had paid to write about the case), but it's an easy fact to have missed.

Mobile patent wars: Google goes on the attack

Posted Aug 22, 2012 21:15 UTC (Wed) by bersl2 (guest, #34928) [Link]

It is worth noting that it's from Florian, but for maybe the first time ever, I'm not gagging at the sight of his name.

Mobile patent wars: Google goes on the attack

Posted Sep 4, 2012 9:28 UTC (Tue) by Wol (guest, #4433) [Link]

Florian WAS very useful to FLOSS, back in the day.

That's one of the big problems we have with him today - we generally have morals here in FLOSS-land. He was on our side. For him to turn is something we simply don't do here ...

Cheers,
Wol

Mobile patent wars: Google goes on the attack

Posted Aug 24, 2012 11:34 UTC (Fri) by abo (subscriber, #77288) [Link]

Agreed. If Apple doesn't like it they can lobby for patent reform.

Mobile patent wars: Google goes on the attack

Posted Aug 22, 2012 20:44 UTC (Wed) by rahvin (subscriber, #16953) [Link]

Patents in mobile have always been based on MAD (Mutually assured destruction). The whole point of FRAND is a recognition of that and attempt to defuse it.

When Apple stepped up and started suing for the few patents they held (and no intent to fairly license under FRAND like terms) they violated the MAD agreement and essentially made the FRAND patent pools worthless. This war will only continue to escalate until either the MAD balance is restored or everyone is out of business or all the patents are invalidated. Given the size of patent pools involved I believe in the long run Apple is at a serious disadvantage unless they can get MS to share the Nokia patents with them.

Mobile patent wars: Google goes on the attack

Posted Aug 22, 2012 21:33 UTC (Wed) by drag (subscriber, #31333) [Link]

> The whole point of FRAND is a recognition of that and attempt to defuse it.

It doesn't seem that way to me. It's just more of the sort of anti-trust anti-monopolopy political maneuvering that is designed to make a terrible and evil practice and make it seem more acceptable and palatable. If they let the patent wars escalate then their patents will lose value, but if they are able to control the 'violence' then they can retain their values.

Think of the mafia truces in order to avoid having violence ruin their businesses. It's the same concept.

Patents licensing agreements are used by large businesses to make sure small businesses don't have a chance to become large businesses. That's the fundamental point to all of this. Google managed to short circuit this somewhat by carefully jumping 'sideways' into the phone market, but it's costing them big time. The amount that Google has had to spend so far in this 'IP war' is literally in the BILLIONS. And they are not even directly in the cross hairs of most of the patent suites yet.

Could you imagine what you could do with the 13+ billion dollars Google had to spend on mobile phone IP if you could invest that in actual useful research?

> This war will only continue to escalate until either the MAD balance is restored or everyone is out of business or all the patents are invalidated. Given the size of patent pools involved I believe in the long run Apple is at a serious disadvantage unless they can get MS to share the Nokia patents with them.

Microsoft has repeatedly gone out of it's way in the past to help Apple. All the 'Mac vs PC' BS is just a example on how fantastic Apple is at marketing. The fact that Apple can make people believe that they are in some sort of deadly competition with the corporation that has not only saved them from bankruptcy, but is also the #1 software vendor for OS X is one of the most utterly mindbogglingly successful pieces of marketing propaganda of all times.

So if Apple/Nokia/Microsoft have to team up to keep Open Source/Google/Linux/Asian corps in their place then they won't hesitate to do this.

Apple vs Google

Posted Aug 22, 2012 23:20 UTC (Wed) by man_ls (guest, #15091) [Link]

Thanks for this post: it is some of your finest work.

Jobs was willing to go nuclear and now Apple is reaping what he sowed; I bet they have considered this scenario, so I wonder what attacks they have up their sleeves.

In the end this stupid lawsuit will have a boring ending like most of them: with an out-of-court settlement and an opaque agreement; without Jobs I don't think they will have the strength to withstand even a possible iPhone embargo, not even with Microsoft's help. In a few months Samsung, HTC and other Android manufacturers will be able to continue their business. So I am afraid that it will not be too entertaining but for the lawyers who have to broker the deals.

Apple vs Google

Posted Aug 22, 2012 23:37 UTC (Wed) by dlang (subscriber, #313) [Link]

for this to settle down to an out-of-gourt opaque agreement, Google will have to be willing to do so.

At the moment, I would be hard pressed to see Google willing to settle for anything less than Apple stopping all lawsuits in the mobile space and all future lawsuits against Android (and probably FOSS to boot)

Apple stopping all the other lawsuits will not stop the counter-suits from all those other companies, and Google is not in a position to force them to stop (and unlike Google, many of these companies have been using lawsuits as offensive weapons). Add to this the fact that Apple has been refusing the normal patent license terms (small amounts of money and cross licensing deals), and there is even less reason for all these other companies to let up on their attack against Apple.

Apple stopping all these lawsuits will be a very public action, and no matter what the opaque terms of their settlement with Google, will be seen as Apple backing off.

As a result, I don't think there is much chance for the typical "silence and cross licensing agreement" that happens between big companies.

Apple vs Google

Posted Aug 23, 2012 0:56 UTC (Thu) by JoeBuck (guest, #2330) [Link]

Google would settle for a cross-licensing deal that protects Android but not others, I'm sure. Such a deal would necessarily prevent Apple from attacking the Linux kernel (since GPLv2 wouldn't let Google accept a license for Linux that doesn't extend to others), but probably would not protect other free/open software.

This wouldn't prevent third parties from attacking both Apple and the Android camp (Google/Motorola + Samsung + HTC + others). But nothing can.

Apple vs Google

Posted Aug 23, 2012 1:03 UTC (Thu) by dlang (subscriber, #313) [Link]

but would apple accept something that forced them to stop their lawsuits against Samsung + HTC + others but didn't force those people to stop their lawsuits against Apple?

I don't think so.

And I also don't think that Google has the influence to get all of those companies to stop their lawsuits. Remember that many of those suits were started completely independently of Android. Many of those players really do seem to like lawsuits.

Apple vs Google

Posted Aug 23, 2012 1:44 UTC (Thu) by shentino (subscriber, #76459) [Link]

Sorry, but you need v3 to get patent licensing.

RTFL

Apple vs Google

Posted Aug 23, 2012 2:15 UTC (Thu) by mjg59 (subscriber, #23239) [Link]

" 7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all. For example, if a patent
license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through you, then
the only way you could satisfy both it and this License would be to
refrain entirely from distribution of the Program."

The preamble makes it clear what the intention of section 7 is.

Apple vs Google

Posted Aug 23, 2012 10:03 UTC (Thu) by man_ls (guest, #15091) [Link]

Yes, section 7 is the infamous "Liberty or Death" clause, which on the surface looks like a disaster in the making but to date has had brilliant results. It is a direct consequence of the unrelenting nature of Stallman's position on software freedom.

Apple vs Google

Posted Sep 1, 2012 21:30 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> At the moment, I would be hard pressed to see Google willing to settle for anything less than Apple stopping all lawsuits in the mobile space and all future lawsuits against Android (and probably FOSS to boot)

The norm in patent wars is to reach an agreement to stop all current conflict. An agreement to stop also future lawsuits is not realistic since nobody can know what future conflicts may appear. Patent wars are means of pushing the business leaders towards signing an agreement, I am not aware that total wars to destroy the other part is a goal though there have been close shaves. With Steve Jobs declaring war on Google the motive and starting point is now a little different from the norm.

> Apple stopping all these lawsuits will be a very public action, and no matter what the opaque terms of their settlement with Google, will be seen as Apple backing off.

Settlements tend to be confidential though it will be public that all patent conflicts will be terminated. Both parts will be backing off; which one is backing off the most is likely to remain secret. In my limited experience any monetary victory is normally tiny and mutual secrecy is assured by equally mutual embarrassment.

Apple vs Google

Posted Aug 22, 2012 23:48 UTC (Wed) by hummassa (subscriber, #307) [Link]

> Thanks for this post: it is some of your finest work.

Seconded; the comparison with the mafia truces is brilliant, and even encompasses the benefits for the general public!

Apple ♥ Microsoft

Posted Aug 23, 2012 10:16 UTC (Thu) by man_ls (guest, #15091) [Link]

That, and the eye-opening part about Apple and Microsoft getting cozy in bed while Apple disparages Microsoft in public. Having being (and I demand to get my screen name blurred while confessing this) an Apple fanboi in the dark days of 1996-2000, I followed the soap opera from the first row, including the baffling $150M kiss. I had really not seen it clearly until now.

If Jobs was still at the helm he would be screaming murder on all media right now, saying that Google was "attacking innovation itself" and seeking the help of his army of trendy drones to fight for their iToys. In a morbid sense I miss the drama.

Apple ♥ Microsoft

Posted Aug 29, 2012 2:35 UTC (Wed) by ssmith32 (subscriber, #72404) [Link]

heh. Nice link. I enjoyed reading something from way back when Java was a threat to Windows... somehow....

Maybe Dalvik made good on this, in some weird way :)

Mobile patent wars: Google goes on the attack

Posted Aug 23, 2012 1:41 UTC (Thu) by rahvin (subscriber, #16953) [Link]

It doesn't seem that way to me.
I can see how you read a difference in opinion in what I wrote (I was exhausted when I wrote it), but I actually feel the same way. I was simply trying to use softer language and focus on the fact that the protection racket (your term) that is FRAND breached the patent truce that existed to keep small players out of the market while not materially harming the major players.

It's that breach that's ultimately either going to destroy the entire market (and run the risk of political change to the patent system) or result in a reestablishment of the protection racket with apple participating in the protection racket. But that will only work when Apple is willing to put their patents into the FRAND pools. I've always had the impression that Apple would be more willing to burn the entire mobile market to the ground rather than give up the lawsuits to try to slow Android's momentum.

I'll also note that this is the argument that Google made in one of their more recent filings in the Apple trial, essentially that if Apple is allowed to license FRAND patents but not put theirs in the pool the pools will go away and its going to be a very bloody patent fight for everyone involved. Essentially if Apple can license but not contribute FRAND goes away because no one will contribute to the pool because Apple can unfairly use the pools against those that contribute.

People might not be aware but MS has already purchased a license to these Apple patents (probably to help fund Apple's attack on Android).

Mobile patent wars: Google goes on the attack

Posted Aug 23, 2012 15:52 UTC (Thu) by raven667 (subscriber, #5198) [Link]

> I've always had the impression that Apple would be more willing to burn the entire mobile market to the ground rather than give up the lawsuits to try to slow Android's momentum.

I see this too and it seems totally insane to me, there is no good outcome that can come of these lawsuits. I was hoping that when Steve Jobs passed the new CEO would stop the madness but that isn't happening.

Mobile patent wars: Google goes on the attack

Posted Aug 24, 2012 6:07 UTC (Fri) by rahvin (subscriber, #16953) [Link]

At some point all these suits will close and the results going to be the banning of nearly every consumer tablet and phone. When the iPhone and iPad get pulled off the shelves and Apple revenue falls by 95% they will change tune. But it's unfortunate they can't see that coming. Like you, I'd hoped Cook would have made that his first action after Jobs died but he doesn't seem to have the cojones to stop something Jobs started.

Maybe that's MS's grand plan, as they've went around licensing all the patents maybe it's their intention to be the only devices still on the shelves.

Mobile patent wars: Google goes on the attack

Posted Aug 23, 2012 10:20 UTC (Thu) by jengelh (subscriber, #33263) [Link]

>System for providing continuity between messaging clients and method therefor (6,983,370 [dated 2006]). This is a mechanism for transferring a user session (in some application) from one device to another.

Prior art? SunRay1 with smartcards, around 2000. And about anything RDP/VNC/NX based, in principle.

Looking for prior art

Posted Aug 23, 2012 10:36 UTC (Thu) by man_ls (guest, #15091) [Link]

Tricky question: should we start looking for prior art in this case? I would gladly do so when the attacked is Free software, even when it's a friendly company like Google, but in this case: should we be seen in public helping Apple? Or in other words: do in this case two wrongs make one right?

Looking for prior art

Posted Aug 24, 2012 11:23 UTC (Fri) by DavidS (guest, #84675) [Link]

I'd guess so. Every lawsuit that a patent survives makes it stronger for the next, no? IANAL, but as a developer I loathe every S/W patent that does not have source attached and therefore does not properly describe the patented thing.

<soapbox>Technical artifacts should only be allowed exactly one form of legal protection. Either patents OR copyright OR trade secrecy. Having all three layers of protection means that corporations can reap the benefits of patents (legal monopoly) without "paying" the price (public disclosure of innovation).</soapbox>

Looking for prior art

Posted Aug 24, 2012 23:30 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Technical artifacts should only be allowed exactly one form of legal protection

That seems to be the case to me. Patent and copyright cover such fundementally different things, nothing could be covered by both, and both patent and copyright involve disclosure, so couldn't cover the same thing as a trade secret.

Now, if patent applications did include source listings, then patents would apparently be redundant with copyright. So it's a good thing they don't.

Copyright protection

Posted Aug 24, 2012 23:35 UTC (Fri) by man_ls (guest, #15091) [Link]

Copyright does not involve disclosure. If you can show that some third-party program has been copied from your secret software then you are afforded full copyright protection. It is harder to prove authorship with private documents, but that is just a technical detail: software is copyrighted from the moment it is written.

Copyright protection

Posted Aug 25, 2012 16:45 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

If you can show that some third-party program has been copied from your secret software then you are afforded full copyright protection... software is copyrighted from the moment it is written.

I stand corrected. I remember reading that the lifetime of a copyright is measured from time of publication. Is that still true? Does this mean the copyright is actually in force before the clock starts running?

Copyright protection

Posted Aug 25, 2012 17:07 UTC (Sat) by dlang (subscriber, #313) [Link]

as I understand it, publication creates a new copyright on that copy.

This is why printed classical music is still under copyright, it's not the copyright of the author, it's copyright of that particular copy by the publisher.

So if Disney were to reprint "Steamboat Willie" and re-release it, they would have a new copyright on the new version

yes, this can get confusing and ugly because the publisher doesn't gain copyright on the older work, it's only their 'version' of it that gets the protection, and the original author could give others permission to publish the work as well, which would get a separate copyright.

But anything that's produced has copyright from the moment it's 'fixed' (written down, recorded, etc)

Copyright protection

Posted Aug 25, 2012 20:17 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

as I understand it, publication creates a new copyright on that copy.

I'm highly skeptical. Besides the fact that it creates bizarre ownership situations, it doesn't serve the purpose of copyright at all to give someone property rights just for publishing something that was already published.

For the classical music, I think you're thinking of new arrangements of the music - something with creative content. If it's just the same sheet music Beethoven wrote, I don't believe it.

It does seem like the Berne Convention changed (back in 1982) the relevance of publication in the US. When I heard something had to be published to have copyright, it was probably before that. I think the author actually had to claim copyright in those days too (hence the copyright notice found at the beginning of every book, which is mostly redundant now).

Copyright protection

Posted Aug 25, 2012 20:36 UTC (Sat) by dlang (subscriber, #313) [Link]

I wish it wasn't the case, but no, it doesn't take making a new arrangement for copyright to kick in.

it may be that they are claiming copyright on the compilation of all the music together, but somhow they make it so that you can't copy the music, even though it's note-for-note identical to something published 100 years ago.

Copyright protection

Posted Aug 25, 2012 20:43 UTC (Sat) by man_ls (guest, #15091) [Link]

Perhaps music publishers claim copyright on the arrangement on the page; after all music type setting is a complex task. But I am not so sure that it would hold before a judge...

Copyright protection

Posted Aug 25, 2012 20:42 UTC (Sat) by man_ls (guest, #15091) [Link]

IANAL, but I think he is right. And you are right about bizarre situations: the copyright applies to the new copy, but not to the old copy. This is the understanding that I have arrived at about this issue, illustrated by a few examples:
  • If the copyright for "Steamboat Willie" had expired (something that Disney is unlikely to allow, but bear with me), and Disney publishes a restored version: anyone would be allowed to publish the old version, but not the new one. Disney would tell the world: "Find your own copy!"
  • We are in the year 2055, the copyright for "Star Wars" has expired. Some Martians try to show one of the endless remasterings and reeditings Lucas has produced during the years on the Earth shuttle; they have to pay royalties. Then they resort to showing the original movie; Lucas doesn't get a dime (and travelers are much happier).
  • I publish a new translation of "The Idiot" by Dostoievsky. I hold the copyright for my translation, although the copyright for the original is long expired. A translation made in 1905, however, is in the public domain.
These are not hypothetical situations, they arise all the time e.g. in Google Books.

Copyright protection

Posted Aug 25, 2012 23:18 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

Well sure — restored, remastered, re-edited, translated into another language. That's creative content and deserves a new copyright. We were talking about merely reprinting.

If a phone book doesn't enjoy copyright protection (which we know from the famous 1991 US Supreme Court Feist decision, which said merely printing names and phone numbers in alphabetical order is not creative enough to deserve copyright), then I can't see how a second press run from the same galleys that produced the first gives you a second copyright. Or a re-typesetting of the same notes you find in 100-year-old sheet music.

Copyright protection

Posted Aug 25, 2012 23:28 UTC (Sat) by man_ls (guest, #15091) [Link]

In the first case (reprint, reusing the galleys) then I think there is no margin for interpretation: in effect it is the same copy. Re-typesetting depends on whether there is any art to it. I suppose it depends on the following question: given the same content and the same constraints, is there only one possible output, or several? For text these days typesetting is almost always mechanical, for music I have no idea, honestly.

Just curious, why do you concede that re-editing has creative content, but deny it to re-typesetting printed music?

Copyright protection

Posted Aug 26, 2012 21:14 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

Just curious, why do you concede that re-editing has creative content, but deny it to re-typesetting printed music?

Just because re-editing involves the same kind of intellectual work as what was protected by the original copyright: writing. Composition of words. If there is any significant creativity in typesetting music, it's a different kind from what went into composing the music, which is what we generally think of as protected by sheet music's copyright.

I suppose it's conceivable that typesetting music is creative enough to be copyrightable, and if that's all that gets re-copyrighted when someone publishes Beethoven sheet music, that isn't unbelievable for me. I thought we were talking about a copyright wherein a person couldn't legally read the notes off the page, type them into a music publishing program, and print new copies of the composition.

Copyright protection

Posted Aug 26, 2012 21:40 UTC (Sun) by dlang (subscriber, #313) [Link]

If editing is a creative enough endeavour, why does an editor of a book not get copyright on that book?

Copyright protection

Posted Aug 26, 2012 21:55 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

If editing is a creative enough endeavour, why does an editor of a book not get copyright on that book?

Well assuming that's true, I withdraw my acceptance of the idea that re-editing a book creates addition copyright of any kind.

(Assuming "re-editing" means redoing what an "editor" does).

Copyright protection

Posted Aug 27, 2012 0:41 UTC (Mon) by Cyberax (✭ supporter ✭, #52523) [Link]

Because editing is usually a work-for-hire, so the copyright on the edited work belongs to whomever payed an editor. However, if an author collaborates with an editor without making any work-for-hire contracts then editor indeed would share the copyright with the author.

Copyright protection

Posted Aug 26, 2012 21:42 UTC (Sun) by man_ls (guest, #15091) [Link]

Ah, now I understand: you mean something like a revised edition, not just a reprint.
I thought we were talking about a copyright wherein a person couldn't legally read the notes off the page, type them into a music publishing program, and print new copies of the composition.
That would indeed be quite bizarre. I think a new edition of an old music work can restrict e.g. photocopying the exact pages, but not protect the music score in any way. The same would be true for a text book. But I am not an expert in any way, just a puny armchair copyright amateur.

Copyright protection

Posted Aug 27, 2012 9:42 UTC (Mon) by anselm (subscriber, #2796) [Link]

Music publishers bring out new editions of old works all the time. Usually they add stuff like fingering or dynamics that wasn't in the original, just so they have something obvious to copyright. This is on top of re-typesetting the music according to modern customs, since the original old scores are often quite difficult to make out even if you photograph them 1:1 for reproduction.

Even »urtext« editions which try to present the music as originally written by, say, Bach or Beethoven normally add »critical« annotations along the lines of »In bar 39, the so-and-so edition of 1865 has an A where all the other editions have an A-flat«.

If you were to locate a very old copy of the music in question in your granny's laundry chest, you would be perfectly free to scan these pages and put them up on the Internet, even if modern editions of the same music exist. You would also be perfectly free to take your laptop, with a music typesetting program on it, to your friendly neighbourhood music library and type in stuff from very old scores there. This is basically what the music publishers do, anyway.

Copyright protection

Posted Aug 27, 2012 10:46 UTC (Mon) by man_ls (guest, #15091) [Link]

Would you also be free to take your laptop with a music typesetting program and type in stuff from the modern edition? I assume that, as long as you don't copy the new annotations, you are good to go: the mere work of e.g. compiling the score from older sources is not copyrighteable.

Copyright protection

Posted Sep 4, 2012 9:46 UTC (Tue) by Wol (guest, #4433) [Link]

For music, GOOD typesetting is mostly manual. However, most typesetting nowadays is mechanical.

Just look at lilypond, and in particular their "essay on music" whatever it's called. Mechanical typesetting can *easily* create music that is very hard to play.

Cheers,
Wol

Copyright protection

Posted Aug 25, 2012 17:11 UTC (Sat) by man_ls (guest, #15091) [Link]

Interesting problem. The Berne Convention doesn't say, as it doesn't seem to apply to software. 17 USC, which apparently covers computer programs (although I can't find them explicity mentioned), makes no distinctions with other works:
Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. [...] In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first"
I suppose it is similar in the relevant EU Directive.

Looking for prior art

Posted Aug 25, 2012 0:15 UTC (Sat) by anselm (subscriber, #2796) [Link]

Now, if patent applications did include source listings, then patents would apparently be redundant with copyright.

Not necessarily. A patent covering an invention with source code in C would presumably also extend to the same invention if implemented in Prolog. Copyright would only cover the C implementation (and possibly implementations in other languages where the code could be trivially translated from C).

Also consider the following:

  • There is a potential problem if the source code (due to bugs or oversights) implements something different than what the patent claims say. Does the code have priority in this case, or does it simply serve as an illustration?
  • An invention does not have to actually work in order to be patentable. The patent office as a rule doesn't go for perpetual-motion machines, but other than that, pretty much anything can be patented without having to give a demonstration – it is up to the patent office to prove that an invention does not in fact work. Accordingly, requiring source code for software patents, while a good idea in principle, is probably not going to fly because this principle would be undermined.

Patents with source code

Posted Aug 25, 2012 16:59 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

An invention does not have to actually work in order to be patentable.

You're just talking about issuance of the patent, though, not validity, right?

If John invents something and starts practicing it, and then Mary produces a patent for the same invention and demands that John stop, but John proves that Mary only dreamed it up and never actually proved it would work, I believe that means Mary didn't invent the thing, so her patent is invalid and John doesn't have to stop.

Concerning patent applications hypothetically having to contain source code, I think there are two cases to consider: 1) the source code is the claim. In this case, I don't think it would cover the same method in a different language, and the patent seems highly redundant with copyright. 2) source code is in supporting material, offered just to prove it works, i.e. the invention is complete. In that case, the patent is still quite different from a copyright.

Patents with source code

Posted Aug 27, 2012 10:15 UTC (Mon) by anselm (subscriber, #2796) [Link]

If John invents something and starts practicing it, and then Mary produces a patent for the same invention and demands that John stop, but John proves that Mary only dreamed it up and never actually proved it would work, I believe that means Mary didn't invent the thing, so her patent is invalid and John doesn't have to stop.

Mary only needs to get the patent office to sign off on the patent application. She doesn't need to actually produce the working invention, although that would probably help if the patent examiner isn't convinced that the invention might work. It is up to the patent office to prove that an invention cannot in fact work, but the patent office, which after all receives its funding essentially based on the number of patents granted, tends to accept anything that isn't obviously a perpetual-motion machine. You can go to the patent office today and apply for a patent on a method of mining Jupiter's moons for gold even if there is no feasible way of putting that method into practice anytime soon, and that patent will very probably be granted as long as your method looks remotely doable and hasn't been patented by someone else yet.

If Mary manages to obtain a patent on John's invention before John does, without actually doing the inventing herself, that is just John's hard luck. He can always try to take Mary to court in order to prove »prior art«. This can become tedious and very expensive. In fact, this is why people who are otherwise not big fans of the patent system still patent stuff, or at least »defensively publish« things that they don't actually intend to patent (or indeed build or market), just so if somebody else tries to patent the same thing later it is easier to establish that it isn't a new idea.

The main problem underlying this is that, when trying to figure out whether an invention is »new« (as opposed to »possible according to the laws of nature«) the patent office tends to look mostly at other patents and official defensive publications, not at all the tech that is available somewhere in the world, so it is fairly easy to patent stuff that the patent office hasn't officially seen yet, even if it appears quite familiar to anybody else with eyes and ears. So merely doing something, even in plain sight, doesn't usually keep the patent office from giving a patent on whatever it is that you are doing to somebody else if you haven't formally written it up and submitted it to the patent office first. (There is the additional safeguard that inventions must not be »obvious« to be patentable, but, as RMS once said in a talk, the patent office usually understands »obvious« as meaning »obvious to a person with an IQ of 70«.)

Patents with source code

Posted Aug 27, 2012 15:55 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

I notice you focus on the patent getting issued, whereas I was talking about the patent being valid. While a court is required to presume a patent is valid just because it was issued, adversaries overcome that presumption all the time and prove an issued patent is invalid.

One way for a patent to be invalid is for the patent holder not have invented the thing claimed. Patent law says invention is more than dreaming up something. It recognizes Edison's definition, "invention is 1% inspiration and 99% perspiration." If Mary didn't perspire and John did, Mary's patent won't stop John from practicing the invention.

I don't know where the law draws the line as to how far past dreaming something up you have to go before you've invented it, but I know you have to go somewhere toward proving the idea works.

Patents with source code

Posted Aug 28, 2012 22:05 UTC (Tue) by wookey (subscriber, #5501) [Link]

This is very logical, but it's an engineers view of the world, not a lawyer's. I am not aware of anything in the patent system that requires things to actually work. An invention is an invention in the sense of patent law whether it has any useful effect or not, so long as it's new, 'not obvious' and 'capable of industrial application' (although this requirement is essentially null in practice). I realise that you are talking about validity, not granting, but I'm not aware of any granted patents being challenged on the grounds of 'not working'. Especially not software patents which are generally such obvious ideas that they are obviously implementable, and not having actually implemented them is no problem at all for the inventor, because the invention is the idea itself, not any particular implementation of the idea.

Note that I have taken a lot more notice of European and UK patent law than US, and they do differ in various ways, possibly including this detail of 'needs to actually work', but I doubt it.

Patents with source code

Posted Aug 29, 2012 2:10 UTC (Wed) by giraffedata (subscriber, #1954) [Link]

I am not aware of anything in the patent system that requires things to actually work.

Well do you believe that patent law requires more of an invention than just having an idea? Can you patent an idea?

Patents with source code

Posted Aug 29, 2012 7:36 UTC (Wed) by dlang (subscriber, #313) [Link]

> Can you patent an idea?

that's basically what you are doing.

It would be really nice if patents required some demonstration that they work, but that's not the case

Patents with source code

Posted Aug 29, 2012 10:26 UTC (Wed) by wookey (subscriber, #5501) [Link]

Most software patents are nothing more than an idea. A reasonably detailed idea in most cases, but it's just a specification of a process. Have you read many? Sometimes you get a flowchart but often not even that. The 'inventor' may well have made an actual implementation but it's almost never included in the patent (see the above discussion about including the source in patents). Also remember that it usually consists of a basic idea modified/built-on in many separate claims, and the validity of each claim must be challenged separately. You have to show that _all_ of them are invalid to fully invalidate the patent.

But still, whether it 'works' (how exactly would you define that?), really isn't part of the legal definition, and thus isn't something you can usefully challenge on, SFAIK.

We do have an actual (european) patent agent on LWN these days who might be able to give chapter and verse on this point.

Patents with source code

Posted Aug 29, 2012 18:10 UTC (Wed) by giraffedata (subscriber, #1954) [Link]

Most software patents are nothing more than an idea

As someone pointed out earlier, those patents aren't really a test of whether you can patent a mere idea, because it's usually obvious from the idea alone that it works. Of course, it also means that the maxim "you can't patent an idea" can be construed as false, because you might say there exist cases where the idea is indistinguishable from the invention.

But still, whether it 'works' (how exactly would you define that?), really isn't part of the legal definition,

I still don't know whether you believe the legal definition distinguishes between idea and invention, which is what's really relevant to this thread. Whether that difference consists of "proving that it works" is a fuzzier question.

Patents with source code

Posted Sep 1, 2012 22:17 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> Can you patent an idea?

No. The idea must be "reduced to practice" in US terminology. The distinction might seem fine but it is important.

http://www.uspto.gov/web/offices/pac/mpep/documents/2100_...
http://www.epo.org/law-practice/legal-texts/html/epc/2010...

Patents with source code

Posted Sep 1, 2012 22:55 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> I'm not aware of any granted patents being challenged on the grounds of 'not working'.

Not working implies that "the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art" to quote Art 100 (b) EPC.

http://www.epo.org/law-practice/legal-texts/html/epc/2010...

In real life oppositions you always try to use this line of attack. And it works as shown for instance here:
http://k-slaw.blogspot.com/2012/08/t-108208-be-prepared.html

Patents with source code

Posted Sep 1, 2012 23:21 UTC (Sat) by anselm (subscriber, #2796) [Link]

Not working implies that "the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art" to quote Art 100 (b) EPC.

Would it be possible to obtain a European patent on a method to mine precious metals on Pluto if that method is very clearly and completely described and the only problem is that it is not feasible (now) to go there and do it? In other words, will a patent be granted if the patent application causes »a person skilled in the art« to say »Hmm, yes, that would work once we get to Pluto«, or must it actually be possible to do whatever the patent application claims in front of the patent examiner before a patent will be granted?

Patents with source code

Posted Sep 2, 2012 3:40 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

Sure. There are lots of such patents. It's actually not a bad idea at all, even LASER had been patented before it was 100% clear that it is actually possible.

Patents with source code

Posted Sep 2, 2012 4:52 UTC (Sun) by dlang (subscriber, #313) [Link]

and how does giving one person a monopoly on something like a LASER encourage the needed experimentation to get it to actually work, after all, whoever gets it to work will still have to pay the person with the patent for the privilege of using the thing that they did all the experimentation to actually make work

Patents with source code

Posted Sep 2, 2012 6:40 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

Well, maybe because even the initial development might cost quite a bit and require a lot of original inventions?

Patents with source code

Posted Sep 2, 2012 11:17 UTC (Sun) by SecretEuroPatentAgentMan (guest, #66656) [Link]

I am surprised how many take the fatalistic approach when something is patented and in some case unquestioningly accept statements from the patent proprietor that there are no ways around. That is in my experience very rarely the case in reality. The perfect patent application has not yet been drafted.

First of all the initial milestone patents tend to be narrower in scope than first expected by the inventor thus opening up for patenting or publishing of alternative embodiments that bring about the same effect. The first lasers were like the ruby laser but it has been shown that with dye lasers even flowing liquids can be used. Chemical gas reaction lasers are even more different.

Secondly the practical embodiments can turn out to be patentable in which case a cross license agreement with the patent proprietor of the first patent is the normal approach.

Also patents do not last for ever, future embodiments can reuse features from the first patent and still come up with something patentable without the need for licences from others.

It should also be remembered that in some jurisdictions around the world you are allowed to work a patented invention if it is for research and not for commercial or operative purposes.

Patents with source code

Posted Sep 4, 2012 9:54 UTC (Tue) by Wol (guest, #4433) [Link]

Actually, from my understanding reading Groklaw, if the inventor has said "Bwahahaha there are no ways round my patent" he has just handed you a sure-fire kill switch!

Not that the courts will actually throw the switch, but if there's only one way to do it, then that way is not patent-eligible subject matter!

Cheers,
Wol

Patents with source code

Posted Sep 7, 2012 20:15 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> Actually, from my understanding reading Groklaw, if the inventor has said "Bwahahaha there are no ways round my patent" he has just handed you a sure-fire kill switch!

Can you provide a reference for this?

Patents with source code

Posted Sep 2, 2012 18:28 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

and how does giving one person a monopoly on something like a LASER encourage the needed experimentation to get it to actually work,

I don't know anything about this patent, but I highly doubt it gave someone a monopoly on something that still required experimentation to get it to work.

Though the patent holder might not have got it to work himself, he described in detail how to do so without extensive additional experimentation, and if those instructions don't result in a working, useful laser, that patent didn't give him a monopoly on anything.

I suspect it's an issue of a patent on a simple laser that was fully invented and useful, but then covered all the far more useful kinds of lasers that were invented later as extensions of it. In those cases, the inventor of the extension also gets a patent, and one needs both patents in order to use it.

In my one patent law class, we studied the patent for the electron tube diode. An electron tube diode is a very useful thing, and the holder of that patent had it fully working before applying for the patent. That inventor did no work on an the electron tube triode, but ended up controlling the manufacture of those anyway, because you can't make a triode without practicing the technologies claimed for the diode. (We studied that because apparently the diode inventor wouldn't let the triode inventor sell triodes and the triode inventor wouldn't let the diode inventor sell triodes either and triodes were thus withheld from the world -- a classic breakdown of the free market economics that are supposed to make the patent system work).

Patents with source code

Posted Sep 2, 2012 11:02 UTC (Sun) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> Would it be possible to obtain a European patent on a method to mine precious metals on Pluto if that method is very clearly and completely described and the only problem is that it is not feasible (now) to go there and do it?

If you solve the problem of going there in a non-obvious way you can get a patent, however putting the mining feature into claim 1 would be unwise. Claim 1 is normally the most important claim since it defines the invention in the broadest scope.

So claim 1 would be for a non obvious method for space travel.
Claim 2 would be the method of claim 1 wherein the destination is Pluto, unless there is something special about travelling to Pluto.
Claim 3 would be the methods 1 - 2 wherein you mine Pluto, unless the space travel absolutely requires you going to Pluto and do some mining there.

Claim 1 is an independent claim and claims 2 and 3 are dependent claims, depending on previous claims. In prosecuting the application you start with a wide claim 1 and then you bring in features from dependent claims to overcome objections from the Examiner.

These wide claims in a patent *application* is a frequent source of objections from the software community. The final patent tends to be much narrower in scope. The reason for this approach is twofold:
- get the widest possible scope of protection, and
- get a search report that covers a wide part of the art so that you can determine your position compared to state of the art and your competitors.

> In other words, will a patent be granted if the patent application causes »a person skilled in the art« to say »Hmm, yes, that would work once we get to Pluto«,

Correct. The amount of further practical engineering work required varies around the world. In Europe the person skilled in the art should not have to undertake "undue experimentations".

In the US it appears that a fair bit of experimentation is allowed if the story of Richard Feynman's patent for nuclear space propulsion is to be believed
http://www.myspace.com/richard_feynman/blog/332428072

> or must it actually be possible to do whatever the patent application claims in front of the patent examiner before a patent will be granted?

That is not a requirement since it would be impractical. For instance devices for oil platforms are unlikely to even fit into the Examiner's office. It is also unlikely that an Examiner would even want to see a component for a nuclear reactor core in operation (at this point I am tastefully avoiding commenting on specific Examiners...).

In the old days it was a requirement to demonstrate a working model before the USPTO but this was abandoned.
http://www.patentmodel.org/

Supposedly there is one example: if you make a perpetual motion machine the Examiner will want to see it. So does any patent attorney/agent who cares about his reputation.

Patents with source code

Posted Sep 2, 2012 0:02 UTC (Sun) by wookey (subscriber, #5501) [Link]

Interesting to know that 'not described well enough to implement' is valid grounds for challenge. Thaks for clarifying that. However, in the example you cite it says that "the Board reaches the conclusion that the invention claimed in claim 1 of the main request is disclosed in a manner sufficiently clear...", so the challenge did not succeed on those grounds. The challenge in fact succeeded on 'lack of inventive step' (unless I am misreading that post).

Patents with source code

Posted Sep 1, 2012 22:46 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> If John invents something and starts practicing it, and then Mary produces a patent for the same invention and demands that John stop, but John proves that Mary only dreamed it up and never actually proved it would work, I believe that means Mary didn't invent the thing, so her patent is invalid and John doesn't have to stop.

This is not a realistic scenario. Instead you would invoke the First inventor defence act in the US (sorry, I haven't looked up the details) and in Europe you have similar defence in Art 70(4)(b) EPC.
http://www.epo.org/law-practice/legal-texts/html/epc/2010...

More countries are described here:
http://www.uspto.gov/aia_implementation/20120113-pur_repo...

Patents with source code

Posted Sep 1, 2012 23:34 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

If John invents something and starts practicing it, and then Mary produces a patent for the same invention and demands that John stop, but John proves that Mary only dreamed it up and never actually proved it would work, I believe that means Mary didn't invent the thing, so her patent is invalid and John doesn't have to stop.
This is not a realistic scenario. Instead you would invoke the First inventor defence act ...

It wasn't meant to be realistic; it was meant to exemplify a point, which from everything you've said appears to be valid: you can't patent a mere conception. If Mary's patent is based on something she conceived but never reduced to practice, she has no rights in John's invention based on the same idea.

However, I learned something from the section of the Manual of Patent Examining Procedure of the US Patent and Trademark Office that you cited: constructive reduction to practice. (For those not familiar with the legal lingo, "constructive" means fictional -- something the law assumes to be true even if it definitely isn't).

IIUC, constructive reduction to practice can substitute for actual reduction to practice, and consists of simply describing in the patent application how to build the thing and do something useful with it. So no, you don't have to prove it works in order to have invented, and thus to get a patent.

I assume that if it turns out later that the instructions in Mary's patent application don't work, that the entire patent is invalid and Mary doesn't have any rights in the invention even if there's some other way to make use of her idea.

Patents with source code

Posted Sep 2, 2012 10:27 UTC (Sun) by SecretEuroPatentAgentMan (guest, #66656) [Link]

I don't like the "it depends" answers but that is unfortunately the case here. This seemingly simple scenario actually opens up a huge field of possibilities.

If the disclosure is in itself makes the invention clear to a person skilled in the art the patent is valid even though an experimental verification has not been undertaken. This is often the case for mechanical inventions. The side effect is unfortunately that many will find it obvious in view of the description itself and disagree with the patent being granted. Where the description itself is not sufficiently convincing such as an improved escapement for a clock or pharmaceutical inventions.

> I assume that if it turns out later that the instructions in Mary's patent application don't work, that the entire patent is invalid and Mary doesn't have any rights in the invention even if there's some other way to make use of her idea.

The patent would be invalid for many reasons such as lack of sufficiency, lack of enablement and inequitable conduct. I have come across cases where the invention as disclosed cannot work as disclosed but where a small non-obvious change will make it work. That will not save the application but it opens up the possibility for claiming that patent application as your own (this is not trivial) and use it to establish a priority for subsequent applications where you do bring in sufficiency. This can happen in cases of industrial espionage.

Looking for prior art

Posted Sep 1, 2012 22:28 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> A patent covering an invention with source code in C would presumably also extend to the same invention if implemented in Prolog.

Strictly speaking, if the patent covers an invention in C it does not cover much else (doctrine of equivalence makes this a bit more complex). Still such a patent would be bizarre. What is normal practice is to describe an exemplary embodiment in for instance C but make clear that this is not limited to C. The scope of protection is determined by the claims and the claims should not refer to a single specific embodiment.

> An invention does not have to actually work in order to be patentable.
Are you really sure about this? I am not.
> pretty much anything can be patented without having to give a demonstration
This is not the same thing. In pharmaceutical patent prosecution you can apply for a patent for a drug but you will normally have to demonstrate the drug has the effect you claim it has.
> it is up to the patent office to prove that an invention does not in fact work
Some times, yes. And this is why examiners hate perpetual motion machines in certain jurisdiction since the examiner has to demonstrate why it cannot work and so so without referring to the thermodynamic law that energy cannot be created, only transformed. And some of these inventors can be rather clever.

Looking for prior art

Posted Sep 1, 2012 21:52 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> IANAL, but as a developer I loathe every S/W patent that does not have source attached and therefore does not properly describe the patented thing.

All patent laws that I know require a proper description of the invention. It is part of the very foundation of the idea behind patents: the inventor/applicant discloses the invention in sufficient detail to make a person skilled in the art to work the invention and in return receives a time limited privilege. Some use sample source listing, others use diagrams (flow charts, UML diagrams, XML etc).

> Technical artifacts should only be allowed exactly one form of legal protection. Either patents OR copyright OR trade secrecy.

There are already many limitations in place. First of all a patent is published so that puts a limit on secrecy. Disclosure of preferred or best embodiment is required (I am simplifying a lot here). If you keep so much secret that the patent cannot be worked by a person skilled in the art the patent is invalid.

Also patenting an invention that has been a trade secret for a long time is in some places regarded as unreasonable and not allowed. Patent laws are territorial so there are many variations around the world.

However copyright on source code that is an embodiment of a patented invention is allowed and frequently considered as part of the IPR process since a copyright infringement litigation can be preferred to a patent litigation.

Mobile patent wars: Google goes on the attack

Posted Aug 25, 2012 11:22 UTC (Sat) by bojan (subscriber, #14302) [Link]

In the aftermath of Apple v. Samsung, it is quite clear why Google went on the offensive. They have to do something, unless they want to be completely obliterated.


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