Comments on Life and Law, Free Software, Open Source and Intellectual Monopolies
Bilski (on sware patents in the US) is out
After weeks of “still no Bilski decision today again” stories in the press, they’ve handed down judgment and apparently software patents aren’t in as bad shape as they might have been. Although from a look at secondary sources, they aren’t necessarily in good shape either with the Court pretty much avoiding the real question.
Microsoft/Linux: Don’t Cross License with Us?
Last week saw the purchase, by OIN, of a portfolio of patents which ultimately originated from Microsoft. OIN has alleged that Microsoft had described this portfolio as relating to Linux. Red Hat has speculated that Microsoft auctioned these patents off in the hope of them being picked up by a patent troll and used ‘offensively’ against Linux (which I take to mean ultimately by way of litigation).
Without being a potential bidder I can’t say whether or not any of this speculation is true, but what if it is?
First, if this speculation is true, it means that Microsoft believed that the patents would be of value in litigation against Linux. By selling the patents it therefore consciously decided not to litigate over them itself.
Second, what is the impact of this sale on manufacturers of Linux based devices who are entering cross-licensing arrangements with Microsoft? What is the value of a cross licensing deal intended to protect against Linux related patents if the very patents you want to license are, will be, or have been, sold off to third parties?
Is Microsoft undermining its patent cross licensing push?
CNet reports an award of $200 million against Microsoft for patent infringement in relation to “custom XML tagging features of Word 2003 and Word 2007”. Exactly what that is I’m not sure.
Michael Geist reports that a pharmaceutical company paid a publisher to print marketing material as a peer reviewed journal. If true, all I’d say is that I’d expect nothing more of this industry.
Patent Suit over Use of Linux <- hello PlanetLA
Todd Bishop is reporting that Microsoft is suing TomTom, and that part of the suit relates to their use of Linux (Linux is mentioned in one of the documents referred to, but on a quick review I can’t find anywhere it calls out Linux as infringing per se).
I also can’t find any press release announcing this, so it would be revealing to know how this was seeded into the media.
The Commonwealth Department of Innovation, Industry, Science and Research has released the report it commissioned by Venturous Australia on the Review of the National Innovation System. I put together a submission for OSIA arguing that open source should be given much more prominence in national innovation priorities. The report has recognised the importance of collaboration, with at least one recommendation specifically in relation to open source.
Some relevant extracts include:
Intellectual property is also critical to the creation and successful use of new knowledge – particularly the ‘cumulative’ use of knowledge as an input to further, better knowledge. In this regard, particularly in new areas of patenting such as software and business methods, there is strong evidence that existing intellectual property arrangements are hampering innovation. To address this, the central design aspects of all intellectual property needs to be managed as an aspect of economic policy. Arguably, the current threshold of inventiveness for existing patents is also too low. The inventive steps required to qualify for patents should be considerable, and the resulting patents must be well defined, so as to minimise litigation and maximise the scope for subsequent innovators.
at page xii, recurring in recommendation 7.2
On the other hand, there is one area in which it is clear that there will be substantial spillovers from software development. Where firms develop open source software and donate the code from their development back to the open source project, this will generate clear spillovers for the rest of the community which will be able to access their developments. It is hard to think of a more straightforward case for government support. The Panel accordingly recommends that R&D on open source programs should qualify for the multiple sale test. Given the pervasiveness of positive spillovers, it may also be cost beneficial to relax somewhat the degree of technical risk required in relation to open source software.
(at page 109, see also recommendation 8.7)
Professional practitioners and beneficiaries of the IP system should be closely involved in IP policy making. However, IP policy is economic policy. It should make the same transition as competition policy did in the 1980s and 90s to being managed as such.
Australian governments should open publishing as far as possible. Material released for public information by Australian governments a creative commons licence.
To the maximum extent practicable, information, research and content funded by Australian governments – including national collections – should be made freely available over the internet as part of the global public commons. This should be done whilst the Australian Government encourages other countries to reciprocate by making their own contributions to the global digital pubic commons.
(Recommendations 7.3, 7.8 and 7.14)
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