[DMCA-Activists] IBM Leads in Patent (arms) Race

[Seth Johnson]

(Russell McOrmond comments -- forwarded from CANOPENER list)

-----Original Message-----
From: Russell McOrmond <address@hidden>
Date: Tue, 13 Jan 2004 18:36:39 -0500 (EST)
Subject: [discuss] IBM Leads in Patent (arms) Race



http://www.eweek.com/article2/0,4149,1435083,00.asp

    Technology companies continued to lead the pack of top patent 
    recipients in 2003, with IBM racking in the most patents for the
11th
    straight year.

    IBM received 3,415 U.S. patents in 2003, the most for any
corporation 
    and 70 percent more than the next highest patent recipient,
according
    to a top 10 list released Monday by the United States Patent and
    Trademark Office.


Note: This survey did not separate out "information process" patents
(software, business models, methods of organizing people like Roberts
Rules and parliamentary processes, etc) from legitimate patents
(processes 
involving manipulation of nature to manufacture tangible goods).  Other
reports I have heard put IBM at the top of the "information process" 
patents arms race as well.


  Granted information process patents does not represent innovation.  
Even high profile members of the pro-software-patent lobby will admit
that
approximately 60% of software patents granted by the USPTO are invalid
according to adequate "novelty" (prior art) tests.  Other studies
suggest
that if you add in adequate "useful" and "unobvious" tests to the mix
you
get as high as 95% of software patents being invalid.  I am one of
those
people who believe that the "statutory" test, the 4'th basic test for
patentability, should clarify 100% of information process patents as
invalid.

Note: This would be a prohibition of patents on software itself and
various legal loopholes (like claiming software plus a generic computer
should be patentable).  The existence of software in an otherwise
patentable manufacturing process would not render that process
unpatentable.


  The fundamental incompatibility between software patents and
FLOSS/Linux
is hopefully understood at this point.  It is not an issue only with
the
GNU GPL copyright license which is one of the few licenses that mention
the software patent issue.

  If a piece of software is licensed under a *copyright* license that
qualifies as FLOSS, but is patent encumbered with a *patent* license
that
is not Royalty-Free (RF) with no field of use limits, the software
itself
does not qualify as FLOSS.  What makes a piece of software FLOSS is
whether or not all licensing of any type of claimed intellectual
monopoly
protects the rights set out by the FSF and OSI.  Encumbering a
previously
FLOSS piece of software with non-RF licensed patent such that it no
longer
qualifies as FLOSS should be understood as the worst form of software
piracy.  It may even be an action that would qualify as theft, unlike
other forms of PCT rights infringement, as it could potentially revoke
the
right of a copyright holder to access their own work.


  Anyone who is a student of human history knows that when a
super-power
at the forefront of an arms race claims they will never use their arms
except in defensive ways, that this will change.  If you have them, you
will use them -- offensively against (relatively) unarmed targets, and
possibly even against past allies.

  We also know that smaller (sub-national) entities will use these arms
against almost anyone in a form of "terrorism" that cannot be defended
against using traditional means.  You can't use "superior firepower"
against a sub-national any more than you can use so-called "defensive"
patents against a shell company with patents that has no product that
needs cross-licensing.


  Is it time for Canada to step forward as they did with the
anti-land-mine and other disarmament and non-proliferation treaties and
suggest an anti-information-process-patents treaty (likely via WIPO)?

  It would be very appropriate if IBM could lead the charge in getting
all
countries to sign-on to such a treaty given they are at the forefront
of
the arms race at the moment?  IBM must change their current lobbying in
favor of unlimited patentability if we are to take seriously their
(currently questionable) claim they are allies of the Linux and FLOSS
communities.


See also:
  Why IBM's Linux push will split open source devotees
  http://www.itbusiness.ca/index.asp?theaction=61&sid=54494

  A Review of Software Patent Issues
  http://www.flora.ca/patent2003/

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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