Hardly a week goes by without another claim that some basic technology in widespread use has been patented. Last week eWeek reported that MicroSoft corp may be “trying to retroactively claim IP (intellectual property) rights over many of the Internet’s basic protocols.”
A more disturbing aspect of MicroSoft’s strategy is the possibility that they plan to use patent law to launch legal attacks against popular open-source systems such as Linux. Reporter Stephen J. Vaughan-Nichols wrote today that MicroSoft has produced a research report touting its legal indemnification program for customers in contrast to the so-called legal nightmare of patent lawsuits that Linux users will face (how would they know?). “So, here’s what I [Vaughan-Nichols] see happening. First, Microsoft is launching a new FUD (fear, uncertainty and doubt) campaign, with indemnification at its heart.”Vaughan-Nichols writes:
- Blunk pointed out that Microsoft is claiming some form of IP rights over “a total of 130 protocols which Microsoft is offering for license.”
“Many of the listed protocols are [IETF] RFC [request for comment] documents, including but not limited to the core TCP/IP v4 and TCP/IP v6 protocol specifications,” he said in his note.
Some of the RFC protocols that Microsoft asserts that it may have IP rights over, such as the TCP/IP protocols and the DNS (Domain Name System), form the very bedrock of the Internet’s network infrastructure.
“Microsoft does not specify how this list of protocols was derived and to what extent they have investigated their possible rights holdings over these protocols,” Blunk said. “The list appears to be a near but not completely exhaustive list of public protocols implemented in Microsoft products.
Information Week reported last week in an article titled Dell Sued Over Global E-Commerce Process that the firm DE Technologies is suing Dell for patent infringement. The Wall St Journal reported in Oct 3 2002 that DE Technologies has “sent notices of its pending patent to hundreds of multinational companies including IBM and UPS”, DHL and others. The lawsuit asks for “0.3% of all computerized trade deals across borders”, the Journal reported on Aug 28, 2000, for a total of about $2.4 billion in license fees per year, based on $6.8 trillion of global e-Commerce.
The nature of the patent claim is for a process using computers and the web to conduct international trade. In the Aug 28, 2000 article, the Journal wrote that the the patent covers “a process for carrying out an international transaction…using computer-to-computer communication”. The article cited Stacie Kilgore, an analyst with Forrester Research, as saying it is “‘ridiculous’ that the patent office might give Mr. Pool [of DE] a patent on his process. Freight forwarders have used computers to calculate rates for years, she says, and several companies sell software to do this work. ‘We’re talking about basic processes here. There are a lot of people already doing this’.”
The trend in these lawsuits, if one can be discerned, is toward increasingly ubiquitous and common ideas being patented. The DE lawsuit verges in the claim that they own a fraction of a percent of all international trade conducted with the aid of computers. Are we far from the day when we will read:
- Trade between individuals and business firms was patented by ABC Technologies in 1996, a new lawsuit claims. ABC has filed lawsuits against all business firms and their customers, claimining that their patent covers the concept of ‘trade’, that is, exchange of goods and/or services for a price, between a business firm and an individual. ABC claims that it is entitled to 0.1% of all trade, which at a world GDP of $40 trillion would amount to a royalty of $40 billion annually. “We invented this idea back in 1996″, the CEO of ABC, claims, “and then we started looking around and we noticed a lot of people infringing on our patent. They were trading right and left, making exchanges, charging money for services, and otherwise violating our intellectual property. We intend to go after them.” If the lawsuit is successful, then all businesses and private parties seeking to engage in ‘trade’ will have to obtain a license from the patent holder.
{ 5 comments }
Bill Gates had barely heard of the Internet, let alone secured its intellectual property, only 9 years ago when the first edition of his book “The Road Ahead” came out (“a landmark of bad techno-punditry” – salon.com).
I think the Intellectual Property scams we are seeing nowadays are symptomatic of the general fall in profitability that manufacturers are facing. If we were in an expanding economy with lots of opportunity to make and sell stuff, companies would be focused on just that – making and selling stuff. But when the global economy has been polluted with endlessly printed green(span)backs and boundless debt, real profits are hard to come by. Companies will inevitably look for a legal or political edge over their competitors (or their customers) – such as patents, copyrights, “safety” regulations and other tricks.
Thus does the empire collapse, not because of enemies without, but because of rot from within.
“Process” patents, be it business process or software process, have only been patentable for a short time (10 years?) and we are now seeing the foul fruit of this change in the rules.
The other edge of the sword is the infinite Copyright (the Mouse will never go public domain!). We see the repercussions from that as well, with prosecution for writing “The Wind Done Gone” for instance.
What I’m reading (as a Linux user I’m seeing a lot of traffic on these subjects) is that the PTO is approving patent applications that are written as if the applier has done all the required research. “As if”. Don’t forget that Microsoft didn’t even have IPv4 networking in their Windows offering until after the original Windows 95 was released, and then they took the software entirely from Berkeley Systems Division (BSD) Unix. (the BSD license allows such reuse without attribution in compiled code, the only thing Microsoft distributes.)
If Microsoft gets away with it, there are going to be some very, very angry geeks.
Hm – the NSA maintains and distributes their own high-security flavour of Linux. Maybe Microsoft should go after them first!
On a more serious note, this shows the kinds of perversions you get when you use government force to treat intangible non-property (ideas, information, etc) as scarce property. Now that the notion of software patents and copyrights is firmly entrenched, companies like Microsoft can take the next “logical” step and declare free software like Linux, Apache and Firefox to be unlawful.
The CEO of SCO (the Microsoft-funded company currently suing IBM over Linux) actually went so far as to declare that free, easily distributed software should be illegal, since such software might theoretically infringe on someone’s patents.
Meanwhile, the US government is trying to use bi-lateral trade treaties to override the local law in other nations regarding copyright. A new treaty with Australia, for example, would make many previously legal, nonharmful activities illegal, without requiring the Australian parliament to even pass such laws. For example, it would force Australians to abide by the US’s DMCA, which forbids, among other things, the playing of commercial DVDs with free software like Linux.
NOTE TO MISES STAFF: The “Remember Me” option no longer seems to work.
The last time I argued intellectual property with someone, it culminated in they changing their definition of the word “theft” to include the definition of the word “duplication.” They did is after I convinced them that theft, according to the normal definition, does not actually occur in the process of patent or copyright infringement. This is tactially identical to “piracy” being redefined as duplication of copyrighted material.
It’s quite obvious that proponents simply want to borrow the psychological effect of atrributing such words to certain actions. “Piracy” and “theft” carry alot more political thrust than “duplication.” I should try robbing a bank and arguing to the judge that I made an intellectual deposit.
Process patents have been available forever decades, but business methods (such as “international trade”) were unpatentable under the common law. The Federal Circuit Court of Appeals, the Court of Appeals for patent law in the US, abolished the common law business method exception in State Street Bank and Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed.Cir. 1998). It’s probably the single worst decision in the 20 year history of the Federal Circuit. This decision has opened the floodgates to people trying to patent ideas like “trade”, “selling”, and “accounting”. Hopefully the Federal Circuit will come to its senses and reverse that portion of State Street Bank.
Interestingly enough, as a procedural note, the Federal Circuit is only supposed to overrule prior decisions when it sits en banc, that is, when 9 judges rule on the case instead of 3. Since State Street Bank was not a ruling en banc, if the Federal Circuit had ever relied on the business method exception, the ruling judges on State Street Bank should not have been able to overrule it.
- Josh
Comments on this entry are closed.