Patents

Roger Parloff of Forbes Fortune reports that Microsoft is continuing to lay the groundwork to use the patent system as a weapon against the free software movement. Overall, Parloff does a good job of summarizing the dispute, but like most journalists, he lets Microsoft get away with exploiting the public’s ignorance of how the patent system works to create a misleading impression about the conflict:

But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft (Charts, Fortune 500). The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents…

It’s a breathtaking number. (By comparison, for instance, Verizon’s (Charts, Fortune 500) patent suit against Vonage (Charts), which now threatens to bankrupt the latter, was based on just seven patents, of which only three were found to be infringing.) “This is not a case of some accidental, unknowing infringement,” Gutierrez asserts. “There is an overwhelming number of patents being infringed.”

The impression Microsoft wants to give here is that free software is of high quality because it’s copied from Microsoft’s own software. Of course, that’s not true, and I don’t think Microsoft has ever claimed otherwise. But if free software was developed independently, then i’s a non-sequitur to cite free software’s patent infringement as a reason for its high quality.

The problem is that most readers aren’t aware that software patents often cover broad concepts like “wireless email” and “one-click shopping.” And so when they read that free software infringes Microsoft’s patents, they assume that means that the code has somehow been stolen from Microsoft. And Mr. Gutierrez, of course, deliberately exploits that confusion. To anyone who has actually looked at a significant number of software patents, and who’s aware that there are hundreds of thousands of them on the books, it’s not at all implausible that you could infringe 200 patents by accident. But the general public has a wildly romanticized concept of how the patent system works, and so Gutierrez can get away with those kinds of misleading statements.

His claim that the infringement can’t possibly be accidental is also belied by the fact that Microsoft refuses to disclose which patents free software infringes. If Microsoft’s patents are valid, and if free software developers have been infringing them deliberately, then it’s hard to see what the harm would be in publicly revealing which patents are infringing.

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You might not know it from my frequent ranting about the DMCA and software patents, but generally speaking I’m actually pro-copyright and pro-patent. There are, in fact, some good arguments for both copyright and patent law. (Although I wish people would stop lumping two very different legal regimes under the misleading heading of intellectual property)

But this article from CNet’s Michael Kanellos is full of cringe-worthy (and in some cases unintentionally hilarious) arguments for “intellectual property.” In fact, in a number of places, the arguments wind up coming across as unintentionally hilarious.

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Bloomberg is reporting that Vonage is working on a “workaround” for its patent infringement. I put “workaround” in scare quotes because, as I wrote last year about the NTP-RIM battle, the problem in these kinds of cases is that no one has the foggiest idea what the patents cover. So when a judge rules that your current product infringes some patent, you respond by re-configuring aspects of your product at random in the hopes that you can convince the judge that the new configuration does not infringe your adversary’s “technology.”

Now, I should acknowledge that I haven’t been able to get my hands on either Verizon’s complaint or the judge’s ruling. But according to this ZDNet post from a few weeks back, the key claim is this one:

26. A method comprising:

receiving a name translation request at a server coupled to a public packet data network;

translating a name included in the request into a destination telephone number associated with a name included in the request; and

transmitting a reply containing both the destination telephone number and a packet data network address of a telephone gateway coupled between the public packet data network and a telephone network through the public packet data network to a calling device.

27. A method as in claim 26, wherein the address is an Internet Protocol address.

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On today’s Cato podcast, I discuss patent reform and last week’s Supreme Court decisions.

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Good article in this week’s Economist on last week’s Supreme Court decisions on patent law. The magazine compares the KSR decision to a decision by the Privy Council 435 years ago:

“In 1572 the Privy Council of Elizabeth I, the queen of England, refused to grant patent protection to new knives with bone handles because the improvement was marginal. It is only natural that things progress, the council reasoned; minor ameliorations do not cut it. This week America’s Supreme Court decided likewise.”

That’s what I call historical perspective. Worth reading.

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The Wall Street Journal reports that Vonage has asked the Federal Circuit to send its patent case back to the district court to consider whether the Teleflex decision renders Verizon’s patents invalid. As I argued last week, at least one of Verizon’s patents should be extremely vulnerable to challenge under Teleflex:

The third patent at issue is patent 6,359,880, “Public wireless/cordless internet gateway.” The patent describes a variety of prior systems that allow telephone calls to be made wirelessly. Some use cellular technology to achieve coverage over large areas, while others serve as a gateway to a traditional phone line, and only work over limited areas. The patent also discusses the existence of several Internet telephony applications that allow Internet users to engage in voice communications via the Internet. However, the patent argues, no prior systems have combined wireless calling with Internet telephony.

In this sense, the patent is a precise analog of the patent at issue in KSR v. Teleflex, due to be decided in the next two months by the Supreme Court. In that case, KSR held a patent that covered the combination of two otherwise obvious components: a gas pedal and an electronic sensor. Here, as in Teleflex, Verizon admits that both VoIP and wireless calling were well-known technologies at the time the patent was filed. However, they claim, no one had thought of having both features in one system.

Vonage should have a pretty strong case that the wireless calling patent is obvious. For the other two patents, they’ll probably have to rely more on Teleflex’s general theme of “common sense,” which doesn’t seem like quite as much of a slam dunk but can’t help but strengthen their hand somewhat.

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The Supreme Court handed down both of the big patent cases today, smacking the Federal Circuit down in each of them. Here is the court’s 9-0 decision in Teleflex that “The Federal Circuit addressed the obviousness question in a narrow, rigid manner that is inconsistent with §103 and this Court’s precedents.” And here is the court’s 7-1 holding in Microsoft v. AT&T that “A copy of Windows, not Windows in the abstract, qualifies as a“component” under §271(f).”

As I predicted, the court did not take the opportunity to rule that software is unpatentable. However, in footnote 13, the majority carefully reserved judgment on whether software could be a component of a patented invention:

We need not address whether software in the abstract, or any other intangible, can ever be a component under §271(f). If an intangible method or process, for instance, qualifies as a “patented invention”under §271(f) (a question as to which we express no opinion), the combinable components of that invention might be intangible as well. The invention before us, however, AT&T’s speech-processing computer, is a tangible thing.

This suggests that the court may be leaving the door open to a direct challenge to the patentability of software in a future case.

Update: Having read the decision more carefully, I think the above isn’t quite right. Footnote 13 was discussing whether software could be a component of an invention for purposes of §271(f), which is a separate question from whether software can be patentable subject matter in the first place. Software could theoretically be patentable in general but not a component of an invention for purposes of §271(f).

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Vonage has opened up a new front in its war with Verizon, launching a new website at FreeToCompete.com and taking out full-page ads in the nation’s largest newspapers. Corporate PR campaigns tend to use overheated rhetoric, but I can’t really disagree with this:

Today, Vonage is facing one telecom giant — Verizon — in court as they try to to achieve in court what it cannot achieve in the marketplace. We can assure you that whatever the outcome of this legal dispute (which may take several years to fully resolve), Vonage is committed to serving all of our customers and to affordably connect family, friends and colleagues for years to come.

But make no mistake: Verizon’s actions against us have everything to do with limiting your freedom to choose a communications provider — a limitation which may ultimately drive up the cost of phone service for you and other U.S. consumers. (In fact, Verizon recently raised their prices.)

Verizon has chosen to attack Vonage in the courts and threaten consumers’ freedom to choose. Could it be about the money? In a truly fair, free market economy, neither Verizon — nor anyone else — should be able to cripple or eliminate companies seeking to provide more (and better) alternatives.

Unfortunately, I think Vonage faces an uphill battle getting the general public to pay attention to the issue. Patents are a sufficiently complex and esoteric subject that Verizon has plenty of ways to obfuscate the real issues in the case. And it doesn’t help that press accounts of the dispute are so scrupulously even-handed that they give credibility to Verizon’s question-begging claim that Vonage “is trying to shift the subject from their bad and now declared illegal behavior.” It would be nice reporters would plainly state the obvious: that Verizon is seeking a legal monopoly over the VoIP market.

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