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IBM Files Declarations and An Idea to Deal with Stupid Patent Tricks
Tuesday, November 23 2004 @ 06:37 AM EST

IBM met the deadline to file their executives declarations, as you knew they would. Unfortunately, they are sealed, so we don't get to read them directly. Bits and pieces may end up quoted in other documents, however, so we'll likely get the idea one way or another. Hopefully, not by SCO "forgetting" they are sealed and reading them aloud on the courthouse steps or faxing them to a journalist or something. Here is the Pacer information:

11/19/04 331 SEALED Declaration of Alec S. Berman (blk) [Entry date 11/22/04]
11/19/04 332 SEALED Declaration of Irving Wladawsky-Berger Re: (blk) [Entry date 11/22/04]
11/19/04 333 SEALED Declaration of Samuel J. Palmisano (blk) [Entry date 11/22/04]
11/19/04 334 SEALED Declaration of Andrew Bonzani (blk) [Entry date 11/22/04]

You'll no doubt recall that Judge Brooke Wells' Order gave them 30 days to file these:

"2. IBM is provide affidavits from the Board of Directors, Mr. Palmisano and Mr. Wladawsky-Berger regarding production of all non-privileged documents pertaining to IBM's Linux strategy. The affidavits are to be filed within 30 days from the entry of this order."

Andrew Bonzani is an attorney and a corporate officer, Assistant Secretary, at IBM, or to be precise, he was as of April. I don't know for sure now, but I assume he still is. Alec Berman is also an in-house IBM attorney, whose name appears on documents filed in the case all the time. Why they also submitted declarations, I don't know. Conceivably Berman's might have to do with the privilege logs issue, because both sides were to prepare and exchange privilege logs within 30 days as well, but I saw no requirement to file them. However, letting the judge know it happened would be conceivable. And Bonzani would likely be able to speak to what is in the corporate records, one of the things SCO asked about. But I'm just guessing. That is the problem with sealed documents. All you can do is make an educated guess.

And here's an idea. What would you suggest should be done about stupid patent tricks if you are convinced that there is absolutely no way that patents on software will ever be stopped in the US? I'm not saying I necessarily am of that persuasion, because the patent-GPL issue has to be resolved. But if I were, I don't think I could come up with a more appealing solution than this one: Ken Arnold suggests that we make filing a ludicrously obvious patent fraud:

"Declare that ludicrously obviously invalid patents are a form of fraud. And enforce that by giving anyone who proves patent fraud by ludicrosity gets paid triple their costs as a reward, plus any damages they can show were caused by the issuance of the patent.

As a starting point, I would define a "ludicrous" patent as one that any practitioner normally skilled in the art would recognize as having prior art. MicroSoft's is our most recent poster child, who seems to be seeking a patent on an IsNot operator that checks if two pointers point to the same place in memory. . .

It also creates a liability for filing ludicrous patents, which (beyond filing costs) there is none now. It helps protect every major player who isn't using patents as offensive weapons. . . . To be fair to those holding patents the predate this rule, I would give holders one year to voluntarily void any patents they hold, but after that, all unexpired patents would be fair game."

It's a cunning idea, since it keeps lawyers busy making money "cleaning up the pool," as he puts it, and it surely appeals to the childish corner of my heart that wishes there really were inevitable punishments that fit the crime perfectly for all wrongdoing this exact minute, and I love the concept of a guy going to prison and being asked what he's in for and having to answer: "Ludicrousness." But I see some issues that would have to be resolved before it could work legally. You'd have to define a clear line in the sand, a definition of obviousness that couldn't be stepped beyond unless it was on purpose, and I don't see how you could. Maybe you do. But no law can be so vague that it's impossible to know precisely when you are breaking it. How could you define clearly enough where that line is?

Then there is another issue. Who do you punish? The hapless employee who has his name on the patent or the corporation that made him do it? Let's take the IsNot patent. Paul Vick, whose name, poor thing, is on that patent, writes about his feelings on his blog:

"Personally, I don't believe software patents are a good idea. I realize that algorithms lie in that grey area between a mechanical process (which is patentable) and an abstract idea (which is not), but at a purely practical level I think that software patents generally do much more harm than good. As such, I'd like to see them go away and the US patent office focus on more productive tasks. I have nothing but contempt for any company that tries to use patents to achieve what they could not through purely competitive means. This includes Microsoft, should they ever choose to do so or have they ever chosen to do so. (I'm not aware of any such situation, but I'm hardly omniscient.) . . .

"However, software patents do exist. So while the good fight goes on to get rid of them, I also believe that it would be dangerously naive to not play the game as best we can in the meantime in as principled a way as possible. . . .

"It's become a Mexican standoff, and there's no good way out at the moment short of a broad consensus to end the game at the legislative level.

"So that's how I feel about software patents in general. As far as the specific IsNot patent goes, I will say that at a personal level, I do not feel particularly proud of my involvement in the patent process in this case."

We might ask everyone to stand up for what they believe in and refuse to file the patent, but that's hardly likely to happen. So what would Ken's new law do with the unfortunate Mr. Vick? No matter how we feel about patents, it's impossible not to feel for him as a human being. So, does he go to jail or pay the fine? Or does Microsoft? See what I mean? Writing laws is harder than it looks.

Of course, that is only part of the reason silly laws get passed. Sometimes they get passed just because someone wanted a monopoly grant. But one way to tell if a law is working out or not is to compare a country that has the law with one that does not. James Boyle does just that in his column, "A natural experiment" where he examines how Europe's grant of copyright protection on databases worked out, compared with the US where no such right exists:

"What we really need is a test case where one country adopts the proposed new intellectual property right and another does not, and we can assess how they are both doing after a number of years.

"There is such a case. It is the 'database right.' Europe adopted a Database Directive in 1996 which both gave a high level of copyright protection to databases, and conferred a new 'sui generis' database right even on unoriginal compilations of facts. In the United States, by contrast, in a 1991 case called Feist, the Supreme Court made it clear that unoriginal compilations of facts are not copyrightable. (The case is not as revolutionary as it is claimed to be. Most of the appeals courts in the United States had long held this to be the case. In fact, a tenet of the US intellectual property system is that neither facts nor ideas can be owned.) Since 1991 the U.S. Congress has managed to resist frenzied attempts by a few database companies to create a special database right over facts. Interestingly, apart from academics, scientists and civil libertarians, many database companies, and even those well-known communist property-haters, the U.S. Chamber of Commerce, oppose the creation of such a right. They believe that database providers can adequately protect themselves with contracts, technical means such as passwords, can rely on providing tied services and so on. Moreover, they argue that strong database protection may make it harder to generate databases in the first place; the facts you need may be locked up. The pressure to create a new right continues, however, aided by the cries that US must 'harmonise' with Europe. So here we have our natural experiment. . . .

"Intellectual property rights are a form of state-created monopoly and 'the general tendency of monopolies,' as Macaulay pointed out, is to 'make things dear, to make them scarce, and to make them bad.' Monopolies are an evil, but they must sometimes be accepted when they are necessary to the production of some good, some particular social goal. In this case, the 'evil' is obviously going to be an increase in price of databases, and the legal ability to exclude competitors from their use – that, after all is the point of granting the new right. The 'good' is that we are supposed to get lots of new databases, databases that we would not have had but for the existence of the database right.

"If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry’s rate of growth increased since 1996, while the US database industry has languished? . . .

Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? . . .

"Third, and this one is harder to judge, is the right promoting innovation and competition rather than stifling it?"

Reed Elsevier, the owner of Lexis, and Thomson Publishing, the owner of Westlaw, are the principal beggers for a similar monopoly right on databases in the US, despite each already having a 20+% profit margin, Boyle reports, and they will not like his conclusion about how the database right has played out in Europe, namely that it has hurt innovation and was "drawn much too broadly and triggered too easily in ways that are profoundly anti-competitive":

"Bottom line? Europe’s industry did get a one-time boost, and some of those firms have stayed in the market; that is a benefit, though a costly one. But database growth rates have gone back to pre-Directive levels, while the anti-competitive costs of database protection are now a permanent fixture of the European landscape. The US, by contrast, gets a nice steady growth rate in databases without paying the monopoly cost. (Second rule of thumb for regulators: Do no harm! Do not create rights without strong evidence that the incentive effect is worth the anti-competitive cost.). . .

"The facts are now in. If the European Database Directive were a drug, the government would be pulling it from the market until its efficacy and harmfulness could be reassessed. At the very least, the Commission needs a detailed empirical review of the Directive’s effects, and needs to adjust the Directive’s definitions and to fine-tune its limitations."

As usual with Boyle's writings, the pleasure is in the reading, so I encourage you to read the entire column. I enjoyed it immensely and I'm sure you will too.

By the way, there is an article by Peter Galli that echodots sent me that reports the next version of the GPL will be dealing with patents. It's taking so long because they are dealing with the endless variety of patent laws around the world, and they want the GPL to stand everywhere, ideally. Eben Moglen says that before the final version is set in stone, they'll open it up to the community to take a look and give input, and this is just to say that Groklaw is available for such a purpose, as I'm sure others will be too.

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