Friday, May 21, 2004

The EU Software Patent Saga Continues: The European Commission (EC) has passed a controversial directive that opponents claim will bolster the lot of big companies at the expense of small ones and will stifle innovation.

The so-called Computer-Implemented Inventions directive, which would harmonize how software patents are issued throughout the European Union, created a furor when it was proposed last year. Protestors took to the streets in Brussels, Belgium, and passive Web site demonstrations were held on the Internet.

Supporters of the measure are putting a benign face on it. "There are already plenty of software patents in Europe -- more than 30,000 of them," maintained Francisco Medeiros, public affairs director for the Business Software Alliance , which represents some of the largest software makers in the world.

NOT AGAIN: A little-known Canadian computer company has sued Intel for alleged intellectual property violation. All Computers claims the Pentium II contained circuitry for which it owns the right. Furthermore, it says, Intel does not have permission to use said circuitry.

All currently has two patents filed with the US Patent and Trademark Office, both entitled 'Apparatus and method for enhancing the performance of personal computers' and both centering on adjusting the clock speed of "an accelerator board for use in replacing the microprocessor of a slow speed system board with a microprocessor operating at a higher clock speed".

All claims that the Pentium II uses techniques outlined in the patents - 5,450,574 and 5,506,981 - to synchronise a processor's clock with the chipset's system clock.

Crucially, the technique allows CPU clocks to operate at fractional multiples of the system clock rather than whole-number multiples.

The Pentium II is of course defunct as a desktop processor, and All's patents were filed in 1993. So why the wait? We only just found out about it, the company claims. It's also evaluating the Pentium III for possible infringements.

Tuesday, May 18, 2004

Apple Seeks Patent for Translucent Windows

Apple is seeking a patent on a method for rendering translucent-appearing windows, technology that appears similar to features Microsoft has been previewing for its next major Windows release.

Apple Computer Inc.'s patent application, which dates back to November 2003, was published Thursday on the U.S. Patent and Trademark Office's Web site. By law, most patent applications become public record within 18 months of being filed, a patent office spokeswoman said.

According to the filing, the patent covers a method in which "information-bearing windows whose contents remain unchanged for a predetermined period of time become translucent."

The translucency would intensify the longer a window's content remains unchanged, the patent application states.

Freeman-Walter-Abele In Europe? Ja!: National governments of the European Union are not in agreement with the European parliament over the nature of a proposed law on software patentability

Unlike copyright, patents can block independent creations. Software patents can render software copyright useless. Advances in software are advances in abstraction. While traditional patents were for concrete and physical inventions, software patents cover ideas. In most countries, software has, like mathematics and other abstract subject matter, been explicitly considered to be outside the scope of patentable inventions.

Patents, unlike copyright, can give holders rights to charge for, or restrict, technology no matter who produces it, leaving open-source developers and users open to infringement claims for inadvertently distributing patented methods.

Germany has decided to vote against all changes to current European patent laws. It does not want American procedures in Europe. It is the largest EU member and it, being against software patents with the French IT leaders backing them by lobbying their government to vote against them too, Europe might be saved from the software patents.

A lack of uniform rules in the 25-nation bloc means that US companies such as Microsoft, are leading European firms in patenting software.

The chief technology officers of 10 European companies including Siemens, Nokia and Philips in a letter say that industry ministers must act to safeguard innovation in Europe.

To become a law, the legislation must be approved by the European Parliament, which voted last September to ban patents on software and business methods.
The European Patent Office has so far granted more than 30000 patents on rules of organization and calculation claimed in terms of general-purpose computing equipment, called "programs for computers" in the law of 1973 and "computer-implemented inventions" in EPO Newspeak since 2000.

The European Commission has proposed to override the current clear and uniform European patentability rules ("mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions") and replace them by a set of nationally implementable rules which make it very difficult for national courts to reject patents on algorithms and business methods such as Amazon One Click Shopping.

JAPANESE-KOREAN CONFLICT: Share technical knowledge at your peril.

That's the lesson Japanese electronics manufacturers are drawing now that their South Korean rivals are giving them a run for their money in key component markets.

The sparks-and patent lawsuits-are flying in the red-hot sectors of sophisticated microchips and flat-panel displays: key components of digital cameras, flat-panel TVs and other big-selling appliances.

South Korean manufacturers are spending huge sums to get ahead in these markets. In some fields, they have already nosed ahead of their Japanese competitors.

While acknowledging the South Koreans' strategies, Japanese executives blame themselves for letting technology secrets slip out of their hands.

TIME FOR A DIVISIONAL APPLICATION? CAMBRIDGE, Mass., May 18 /PRNewswire/ -- For less than the price of a New York City taxi ride, Zipcar members may actually improve their sex lives, according a survey conducted by a new magazine, Men's Car. Get up and go just took on a whole new meaning. The survey of 2,253 motorists found that men who drive BMW's had more sex than any other car user, on the average of 2.2 times a week. Volkswagen drivers ranked third in the survey, having sex an average of 1.9 times a week. Zipcar offers BMW's and Volkswagen Beetles, Jettas and Golfs by the hour or the day in Boston, New York City and Washington, D.C. Since 1999, Zipcar ( has provided urban residents and commuters with self-service, on-demand access to cool cars, including BMW's and VW's. Renting a Zipcar, which is quickly changing the car rental industry in the same way email changed the U.S. Mail system, is as easy as getting cash from an ATM because of patent-pending technology that allows members automated access to cool cars 24 hours a day, seven days a week, 365 days a year.

Wednesday, May 12, 2004

Legal Fees WHAT? WHAT WAS THAT? Lawyers who persuaded Microsoft Corp. to settle their class-action lawsuit accusing the company of price-fixing are asking for $258 million in legal fees, the largest amount ever in an antitrust case.

The bill comes as attorney fees are being examined critically by the American Bar Association and lawmakers across the country. It amounts to about $3,000 per hour for one lawyer, more than $2,000 an hour each for 34 other attorneys and $1,000 an hour for administrative work.

Microsoft agreed to the settlement -allocating $1.1 billion for California consumers -after a small San Francisco law firm sued in state court alleging the company inflated prices by monopolizing the pre-installed software market from 1995 to 2001.

But Microsoft could end up spending much less. The deal enables anyone who bought a computer in California to get vouchers worth $5 to $29 per Microsoft product, but only a small fraction of the millions eligible have applied for the money.

The lead attorney in the case, Eugene Crew, planned to ask the judge Wednesday for the fees. He told the judge in legal briefs that he deserves about $3,000 for each of his 6,189.6 billable hours, "considering the enormity of this undertaking against the most powerful corporation in America."

Lawyers from 35 firms joined the suit, which was filed in 1999 under California's unfair competition law and settled four years later. The requested fees represent about 25% of the settlement.

Normally, attorneys charge clients about a third of what's recovered, but in class-actions they negotiate fees with the losing party and the judge.

Crew told San Francisco County Superior Court Judge Paul Alvarado in briefs that they deserve about five times their normal rate because of the difficulty of maneuvering through the legal system to recover money for consumers.

"Extraordinary deeds warrant appropriate recompense," Crew wrote.

The lawyers spent $11.4 million while reviewing millions of pages of legal documents and taking dozens of depositions, and devoted "marathon days, all-nighters and the entire Thanksgiving holiday weekend" to the case in 2001, he added.

Microsoft opposes the fees.

"No client would pay any lawyer or paralegal at those rates, and this court should not order Microsoft to do so," Microsoft attorney Robert Rosenfeld said.

Rosenfeld said the case was simple because of the federal antitrust case against the software maker.

"Although class counsel would have had difficulty proving that plaintiffs were overcharged, their ability to piggyback on prior proceedings significantly increased the likelihood of a settlement," Rosenfeld said.

Caps on legal fees have been considered in at least 13 states.

A proposal from Common Good, a group committed to "reforming America's lawsuit culture," and the conservative Hudson Institute would cap fees at 10% of a $100,000 settlement and 5% of anything more, said Brent Tantillo, a deputy director at the institute.

"The problem is these cases where the attorneys get a whopping fee and the consumer gets next to nothing," Tantillo said.

The American Bar Association says lawyers can ethically charge whatever is "reasonable."

"That's a big question, what is reasonable," said Steven Lesser, head of an ABA task force investigating attorneys fees.

The California Supreme Court two years ago upheld a lower court decision reducing fees from $88.5 million to $18.2 million for lawyers who won a class action accusing California of illegally charging out-of-state residents $300 extra for auto registration. The court called that request, for $8,000 an hour, "a testament to the unreal world of greed in which some attorneys practice law."

At the same time, a three-member Tobacco Fee Arbitration Panel awarded $1.25 billion in fees to 60 law firms that helped California get $25.4 billion as part of a nationwide tobacco settlement with the industry.

Panelists John Calhoun Wells and Harry Huge said the lawyers' efforts were "an important contributor to a resolution of the tobacco war" in California.

Charles Renfrew, a former federal judge whom the tobacco industry nominated as arbitrator, dissented, saying the fee "truly shocks the conscience."

One benefactor of the Microsoft settlement, Gerry Kaplan of the San Francisco suburb of Hillsborough, figures his vouchers will add up to about $100.

"The attorneys are the ones that are benefiting from this, but so am I and I didn't have to do anything," Kaplan said. "I'm getting a hundred bucks for filling out a form online and took no risk. That's a lot of money for the lawyers, but it is a lot of money for consumers too."

HP / GATEWAY BATTLE GETTING (more) UGLY: In separate patent-related announcements, Gateway on Monday said its first-quarter loss was about $6 million wider than it had reported, and that it has filed several counterclaims against HP in a patent lawsuit between the two companies.

The two patent matters are not related, said Bob Sherbin, a Gateway spokesman. The $6 million increase in Gateway's net loss is connected with an increase in a reserve account that was prompted by developments in settlement negotiations in a patent related matter, Sherbin said.

Gateway is not providing any additional details on that pending settlement, but the matter will become clear very soon, Sherbin said.

Eolas Responds on Explorer Patent Claim

The University of California and Eolas Technologies Inc have taken the latest step in their battle with Microsoft Corp, responding to an investigation of its claimed patent.

Eolas has reportedly filed a 10-page reply to the US Patent and Trademark Office (USPTO), after the department instituted an investigation of Eolas' browser patent - the subject of Eolas' claim against Microsoft.

USPTO inaugurated a "director-ordered" review of Eolas' patent, claiming the existence of prior art. Earlier, World Wide Web Consortium (W3C) director Tim Berners-Lee made headlines saying the patent could cause "widespread and irreparable harm" to innocent users, when a US court awarded Eolas $520.6m in damages after finding Internet Explorer infringed on Eolas' plug-in technology.

Tuesday, May 11, 2004

Eeeee-Yewwwww : The EU is looking (again) at allowing software patents. Predictably, European programmers are having fits. In this "Call To Action", the following demands are made:

- We urge members of national parliaments to formulate clear national policies on the limits of patentability and to make sure that their government's representatives in the European Council are faithfully implementing these policies.

- We demand that all legislative proposals, including those from the European Parliament and the member states, be rigorously tested against a test suite of sample patent applications to see whether they would beyond any doubt lead to the desired results and would not leave room for any more misinterpretations.

LOL. "Clear" national policies? "Beyond any doubt?" Well, when they finally figure those two out, maybe they should pass that information along to the rest of the world . . .

Marsha, Marsha, Marsha! Tired of hearing exclusively about Microsoft and their patenting spree? Well, Apple is touting some of their recently-issued patents as well. It seems that Apple is very much into protecting the user interfaces, which sounds like they are gunning for some gateway patents . . .

Having an Open-Source Corporate Policy: A good article for Linux and other open source users on setting corporate policies concerning patents and IP. What is the safest advice an intellectual property attorney can give clients concerned about potential litigation? "Do absolutely nothing."

Monday, May 10, 2004

Patent holders and Linux on collision course

Monday, May 10, 2004 Washington (featureXpress) -- Open source and patents will collide in the courts predicts a new white paper released by the Alexis de Tocqueville Institution, or AdTI, a non-partisan research foundation in Washington, D.C.
The author, Kenneth Brown, president of AdTI, comments, "the open source community wants to develop software freely, irrespective of patents and patent-holders. Consequently, this will lead to an imminent fall-out between big business, patent-holders, and the Linux community."

It is not uncommon today for patent fights to erupt even between parties that have engaged in rigorous diligence. By contrast, open source developers and distributors do not engage in patent searches, thus, there is a real possibility we will see a major patent fight involving open source, sooner than later."

Brown argues that the actions of IBM, a Linux developer, and one of the largest patent holders in the world, will also impact the relationship between open source and patents. Brown writes, "IBM's approach will be interesting for two reasons. 1. Soon, IBM will be competing with large Linux-based developers and distributors themselves. As the deployment of Linux increases, it can be expected that IBM will be going head-to-head with its partners in the Linux community for new accounts. It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against fellow Linux advocates. 2. The open source community is actively lobbying governments here and abroad to end software patents. These efforts are not in IBM's interest, thus, we will soon observe even more conflict between IBM and the open source community over this issue as well."

The white paper is available online at
For further information, contact:
Gregory Fossedal

GET READY 'CAUSE HERE THEY COME: Sticky Web, Inc. (Pink Sheets: "SIKY") today announces that it has retained the Intellectual Property law firm of Niro, Scavone, Haller & Niro to represent SIKY in connection with the licensing and enforcement of patent 6,631,400.

The first patent issued in the SIKY portfolio, US Patent number 6,631,400, "Method for Managing Bulk E-Mail Distribution" (Mail Wiz(R)), was issued on October 7, 2003

M&G&B&D&S&M&? - Minneapolis-based Merchant & Gould, aiming to triple its size and stake a claim as a national intellectual property powerhouse, is negotiating to merge with two out-of-state law firms.

"It's very important that we have not only sufficient competency but also sufficient numbers to handle large patent litigation matters," said Randy King, CEO and managing director of Merchant & Gould (M&G), which specializes in intellectual property (IP) law and has 110 attorneys. "We want to be up in the range of 200 to 300 [attorneys] reasonably quickly. The way to do that is to find an IP firm culturally similar to our own and bring them together."

King has been negotiating since last fall to merge with Burns, Doane, Swecker & Mathis, an Alexandria, Va.-based IP firm with more than 80 attorneys. A third, undisclosed IP firm began negotiating with M&G and Burns in the past month, King said. No timetable has been set for a deal.

Friday, May 07, 2004

USPTO = JOB BOOSTER: Alexandria officials say the city's economy appears to be riding on the coattails of the new U.S. Patent and Trademark Office, which is moving to the area from nearby Crystal City.

A quarterly report from Alexandria's Economic Development Partnership finds that office vacancies are down, the unemployment rate is the lowest in three years and that property values are soaring.

On Monday, the Alexandria City Council voted to reduce the real estate tax rate by four cents to 99.5 cents - marking the first time in 54 years that the rate has dipped under one dollar.

JAPAN'S FEDERAL CIRCUIT? Frustrated by a court system ill-equipped to handle intellectual-property cases, businesses are eagerly awaiting the April 2005 launch of a high court specializing in such disputes.

Japanese companies, which have been looking for ways to protect and turn to account their intellectual property, expect the new court will make the filing of infringement lawsuits easier.

``(The new court) will be a major step forward for the protection of intellectual property,'' an official of Nippon Keidanren (Japan Business Federation) said. ``We'll give it a rating of 80 (out of 100).''

Companies also hail forthcoming legal revisions aimed at making court proceedings confidential.

To prevent corporate secrets from being leaked, the Patent Law revisions will allow courts to put a gag order on everyone involved in the lawsuits if confidential information is submitted as evidence.

Thursday, May 06, 2004

Microsoft and Siemens Get (A Little More) Cozy: Siemens AG and Microsoft Corporation today announced a broad cross-licensing agreement to allow expanded access to the patent portfolios that each company holds. The agreement signifies an expanded cooperation between Siemens and Microsoft, enabling each company to expand its offerings to customers and deliver even more comprehensive and compelling solutions. Terms of the agreement were not disclosed.

How Nice - Microsoft gets apple patent by mistake: At the rate companies file for patents you would think that patents grow on trees. One that was mistakenly credited to Microsoft apparently does ...

On Tuesday, Microsoft received its first botanical patent for a newly discovered apple tree dubbed the "Burchinal Red Delicious," whose fruit is sold commercially as the "Adam's Apple." The patent should have been awarded to Robert Burchinal of East Wenatchee, Washington. The Burchinal Red Delicious-producing apple tree is not completely foreign to some Microsoft employees, as it is commonly found in Wenatchee, just 90 miles from Redmond, Washington.

The patent was apparently misfiled with a group of other patent applications from Microsoft. Microsoft is working to have the patent, US Plant Patent # 14,757, appropriately reassigned to Burchinal by filing a certificate of correction with the U.S. Patent Office.

Wednesday, May 05, 2004

TAKE 10 A DAY FOR LONGHORN: Once envisioned as a minor upgrade to Windows XP, Windows "Longhorn" took on all-new importance in early 2002 when Microsoft decided to make this Windows release an all-encompassing major upgrade with a new security architecture called Palladium, a hardware 3D-enabled user interface, a brand-new, database-backed storage engine, and many more new features. However, this major release has been delayed over and over. Microsoft execs have recently admitted that Longhorn will not ship until 2006. So why the delays? Aside from the obvious, there are rumors circulating (aren't there ALWAYS rumors circulating about MSFT?) that the software giant is quietly patenting everything they can think of to make sure that Longhorn, at the very least, provides an ample stream of licensing revenue. As one MSFT dissenter remarked: "You want to know one reason why Microsoft is taking so long to come out with Longhorn? It wants to make darn sure that it's as Linux and open-source unfriendly as humanly possible . . . You see, Microsoft is busy patenting everything it can lay its hands on . . . In fact, Microsoft is now building up its patent arsenal, applying for a rather amazing 10 patents a day. The idea isn't to ensure that Microsoft makes a fair profit from its patents; it's to make sure that no one else can write fully compatible software."

Here we go again . . .

SIGH: you just knew this was going to happen sooner or later, didn't you?

BLING BLING: The $20bn Google flotation will net law firm Wilson Sonsini Goodrich & Rosati up to $20m, and partners at the West Coast firm are hoping their initial investment could eventually realise between $50m and $100m. Wilson Sonsini took an equity investment in the world’s leading search engine when it advised Google prior to its launch in 1999. This will now net Wilson Sonsini the biggest windfall a law firm has had from such an investment, often made in lieu of fees.

Tuesday, May 04, 2004

DC Merger Rumors - Washington, D.C.'s Swidler Berlin Shereff Friedman and San Francisco-based Orrick, Herrington & Sutcliffe are in merger talks, according to lawyers close to the discussions.

Though they have not advanced beyond the firms' leaders, the negotiations are serious, say five sources with knowledge of the talks. When a partnership vote might occur, however, is still unclear.

Et Tu, Science and Technology? In another classic case of handwringing by the NYT, the paper implies that the US is becoming a shirtless-with-a-novelty-foam-cowboy-hat-and-airhorn citizen of the global science community. This is the type of commentary I can't stand reading - where the author substitutes a proxy for his/her own opinion in a veiled effort to make a point (i.e., "analysts say . . .", "experts agree that . . .", "analysts point to . . ."). Also, after running through a litany of areas where the U.S. is allegedly "lagging" in the sciences, the author can't help but to fall back on the NYT mantra "without government funding, there can be nothing."

Unfortunately, for many people, including people on the editorial board at the NYT, they refuse to understand that it not a matter of what you conceive - it's what you are able to do with that conception once you reduce it to a commercial form. And once you start making (gasp!) profits from that product, you are certainly going to look for greener pastures when you realize that over half of your money is being siphoned for taxes and labor costs ("labour" for you people in Millwall) . . .

Some comments from the article:

**** "For instance, scientific papers by Americans peaked in 1992 and then fell roughly 10 percent, the National Science Foundation reports. Why? Many analysts point to rising foreign competition, as does the European Commission, which also monitors global science trends. In a study last year, the commission said Europe surpassed the United States in the mid-1990's as the world's largest producer of scientific literature." (just what we need - more mountains of paper)

**** "Patents are a main way that companies and inventors reap commercial rewards from their ideas and stay competitive in the marketplace while improving the lives of millions. Foreigners outside the United States are playing an increasingly important role in these expressions of industrial creativity. In a recent study, CHI Research, a consulting firm in Haddon Heights, N.J., found that researchers in Japan, Taiwan and South Korea now account for more than a quarter of all United States industrial patents awarded each year, generating revenue for their own countries and limiting it in the United States." - since when is licensing a zero-sum game? If you license something, you do so presumably because you can make MORE money from your derivative product.

**** "Moreover, their growth rates are rapid. Between 1980 and 2003, South Korea went from 0 to 2 percent of the total, Taiwan from 0 to 3 percent and Japan from 12 to 21 percent." - Welcome to the party, chum. 23 years, and you finally notice that Pacific Rim companies are filing patents?

**** "More troubling to some experts is the likelihood of an accelerating loss of quality scientists. Applications from foreign graduate students to research universities are down by a quarter, experts say, partly because of the federal government's tightening of visas after the 2001 terrorist attacks." - (cough), well, that and the fact that PhD candidates are starting out in positions that pay less than what most bartenders make . . .

Wilson Sonsini Goodrich & Rosati Establishes San Diego Office; Expands Life Sciences, Intellectual Property, Corporate, and Litigation Practices - Adds Five Partners

G'DAY COMMISSIONER: a group of visiting US patent experts says Australian technology innovators need to improve their intellectual property protection if they are to take their products into the US. Apparently the problem is that Austrailian patent solicitors don't have the expertise to correctly advise software developers and other technologists in proper US patent procedures.

To redress the situation, the Institute of Patent and Trade Mark Attorneys of Australia invited a team of nine US patent specialists to give lectures and workshops on US patent drafting practice and procedures.

According to an attendee, the US attorneys on the course, particularly Judge Paul Michel (the head of the US Court of Appeals), were impressed with the drafting skills of the Australian lawyers. "It also became clear that their law is very similar to and moving towards ours in a number of areas, which allows us to export our drafting skills to overseas clients, as well as provide them to Australians." Well, I'm glad they flew over all those people just to find that out . . .

GREAT GOOGLEY-MOOGLEY: Google's blockbuster IPO had all the tongues wagging last week, and the company did its best to keep things as mum as possible. Well, now that some of the dust has settled, people are starting to poke around and see what's underneath that Google hood. And it seems that there are a few skeletons hanging in the patent closet:

"In the section outlining risks to its business, Google described several lawsuits it faces, including a patent infringement suit by Yahoo Inc. unit Overture Services Inc. and a series of actions stemming from ads Google sells that are tied to searches on trademarked names.

But Google's filing omitted one high-profile case involving Digital Envoy Inc., which developed a way to target ads to Web surfers based on geography. The Norcross, Ga.-based company sued Google in March for misusing its technology and asked a federal judge in Atlanta to block Google from using it. Digital Envoy is also seeking a cut of Google's profits."


Monday, May 03, 2004


The results from the first round of employee certification testing indicate that the USPTO needs to provide significantly greater training to enable examiners to master the testing subjects.

Of the first 112 GS-12 examiners tested, 49 percent passed and 51 percent failed. The agency offered the 17 employees who were scheduled for promotion in the bi-week following the exam the option to retake the test immediately or to wait. Seven opted to wait. Of the 10 who retook the test, two passed.

All of the test questions were lifted from the patent bar exam and excluded any questions regarding attorney-client ethics and other questions pertinent exclusively to patent attorneys or agents.

PRIOR ART ANYONE? Dave Eastburn, and Sandy Trevor are former Compuserve exectutives that use their collection of old hardware and software to help invalidate patent claims against clients facing infringement charges. The name of the company is Nuvocom Inc., and it sounds like they have done some good work defending smaller companies from Pan IP and their early attempts to beat smaller companies into submission with their patent portfolio.

After Carefully Reviewing Your Qualifications, We Regret to Inform You . . .

With blockbuster merger announcements and even Internet initial public offerings once again making headlines, it's only a matter of time before the legal job market soars back to its late '90s heights. Right?

Don't hold your breath. Though a robust market for litigators and intellectual property specialists continues apace, opportunities for transactional lawyers, both at firms and in-house with corporations, remain elusive.

"Nobody's leaving," notes one frustrated headhunter. "Everyone's holding onto their job because they're still scared."

The lack of attrition within corporate legal staffs has driven many legal employers to curtail new hiring and is one major reason many job-seekers in the legal profession, like their counterparts in other industries, are experiencing something of a "jobless recovery."

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