Following Up for the Week Ending 7/18/2010

Patent Threat for Posting Partial Sources to a Weekend Project

Via Hacker News, I came across this chilling account of a patent infringement threat in response to a blog post where a free software/open source developer, Roy van Rijn, speculates about how to put together a Shazam workalike, just out of personal curiosity. Unfortunately, he mentioned Shazam explicitly in the post’s title which may have made it easier for Darren Briggs, CTO of Landmark Digital Services which holds the patents in Shazam, to find and threaten him.

van Rijn fully details his exchanges with Briggs, including the letters he received and the various legal assistance he felt compelled to seek. The conclusion is that the issue is just muddy enough that van Rijn’s best tactic is to refrain from releasing any sources and possibly even removing the mere discussion of a general approach to music finger printing and matching.

Cory at Boing Boing puts his finger right on what is wrong with this scenario.

I don’t know whether van Rijn’s code violates the Landmark patents, or whether Landmark’s patent claims are valid, or whether Landmark holds EU patents as well (it’s not clear from Briggs’s letters whether any of these things are true). But one thing I’m dead certain of is that it is not illegal to discuss a patent’s technical workings. The entire point of the patent system is to give a monopoly to an inventor in exchange for full disclosure of the invention so that other inventors may study and learn from it. In other words, the patent system exists to encourage discussion of patented inventions, not to censor them.

As Cory concludes, the fact that a patent by its nature is publicly available and mere discussions of its contents, coincidental or knowingly, shouldn’t be actionable hasn’t stopped van Rijn’s speech from being chilled,

I get that patent law, at least here in the US, doesn’t consider independent invention an allowable exception so an actual code release might have been actionable. Except van Rijn never made it that far, under an open license or otherwise. Reading through his original blog post, this doesn’t even come across as dedicated reverse engineering. What horrifies me is this is just the kind of spitballing any hacker might do in thinking through a particular class of application, just to get a sense of how it might generally work. I am disturbed that Briggs and Landmark weren’t called to task for this curtailing of free speech and worried at how this may encourage further chilling of sharing and experimentation by independent programmers of all stripes.

German High Court Issues Ruling Validating Software Patents

Slashdot has a story submitted by prolific software patent critic, Florian Mueller. It links to a post on his blog with many more details about this troubling ruling in the EU’s largest member state. Mueller basically likens this case to the Bilski case currently before the Supreme Court in the US. At the heart of Bilski are questions about the tests applied by judges when a patent is contested to determine if it is valid.

In a ruling of April 22, whose details have now been published (original document in German or EndSoftPatents page with links to automated translations), the highest German appeals court in matters of civil and criminal law overruled the country’s highest patent-specialized court and decided that a client-server software for the automatic generation of structured documents (such as XML or HTML) is an example of a patentable software invention. The case is remanded to the Federal Patent Court, which will now have to uphold the patent unless some other reason for its invalidity (such as prior art) is found.

To extend the comparison to Bilski, this ruling throughs out more involved tests about whether a patent details a new bit of machinery or effects a specific transformation of information or material. The remaining bar to patentability is how innovative the claim is. Mueller also points out the the EU and Germany more specifically had been against software patents traditionally.

In other words, if you do your job as a programmer right, then you create potentially patentable stuff all the time. This means an opportunity for you to obtain patents if you want to do that and can afford it, but it also means that your program could infringe dozens, hundreds or even many thousands of patents held by others.

Mueller doesn’t speculate about whether the Federal Patent Court is likely to overturn or uphold this ruling. There is a lot more detail in his post, laying out the historical context and the legal particulars involved and at stake.