Intellectual Property

Objectives

Intellectual property regimes is often about making optimizing the amount of ideas, knowledge and innovations that are introduced into society, and the spread among members of society. This applies especially to patents, copyright, design rights, plant varieties, semiconductor rights and knowhow. Trademarks and trade dress a slightly different, as those are more about creating an association between consumers and providers of products and services.

In order to optimize the introduction of innovation, intellectual property law creates a reward: an exclusive right for the creator, if certain conditions are met. This should be an incentive for creative people to actually spend time and effort on coming up with new things, which some might otherwise not do if they would not be able to have the exclusive economic reward from it.

However, in order to optimize the spread of innovations throughout society, this exclusive right should set just long and comprehensive enough to let the incentive be effective, but then to allow the society at large to benefit from it. An as important feature of intellectual property law is thus also the limit that it sets. Once that limit is reached, the innovation starts to become public domain and anyone in society can start to copy.

Ultimately, intellectual property regimes are about creating a surplus for society – and enlarging ideas and knowledge in the public domain. And the temporary exclusive monopolies for an individual, are a means to an end.

When finishing my engineering degree in applied computer science, I wrote my master’s thesis on the subject of intellectual property on software. This focused in particular on the developing of software, and thus how developers can protect their software from potential competitors. This is a different set of problems that has little or nothing to do with the attention that software piracy has received – software piracy is only important for the loss of income from end clients and it is just a case of piracy like any other type of digital content in the age of internet.

Instead, for developers that want to maintain their competitive position, intellectual protection on software rather focuses on preventing reverse engineering (which the law allows), and preventing that clones hit the market (possibly developed through reverse engineering, or otherwise at least by mimicking some essential functionality). To prevent such reverse engineering, developers may often rely on technical measures and contractual measures. And to prevent clones from hitting the market, they often try to rely on contractual measures and also on patents. This is still a very disputed domain, in the area of patents.

Patents protect inventions, which are solutions to a problem that are not solved with the state of art. In essence, that can be a product (i.e. a new type of microprocessor) or a method. In contrast to copyright protection, patents cannot protect code as such. This way of thinking requires some adaptation for developers, to understand that the software code as such is not protectable, but that a bigger picture can be protectable.

Some news on software patents:

The most problematic part of the proposed EU Directive on Copyright in the Single Market may be deleted tomorrow!According to a tweet by Tiemo Woelken ("Wölken" in German), an MEP from the center-left Social Democratic Party of Germany (Merkel's coalition partner), Germany's minister of justice Katarina Barley (from the same [...]
Tue, Feb 19, 2019
Source: FOSS patents
Qualcomm's enforcement of a likely invalid and most likely not infringed patent against Apple in Germany is a Pyrrhic victory that generates limited incremental chip sales but exacerbates its antitrust problems (instead of forcing Apple into a global settlement). But in another case, two German patent injunctions have brought about [...]
Tue, Feb 19, 2019
Source: FOSS patents
If I'm not mistaken, this is the first time--in almost ten years and after more than 2,000 posts--that a tweet gives rise to a FOSS Patents article. This is the one, and I'll comment below:It is also noteworthy that the EU Commission uses a 100% US platform to call the [...]
Tue, Feb 19, 2019
Source: FOSS patents
Politico.eu published the outcome of backroom negotiations (called "trilogue" because three institutions participated) on the EU Copyright Directive. Adoption of that text would be tantamount to the unconditional surrender of critics of the most ill-conceived parts of the proposal.But the problem is that losers can't be choosers. They can try, [...]
Mon, Feb 18, 2019
Source: FOSS patents
Earlier today I shared my views on what needs to improve with respect to strategy and execution in order to prevent the EU's "copywrong" bill from being adopted. Later I became aware, through one of German Pirate Party MEP Julia Reda's tweets, of a European Commission blog post on Medium.com [...]
Sat, Feb 16, 2019
Source: FOSS patents
I'm a copyright hardliner regarding the scope of copyrightable works, a reasonably narrow exception for fair use, and remedies. I can say so without fear of contradiction from those who read my postings on copyright on this blog, particularly on Oracle v. Google, or who debated the Blizzard v. bnetd [...]
Sat, Feb 16, 2019
Source: FOSS patents
At the end of my shareholder-value-focused analysis of Qualcomm's $1.5 billion deposit for the immediate enforcement of a Germany-wide patent injunction against the iPhone 7 and the iPhone 8, I predicted it was going to be "a Pyrrhic victory." By now it's clear that "Pyrrhic victory" is a euphemism. It's [...]
Thu, Feb 14, 2019
Source: FOSS patents
I'm temporarily back to Germany for app development-related reasons, and seized the opportunity to return to the Munich I Regional Court for the first time since the envelope-tracker injunction Qualcomm obtained late last year through procedural shenanigans.Today the Seventh Civil Chamber (Presiding Judge: Dr. Matthias Zigann) held a first hearing [...]
Thu, Feb 14, 2019
Source: FOSS patents
Post-trilogue breakAt last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market [Katpost here], tonight an agreement has been reached between the European Parliament and Council negotiators on the content of [...]
Wed, Feb 13, 2019
Source: IPKat
As the former director of the European NoSoftwarePatents campaign I always find it shocking what kinds of patents the European Patent Office (EPO) grants despite the exclusion of "programs for computers as such" from the scope of patentable inventions according to Article 52 of the European Patent Convention (EPC).Post-grant reviews [...]
Wed, Feb 13, 2019
Source: FOSS patents
Qualcomm's patent enforcement campaign against Apple, which started in the spring of 2017, has produced some headlines but no real results. What Qualcomm wanted was to gain leverage over Apple well in advance of the Apple & contract manufacturers v. Qualcomm trial that will take place in San Diego [...]
Mon, Feb 11, 2019
Source: FOSS patents
A few months after Apple sued Qualcomm two years ago, the chipmaker started a patent enforcement campaign in three jurisdictions (U.S., Germany, and China). Almost two years have passed, but Qualcomm has yet to prove two thirds of its enterprise value (that's what the company's patent licensing business accounts for [...]
Sun, Feb 10, 2019
Source: FOSS patents
The ITC investigation of Qualcomm's first complaint against Apple had already reached the stage of a Commission review of the initial determination (ID) on the merits. Contrary to what various inaccurate media reports and commentaries suggested, that decision to review the ID is entirely unrelated to the fact that the [...]
Wed, Feb 06, 2019
Source: FOSS patents