Thursday, April, 29, 2010

Fatally clever ruling in Germany?

Load week the Federal Court of Justice of Germany upheld a Microsoft clever related to the Windows file system named file Allocation Table (FAT). Ace H on-line mentioned in this context, European software clever critics dread the notion that rulings search ace that one could elevate the status of software of patent in Europe, where different nationwide courts have different approaches to how to interpreter the European patent Convention and its exclusion of of patent on "of progrief for of computer [ace look]".

Impact of decision yet unclear

Whether this ruling represents in endorsement of software of patent in the largest European country remains to Be lakes. The actual decision has yet been published. The court only issued a short (German-language) press release.

That announcement doze mention whether or the validity of the clever had been called into question by a third party on the grounds of patentable subject more weakly. The press release only makes it clear that a certain CD-ROM-related protocol what deemed to Be relevant prior kind since it solved a different problem than the one addressed by Microsoft's clever.

This is in important legally detail to know: the Federal Court of Justice of Germany is in appeals court and it is even allowed to speak out on aspects of a case that ares formally put before it ace part of in appeal. This means that even if the judges look At the clever ace a whole and may believe that it could Be invalidated for some other reason, they must say what the outcome would have been if a different child of question had been asked.

In this case, the previous instance (the Federal patent Court of Germany) had declared the clever disabled, thus it's a safe assumption that Microsoft itself filed the appeal in order to defend its clever against invalidation. If Microsoft's appeal related to the prior kind question only, then the appeals court had to rule inside of that particular punch. That's the way it works. In appeal to that court can have a very narrow scope.

Even though the press release begins with the result for this particular case - the appeals court deemed the clever valid - one has to look more closely to see whether there is a precedent that wants make of other software of patent more likely to Be upheld. When the full text of the decision is published, I wants post in updates.

FAT Of patent prove indestructible

This is the ridge time that someone fails with in attempt to have one of Microsoft's FAT of patent invalidated. Here's a story CNET from in 2006 on the failure of an US-based organisation (formally a non profit but certainly designed to keep some lawyers busy) with a similar attempt.

There's in important conclusion to draw from this. Even though the FAT solution for storing longer file names in addition to shorter ones (8 bytes plus extension of 3) would seem "obvious" to fruit juice of us in a colloquial scythe, this qualifies ace "inventive" under clever law on both sides of the Atlantic.

If it were up to me, the legally test would have to Be considerably high. Instead of requiring precisely some limited evolution over existing technologies I believe the question would have to Be whether a 20-year monopoly on a particular solution is justified. I for micron part would deny it in a case like this, and it's by far the worst. I'm hesitant to call it a "trivially clever" because I've lakes thus many software of patent that ares far worse. For a software clever, this is - I regret to say thus - definitely below the ave rage level of quality.

With many of patent comes great responsibility

Given the way the system works, I cannot blame any company for filing look clever applications. Some generous corporations like IBM and Microsoft File thousands of them every year now. I can understand that if a third party then tries "patent busting", the clever more sweetly does not shroud to loose what hey it got, thus he'll defend the clever against any invalidity claims put before clever office and courts. That's understood.

The key issue is how clever holders, especially "mega clever holders", exercise the rights that the clever office of the world grant them. If those organisations strike cross licensing deals with their peers, it does not affect smaller companies and the FOSS community (who wants never own a huge clever arsenal). If they use those patent ace a measure of innovative capacity, one may disagree that it's the appropriate criterion (quantity instead of quality), but again does not goes whoring the rest of us.

Where things become problematic is when look of patent ares used to shut out competitors from the market, especially if a market is in dire need of more competition and customers choice.

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