Privacy, what privacy?!

The American company of video-monitoring Citywatcher.com began to use microchips inserted in the body of its workers, as a form of control so employees cannot accede to restricted secure parts of the company. The silicone chips, which are presented as allowing control of employees as well as access to medical history of its carriers, have already raised controversy in the United States. These microcircuits are work of the VeriChip Company, a subsidiary of Digital Applied Solutions, Palm Beach (FL), which in October of 2004 received the consent of the FDA to commercialize the product. The company works fundamentally on two applications of this technology: for identification, as in the case of citywatcher.com, and for its use in hospitals, where it claims could be a very useful machine for patients with difficulties to communicate, as those with Alzheimer. The capsule, which is inserted under the skin of the arm or the hand with a syringe, contains a number of 16 digits that allows access to the medical file of the carrier. This chip, according to its promoters, will facilitate to hospitals, doctors and patients to improve the attendance and to avoid errors, with precise information on each patient and its health condition. In addition to these uses, we can find that the Ministry of Justice of Mexico already uses this type of technology to identify its employees. The "chip" also has other less altruistic uses and, for example, the discotheque Baja Beach Club of Barcelona uses these capsules with its clients VIP. It allows to identify them in the entrance and to have their consumption paid directly from a special account. It is said that approximately 2,000 people in the world already have these microchips inserted in their bodies.
But what are the privacy implications of this futurist technology? It can be argued that having something implanted in the body that cannot be turned off, implies a total invasion of privacy, but what it is more worrisome is the possibility of combining this technology with other initiatives like ID cards, CCTV and many other control devices and regulations. If now the US Administration is claiming the right to monitor Internet and telephone use without a warrant, what will stop it from monitoring the moves of individuals implanted with the Chips?

USPTO, five interconnected empty buildings?

Andres reported in his Technollama Blog about yet another ridiculous patent granted by the USPTO, but it seems that the list is far longer than previously thought and makes one wonder whether is anyone actually working there or if the USPTO is really and empty building (well, actually they are moving from 18 buildings to five interconnected new ones) where whoever applies for a patent gets it granted by some sort of automatic brainless stamping machine.
One of the extremely ridiculous that can be found is US Patent 5,443,036, which claims the rights over a "Method of exercising a cat" that consists of "directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct". Not only is ridiculous but it is as obvious (does satisfy the requirement of non-obviousness established in 35 USC 103) as being able to be found in a book catalogued as humour in Amazon that was published 11 years before the patent's filling date. But what really beggars belief is the fact that the same USPTO has granted at least other three patents for almost the same thing to other people: 6,505,576, 6,557,495 and 6,651,591 (Pet Toy, Laser Pet Toy, Automatic Laser Pet Toy and Exerciser respectively). What part of the Article 1, Section 8 of the United States Constitution have these people missed? the promotion of the progress of science? the part that refers to useful arts? or the part of discoveries?
The lesson that can be learned about the whole "aquelarre" into which the US patent system has degenerated is that the convenience of basing the funding of an organization whose main role is to assess the quality of some product, on the number of applications its receive can be severely questioned. Such a system creates the incentives for the organization to lower the standards used to measure the referred quality, what in turn would encourage more applicants and would result in higher revenue. And the results speak by themselves...

BlackBerry case(s) across the Atlantic.

According to The Times of London, the High Court of England ruled in favour of T-Mobile and RIM and invalidated InproÂ’s UK Patent (originally filled in EPO as EP 0892947B1) that the Luxembourg-based patent troll had obtained in 1996 on the grounds that it was invalid because of a lack of novelty and because it was "obvious", which followed RIM's victory in the Germany's Federal Patent Court for the same issue. The case referred to a different patent from the American one, but it shows the willingness of the courts to challenge software patents on the basis of lack of novelty.
On the other hand, the American Government has asked the Court to not shut down BlackBerry until a plan to exempt Government users can be worked out. But Judge James R. Spencer has said that he could make a decision on February 24th and repeated hisunwillingnesss to wait for the US Patent and Trademark Office to decide on the validity of the patents in question. The odds are quite high that the USPTO will finally invalidate all five patents, but probably after they cause BlacBerry to be shut down... wait a minute!
A global service that according to the US Department of Justice is vital to the US economy and security might be shut down for infringing a patent that its seems should not have been granted in the first place?! If something like that happened in a Latin American country and an American company was involved, somebody in the US Department would be crying foul and complaining about the lack of legal security and would be asking for the judge to be sacked...

Software patents...(which round was?)

Few months ago, at the V World Congress of Computer Law held in Dominican Republic and co-organized by Alfa-Redi and Funglode, I gave a presentation on the inconvenience of software patents emphasising the political aspects of the “struggle”, especially focusing on how the big players were using their immensely powerful machine to impose software patents disregarding most research that shows that they were counterproductive. When I finished, one of the (very)distinguished members of the audience, told me that the presentation missed the point and correctly pointed out that software patents as such shouldn’t exist but not due to representing some sort of struggle between the big corporations and the small software developers or due to most research showing that they would chill innovation more than encourage it, but because from the legal point of view they were completely unsustainable: the absence of prior art was almost impossible to establish, the industrial application definition needed to be completely redefined, and most times the claims for software patents described a “thing” unrecognisable by the creator. My answer in that moment was that, when I acknowledged and agreed with the impossibility of applying patent law to software (unless the patent offices and judges practiced the most bizarre of the interpretations, which is exactly what they have been doing for some decades), those pushing to apply patent law to software know perfectly that and that is the reason for wanting the changes in the law and/or their interpretation. Thus, knowing that patent law was not and could not be designed to protect software, the purely legal argument should be used mainly in court, and outside it the non-legal issues need to be explained (having, of course, as background the legal impossibility of using patents to protect software), which I further argue here with a simple example.
Legislators have to vote on a very vast array of issues and, even if we forget the possibility of big corporations actually bribing them, it is materially impossible that they would know in depth about every topic and the need of external help becomes evident (which the original intent of lobbying in USA). The problem arises (again forgetting the possibility of bribes) with the fact that huge corporations and their alliances have far more resources than any other organization to devote to lobbying and to finance studies that support their causes. So, for every independent study that legislators and government receive there are potentially hundreds more financed directly or indirectly by those big economic groups, which means that purely technical legalities would not get the message through if, in addition to them, the political and economic tactics are not presented.
It might look like a sophistic approach, but before entering into the debate it seems necessary, with arguments, data and reasons, to show that there is a very coordinated and sustained campaign to benefit a handful of players regardless the damage or benefit that that move could inflict into the society, its innovation and its technological development. And examples abound, not only on software patents.
The Society for Computers and the Law of England (to which I also belong), an independent organization for the encouragement and development of law related IT and IT related law, was invited to give evidence to the All Parliamentary Internet Group (APIG), and one of the important conclusions, following a question on “What legal protection should DRM systems have from those who wish to circumvent them?”, was:

“This question appears to be based on a critical standpoint: i.e. that the current legal protection for DRM systems is too heavily weighed in favour of the copyright owner.
The current protection given to copyright owners (embodied in section 296Z of the Copyright Designs and Patents Act 1988) is the result of years of consultation and debate and arises from the TRIPS agreement, the WIPO Copyright Treaties and is embodied into European law. DRM systems therefore have this legal protection and we do not believe there is any merit in reopening the debate. If it is considered that this protection is too great, we should look more at commercial considerations to provide some balance."

It is interesting that, on the topic of software patents, even when many distinguished guests have expressed the contrary view, in several occasions the SCL’s members through the SCL magazine and events have mimicked the position of the Software Business Alliance and have not understood the current law on software patents as been also “the result of years of consultation and debate” and “therefore [software has not that] legal protection” and have also not understood that the current inconsistencies in the legal standing of software patents within Europe are not due to the inconsistencies in the law but in the violation of the law by the European Patent Office and others alike. So the morale is, if it benefit the big corporations the law should be understood as settled, but if not, there is no problem in using any mean and insist with reforming it, even after the European Parliament has expressly rejected such changes.

Mistakes found in 98% of US patents

Although there are reasons to believe that the Reg is not always very accurate and the article looks more like and advertisement, the fact that the USPTO does not even proof read what it receives save us to comment in how it checks the quality of the patents that it accepts...

Changing times

In 1974 an American president had to resign for illegal wiretaps in time of war; 30 years later another American president engages in a far broader campaign of wiretapping and now the heat is on the press for revealing it...

US Supreme Court to Consider Patent Case

According to Tech Law Journal, the US Supreme court has granted cerciorati in the eBay v. Mercexchange, which involves a claim by Mercexchange that eBay infringes three patents ( U.S. Patent No. 5,845,265, U.S. Patent No. 6,085,176, U.S. Patent No. 6,202,051) by allowing sales at a fixed price. The case seems to involve only the issue of whether injuctive relief is available to patent cases or not, but actually can have broader consequences because the Court will probably have to also rule or comment on the assertion by Mercexchange that patents are a form of property.
Another cold day in London.

Walking the path

There were too many letters that I wanted to write and I didn't knowing that they wouldn't please the editors, and many other that I did write and didn't please the editors; there were also many papers that I didn't write because of time, laziness or other reasons; there are many ideas that don't have a proper form, references or data to be put into a publication; and there are many times that ideas just pop in my mind and I need to put them in words. For all those reasons I am starting this electronic "charlas de mate" (conversations that in Argentina people have with the mate as the centre of the gathering), which will verse around the main topic of my academic research and interests, vg electronic commerce, intellectual property rights, and connected topics.