The Little Hacker's Room

The PTO has just a href=http://www.uspto.gov/news/pr/2010/10_35.jspissued/a new guidance for their examiners on i Bilski/i, a href=http:// inventivestep.files.wordpress.com/2010/07/ 75fr43922.pdfInterim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos/a [PDF] -- on how to follow what they think iBilski/i held as to what is and isn't patentable subject matter under 35 U.S.C. § 101. P A claim to an abstract idea is not a patent-eligible process, iBilski/i holds, they point out, but exactly where is the line? How do you know an abstract idea when you see it? So the USPTO is asking for public comment on what they came up with for their understanding. They want to hear from the public by September 27, and they provide some specific questions and a list of factors examiners are to consider when evaluating an application. P You know pro-patent companies' lawyers in droves will be telling them that their clients should be able to patent God's method and process for creating the heavens and the earth, so you may wish to comment yourself and let them know politely where you think the line should be drawn on the abstract idea exception to subject matter eligibility as set forth in iBilski/i, if this is a topic you care about. Otherwise, I can see it now, their report: We got 3,201 comments saying X and only 3 saying Y, so X carries the day.

Let's catch up quickly in the a href=http://www.groklaw.net/staticpages/index.php?page=Psystar#psapPsystar/Apple/a situation, so we don't miss any of the action. When I read the new DMCA exemptions a href=http://www.eff.org/press/archives/2010/07/26EFF won/a, I immediately started to think about Psystar, so I wanted to see what's new. Maybe you did too. So here's the latest I could find. The appeal is going forward. Presumably the next step in the appeal will be oral argument, although I can't swear to it, since Psystar a href=http://www.groklaw.net/ article.php?story=20100518163209686filed its brief/a under seal with the Ninth Circuit Court of Appeals back in May, so we can't read it, and that's when they would have made the request or not. I can't believe the entire document needed to be sealed, but that is what happened. Perhaps they'd prefer we not get a chance to analyze it? Apple has now filed its a href=http://www.groklaw.net/pdf2/ApplevPsystarAppeal-16.pdfanswering brief/a [PDF], along with a href=http://www.groklaw.net/pdf2/ApplevPsystarAppeal-17.pdfa request/a [PDF] that the court take judicial notice of the Florida litigation, and Psystar has just filed its a href=http://www.groklaw.net/pdf2/ApplevPsystarAppeal-21.pdfreply brief/a [PDF], and these documents are not sealed, so we finally get to find out what it's all about. P What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware. P Wait. Isn't that kind of what TurboHercules is a href=http://www.groklaw.net/article.php?story=20100408153953613whining about/a too? Here's what TurboHercules told us it wants: We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice - including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules. Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.P You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the i SCO v. IBM/i case.

In the latest news from SCO's slow boat to absolutely nowhere, Novell has filed its opposition to a href=http://www.groklaw.net/article.php?story=20100708200214612SCO's motion/a to stay taxation of costs. SCO filed this exact a href=http://groklaw.net/article.php?story=20081231165313306motion/a [PDF] in 2008, after it lost the first trial, Novell points out, and Novell a href=http://groklaw.net/article.php?story=2009010106203460opposed/a that motion too, and the a href=http://www.groklaw.net/ pdf2/Novell-591.pdfmotion was denied/a [PDF] by this very same court, and here they are with the same type of motion and even using the same stupid case that didn't work for them the last time. P Is SCO trying to lose this motion? Or just half-hearted? If it knows the court will not grant the motion, why file it? No. Really. Why? To keep things going as long as possible? They think Judge Ted Stewart will be more favorable to them than Judge Dale Kimball? Nothing else has changed. P When you are the paralegal, all you do is take the old document, change the dates to upgrade it, and hand it to your boss for him to add his touches, if any. I puzzle over why SCO is even bothering. But I'm thinking about that more and more. Why is SCO continuing when the outcome is so obvious?

There are a href=http://www.copyright.gov/ 1201/new anticircumvention rules/a from the US Copyright Office. a href=http://www.macobserver.com/ tmo/article/ feds_ok_smartphone_jailbreaking_unlocking/Several/a are very good changes, such as allowing you to bypass a technological protection measure to use snips from a movie or video if your purpose is educational or for comment or criticism, and there's more flexibility for phone apps if interoperability is the goal:blockquoteWhen one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses, the Copyright Office stated. P It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability, commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry./blockquote Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider.P But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's Watch Instantly service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.P I'll show you the relevant language in the document a href=http://www.copyright.gov/1201/ 2010/RM-2008-8.pdfDetermination of the Librarian of Congress and Text of the Regulation/a [PDF].

The SCO Group has filed their a href=http://www.groklaw.net/pdf2/10-4122_Documents.pdfdocketing statement/a [PDF] in their appeal from the jury's decision and Judge Ted Stewart's rulings and findings in iSCO v. Novell/i. And thus we find out what the appeal is going to be about. The PDF is a honking 323 pages, mostly exhibits. PWhat does SCO want? What it has always wanted, the UNIX copyrights. It wants the appeals court to rule that Judge Stewart erred in a href=http://www.groklaw.net/ article.php?story=20100610161411160ruling/a that Novell had the right to waive. After a href=http://www.groklaw.net/article.php?story=20100330152829622SCO lost the jury trial/a, it filed some motions, essentially asking Judge Stewart to overrule the jury and grant SCO judgment as a matter of law that the copyrights did transfer in 1995, despite the jury's ruling otherwise, or alternatively SCO wanted a new trial. The judge didn't do either, and SCO now wants the appeals court to rule that was error on his part. Finally, if all that fails, SCO wants the appeals court to rule that SCO is entitled to specific performance, compelling Novell to hand over the copyrights now.P In short, they want to win. They thought the jury just got it wrong, they asked Stewart to fix that, and he didn't, so now SCO is asking the appeals court to help them win something, one way or another. Why? It wants to sue Linux folks, I presume, and it can't without the copyrights. And it wants to sue IBM, too, and unless it can get the appeals court to rule that Novell has no right to waive and get the copyrights, SCO can't sue IBM. I guess it would be more accurate to say SCO wants to not lose. It's in quite a pickle as things stand. Think of IBM's counterclaims for just a minute, and you'll understand why SCO probably feels it has nothing to lose by trying.