The Final Report on the Review of the Innovation Patent done by the Australian Government is available on-line:
"[...] Recommendation 1
IP Australia should routinely assess the proportion of innovation patent applications that appear to be used for tactical reasons regarding higher-level inventions rather than as attempts to secure protection for lower-level inventions. This would help ensure that the system is predominantly being used as intended.
[...]
Recommendation 2
IP Australia should ensure the information and forms available to applicants on the key elements of the innovation patent, including that which is provided during the application process, meet the needs of customers. Particular issues that need to be addressed are the differences between the innovation patent and the provisional application, early publication of innovation patents, the difference between grant and certification and the amount of detail required in an application in order to achieve certification.
[...]
Recommendation 3
IP Australia should provide clear and easily accessible information on its website and in its literature, targeted towards interested third parties rather than applicants, on the differences between granted and certified innovation patents and the options available for questioning the validity of a patent.
[...]
Recommendation 4
IP Australia notes that the Advisory Council on Intellectual Property (ACIP) may be conducting a review of patentable subject matter in the near future. If so, ACIP should consider the inventiveness threshold for innovation patents as part of its review. [...]"
Only ten (!) submissions from the general public had been received.
UK: Part III of RIPA Entering into Force Soon - or: 'That's the Road to Hell'?
On the SCL website (Reg. req'd) Mr. Peter Church and Mr. Richard Cumbley (both of Linklaters) look at the latest move to bring Part III of RIPA into force:
"[...] The [UK, added by AHH] Government has issued a public consultation stating it intends to bring Part III of the Regulation of Investigatory Powers Act 2000 into force. This gives Government bodies the power to order data to be decrypted and, in certain circumstances, demand a copy of the relevant encryption key. [...]"
The Consultation on the Draft Code of Practice for the Investigation of Protected Electronic Information - Part III of the Regulation of Investigatory Powers Act 2000 is explained by the UK Home Office as follows:
"[...] Part III of the Regulation of Investigatory Powers Act 2000 established powers to impose a requirement upon a person to put protected electronic information into an intelligible form or to disclose a key which will enable the data to be put into an intelligible form.
Those provisions have not yet been implemented because the development and adoption of encryption and other information protection technologies has been slower than was anticipated when the Act was passed.
The Government has, however, kept under review the need to implement the provisions in Part III, by taking account of the extent to which protection of electronic data has frustrated law enforcement and obstructed the delivery of justice to victims.
Over the last two to three years, investigators have begun encountering encrypted and protected data with increasing frequency. This, and the rapidly growing availability of encryption products including the advent of encryption products as integrated security features in standard operating systems, has led the Government to judge that it is now timely to implement the provisions of Part III.
This consultation follows an illustrative draft of the code which was made available when the Regulation of Investigatory Powers Bill was before Parliament, comments on the earlier draft code have been taken into account in the revised draft of the code, which has been substantially rewritten.
The consultation closes on 30 August 2006. [...]"
Well, at a first glance this sounds as if it would be one of the usual measures to tighten criminal law. But it is worth to have a closer look:
"[...] Sect. 49 (1) [...]
(2) If any person with the appropriate permission under Schedule 2 believes, on reasonable grounds -
(a) that a key to the protected information is in the possession of any person,
(b) that the imposition of a disclosure requirement in respect of the protected information is - (i) necessary on grounds falling within subsection (3), or (ii) necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty,
(c) that the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and
(d) that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section,
the person with that permission may, by notice to the person whom he believes to have possession of the key, impose a disclosure requirement in respect of the protected information.
(3) A disclosure requirement in respect of any protected information is necessary on grounds falling within this subsection if it is necessary - (a) in the interests of national security; (b) for the purpose of preventing or detecting crime; or (c) in the interests of the economic well-being of the United Kingdom.[...]"
To me, those provisions appear to embody a quite breathtaking determinedness to put the powers of the state over legitimate expectations for privacy of citizen. If for example a patent attorney or an attorney-at-law in the UK (I can only hope that UK authorities do not consider attempts to implement cross-border-enforcement of such provisions) duly protects the secrets of clients by means of cryptography (what he or she should do if using ICT!), a disclosure requirement order under Sect. III of RIPA (perhaps even gagged by a secrecy requirement) might come to hand over all the cryptographic keys and passphrases used in the law firm if the UK Government gets through with thsese plans.
Not even only that, severe enough, but if you have stored a lot of encrypted data on your computer system, losing a secret key accidentally e.g. because of the medium on which the cryptographic key material was stored has crashed, then you might find yourself in a severe risk to have to go into jail if you don't manage to get rid of the encrypted files in a timely manner.
And, this all might happen not only in case of an imminent terroristic threat but also if tis is deemed necessary in the interests of the economic well-being of the United Kingdom.
Strong stuff, indeed.
Why did the Lords not filter out such provisions during parliamentary proceedings? They are normally good at that. Didn't they take notice? The UK Government might well get into trouble in view of the European Human Rights Convention to which the UK is a party if such rules were actually enforced.
For the time being, Mr. Peter Church and Mr. Richard Cumbley in their article provide some practical advice to facilitate survival for UK residents:
"[...] Practical Tips
There are a range of steps to consider if Part III of RIPA is brought into force.
Audit your information technology systems to identify how encryption technology is used and the location of all encryption keys.
Establish procedures to check that any notice imposing a disclosure requirement is genuine and has been validly served.
Ensure that encryption keys are accessible in order to respond to a disclosure requirement without compromising the security of those keys. Bear in mind that the notice should be served on a senior member of the organisation and could be subject to a secrecy requirement.
Use separate keys for encryption and authentication to ensure that electronic signature keys are not subject to a disclosure requirement.
Ensure that the disposal of any key (eg session keys that are deleted at the end of a session) is properly documented so that you can prove you are no longer in possession of that key [...]"
"[...] The government faces criticism over plans to give police powers to make suspects produce readable copies of encrypted computer evidence.
The police say the powers are needed because criminals are increasingly using encryption to hide evidence.
They estimate that currently there are 30 cases in which encrypted evidence had stumped investigators.
But some peers, academics and cryptographers say the plans are flawed and risk being abused.
[...]
"But the draft code of conduct has no guidance on weighing privacy against the demands of law enforcement," said Caspar Bowden, former head of FIPR.
He questioned how police could balance the rights of victims, suspects and the general public if this was not made explicit.
Mr Bowden also questioned the wisdom of making it an offence to refuse to unscramble evidence. He said there were many scenarios that made it possible for a suspect to deny they ever had the key that unlocked encrypted data.
Already, he said, there had been one court case in which a suspect was acquitted after claiming a computer virus under someone else's control had caused the offences for which he faced trial. Mr Bowden speculated that other suspects could use the same tactic or would fake a virus infection to get themselves off the hook.
He also asked how someone would prove they had genuinely lost or forgotten a password and wondered if the threat of a jail sentence would hamper efforts to make users take more care of personal data.
'Will it deter the mass of honest users from properly securing their data?' said Mr Bowden.
Veteran investigative journalist Duncan Campbell said there were broader questions about how the police investigate high profile cases that threw into question the effectiveness of the decryption powers.
He said his work as an expert witness in cases involving charges against suspected terrorists and paedophiles led him to question what use the powers would be or imagine any circumstances in which it would prove useful.
The Earl of Erroll, a cross-bench member of the House of Lords, said there was a real danger of 'scope creep' in which the powers given for use in specific circumstances were turned to other purposes they were never intended to tackle.
Professor Douwe Korff, said there was a real question as to whether the powers undermined the presumption of innocence that human rights legislation enshrines. The code of conduct had to be beefed up, he said, to ensure high standards protected fundamental rights.
Lord Phillips of Sudbury described RIPA as a 'hair-raising' piece of legislation and expressed reservations about the effect the powers being given to police would have.
'You do not secure the liberty of our country and value of our democracy by undermining them,' he said. 'That's the road to hell.' [...]"
However, as if this would not be depressing enough, present discussion on security appear to to carry such inadequate proposals in conjunction with ICT usage to the extremes. Mr. Carr writes in the Manchester Evening News:
"[...] Paedophiles should not be able to escape prosecution by simply wiping child porn images from their computer hard drives, campaigners said today.
The law should be changed to allow the prosecution of perverts who use so-called 'evidence erasing' software, the Children's Charities Coalition for Internet Safety (CHIS) urged.
Computer magazines which distribute the programmes as front-cover give-aways were also criticised for encouraging people to break the law.
CHIS also said ministers should consider making it illegal for convicted paedophiles to possess such software.
In a letter to the Home Office in response to a consultation on computer encryption issues, CHIS executive secretary John Carr said: "We think it is irresponsible of the computer magazines ... to promote and advertise software of this kind in the way that they do.
'It's a bit like placing an advertisement to say something like 'If you want to break the law and get away with it, we've got just the thing for you!' [...]"
Such thinking is nothing more than flawed in its very core. If the Police have problems with digital computer forensics then they should do more research in this field. Any legal provision preventing ICT users from effectively deleting data would be outrageous. There are umpteen of perfectly legitimate reasons to erase my own data on my own computer hard disk drive.
Fighting crime and terrorism is a serious matter indeed. However, great care must be exercised in order to make sure that the cure does not get worse than the disease. In the field of ICT-related law enforcement politics, many European Governments are going one step too far and, with all due respect, in my opinion the UK Government appears to be determined to go one further step into an area where the detrimental side-effects of well-intended anti-crime and anti-terrorist measures soon will outweigh any conceivable benefits. Cryptographic-savvy real criminals and terrorists will get acquainted with steganography-related technologies, anyway. The law-abiding citizen using cryptography will be affected in the first place. I therefore wholeheartedly agree to the statement given by Lord Phillips of Sudbury who thinks such provisions in RIPA will form "the road to hell".
The intended improper over-regulation of ICT security provisions by RIPA Part III might easily affect the professional ICT of every attorney operating under UK law.
Moreover, it could also set a very unfavourable precedent for ICT politics throughout the rest of Europe.
Fortune on Peer To Patent Project: "Patent review goes Wiki".
Mr. Nicholas Varchaver, Fortune senior writer, writes:
"(Fortune Magazine) - The problem: an epidemic of shoddy patents.
The solution: Wikipedia?
That's the basic concept behind a pilot program sponsored by IBM (Charts) and other companies, which the U.S. Patent and Trademark Office appears poised to green-light. The project would apply an advisory version of the wiki approach to the patent-approval process.
[...]
Working with IBM and the Patent Office, Noveck developed a system that will not only permit, for example, an inventor to show that an allegedly new idea is already in practice but also lets reviewers rate one another's submissions, much as they do on eBay (Charts) and Amazon (Charts).
[...]
Noveck thinks the test could launch early in 2007. If successful, the approach could then be implemented throughout the patent office. "It seems fairly obvious," says Noveck, "to try to tie together some of the systems of peer production of information that we've seen in the private sector." And those who've complained about the patent process could take part in fixing it. [...]"
Results of Consultation on the Inventive Step Requirement in United Kingdom Patent Law and Practice.
A consultation under the title "Consultation on the inventive step requirement in United Kingdom patent law and practice" had been placed on the Patent Office website on February 03, 2006 for a period of just under 4 months (closing on 31 May 2006). The consultation response document is available on the website on the UK Patent Office:
"[...] Preliminary conclusions
The overall message of the responses appears to be that respondents are happy with our current practice. Where there are complaints, these tend to be confined to specific scenarios rather than 'across the board' failings. For example the 'obvious to try' formulation used recently by the UK courts when refusing some biotechnology patents caused concern to some respondents involved in that sector.
There was some concern about lack of consistency either within the UKPO itself, between the UKPO and the UK courts, or between the UKPO and Europe, but again these were limited to particular situations rather than applying generally.
Several comments were made that the quality of search is critical and this may well be a focus for future work. It certainly seems that the perceived difference in 'strictness' between the UK courts and UKPO is largely due to the more exhaustive prior art investigation that is done during post grant litigation of a patent.
The language of patent applications was a concern to some respondents with requests to simplify legalese in applications. There also appeared to be a lack of understanding among some respondents of the mechanism provided by section 21 of the Act for concerned third parties to make observations regarding the patentability of applications being considered.
As expected there were comments emphasising that a detailed analysis and well reasoned objection are vital in dealing with inventive step effectively. This analysis should include detailed consideration of such factors as why documents or references would be combined by the man skilled in the art. It is clear that a comprehensively argued objection is beneficial to the applicant and to the overall processing of the patent and several respondents highlighted this in their replies. However it must be remembered that there are occasions (such as where an overly broad initial claim is likely to be heavily amended) when a less detailed objection might be appropriate. [...]"
There are only 26 responses in total. This appears not to be very much. Why does the affected industry not take such consultations more seriously?
The Pirate Party known from its Swedish branch has also started with activities in Austria and Germany. Initiatives in further countries have also been reported.
"[...] Overlooked by the major media is the weird situation in Sweden, where a political party and lobbying organization has cropped up with the sole purpose of overturning the current crop of copyright and patent laws and creating something more modern and realistic: the Pirate Party and the Pro Piracy Lobby. This movement, while unlikely to have any effect in the U.S., could change things so dramatically in parliamentary democracies that we'd feel the aftershock anyway. [...]"
"[...] The party strives to reform laws regarding intellectual property, including copyright, patent and the protection of design. The agenda also includes support for a strengthening of the right to privacy (such as private property and private information), both on the Internet and in everyday life. The party does not have an agenda for any other subjects and therefore it is not possible to place the party anywhere on the left-right scale. [...]"
The activities of these groups should be carefully monitored by patent people before it is too late to act on the political stage.
Will Someone Be Determined To Fork The GPL Over Patent Issues?
In my earlier posting I had provided a link to the second Draft of the GPLv3. The GPL governs thousands of FLOSS projects, and many programmers have agreed to license their code under "GPLv2 or later". With other words: Albeit the GPLv2 does not enforce any automatic transition to GPLv3, as a matter of fact many FLOSS projects will follow without need for any formal adoption. This means that the Free Software Foundation (FSF) as the maintainer of the GPL - and Mr. Richard Stallman within this organisation - will exert a huge influence on the future FLOSS landscape.
The FSF appears to have big political ambitions when using the political lever conveyed by the pending GPL reform for, inter alia, fighting against patents on computer-implemented inventions or what they call "software patents".
In view of the second Draft of the GPLv3, others beg to differ. It is, for example, well known that Mr. Linus Torvalds, founder of what today is known as the Linux Kernel, does not like the present Drafts of GPLv3. And, the Linux Kernel sources do not show any license indicator comprising the ominous "or later" clause. As early as in February 2006, Mr. James DeLong wrote on ipcentral.info:
"Linus Torvalds explains why he is inclined to stick with version 2 of the GPL rather than adopt the draft of version 3 that has been proposed:
My initial reason for my original license (which was also "you must make changes available under the same license") was not crusading, but simple reciprocity. I give out source code - you can use it if you reciprocate.
In other words, to me, the GPL "give back source" is an issue of fairness. I don't ask for anything more than I give. I ask for source code and the ability to incorporate your changes back into _my_ use, but I don't want to limit _your_ use in any way.
So in my worldview - not as a crusader - the GPLv2 is _fair_. It asks others to give back exactly what I myself offer: the source code to play with. I don't ask for control over their other projects (be they hardware or software), and I don't ask for control over copyrights (in the kernel, people are _encouraged_ to keep their copyrights, rather than signing them over to me).
I only ask for exact reciprocity of what I give: the license for me to freely use the changes to source code that I initiated.
The GPLv3 fundamentally changes that balance, in my opinion. It asks for more than it gives. It no longer asks for just source back, it asks for _control_ over whatever system you used the source in.
This is a good assessment - v3 is not a license within an existing system of intellectual property but an attempt to create a new system. In weird way, it is like legislation, and it comes complete with legislative history in the form of explanations, FAQs, and other devices associated with laws rather than contracts."
I think in this posting Mr. DeLong has got the essential gist of the Draft GPLv3 - a political "control device". While I do not share Mr. DeLong's general scepticalness towards FLOSS, I think with regard to the assessment of GPLv3 as a political "control device" he is absolutely right.
The success of Linux and other open source projects has depended, depends and will also depend in future heavily on the support and investment of major IT companies. It is simply not true that FLOSS today mainly is a matter of individual programmers. A lot of money has been put into FLOSS by companies, big and small. There should be no surprise that Mr, Stallman and his FSF will meet fierce opposition by numerous companies engaged in the business around FLOSS. ZDnet reports:
"[...] A proposed patent provision in a revamped General Public License isn't sitting well at Hewlett-Packard, raising concerns that two competing versions of the licence could survive. [...]
Essentially, HP believes that language in the new draft could permanently defang a company's ability to sue for patent infringement in a particular situation. Imagine Company A holds a certain patent. If technology covered by that patent is included in GPL-governed software distributed by Company A, then Company A no longer has the right to sue anyone over infringement of that patent. That applies even if Company A itself didn't write or add that technology, or if another entity - Company B - inserted it into the software.
'Suppose somebody added into the Linux kernel some feature that might go into a Linux distribution, (a feature) we had intended to retain as a differentiator and that we were not expecting was going to become open source,' Peterson said. 'Our mere redistribution of that would mean we could no longer enforce that patent.'
In contrast, with GPLv2 software, a company that stops distributing the affected software is then free to sue for patent infringement, Peterson said.
HP would be happy with a few changes to Section 11, Peterson said. Without them, HP would prefer GPLv2, he said.
'We were hoping some more improvements would be made in the second draft,' said Christine Martino, vice president of HP's Open Source and Linux Organization.
Although HP wants to keep its patent litigation options open, Peterson added that he wouldn't expect to sue any open source organisations for such infringement: 'Asserting rights against the open source community I would think is a very unavailing activity,' he said.
HP isn't the only company whose views are being taken into account, though, Moglen said. [...]"
With other words, Mr. Stallman might perhaps well be prepared to deliberately drive not only Mr. Torwalds but also big Linux supporting companies like HP into a factual fork of the entire GPL. And, of course, the anti-patent campaigners do see their chance to fuel this conflict with additional propaganda. Mr. Florian Müller writes on his Blog:
"[...] I actually think it's good if companies like HP, and even more so IBM, are forced to come clean. So far there is a lot of ambiguity, or I should say self-contradiction, in the strategies of those organizations. They claim to support the idea of Free and Open Source Software (FOSS) whenever it's useful to them from a sales, marketing or public relations perspective, but it's still infinitely more important to them to have tens of thousands of software patents. They support initiatives such as the OSDL Patent Commons and make useless patent pledges that don't help open source in any way (in fact, those initiatives are even counterproductive).
The GPLv3, if the FSF stands firm on patents, could become a litmus test: those who are sincere and really want Free Software and a competitive software market will support it sooner or later, and those who have a hidden agenda won't. [...]"
For more information on manichaeic views, see my earlier postings here and there.
In the effect, from day to day there there are more reasons to call Mr. Stallman's strategy a scorched earth policy.
[UPDATE 2006-08-03] Those readers of this Blog having a sufficient command of the German language might wish to read also here and there.
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
available on-line:
consultation under the title "Consultation on the inventive step requirement in United Kingdom patent law and practice" had been placed on the Patent Office website on February 03, 2006 for a period of just under 4 months (closing on 31 May 2006). The 
