07.21.10

Patents Roundup: RPX Grows, Netflix Issues a Patent Challenge, More on In Re Bilski

Posted in America, Patents at 5:11 am by Dr. Roy Schestowitz

Netflix logo

Summary: Potpourri of software patent news from the past week and a half (focused on the United States)

HAVING taken a break for a while, a lot of patent news piled up. Here are the important bits of information from the United States:

Association of Press Release Distributors, LLC (“Association of Press Release Distributors, LLC fight against #swpat on publishing press releases on websites,” emphasises Rui Seabra)

There are hundreds of press release distribution companies. Most exist with little to no interaction with each other in their industry. That ends today.

RPX Client Network Grows 150% in Six Months (see our Wiki page about RPX)

The new clients include global electronics companies NEC Corporation and Hitachi, Ltd.; infrastructure software provider Novell, Inc.; semiconductor manufacturer Nanya Technology Corporation; software developer Lawson Software, Inc.; wireless voice and data solutions provider Leap Wireless International Inc.; speech-recognition leader Nuance Communications, Inc.; and the world’s largest bookseller, Barnes & Noble, Inc.

Netflix Tries to Fix One Part of the Patent System

There’s a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys’ fees. Here’s their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed.

[...]

Netflix, in short, is asking the court to think about defendants who are attacked with very weak patents, and who then are more or less pragmatically forced to settle rather than fight, just because it’s cheaper. If they can’t get their attorneys’ fees paid, what in the world makes them whole? Netflix says Media Queue is “a non-practicing entity,” which is the polite way to call such entities. Setting an “objectively reckless” standard is a lower bar than proving frivolity or bad faith, and Netflix seems to be of the opinion that patent holders with weak patents are over-incentivized to bring questionable and very costly litigation, knowing they are unlikely to have to pay their victim’s attorneys’ fees, which can typically be in the millions.

NTP Keeps On Making The Case For Patent Reform As It Sues More Companies

Company suing eBay for $3.8B: eBay “unfairly stole the idea” of e-Payment systems

Another day, another major lawsuit. This time, a company called XPRT Ventures LLC has sued eBay for allegedly stealing “the idea and method of payment used in eBay’s PayPal and similar electronic payment systems” according to the press release put out by the XPRT’s lawyers Kelley Drye & Warren LLP.

Write Brothers, Inc. Celebrates a Decade at Comic-Con International 2010

Write Brothers currently holds three software patents. It holds two for the Dramatica® story assistant, and one for the timeline-based presentation of text used in the StoryView™ outlining software. Streamline is the fourth technology patent Write Brothers has filed.

Microsoft will offer test versions of Dynamics CRM in September

Microsoft biggest competitor in this arena is Salesforce.com, which sells a Web-based software service for customer relationship management. The two companies are currently suing each other over software patents.

There is still a lot of new coverage about the Bilski case:

The silver lining in the Bilski decision isn’t where most people believe (“Florian Müller” warning — he is sometimes misguided in his targeting of issues)

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn’t draw any kind of line that would affect patents on software technology.

[...]

Let’s better face this fact: there isn’t a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you’ll have to do it indirectly. The direct approach has been tried by many people for many years — to no avail (except, as I mentioned before, in a defensive situation).

Patent Litigation Weekly: Eben Moglen on Bilski, Software Patents, and Big Pharma

Moglen’s position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. It has, however, garnered support among software developers and other techies, especially those who work in the world of open-source and free software.

Moglen’s critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era. And though he rejects the notion that he is “anti-patent,” he says that the patent monopoly grant should be subject to a rigorous cost-benefit analysis, not simply handed out at the “monopoly window” that he believes the current Patent and Trademark Office represents.

Sanity From the 1st Post-Bilski Decision from BPAI: In Re Proudler

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP’s application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it’s an abstraction:

Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, “Abstract software code is an idea without physical embodiment.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).

This is not the last word, I’m sure, as HP can certainly try to reword. But don’t you find this encouraging? I do. And that’s why I wanted it in our permanent record of the Bilski case and its aftermath.

First Post-Bilski Patent Appeals Ruling Rejects Software Patent (Bilski precedence is already killing patents)

Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn’t actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn’t patentable, that’s not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn’t go that far just yet.

Post-Bilski Decision

One of the first decisions post-Bilski has shot down an appeal of a rejected patent application by HP. The patent-examiner had rejected the patent on the grounds of prior art (It’s mostly AND applied to rules for passing data…) but the appeal-board rejected the claims on the grounds of non-patentability

From the Editors: The Supreme Court’s road not taken

Bilski patent ruling will increase costs of doing business, says expert

United States: The Supreme Court Rules That The Process in Bilski is Not Patentable, But Refuses to Foreclose The Patentability of Business Methods

Bilski, Business Method Patents and the Uncertainty Principle

Bilski: One Step Forward… Two Steps Back

Inventors Given Hope on Patents for Business Methods

Software, pharmaceutical, and business method patents survive

A Close Call for Silicon Valley

Death Knell For Software Patents

United States: The Long-Awaited Bilski (In) Decision

[Ben Klemens on] Bilski and software patents

Should software be patentable?

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.

Patent Office Says No to Supreme Court and Software Patents

Startups and University Research: Too Much Emphasis on Patents?

When the Supreme Court ruled last month on the Bilksi case, denying Bilski’s patent claim that Bilksi’s patent but not making any real statements on the overall patentability of business methods or software, several opponents of software patents, including VCs Jason Mendelson and Brad Feld expressed their disappointment.

[...]

The study surveyed over 11,000 professors, and of the 1948 who responded who had started businesses, only 682 – about a third – had established them to exploit the patents obtained via the university intellectual-property systems. The remaining 1266 respondents had started businesses based on non-patentable knowledge.

Supreme Court On Patenting

Software patent advocates are praising the said decision of the Supreme Court like Tom Syndor saying that the Supreme Court was sensible in rejecting the said idea. A new layer and era of patent decade will help in requiring patent applicants to present plaintiffs to prove that their ideas are not abstract.

Paul Kedrosky’s article “Software Patents Need to Be Abolished” has spread further (also published in other places with Brad Feld, who is a critic of software patents [1, 2, 3]).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2010/07/21/netflix-and-potpourri-of-swpats/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Richard Stallman Vilified by Those Who Don't Know Him, Says Sylvia Paull

    Republished "In Support of Richard Stallman"



  2. [Meme] Linux Foundation Can't Use Linux

    Two examples from yesterday, highlighting what a bunch of hypocrites run the marketing operation now disguised as ‘research’; Jason Perlow from Microsoft signed/published this newsletter highlight from the failing “Linux” Foundation — a foundation that calls itself “Linux” while its newsletter is still hosted by Microsoft Windows+proprietary IIS and this latest report is made with proprietary software on a Mac



  3. [Meme] Haters Gonna Hate, Don't Apologise to a Libelling Mob

    As was already pointed out before, you cannot appease a mob by talking back to it, certainly not by issuing an apology (putting oneself in a position of weakness)



  4. What the EPO Has 'Normalised' in Europe...

    Under the cover of 'new normal', Europe's second-largest institution crushes the law and crushes its own staff



  5. Lots of Information in Sight, But Minimal Distraction

    How I keep focused on reading and writing whilst at the same time keeping an eye on important incidents, such as DDOS attacks and urgent messages coming in



  6. IRC Proceedings: Friday, April 16, 2021

    IRC logs for Friday, April 16, 2021



  7. Hate Letter Against FSF (Concern Trolls): 1415 Committers, Letter in Support of FSF (With Its Founder Back): 5116

    Taking into account people who asked for their names to be removed from the defamatory hate letter (inciting people, based on falsehoods), it's not impossible that the support letter really triples or quadruples it in terms of number of signatures



  8. Richard Stallman: Sharing is Good... We Need to Legalise It

    Dr. Richard Stallman, the Free Software Foundation's founder, explains his take on copyright and the artificial restriction being used against sharing



  9. Nadine Strossen and Hannah Wolfman-Jones Rebut Accusations Against Stallman and Choose Him as Coauthor

    "Here are her thoughts and the response she received from Nadine, extracted verbatim with their permission from the original article"



  10. Links 17/4/2021: GNOME 40 in Tumbleweed, Devuan 4.0 Alpha, Kate Editor Makes a Leap

    Links for the day



  11. EPO Staff Union Takes the EPO 'to Court' (the ILO's Tribunal, as the EPO Cannot be Taken to a Proper Court)

    The Staff Union of the EPO (SUEPO) Committees are preparing a legal battle over unlawful and unjust measures taken collectively against hard-working (overworked during pandemic) members of staff; the European public should support them



  12. The Latest Anti-RMS Coup Attempt Targets the GNU Project (Because the FSF Coup Has Clearly Failed) by Infringing and Disregarding Trademark Conventions

    A fake "GNU" (not the original GNU, just riding the coattails of the name "GNU") is trying to find/gain traction and we must oppose it because it's an extension of the very same coup attempt (same plotters) that manufactured a whole bunch of libel to incite people and blackmail the Free Software Foundation (FSF)



  13. Links 16/4/2021: Mozilla Dumping FTP, Corporations Still Concern-Trolling FSF

    Links for the day



  14. The EFF Attacks Software Freedom and Promotes Fake Privacy Linked to Microsoft

    Only weeks after attacking Software Freedom (the ad hominem way, which is easier) the EFF endorses a Microsoft-linked privacy abuse, misframing it as some sort of privacy champion



  15. Richard Stallman on How Corporate Media Limits What People Are Allowed to Think and Say (Updated)

    What the founder of the FSF told yours truly a number of years ago about the behaviour of corporate (funded and controlled by corporations) media



  16. Exposing Hard Truths is the First Step or the Path Towards Justice

    A reflection and a moment taken to set aside tribalism (shallow differences based on allegiances of personal comfort), for we need look back at actual facts — however inconvenient at times — and consider the reality of the situation



  17. IRC Proceedings: Thursday, April 15, 2021

    IRC logs for Thursday, April 15, 2021



  18. [Meme] Laundering Bribes as 'Cooperation Money'

    Germany has financial interest in ensuring that EPO abuses carry on and nobody holds the EPO accountable



  19. Articles in Support of Richard Stallman

    Reproduced with permission



  20. EPOLeaks on Misleading the Bundestag -- Part 20: Taking Stock

    Benoît Battistelli's legacy at the EPO is a legacy of corruption and cover-up; we take stock of how illegality was defended and persists to this day



  21. Links 15/4/2021: Zorin OS 16 Beta and Pushing Linux to GitHub- and Microsoft-Connected Rust

    Links for the day



  22. [Meme] Enemies With Common Interests

    The Software Freedom Movement (or Free Software Movement) has many enemies; some of them just hide in the shadows or speak out through shadowy front groups/NGOs that they semi-officially sponsor



  23. [Meme] Germany's Red Cash Cow

    EPO brings a lot of money to the German state. But at what cost to citizens and Germany’s public image?



  24. EPOLeaks on Misleading the Bundestag -- Part 19: The Deafening Silence of the Media

    "There has been speculation that Maas might have had his own political interest in protecting Battistelli and the Balkan Express because of certain allegations about financial irregularities involving the German Patents and Trademark Office (DPMA) which were doing the rounds at the time."



  25. The Indirection Game

    How to attack institutions and concepts by personifying them, then proceeding to character assassination based on lies and deliberate distortions



  26. Links 15/4/2021: LXQt 0.17, Proxmox Backup Server 1.1

    Links for the day



  27. The Patent Battles in Europe Are Connected to the War on GNU/Linux (as a Community-Led Effort)

    Monoplisers of GNU and Linux want us to think that OIN is the solution while they actively lobby for software patents in Europe and the people in charge of Europe’s second-largest institution and Europe’s largest patent office help them; this long video contains thoughts about news from the past couple of days



  28. Richard Stallman: Freedom is the Goal (Updated)

    What Richard Stallman (RMS) told me in person on his trip here



  29. IRC Proceedings: Wednesday, April 14, 2021

    IRC logs for Wednesday, April 14, 2021



  30. EPOLeaks on Misleading the Bundestag -- Part 18: Zero Tolerance for “Lawless Zones”?

    "It comes as no surprise that Maas appeared as a guest of honour at the European Inventor of the Year Boondoggle in Berlin in 2014 where he was seen on stage clapping along with the EPO President."


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts