EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

11.08.10

Novell Continues to Exploit Broken USPTO and Collect Even More Software Patents

Posted in America, Patents at 10:21 am by Dr. Roy Schestowitz

Troll picks cows

Summary: Novell is still playing along with the ‘Dark Side’ of the software patents debate, taking advantage of a system which seems broken beyond repair

Novell is not shy to admit that it likes software patents and it takes some pride in them too. “Inventive people who write more software patents per capita than anywhere else” is how Novell’s CTO described the company’s staff just under a year ago and before he quit.

People can be easily confused by Novell’s membership in the OIN, which does not make Novell an opposer of software patents. But then again, Novell is a predominantly proprietary software company with interest in blocking rivals in some areas of its operation. Novell is also indirectly sponsoring the BSA, which lobbies in favour of software patents.

Over the years we have given many examples of Novell applying for and receiving new software patents. A few days ago another one was announced as coming from Provo. Here is the summary:

Adaptive method and system for encoding digital images for the internet, patent No. 7,826,616, invented by Kasman Ellis Thomas, of Wilton, Conn., assigned to Novell Inc. of Provo.

The USPTO is suppressing rather than fostering innovation and those who support its continued existence possibly pursue the wrong path/s. Over at O’Reilly Radar (whose editors sometimes promote or defend software patents, notably Andy Oram), there is now an announcement about a patent database which would only make the USPTO stronger, not weaker. “U.S. Patent data that once carried a high access fee is now available for free online,” says the summary. From the post: “Just one year ago, I posted a piece on O’Reilly Radar about an unlikely group working happily together to vastly increase the amount of U.S. Patent information available at no charge on the Internet. I’ve done no heavy lifting whatsoever on this project, so it has been a pleasure to watch the U.S. Patent Office, the White House, and Jon Orwant at Google plow through this rather daunting task.

“What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance.”“The system is now in full production including all the current feeds that were previously only available for big bucks by subscription. Also available for the first time is the Patent Application Information Retrieval (PAIR) data, which is the full “wrapper” for a patent application. PAIR data was only available previously on a rate-limited query-only service.”

How about just showing that the USPTO is doing the wrong type of thing? What is done here is similar to what Peer-to-Patent has been doing, namely complementing the functionality of the USPTO. This would achieve not so much in terms of progress. What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance. We wrote about it several times last week and NPR writes about it too at the moment (notice: NPR has also been promoting patents of companies like Monsanto after Bill Gates, a Monsanto shareholder and major promoter, had paid a lot of money to NPR and received self-praising pieces in return).

Dana Blankenhorn joins this debate of patents on the living as he complains about patents in medicine and names this new patent from Zynx Health. From the press release:

Zynx Health, the market leader in providing evidence-based and experience-based clinical decision support solutions, today announced that the United States Patent and Trademark Office has issued United States Patent 7,822,626 covering their “extensive suite of tools that facilitate and enhance the capability within a healthcare institution to establish and maintain an evidence-based best practice approach to providing patient care.”

Well, here is a new example of a press release boasting a software patent which does not paint itself as “saving lives” or whatever (for PR purposes). The title says: “Guidance Software Secures Search Patent from U.S. Patent and Trademark Office” (USPTO).

“What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance.”
      –Slashdot
Writing on behalf of swpat.org, Ciaran tells Slashdot that things are getting worse at the USPTO and it makes the front page with a very misleading headline. The descriptive summary says: “Anyone who feels that patent quality is just far too high nowadays will be glad to hear that the USPTO has decided to ditch four of their seven tests for obviousness. Whereas the 2007 guidelines said that an idea is considered obvious if it consisted of ‘[predictable] variations [...] based on design incentives or other market forces’ or if there was ‘Use of a known technique [prior art] to improve similar devices (methods, or products) in the same way’, the new guidelines do away with those tests. The classic ‘teaching-suggestion-motivation’ test is still there, with two others. For software developers, silly patents are not the main problem, but they certainly aggravate the matter. As described in one patent lawyer’s summary, this change will ‘give applicants greater opportunities to obtain allowance of claims.’”

TechDirt has also just published this criticism of Judge Rader, to whom the problem with the USPTO is not one to be taken too seriously. TechDirt wrote a good and very lengthy post to explain why Rader is wrong:

Law professor Doug Lichtman’s latest “IP Colloquium” podcast is an interview with Judge Randall Rader, who’s the chief Judge of CAFC, the appeals court that handles most patent cases. Rader is known for being outspoken and opinionated (but also very, very smart), so it’s always fascinating to hear what he has to say. The first part of the interview is interesting from a purely procedural standpoint, as Rader goes through the process by which the CAFC makes decisions, including the fact that nearly every case is decided almost immediately after the oral hearings. It sounds like they almost never feel the need to sleep on a decision. However, the latter part of the interview is where things get really interesting. While Lichtman and I tend to disagree over copyright issues, we find a lot more common ground on patent issues, with Lichtman pointing out the harm that patents often seem to do to innovation, as well as questioning why independent invention isn’t a sign of obviousness.

[...]

Rader does admit that there are cases where companies feel compelled to pay up because the cost of “licensing” is more than the cost of fighting the battle in court. He actually calls it “a form of systematic blackmail” — and he says he’s trying, in his role, to decrease the cost of patent litigation. He suggests a plan to limit discovery for this purpose, which he admits would require a big change in policy (and one that I have trouble believing would actually get anywhere). But that only discusses one small part of the problem, and does not cover many, many, many innovation-hindering situations, especially in cases where there’s independent invention or patent thickets. Lichtman pushes back again, even pointing to situations like Intellectual Ventures showing up at your door with tons of patents.

Rader’s response is really bothersome and ignores the reality. He first brushes it off, by calling it “arguing by anecdote,” but this is a very real situation that happens all the time.

The USPTO is still protected by people who benefit from its existence. These people are rarely — if ever — those who invent new products. Some of them are not even scientists as their background is in law. It is time to take power back from the USPTO, which originally was a well-intended institution providing an incentive for publication (and thus dissemination) of applicable ideas.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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

A Single Comment

  1. Patrick said,

    November 8, 2010 at 2:49 pm

    Gravatar

    Regarding the criticism of Judge Rader’s comments, his use of the phrase “systematic blackmail” is far more biting than the way I would describe it, but not far from the mark. Because patent licensing ultimately relies on litigation as a default negotiation tool (used both offensively and defensively), even a simple inquiry about licensing a specific patent carries with it the risk of a certain, minimum cost to both parties (i.e. lawyers).

    The result of this is an arbitrary “floor” on the cost of a patent license, which, for some, may be perceived as far exceeding the value of the technology conveyed in the license. Thus, $80,000 is an economically reasonable price to pay for javascript rollover menus, but primarily because of the cost of negotiating the license, not the value added by the functionality. http://gametimeip.wordpress.com/2010/11/08/the-80000-reasonable-website-modification/

    Thenagain, if Judge Rader intends to fix the problem simply by lowering the cost of litigation, I think he has his work cut out for him.

What Else is New


  1. IRC Proceedings: Sunday, December 08, 2019

    IRC logs for Sunday, December 08, 2019



  2. Mandatory Education for Those Who Use and Misuse Buzzwords Would Go a Long Way

    In an age of substitution — where marketing terms replace meaningful words and concepts — it has gotten more difficult to have honest debates, for example about the scope of patents



  3. Once Upon a Time Banter Was Allowed on Mailing Lists

    Hours ago Torvalds announced RC1 of the next Linux (kernel) release; it has been a while since he last said something ‘controversial’ (following his month at the penalty box); free speech deficit can make us weaker, not stronger (advantage to those who work in the dark)



  4. Links 8/12/2019: Debian Init Systems GR, NomadBSD 1.3

    Links for the day



  5. Can We Quit Celebrating DRM in GNU/Linux?

    Over the past couple of days various news sites and "Linux" sites expressed great satisfaction [1-5] over the passive embrace of Disney's DRM ploy (Disney+), even when Disney itself rejects DRM, seeing the harms practically caused by it [6,7]



  6. You Know WSL is Bad for GNU/Linux Because Anti-Linux People, Microsoft and Its Propagandists, Want People to Use That

    Microsoft and its boosters (and media partners) haven’t grown tired of spreading falsehoods to stigmatise and take control of GNU/Linux by creating their own versions and traps for it



  7. IRC Proceedings: Saturday, December 07, 2019

    IRC logs for Saturday, December 07, 2019



  8. 5 Years Ago the Linux Foundation Turned Linux.com Into a Non-Linux Site

    One can leverage the Internet Archive’s Wayback Machine to better understand how, over time, the Foundation called “Linux” deviated or diverged away from its mission statement for the sole purpose of raising corporate funds and selling influence to corporations (passing the community’s hard work to them — a form of tacit privatisation)



  9. Microsoft Redefining Ownership and Identity of GNU/Linux

    The idea that “Microsoft loves Linux” is as insane as it gets; but the lie which is “Microsoft loves Linux” is a powerful enabler of Microsoft entryism, e.g. if Greg steps down, does a Microsoft employee become the deputy of Linus Torvalds?



  10. Things That Cannot Be Said

    The limits on what we can say are mostly defined by what sources permit us to say publicly (for the sake of source protection)



  11. Fake European Patents (on Algorithms) Leading to Fake Embargoes

    Law firms have gotten their way in Germany; instead of supporting the productive workers the patent system is nowadays promoting the litigation 'industry' and it ought to be corrected



  12. From Moderate Advice to FUD and Misinformation: The Case of a VPN Vulnerability (CVE-2019-14899)

    What should have been a trivial bugfix in a variety of operating systems and bits of software — both proprietary and Free software — somehow became anti-Linux FUD, clickbait and worse



  13. Dangerous Thinker

    Society oughtn't be alarmed by people who say unusual things; it should be wary and sceptical of those corporations ever so eager to silence such people



  14. Unitary Patent (UPC) Died Along With the Credibility of Managing IP and the Rest of the UPC Lobby

    It is pretty astounding that Team UPC (collective term for people who crafted and lobby for this illegal construct) is still telling us lies, even in the absence of underlying supportive facts, and pressure groups disguised as "news sites" latch onto anything to perpetuate an illusion of progress (even in the face of a growing number of major barriers)



  15. IRC Proceedings: Friday, December 06, 2019

    IRC logs for Friday, December 06, 2019



  16. Links 7/12/2019: Fedora 31 Elections Results, Lots of Media Drama Over VPN Bug

    Links for the day



  17. Links 6/12/2019: DRM in GNU/Linux and Sparky Bonsai

    Links for the day



  18. The EPO Rejects Innovation

    The EPO ceased caring about the needs of scientists whose work involves invention; instead, EPO management crafts increasingly lenient guidelines that yield illegal European Patents (not compatible with the EPC) that heavily-besieged EPO judges are unable to stop



  19. Startpage CEO Robert Beens in 'Damage Control' Mode, Trying to Get Startpage Relisted After Selling to a Massive Surveillance Company

    PrivacytoolsIO is being lobbied by the CEO of Startpage to relist Startpage, based on no actual refutations at all



  20. IRC Proceedings: Thursday, December 05, 2019

    IRC logs for Thursday, December 05, 2019



  21. Links 5/12/2019: qBittorrent 4.2.0, Expensive Librem 5 and OpenBSD Bugs

    Links for the day



  22. Microsoft Staff Repeatedly Refuses to Tell How Many People Use WSL, Defends Patent Extortion and Blackmail of Linux Instead

    The people who develop WSL (mostly Microsoft employees) get easily irritated when asked how many people actually use this thing; but more interestingly, however, they reveal their disdain for GNU/Linux and support for Microsoft blackmail (for 'Linux patent tax')



  23. IRC Proceedings: Wednesday, December 04, 2019

    IRC logs for Wednesday, December 04, 2019



  24. Links 4/12/2019: Tails 4.1, UCS 4.4-3 and Proxmox VE 6.1

    Links for the day



  25. Google Tightens Its Noose

    Now it’s official! Google is just a bunch of shareholders looking to appease the Pentagon at all costs



  26. Europeans Still Need to Save the European Patent Office From Those Who Attack Its Patent Quality

    Patent quality is of utmost interest; without it, as we're seeing at the EPO and have already seen at the USPTO for a number of years, legal disputes will arise where neither side wins (only the lawyers win) and small, impoverished inventors or businesses will be forced to settle outside the courts over baseless allegations, often made by parasitic patent trolls (possessing low-quality patents they don't want scrutinised by courts)



  27. We Never Accepted and Will Never Accept Corporate Money

    Corporate money is a unique problem because of its magnitude and the fact that it's impersonal; shareholders can only ever accept its supposed justifications if they're receiving something in return (of proportional worth to the payment/transaction)



  28. IRC Proceedings: Tuesday, December 03, 2019

    IRC logs for Tuesday, December 03, 2019



  29. Links 3/12/2019: elementary OS 5.1 Hera, Plasma 5.17.4, Firefox 71

    Links for the day



  30. Laundering the Reputation of Criminals: That's an Actual Job

    An important reminder that the manufactured, paid-for (media is being bribed) image of Bill Gates is the product of the PR industry he enlisted to distract from his endless crimes


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