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. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  2. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  3. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  4. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  5. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  6. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  7. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  8. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  9. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  10. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  11. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  12. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  13. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  14. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  15. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  16. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom



  17. CommunityBridge is a Cynical Microsoft-Funded Effort to Show Zemlin Works for 'Community', Not Microsoft

    After disbanding community participation in the Board (but there are Microsoft staff on the Board now) the "Linux Foundation" (or Zemlin PAC) continues to take Microsoft money and polishes or launders that as "community"



  18. Links 14/3/2019: GNOME 3.32 and Mesa 19.0.0 Released

    Links for the day



  19. EPO 'Results' Are, As Usual, Not Measured Correctly

    The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative



  20. Good News Everyone! UPC Ready to Go... in 2015!

    Benoît Battistelli is no longer in Office and his fantasy (patent lawyers' fantasy) is as elusive as ever; Team UPC is trying to associate opposition to UPC with the far right (AfD) once again



  21. Links 13/3/2019: Plasma 5.15.3,Chrome 73 and Many LF Press Releases

    Links for the day



  22. In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

    The nonchalance and carelessness seen in Iancu's decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a 'mole' of the litigation 'industry' (which he came from)



  23. Links 12/3/2019: Sway 1.0 Released, Debian Feuds Carry On

    Links for the day



  24. Microsoft is Complaining About Android and Chrome OS (GNU/Linux) Vendor Not Paying for Microsoft Patents (Updated)

    Microsoft, which nowadays does the patent shakedown against GNU/Linux by proxy, is still moaning about companies that don’t pay ‘protection’ money (grounds for antitrust action or racketeering investigation)



  25. Watchtroll Has Redefined "Trolls" to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

    The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself



  26. EPO's Latest 'Results' Show That António Campinos Has Already Given Up on Patent Quality and is Just Another Battistelli

    The patent-granting machine that the EPO has become reports granting growth of unrealistic scale (unless no proper examination is actually carried out)



  27. Links 11/3/2019: Linux 5.0.1, Audacity 2.3.1, GNU Coreutils 8.31

    Links for the day



  28. US Patent Law Currently Not Changing Much and Software Patents Are Still in Limbo

    Surveying the news, as we still meticulously do (even if we don't write about it), it seems clear that American courts hardly tolerate software patents and proponents of such patents are losing their voice (or morale)



  29. EPO Examiner: “I Have Been Against Software Patents and Eventually 3/4 of My Job is Examining Software Patent Applications.”

    Overworked examiners aren't being given the time, the tools and the freedom to reject patents, based on prior art, patent scope and so on; it is beginning to resemble a rubber-stamping operation, not an examining authority



  30. Europe Will Pay a High Price for Software Patents Advocacy by António Campinos in Europe's Patent-Granting Authority

    EPO President António Campinos — like Iancu at the U.S. Patent and Trademark Office (USPTO) — is still promoting software patents in Europe even though such patents are clearly detrimental to Europe’s interests


CoPilotCo

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

CoPilotCo

Recent Posts