09.19.11

USPTO’s Violation of the First Amendment, Competition Laws, and Spirit of Creation

Posted in America, Intellectual Monopoly, Patents at 4:04 am by Dr. Roy Schestowitz

Job cremation

USPTO building

Summary: The USPTO (shown above) comes under more fire as a so-called ‘reform’ fails to make it harmonious with science, technology, and human rights

THE USPTO IS happily granting software patents/monopolies and processing some patent-pending ones on green energy, demonstrating that it is still dissociated from the betterment of society and instead dedicated to protectionism.

The First Amendment is said to be violated by some particular types of patents, according to TechDirt which argues:

Do Patents On Medical Diagnostics Violate The First Amendment?

We’ve been following the extremely worrisome Prometheus Laboratories v. Mayo Collaborative Services case for a while now. This is the case in which Prometheus patented some basic medical diagnostics tests, and then sued the Mayo Clinic for daring to do similar diagnostics without paying up. Tragically, CAFC, the court of appeals for the Federal Circuit, has ruled that it’s just fine and dandy to patent a diagnostic test. The Supreme Court agreed to hear the appeal on this in the upcoming term, and folks at the Cato Institute have filed a very interesting amicus brief, arguing that such a diagnostic test should not be patentable on two key points. I don’t know that it’ll convince the court, but they try out the argument that doing so would actually be a First Amendment violation, and even cite the famous Eldred case to make their argument (emphasis mine in the quote here):

As we explained yesterday, antitrust concerns too help shed doubt on the legitimacy of the patent system. Google may have bought some more patents from IBM (mentioned in the context of software patents in [1, 2, 3, 4, 5, 6, 7]), but deterrence does not work when Microsoft uses patent trolls to wage anti-competitive legal wars. This whole systems looks more and more like s sham. Even NPR did a show about it about 3 days ago. To quote a part of it:

BLOCK: What is the broader goal in terms of job creation here?

SYDELL: Well, this is what they say. What they say is if we speed things up and we get that backlog cleared up, then there are all these startups that are just waiting to move to the next phase of financing and get their products to market. And they’ll be able to do that and they’ll hire people in the process. So that’s what they’re saying.

BLOCK: And what about those businesses, Laura, or inventors, entrepreneurs – do they think that the law will, in fact, encourage hiring, make them hire more people?

SYDELL: No, I’m not hearing that largely at all. I’m hearing a lot of skepticism about the bill. I think one of the problems that entrepreneurs and startups face is that there are a lot of bad patents that are out there, particularly in the realm of software and business method. And the bill doesn’t really do anything to address that.

So one of the problems that you have is you have a lot of these, they call them patent trolls. They’re companies that buy up patents, particularly broad patents. They buy them up and they go out and they sue startups and they demand licensing fees. And this has put a lot of startups out of business. And this bill doesn’t really do anything to address that problem.

The Patent Office has granted, for example, in 2000, they granted a patent for a method of making toast. Really, seriously.

BLOCK: Laura, what other solutions would there be to this problem of bad patents that you’re talking about that wouldn’t involve Congress?

SYDELL: The courts could step in. And, in fact, it is the courts who initially pushed to have, for example, software patents and business method patents granted. So they could pull back and there is some evidence they are. But I think it could be a long time before they address it directly. And people are concerned about that.

I think a lot of people wish Congress would revisit this soon. And they’re worried that because they just granted and created this new act it’ll be a long time before Congress steps in again, which really would be the fastest and most efficient way to address the problem.

BLOCK: NPR’s Laura Sydell. We were talking about the new U.S. patent bill that was signed into law by President Obama today.

There are more news articles about it, e.g. [1, 2], but only few mention software patents. The government which signed this ridiculous bill ignores the real issues, spews out a load of nonsense which contradicts research, and one GNU/Linux advocate had this to say on Saturday:

Patent "reform"? Not really.
From: Homer 
Date: Saturday 17 Sep 2011 14:38:53
Groups: comp.os.linux.advocacy


Apparently "patent reform" happened already, and nobody noticed. But what exactly happened, and what effect will it have on patent trolls like Myhrvold, Apple, Microsoft and Oracle, perhaps the biggest threats to Linux, Free Software and innovation in general? [quote] Late last night the Senate voted 89-9 to pass the America Invents Act that would radically reshape patent laws, and President Obama is expected to sign it without delay. It's the first such significant bill in 60 years, and it has one key component: It moves the onus from merely "inventing" a patentable idea first to becoming the person who actually files for an innovation first. ... But "first to invent" has some big pitfalls, including the ability of an inventor to totally gut the hopes of someone else with a similar or identical idea, and who then files for a patent--because the original inventor, without necessarily having to make any move toward realizing the innovation, can claim they invented it. A complex legal battle may then ensue, and perhaps the second filer may choose to settle privately, license the idea, or fight the situation in an expensive court case. This trolling completely destroys the idea that a successful new thing is built on 1% inspiration and 99% perspiration--a troll, perhaps even a rich troll who's made money from previous innovations they've dreamed up (or, more materialistically, bought from someone), can simply keep the legal upper hand by saying they're the real innovator without actually building anything. [/quote] http://www.fastcompany.com/1779071/first-to-file-a-patently-obvious-reform Sorry (and excuse the pun) but this is patently wrong. Invention is invention, not manufacturing; it's the idea (strictly - the method) not the implementation. If you're not the first to have a particular idea, then you're not its inventor. Period. This "reform" simply transforms "invention" into a brawl, where being the first to find or create something doesn't necessarily secure ownership - you can be mugged for it by someone more powerful. Is this really all the "America Invents Act" has to offer? Is this the best "reform" congress could come up with? Pathetic. /Real reform/ would have been a re-examination and redefinition of what exactly is patentable, a more rigorous patent examination process (or, let's be honest, /any/ patent examination process), and stricter (or again - /any/) remedies against those who persistently file trivial claims. /Real reform/ would have made patents non-transferable, thus completely solving the problem of patent harvesting by non-practising entities. /Real reform/ would have made it impossible to patent something as trivial and non-inventive as a "rounded rectangle" or a "record button". But no, that's not what the "America Invents Act" has done at all. All it's done is make innovation impossible for anyone who lacks the financial means to bribe the USPTO, and allows the wealthy to steal others' ideas. The US patent system was already an abomination, but now, incredibly, it's actually an order of magnitude /worse/. Apart from anything else, it seems to completely undermine the premise of "prior art", since apparently the only thing that counts now is being the "first to file", regardless of who actually came up with, or even implemented, the idea first. Consider the case of IP Innovation LLC and the Technology Licensing Company (ex-Microsoft employees, and likely just two of Myhrvold's many shell companies) vs.  Red Hat & Novell, where the litigants claimed they'd "invented" multiple workspaces. Of course, their definition of "invented" was "harvested patents from Xerox". Unfortunately for the patent trolls, those patents were granted in 1991, some 6 years /after/ multiple workspaces ("screens") had already been implemented on the Amiga, and so they lost the case. Indeed Commodore implemented the concept as a commercial product in 1985, a full year before it was even first implemented internally by Xerox PARC, and the Amiga implementation was based on ideas devised by Jay Miner (of the original "Amiga Corporation") as far back as 1982, some two years before it was even first imagined at Xerox PARC. But that prior art would apparently mean nothing in the new patent regime, since neither Jay Miner nor Commodore thought to patent the concept of multiple workspaces, despite clearly being the inventors and first implementers of the concept. Xerox PARC was the "first to file", and that's all that matters in a gun-slinger economy. Anyone with enough money can now file patents against other people's prior art, use them as weapons to extort money, from anyone - including the /actual/ inventors, then pass those weapons on to other gun-slingers to do likewise. Meanwhile those same gun-slingers remain free to claim "invention" of every trivial speck of dust in the world, completely unchallenged until they turn up in the "great" troll-friendly State of Texas, and either win on the basis of the corrupt court's pro-patent bias, or bleed their victims dry in the process. So much for "patent reform".

It’s all about inflating the elevating the amount of patents (under the assumption that patents have real value, as legal types wish us to believe), but if the assumption is that this bill will give more jobs to patent lawyers, maybe they have a point. Just creating more and more monopolies is like overprinting money, which devalues the currency but works well for the mint. Watch McKool Smith in the news last week, pulling $391,000,000 from an actual practicing company based on this press release:

Attorneys from McKool Smith have secured a $391 million court judgment in favor of firm client Versata Software Inc., a pioneer in front-office enterprise software, following a successful patent infringement lawsuit against global software giant SAP America Inc. and its German-based parent company SAP AG (NYSE: SAP).

That is some really expensive “patent infringement”. Notice that SAP America Inc. is the target. The USPTO really needs to get its act together or go away.

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

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

3 Comments

  1. Needs Sunlight said,

    September 19, 2011 at 4:25 am

    Gravatar

    The NPR piece has a bait title, “This Summer, 3-D Ticket Sales Disappoint“, which is completely unrelated to the topic of the patent “reform” bill. Shame they can’t have a more descriptive title.

    Needs Sunlight Reply:

    .

    Dr. Roy Schestowitz Reply:

    I doubt it’s intentional. It is hard to title audio shows that are a pot-pourri of disparate subjects.

    TechBytes has had a similar problem where it might cover a subject thoroughly but this would never be mentioned in the title or even the body. A few weeks ago we started writing down topics to run through minutes before recording, which ought to improve things. Our 1-year anniversary is near too.

What Else is New


  1. Links 23/11/2020: Linux 5.10-rc5, GIMP Turns 25, 4MLinux 34.2, Escuelas Linux 6.11, MPV Player 0.33

    Links for the day



  2. How to Put on Airs of Professionalism Like a Boss

    "Boardroom suits are not meant to be flashy, but to conform. Simple lines and smart ties -- the opposite of what Richard Stallman would wear, show that you are either a well-machined cog or a serious adversary."



  3. IRC Proceedings: Sunday, November 22, 2020

    IRC logs for Sunday, November 22, 2020



  4. Legal Action at the European Patent Office (EPO) Leveraged Against Management... for Robbing EPO Staff and Robbing Europe, by Extension

    The EPO is being looted for its value; the staff is rightly concerned and there’s legal action on the way, filed reluctantly as there’s clearly no other option (a last resort/necessary recourse)



  5. Cory Doctorow at Privacy Week 2020 on DRM, Freedom/Software Freedom, Regulation, Etc.

    “We Used To Have Cake, Now We’ve Barely Got Icing” by Cory Doctorow.



  6. Links 22/11/2020: KaOS 2020.11, Calindori 1.3, KStars 3.5.0

    Links for the day



  7. New Position Paper on the Unified Patent Court (UPC) Says It's “Not the Best Solution for Europe” -- Clearly an Understatement

    UPC proponents (profiteers) aren't enjoying support anymore; not only has progress stalled (come to a complete stop) but the whole debate about the UPC (or anything conceptually like it) turned toxic and negative because facts come out, overriding lobbyists of litigation giants



  8. Mortality Rates Increase at the EPO and Christmases (or Holidays) During Corona Mean Fewer Days Off

    There's still no sign (other than hand-waving and empty gestures/smiles) that the EPO's management wishes to right the wrongs and undo the damage done over the past decade or so; in some ways, today's management is worse than ever before (grossly incompetent and eager to break the law at every turn)



  9. Newly Abnormal: A Crackdown on EPO Staff and Labour Rights in 'Survey' Clothing (Willis Towers Watson)

    In a very characteristic fashion, with zero consultation/input from staff (or staff representatives/union leaders) EPO President António Campinos proceeds to implementing illegal ‘reforms’, assuring any remaining non-sceptics that he’s just another Benoît Battistelli



  10. IRC Proceedings: Saturday, November 21, 2020

    IRC logs for Saturday, November 21, 2020



  11. [Meme] Good Advice From the FSF, So It's Time to #DeleteGitHub

    A good gift for the FSF would be git; not GitHub, but git



  12. Go Distributed, Go Encrypted, Go Secure, Transparency Still Possible

    Earlier today we enhanced access to our (sometimes anonymised) IRC logs by issuing text (ASCII) versions, which will from now onwards be a nightly/daily occurrence; we're also making everything we publish accessible from a large number of IPFS nodes (akin to P2P)



  13. IAM Celebrating and Glorifying Illegal Patents With Fake 'Awards' and Bogus 'Endorsements'

    IAM's fake 'awards' are nothing more than business and agenda-steering lies; it's time to call out again the real corruption that's driving IAM (which is itself supporting and advocating corruption)



  14. Been There, Done That: Team UPC's 'October' Becomes 'Early November' and Now Late November

    The self-serving litigation fanatics who mislead their customers are still at it; Bristows says that UPC has no issues other than “delay”



  15. The Only Real Dialogue the 'European' Patent Office is Having... is With Litigation Parasites, Even Foreign Ones

    The EPO's mask falls off again, revealing a ruthless herd immunity-like mentality that welcomes patent trolls, threatens/condemns actual scientists, harms Europe and basically does a disservice to everybody



  16. Inside the EPO During Corona: SUEPO (EPO Staff Union) and the Central Staff Committee Blast the Office for Illegal Practices and Threaten Legal Action

    The Staff Union of the European Patent Office (SUEPO) and the Central Staff Committee (CSC) are escalating their tone; the management of the Office and the Organisation is running out of time as staff loses its patience and its tolerance for the repeated abuses by the administration



  17. IRC Proceedings: Friday, November 20, 2020

    IRC logs for Friday, November 20, 2020



  18. Links 21/11/2020: Coreboot 4.13, EasyOS 2.5, Wine 5.22, Gmusicbrowser 1.1.16

    Links for the day



  19. Links 20/11/2020: Xfce 4.16pre2 and Qt Releases

    Links for the day



  20. Open Letter to Mogzagain (No Worries)

    figosdev responds to a concerned reader of Techrights, who wants Free software to succeed



  21. Better Privacy Than Pretty Good Privacy

    We're getting into distributed-as-in-decentralised and encryption-enabled page distribution; we're also likely to be adopting Sequoia-PGP over time



  22. Inside the EPO During Corona: The EPO is Violating Workers'/Stakeholders' Privacy and Breaking Data Protection Law (Again)

    There's no respect for the law or for the dignity/privacy of EPO staff; whenever the subject is being brought up there's nothing but stonewalling and the Data Protection Officer is a friend of the offender, who would be reluctant to oversee anything



  23. Conduct of EPO Management Lacks “Basis in Legality” According to EPO Staff Representatives

    The ongoing assault on staff of the EPO isn't going unnoticed and for the impression of consent (acceptance of this assault) a survey is being imposed on workers (with pressure put by line managers to participate); Europe as a whole is under assault from the EPO, whose decision-making groups are entirely infiltrated by special interests (to give an impression of professional consultation)



  24. Inside the EPO During Corona: Managers Don't Think of the Children, Cut Their Budget for First Time in Half a Century

    The systematic attack on staff's rights and welfare shows no signs of stopping; the so-called 'president', who isn't even showing up for meetings with staff, has turned Europe's second-largest institution from cash cow into a cash laundering apparatus that eats its own workers



  25. IRC Proceedings: Thursday, November 19, 2020

    IRC logs for Thursday, November 19, 2020



  26. Links 20/11/2020: Mir 2.2, Istio Releases, Linux 5.9.9

    Links for the day



  27. Inside the EPO During Corona: Sending Staff Home to Justify Cutting Their Benefits and Maybe Even Key Allowances

    Questions linger and are being raised by the Central Staff Committee of the EPO, seeing that there's no sign of standard EPO contracts being respected anymore



  28. Inside the EPO During Corona: Acting Chairperson of the Central Staff Committee of the EPO Suggests Involving Staff Representatives in Corona Task Force

    Back in summer, not too long after many scandals (even talk of layoffs) and after the June elections, Cláudia Lopes sent the following letter to the dictator and his Chief of Staff



  29. Inside the EPO During Corona: There's No Rule of Law Anymore and That Takes Its Toll on 'Low-Level' Staff

    The EPO continues to assault its sole real asset (highly knowledgeable staff on the payroll), dooming any prospects of recovery during or after the crisis; to make matters worse, nobody holds the EPO accountable anymore (at least staff representatives are trying to)



  30. Nettle and Sequioa for Encryption (as GnuPG Alternative)

    Concerns about GnuPG's Koch facilitating or allowing practices that aren't secure and are even proprietary raise concern among privacy and security specialists; alternatives exist already


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