09.24.11

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With Failure to Reform USPTO, Grim Future for Patent Systems Worldwide

Posted in America, Microsoft, Patents at 9:20 am by Dr. Roy Schestowitz

Gearing up to patents on mental processes everywhere

Gears

Summary: How the powers-that-be keep pushing for patent tyranny of global scope and almost limitless scope for patenting, including very fundamental ideas implemented in code and in mind

BEFORE globalisation brings us all a US-style patent system we must prepare for a NAFTA-like stage where Europe tries to consolidate its patent offices and set up a centralised courtroom or court system, then merging it with the trilateral systems which already accepts software patents (the US and Japan). Unless people stand up and resist this, the process often seems inevitable and irresistible. Once passed, it will be irreversible too. Earlier this month we showed many cables about the diplomatic endeavours to make the global patent system an imminent reality (see our Cablegate page). Based on this post from patent lawyers: “That Unified Patent Court which has so divided opinion in Europe has been very much in the IPKat’s mind in recent days. The problem is that, while most people are either enthusiastic or at least accepting of the idea of having a Unified Patent Court for the European Union’s 27 Member States, many experts are anxious about the actual details and a simple Kat could be forgiven that everyone seems to want a different one.

“Anyway, the Draft agreement on a Unified Patent Court and draft Statute of 14 June 2011 has now been examined, weighed, measured, pondered, praised, criticised, printed out and converted into fleets of paper darts — and there is no doubt that there are some serious problems which remain to be resolved.

“Here in the United Kingdom, the grandly-named EU Patent Reform Consultation Group (concerning which see CIPA, August 2011, pages 488-490) formed a sub-group to examine the Draft Agreement. The sub-group did not consist of a bunch of conscripts who had been dragged from the drinking houses of Holborn, sobered up and then instructed to moan about the Draft Agreement; rather, it was a select gathering of some of the finest patent experts on this part of the planet — academics, practitioners, patent owners and even a blogger — most of whom are, it may gratifyingly be said, friends of the IPKat even if, as indicated, none of them has [recently, says Merpel] been dragged from any of the drinking houses of Holborn.”

Benjamin Henrion summarises the above as:

Comments on the Unified Patent Court by the patent microcosm, Tim Frain of MS/Nokia, LJ Jacob and al http://t.co/HVWmGWUX

“Unified Patent Court” would be better off called the “No-Escape Patent Court”. It’s a mechanism for filing lawsuits internationally with no safe haven and sovereign independence to separately evaluate legal cases. As long as the USPTO is a sordid mess, it will be a problem to every citizen of the world (either a customer or a producer).

Good ol’ Stephan Kinsella is preparing to hold an event about Obama’s so-called patent ‘reform’. We always use scare quotes because it is ‘reform’ that serves Microsoft, which already abuses the patent system to behave anti-competitively and according to this Microsoft-oriented view by Kurt Mackie from the ‘Microsoft press’:

Microsoft is among several larger tech companies who pushed for the change to “first to file” — but what will the Act’s passage really mean for the tech industry (and patents in general)? Patent attorney Carlos A. Fisher walks through the potential impact.

Patent lawyers probably like this new ‘reform’, whereas patent trolls might like it a lot less in the long term. “Innovation’s down, but patent trolls are thriving” is how the Washington Post summarised the situation and quoting the article, Benjamin Henrion (FFII) rewrites this as “Paul Marks catches IBM moving to patent the “well-known” idea of partitioning software to protect against malware”. This is not innovation. Microsoft is patenting password/authentication ideas right now, proving yet again that making something more secure is now a patent violation. How is that a good thing?

Microsoft is permitted to keep its extortion deals against Linux (making money from other people’s work) which Mr. Masnick criticises as follow:

So just what are the benefits of paying Microsoft a licensing fee for free software, especially when said software was not developed by Microsoft? If these quiet settlements are any indication, the sole benefit would be to avoid being dragged through the courts by one of the largest software developers in the world. Seriously, what other benefit is there? Is there a collection of patent trolls jumping at the chance to sue companies using Linux that have yet to surface thanks to Microsoft’s cradling licensing deals? Not that I have read about. The only patent holder jumping at the chance to sue over Linux is Microsoft itself.

Microsoft is going after embedded Linux, which is massive. John Dvorak chooses to mischaracterise Linux by pretending it’s just a desktop platform, but he does slam Microsoft for this behaviour:

This strategy needs to be stopped. Microsoft should immediately sue IBM, Red Hat, and other major Linux distributors. It should establish its supposed rights and stop playing games.

Microsoft has accumulated so many patentable ideas regarding its OS designs that it might be impossible to abide by all of them. However, there are ways to code around a patent, if someone actually knows what patent to code around. Microsoft has not exactly rolled out the portfolio for people to debate because it knows that this would be a bad idea. So instead, it uses its ability to act the bully and threaten the schoolyard kids.

To me, these dubious business practices follow those that got the company in trouble with the U.S. government during the Gates era. It seems as if nothing has changed.

Microsoft and its patent trolls very much like the status quo and as Groklaw points out, this whole ‘reform’ led to “A Rush To The Courthouse By Trolls”. To quote Professor Webbink:

One consequence of the passage of the America Invents Act (HR1249) signed into law by President Obama last Friday (September 16) was a mad rush to the courthouse by some patent trolls. You see, one of the favorite tactics used by patent trolls is to bring a suit with dozens of defendants regardless of whether there are common issues of infringement other than the commonality of the asserted patents. This tactic allows the troll to benefit from a consolidated action, thus drastically reducing the troll’s cost of litigation. Of course, this tactic doesn’t always work as we learned in the Interval Licensing case.

51 cases against 680 defendants is how bad it is based on Masnick’s summary and the “[q]uality of patents ‘falling dramatically’, warns OECD,” which works well for patent lawyers and harms everyone else. To quote:

Quality of patents ‘falling dramatically’, warns OECD

A book dealer friend once told me of an affluent American who walked into his London shop and asked if he could buy “20 yards of books”. It didn’t matter what they were, he announced airily, as long as they were leather bound they’d look good on the mahogany shelving in his new abode. Well, it appears such attitudes now dominate the thoughts of what we once thought of as innovators, as they treat patents as a similar commodity to be bought in bulk.

In summary, the US patent system remains very messy and there is no solution to this in the pipeline. Sooner or later the powers-that-be will try to impose this system on the whole world (which to an extent they already do).

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2 Comments

  1. Michael said,

    September 24, 2011 at 9:55 am

    Gravatar

    Being that we already have a global economy, it makes sense to have an approximation of global IP protections.

    This does not mean the current protections in the US are good ones though… nor that the US should be able to decide for others.

  2. Needs Sunlight said,

    September 24, 2011 at 10:45 am

    Gravatar

    The Pirate Party now has representation in several countries. It is most likely through them and the coalitions including the PP that improvements can be effected. The old parties are largely unaware of technology and are playing catchup now that they have to ask themselves how the PP got elected. Some of them will see the problem with software patents.

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