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06.27.12

New Evidence Arrives to Support Patent System Overhaul While EFF Pressures Congress

Posted in EFF, Patents at 10:49 am by Dr. Roy Schestowitz

Boston University seal

Summary: A new study from Boston helps show that the patent system is flawed, just as the EFF argues

THE EFF managed to get a discussion about the patent system going. Red Hat’s Open Source site summarises some of the key points that the EFF has been passing around the Web:

A new website—defendinnovation.org—neatly summarizes the EFF’s position on software patents as well as the organization’s proposed changes to the current patent system:

1. A patent covering software should be shorter: no more than five years from the application date.
2. If the patent is invalid or there’s no infringement, the trolls should have to pay the legal fees.
3. Patent applications should be required to provide an example of running software code for each claim in the patent.
4. Infringers should avoid liability if they independently arrive at the patented invention.
5. Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.
6. The law should limit damanges so that a patent owner can’t collect millions if the patent represented only a tiny fraction of a defendent’s product.
7. Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.

Boston University has meanwhile released another one of its studies [1, 2, 3] about the patent system in the US. The BBC covered it:

The direct cost of actions taken by so-called “patent trolls” totalled $29bn (£18.5bn) in the US in 2011, according to a study by Boston University.

It analysed the effect of intellectual rights claims made by organisations that own and license patents without producing related goods of their own.

Such bodies say they help spur on innovation by ensuring inventors are compensated for their creations.

With more scholarly work in the area we’ll be better equipped to change the system for the better, led by influential groups like the EFF. Quoting The H:

Further information about the EFF’s new patent reform project and details of each of the proposals can be found on the official Defend Innovation web site. On the site, users can also add their signatures and comments to a white paper that will be taken to the US Congress.

They actually take this up with politicians. This is a productive route. This needs to be done before software patents spread to the EU, like a lot of the policies that the US exports over time to the whole world (e.g. DMCA). Glyn Moody warns:

Once the Unitary Patent comes in, EPO patents will automatically be valid in all countries that have joined the scheme (Italy and Spain haven’t.) The question then becomes: so where can the EPO’s patents be challenged? In an excellent article on the Unitary Patent, Richard Stallman provides us with the answer:

“A small but crucial detail in the [Unitary Patent] plan is that appeals against the EPO’s decisions would be decided based on the EPO’s own rules. The EPO could thus tie European business and computer users in knots to its heart’s content.”

As we’ve seen, the EPO has already been granting software patents (tens of thousands of them according to Stallman) despite the European Parliament decision not to accept them; currently, those patents can be contested in national courts. But come the Unitary Patent, it won’t be possible to do that; instead, the validity of the EPO patents will be decided according to the EPO’s rules. It’s easy to see that this will lead to a flood of software patents being validated across Europe, bringing with them the insane, destructive lawsuits that are currently tearing the US computer world to pieces. Needless to say, the knock-on effects for open source would be terrible if that happened.

We’ll catch up with this next month.

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10 Comments

  1. mcinsand said,

    June 27, 2012 at 11:46 am

    Gravatar

    The circulating punchlist has me cringing and thinking of yet another reason software patents should be banned; given the rules that bind the examiners, and given the ability of software companies to keep source code closed, patent offices cannot make more than a joke of an effort at screening patent applications. Examiners are only allowed to search the patent databases. How many tens of thousands of lines of code are there out there for each software patent. Then, how many more lines of code are written for closed-source applications.

    Even if a person supports software patents, the mechanism does not yet exist to guage a patent’s validity. For a while, I was advocating holding examiners responsible for granting patents in the presence of mountains of prior art, but they have no chance to hope to tell if a software patent application has any innovation.

    Look at the ‘IP’ Apple and MS have been terrorizing the world with. Software patents only require the nerve to file the application, not novel ideas.

    Software patents are a lot like the idea of a border fence in the US. If you understand how a shovel works, then you’ll understand what a waste of resources a border fence will be. And, if you have a clue as to just how much software has been written, you’ll understand how impossible it is to actually rule on whether a software construct is truly new idea.

    Dr. Roy Schestowitz Reply:

    The field of computer vision is riddled with (American) software patents, so to me it’s also a personal battle.

    mcinsand Reply:

    Sadly, we in the US seem to be leading the world in opening the door for patent trolls. Software patents are ridiculous, but the point that I was trying to make is that, even if I did think there might be some justification for them, it wouldn’t matter. Whether the idea of software patents could be supported or not, there is simply no practical way to test for validity; issuing software patents guarantees patent trolls and the sort of economic market terrorism that Apple and MS have brought. Testing for software novelty is just too prohibitively difficult, if not impossible, for software patents to be market-destructive.

    Dr. Roy Schestowitz Reply:

    What on Earth is a “design patent”?

    In the news right now: US Judge Stops Sale Of Old Galaxy Tab 10.1

    The US patent and legal system is screwed, no doubts about it. There is good news and bad news. The bad news first, Judge Lucy Koh has granted Cupertino’s request to stop the sales of the Galaxy Tab 10.1 in the US. According to the order details, Judge ordered the injunction on the grounds of design patents.

  2. mcinsand said,

    June 27, 2012 at 12:19 pm

    Gravatar

    >>What on Earth is a “design patent”?

    The only family-friendly answer I can give is that a ‘design patent’ is less legitimate than a software patent. My understanding is that, if the concept is too weak for a patent, a copyright, or a trademark, then a ‘design patent’ is a possiblity. In this case, it has to do with portable devices having rounded corners. How long has it been known that, if you carry a rectangular object on your person, sharp corners create discomfort? Hundreds of years? Thousands? In the US, let one of those corners cause a scratch, let it get infected, and the purveyor of sharp-cornered objects will probably lose a negligence suit.

    Dr. Roy Schestowitz Reply:

    There is prior art in tablets. And I don’t mean plastic ones, I mean stone.

    mcinsand Reply:

    Exactly! Although I will exempt patent examiners on software patents because of the way their hands are tied, the examiner on this ‘design patent’ was negligent. In my view, the examiner should be held up for ridicule and held personally responsible for the legal costs resulting from this joke being granted.

    Dr. Roy Schestowitz Reply:

    Re-examination is so expensive (upon lawsuit/s being launched), this whole present system is rigged. It’s clearly created to incentivise patents (monopolies, protectionism), not to reward or promote innovation.

    Sign the EFF’s petition:

    https://defendinnovation.org/

  3. mcinsand said,

    June 27, 2012 at 2:19 pm

    Gravatar

    I signed the petition, I hope. Due to a slow refresh, though, I hit the submit button again, and I hope that my signature is not ruled invalid because of the doublesubmission. However, I don’t like the wording on much of this, because it goes way too far to sound like software patents are legitimate.

    I’m both more optimistic and more cynical than you on how the patent system is set up, or, rather, what it has become. Especially on software patents, we are where we are because of incompetence. The USPTO procedures and tools are more appropriate for the first half of the 20th century than for the information age, and the US government agencies responsible have failed to allow it to adapt to the times.

    Dr. Roy Schestowitz Reply:

    It’s no coincidence that the patent system devolved into the sordid mess it is today. Certain stakeholders with a lot of influence over the system (lobbyists, revolving doors, etc.) rigged the system and turned it into a protectionism tool for the likes of IV, IBM, and MSFT. Citizens didn’t guard the establishment, so corporations took advantage and took over it, ‘fixing’ it (in their favour). Apathy is a culprit, petitions can help change that.

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