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Stop Fighting Software Patents the Way Lawyers Say We Should

Posted in Patents at 9:39 pm by Dr. Roy Schestowitz

With few exceptions…

Carlo Piana

Summary: So-called ‘moderates’ or ‘realists’ (usually lawyers and law professors) obscure the permanent solution to software patents

Eric Goldman, a lawyer talking about a conference stacked with law professors, says this about software patents, offering no end to software patents as though a compromise can somehow resolve a problem that most countries in the world already recognise. Here is another go at it. He says:

Software patents play a huge–and controversial–role in our economy. In a recent post, I explained some of the unique problems that software innovations pose to the patent system. This post extends that discussion by exploring two structural hurdles to addressing those problems: (1) the challenge of defining “software,” and (2) which regulatory institution(s) can implement any fixes. In the near future, I will conclude this three-part series of posts by exploring specific ideas to fix software patents.


In theory, we can distinguish software from physical devices (e.g., “hardware”). Even if we do, innovators can often replicate software functionality by designing hardware to incorporate the functionality directly. In this sense, hardware and software are partial substitutes for each other. In fact, before patent law clearly allowed software patents, innovators (especially IBM ($IBM)) routinely obtained “software” patents by patenting hardware designed to perform the software-like function. So any special rules for software patents will just push innovators and their patent lawyers to seek patent protection for hardware that achieves the same outcome, obtaining the synthetic equivalent of a software patent. In that case, we aren’t making much progress.


So, fixing software patents is tricky. It may not be possible to define software patents precisely, it may be easy for patent applicants to game any software-specific rules, and we have to find a way to remain in compliance with our treaty obligations. On the other hand, if we avoid software patent-specific fixes and instead try to make changes across all patents, that would dramatically increase the number…

Hold on there. The problem with where this argument goes (again!) is that it is leading to the “bad” patents or “bad” lawsuits line of reasoning. It is taking us nowhere, just like the effort to squash one patent at a time — a strategy famously used by the EFF some years ago, under the “patent busting” banner. The EFF now calls for the end of all software patents. It is the real solution.

Consider this news about a one-patent-at-a-time approach:

‘Steve Jobs’ iPhone patent used against Samsung/Motorola invalidated by US patent office, could affect lawsuits

In October, as pointed out in Samsung filings with U.S. District Lucy Koh, we told you that the U.S. Patent and Trademark Office issued a non-final decision that declared 20 claims related to Apple’s rubber-banding patent invalid. While Samsung and Apple were back in court yesterday regarding post-trial motions, today FossPatents reported (via MacRumors) the USPTO has issued another non-final ruling declaring yet another Apple multitouch patent invalid.

This time it’s a touchscreen patent, commonly called “the Steve Jobs patent,” that courts previously deemed valid in cases against Samsung and Motorola in the past…

It will not derail entire cases, only weaken them. The lawsuit against the market leader, Samsung, carries on and Pamela Jones says: “Judge Koh has also ruled on the various requests for sealing. For Samsung, it’s two granted, including the HTC one, and another which asks for something Apple asked for too and four denied, with one partly granted; for Apple it’s 2 granted and 1 partially granted. It’s been like that every time I check who gets the most motions denied.”

Here is a link shared by Jones:

In response to some questions posed by the United States International Trade Commission (USITC), wireless baseband supplier Qualcomm has torn into Apple in a court filing, saying that apple “should be embarassed” at the length and depth of the iPad makers’ patent infringement. The move is curious, as Apple has been Qualcomm’s largest customer for three years.

“That’s not vitriol,” remarks Jones. “It’s just true. Apple revealed it is NOT a willing licensee in the Wisconsin case that got dismissed because it refused to commit to obey a judge’s royalty rate unless it liked and agreed with it. Qualcomm is just pointing that out.”

Apple is now guided by lawyers because its engineers are unable to catch up with Android, technically.

Stop listening to lawyers if you want the problem to end; there are exceptions like Carlo Piana (Samba lawyer) or Eben Moglen (law professor), but in general, the vast majority of lawyers, including Red Hat’s, have a view and agenda different from everyone else’s. To them, litigation is like war for a weapons contractor. Lawyers, like bankers, also like to complicate things with complex legalese (terminology) which makes them seemingly necessary, totally barring the debate so as to shut out everyone not of their occupation. This develops cult-like, self-preserving corrupt institutions which seek to justify their own parasitic existence. We must recognise this institutional issue and openly talk about it. Politicians too are mostly lawyers.

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