EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

12.13.12

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.

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

What Else is New


  1. Links 18/1/2017: Red Hat's OpenShift 3.4, Mozilla's New Logo/Branding

    Links for the day



  2. Union-Busting Action by Team Battistelli Takes Heavy Toll, Techrights Will Continue to Expose EPO Injustices to the World

    The Staff Union of the European Patent Office, SUEPO, which faced unprecedented and probably illegal (based on local laws) attacks, is being weakened by the worst President ever, whose own management team seems to be collapsing along with the institution he is destroying in just a few years



  3. A Lot More Fake News About the UPC, Trying to Convince People That the UK is Ratifying (It's Not, It Cannot)

    Response to some of the latest misleading (self-serving) whispers about the fate of the Unified Patent Court (UPC), which is in a deadlock due to Brexit



  4. Rumours Suggest That EPO Management is Aware of Decline in Patent Quality and is Thus Actively Lying About it to the Media/Public

    Whenever Battistelli brags about patent quality he may be consciously and deliberately lying through his teeth if the latest rumours are correct



  5. Links 17/1/2017: GIMP Plans, New Raspberry Pi Product

    Links for the day



  6. Resumption of EPO Propaganda ('Meet the President') Officially Starts Tomorrow

    Yet another one of these foolish 'Meet the President' stunts, scheduled to take place tomorrow morning



  7. Caricature: Battistelli's New Year's Resolution (More EPO Lies)

    The latest cartoon being circulated within the European Patent Office (EPO)



  8. Donald Trump Gives New Hope to Patent Aggressors and Patent Trolls

    Pessimism about the prospects of patent progress or patent reform in an age of staunchly pro-business Conservatives and glorification of protectionism



  9. More Fake News About the Unified Patent Court (UPC) Based on Lobbying Tactics From Bristows UPC and the Preparatory Committee

    Unified Patent Court (UPC) lobbying has gotten so bad that it now infiltrates general media outlets, where people are asked to just blindly assume that the UPC is coming and is inevitable, even though it's clearly in a limbo and is unlikely to see the light of day



  10. EPO Totally Silent for a Month, But Deep Inside There Are Serious Cracks

    The situation at the EPO seems to be pretty grim, even at the top-level management, and the EPO has gone into permanent silence mode



  11. Links 16/1/2017: Linux 4.10 RC4, Linux Mint 18.1 'Serena' KDE Edition Beta

    Links for the day



  12. 'Financial Director' Publishes Fake News About the Unitary Patent (UPC)

    Response to some of the latest UPC propaganda, which strives to misinform Financial Directors so as to enrich the author and his firm



  13. Independent and Untainted Web Sites About Patents Are Still Few and Rare

    Commentary about news sources that we rely on, as well as the known pitfalls or the vested interests deeply ingrained in them



  14. The 20% Rule: Patent Trolling Suffers Double-Digit Declines and Patent Troll Technicolor is Collapsing

    Significant demise or total catastrophe for the modus operandi (method) of going after companies with a pile of patents and threats of litigation



  15. US Supreme Court Did Not End Apple's Patent Disputes Over Android (Linux), More Cases Imminent

    An overview of some very recent news regarding the highest court in the United States, which has been dealing with cases that can determine the fate of Free/Open Source software in an age of patent uncertainty and patent thickets surrounding mobility



  16. Links 15/1/2017: Switching From OS X to GNU/Linux, Debian 8.7 Released

    Links for the day



  17. Number of New Patent Cases in the US Fell 25% Last Year, Thanks in Part to the Demise of Software Patent Trolls

    Litigation and prosecutions that rely on patents (failure to resolve disputes, e.g. by sharing ideas, out of court) is down very sharply, in part because firms that make nothing at all (just threaten and/or litigate) have been sinking after much-needed reform



  18. America Invents Act Improved Patent Quality, But Right Wingers Threaten to Make It Worse Again

    The past half a decade saw gradual improvement in assessment of patents in the United States, but there is a growing threat and pressure from the patent microcosm to restore patent maximalism and chaos



  19. PTAB -- Not Deterred by Courts -- Continues to Invalidate a Lot of Software Patents

    The Patent Trial and Appeal Board (PTAB) continues to make progress reforming the patent system by eliminating a lot of patents and setting an example (or new standards) for what is patent-eligible after Alice



  20. EPO Abuses Come Under Fire From Politicians in Luxembourg

    Luxembourg is the latest nation in which concerns about the EPO's serious abuses are brought up not only by the media but also by politicians



  21. Constitutionality as a Barrier and Brexit Barriers to UPC Keep the Whole Pipe Dream Deadlocked

    The UPC is still going nowhere fast, but the demise (or death) of the UPC as we know it must not be taken for granted



  22. Links 14/1/2017: Wine 2.0 RC5 and AryaLinux 2017 Released

    Links for the day



  23. Links 13/1/2017: Linux 4.9.3 and Linux 4.4.42

    Links for the day



  24. Brexit Means No UPC (Unified Patent Court)

    Now that Jo Johnson, Boris Johnson's brother, is officially declared the new minister for intellectual property in the UK everything that Lucy Neville-Rolfe wrote is as solid as paper bag on a rainy London day



  25. Patent Trolls and Software Patents: CloudTrade, Patent Practitioners Density, and Via Licensing

    Software patents armament from a British company, charted concentration of the patent microcosm in the United States, and US-leaning patent trolls that prey on China



  26. Patent Maximalism -- Like Copyright Maximalism -- Relies on Misconceptions and Mass Deception

    The latest examples of discussions about patent scope, courtesy of those looking to benefit financially by pushing such monopolies to the max



  27. Software Patents Still Promoted by IBM and Its Lobbyist (and Former Employee) David Kappos, in Defiance of Much-Needed US Patent Reform

    While the corporate media celebrates IBM as though it's some kind of 'champion' for hoarding patents that it then uses to attack companies which actually grow



  28. Brexit/Trump Effect: Patent Systems With Institutional Corruption and Nepotism

    Rumours about Britain's head of patents (and copyrights etc.) being the brother of the Brexit campaigner and Foreign Minister; meanwhile, on the other side of the Atlantic, rumours suggest that the corrupt judge Rader might be the next head of patents in the United States



  29. Links 11/1/2017: X.Org Server 1.19.1, GitHub's Atom 1.13

    Links for the day



  30. The Patent Microcosm is Already Sucking up to Donald Trump in an Effort to Enrich Itself at Everyone's Expense

    Four new examples of patent maximalists embracing/adopting the pseudo-populist slogan to advance their goals of increasing litigation (which they profit from) and undermining PTAB (which made patents great in the quality sense)


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