04.19.13

Electronic Frontier Foundation, Google, Red Hat et al. Should Work to Eliminate Software Patents, Not Just Patent Trolls

Posted in EFF, Google, Patents, Red Hat at 5:50 am by Dr. Roy Schestowitz

Daniel Nazer

Summary: A look at the strategy of prominent GNU/Linux backers (plus the EFF) and criticism for the shortcomings

Oscure blogger Dietrich Schmitz, who is only starting to learn what Linux advocacy is, realises that patents are a major issue for Linux and GNU. Red Hat et al. recently filed a complaint over it and Pamela Jones has some coverage of this. She writes:

Joe Mullin at ars technica has the welcome news that the FTC is thinking about using subpoena powers to investigate patent trolls, such as Intellectual Venture. He mentions that Google, Red Hat, Blackberry and Earthlink just sent some comments [PDF] to the FTC and the Department of Justice asking for an investigation into what they politely call patent assertion entities, or PAEs. So have the Computer and Communications Industry Association [Comments, PDF] and the National Restaurant Association [Comments, PDF] also asked for such scrutiny.

But the most important part of the Google et al. request, to me, hasn’t yet been highlighted in the media reports I’ve seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.

That is something I’ve wondered about for a while — why didn’t regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare — meaning the defendant’s business is at stake, but the outsourcing company’s business isn’t, and the troll has nothing to lose, because it has no business.

Daniel Nazer, writing about “patents for open innovation” (he is a Staff Attorney on the Electronic Frontier Foundation’s intellectual property team, focusing on patent reform) adds his support to Google, which in turn does not go far enough. To quote a new article:

Finally, Google has some other suggestions for improving patent quality. It thinks that prior art needs to be more easily searchable, which it thinks could make things easier for examiners and reduce the number of invalid patent claims from being issued. It also recommends better standardization of terminology, which it thinks will both make it easier to search for prior art and help reduce the amount of litigation by clarifying an invention’s scope. But while it stopped short of supporting the EFF’s position that software patents ought to include working code, it thinks it’s worth discussing a requirement to include pseudo-code, although it warns that the idea could be unwieldy without a standardized format.

Last month, Google made a pledge to refrain from suing developers, distributors, and users of open source software that infringe on its software patents unless it’s attacked first, decrying the roughly $25 billion that patent trolls are gleaning annually with software patent litigation. It’s clear that the Patent and Trademark Office really does want to be seen as a promoter of innovation — now that the deadline has passed for public comment submission, we’ll have to see which, if any, of the many suggestions it will implement.

Google should work to abolish software patents, not large trolls. We said this years ago. What Google is doing about patents could be vastly improved. We said the same about Red Hat, many times in fact. They all do what’s right for their shareholders, but not for society; they don’t deem it their responsibility.

Over the years I have urged Google (also via E-mail to its manager) to start fighting against software patents rather than reform them. Posts on the subject include the following dozen:

Gérald Sédrati-Dinet, the leading opponent of the Unitary Patent (threat of software patents in Europe), said this morning: “I’m very critical with EFF strategy wrt #swpats [software patents]: they should require their abolition, not bad half-solutions” [anything but abolition].

He is right. The EFF — like Google — has been pursuing the wrong solutions. We gave some examples and constructive criticism of their approach.

Never count on corporations to fix broken law for public interests. Remember CISPA? The law that has just been passed to allow the government to easily acquire private citizens’ data? Well, guess which side Google was on… █

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.

Permalink Mail Send this to a friend

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

Battistelli and Topić Lose Their Bogus 'Case' Against Judge Corcoran After They Defamed Him and Ruined His Career/Life

The SLAPP action against Judge Patrick Corcoran, who has so far won all cases involving the EPO, is finally dismissed in Germany; what remains is an ugly legacy at the EPO, wherein everyone bold enough to say something about corruption at the top is having his or her life — not just career — destroyed
Even Media of the Patent Microcosm Mentions the Decline in Quality of Patents at the EPO, Based on Its Very Own Stakeholders, While IAM Ignores the News

The whole world basically accepts, based on patent examiners as well as those whom they interact with (patent agents), that patent quality at the EPO has sunk; but the EPO and IAM continue to vigorously deny that as it threatens some people's nefarious agenda
Links 20/6/2018: Qt 5.11.1, Oracle Solaris 11.3 SRU 33, HHVM 3.27.0, Microsoft Helping ICE

Links for the day
Patent Extremists Are Unable to Find Federal Circuit Cases That Help Them Mislead on Alice

Patent extremists prefer talking about Mayo but not Alice when it comes to 35 U.S.C. § 101; Broadcom is meanwhile going on a 'fishing expedition', looking to profit from patents by calling for embargo through the ITC
What Use Are 10 Million Patents That Are of Low Quality in a Patent Office Controlled by the Patent 'Industry'?

The patent maximalists are celebrating overgranting; the USPTO, failing to heed the warning from patent courts, continues issuing far too many patents and a new paper from Mark Lemley and Robin Feldman offers a dose of sobering reality
The Eastern District of Texas is Where Asian Companies/Patents/Trolls Still Go After TC Heartland

Proxies of Longhorn IP and KAIST (Katana Silicon Technologies LLC and KAIST IP US LLC, respectively) roam Texas in pursuit of money of out nothing but patents and aggressive litigation; there's also a Microsoft connection
EPO Insiders Correct the Record of Benoît Battistelli’s Tyranny and Abuse of Law: “Legal Harassment and Retaliation”

Battistelli’s record, as per EPO-FLIER 37, is a lot worse than the Office cares to tell stakeholders, who are already complaining about decline in patent quality
Articles About a Unitary Patent System Are Lies and Marketing From Law Firms With 'Lawsuits Lust'

Team UPC has grown louder with its lobbying efforts this past week; the same lies are being repeated without much of a challenge and press ownership plays a role in that
The Decline in Patent Quality at the EPO Causes Frivolous Lawsuits That Only Lawyers Profit From

The European Patent Office (EPO) will continue granting low-quality European Patents under the leadership of the Battistelli-'nominated' Frenchman, António Campinos; this is bad news for science and technology as that quite likely means a lot more lawsuits without merit (which only lawyers profit from)
What Battistelli's Workers Think of His Latest EPO Propaganda

"Modernising the EPO" is what Battistelli calls a plethora of human rights abuses and corruption
Links 19/6/2018: Total War: WARHAMMER II Confirmed for GNU/Linux, DragonFlyBSD 5.2.2 Released

Links for the day
More Media Reports About Decline in Quality of European Patents (Granted by the EPO)

What the media is saying about the letter from Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner whilst EPO communications shift attention to shallow puff pieces about how wonderful Benoît Battistelli is
Beware Team UPC's Biggest Two Lies About the Unitary Patent (UPC)

Claims that a Unified Patent Court (UPC) will commence next year are nothing but a fantasy of the Liar in Chief, Benoît Battistelli, who keeps telling lies to French media (some of which he passes EPO money to, just like he passes EPO money to his other employer)
Diversity at the EPO

Two decades of EPO with 16-17 years under the control of French Presidents (and nowadays predominantly French management in general with Inventor Award held in France almost half the time) is "diversity at the EPO"
Orrin Hatch, Sponsored the Most by the Pharmaceutical Industry, Tries to Make Its Patents Immune From Scrutiny (PTAB)

Orrin Hatch is the latest example of laws being up for sale, i.e. companies can 'buy' politicians to act as their 'couriers' and pass laws for them, including laws pertaining to patents
Links 17/6/2018: Linux 4.18 RC1 and Deepin 15.6 Released

Links for the day
To Keep the Patent System Alive and Going Practitioners Will Have to Accept Compromises on Scope Being Narrowed

35 U.S.C. § 101 still squashes a lot of software patents, reducing confidence in US patents; the only way to correct this is to reduce patent filings and file fewer lawsuits, judging their merit in advance based on precedents from higher courts
The Affairs of the USPTO Have Turned Into Somewhat of a Battle Against the Courts, Which Are Simply Applying the Law to Invalidate US Patents

The struggle between law, public interest, and the Cult of Patents (which only ever celebrates more patents and lawsuits) as observed in the midst of recent events in the United States
Patent Marketing Disguised as Patent 'Advice'

The meta-industry which profits from patents and lawsuits claims that it's guiding us and pursuing innovation, but in reality its sole goal is enriching itself, even if that means holding science back
Microsoft is Still 'Cybermobbing' Its Competition Using Patent Trolls Such as Finjan

In the "cybersecurity" space, a sub-domain where many software patents have been granted by the US patent office, the patent extortion by Microsoft-connected trolls (and Microsoft's 'protection' racket) seems to carry on; but Microsoft continues to insist that it has changed its ways
Links 16/6/2018: LiMux Story, Okta Openwashing and More

Links for the day
The EPO's Response to the Open Letter About Decline in Patent Quality as the Latest Example of Arrogance and Resistance to Facts, Truth

Sidestepping the existential crisis of the EPO (running out of work and issuing many questionable patents with expectation of impending layoffs), the PR people at the Office choose a facts-denying, face-saving 'damage control' strategy while staff speaks out, wholeheartedly agreeing with concerned stakeholders
In the United States the Patent Trial and Appeal Board, Which Assures Patent Quality, is Still Being Smeared by Law Firms That Profit From Patent Maximalism, Lawsuits

Auditory roles which help ascertain high quality of patents (or invalidate low-quality patents, at least those pointed out by petitions) are being smeared, demonised as "death squads" and worked around using dirty tricks that are widely described as "scams"
The 'Artificial Intelligence' (AI) Hype, Propped Up by Events of the European Patent Office (EPO), is Infectious and It Threatens Patent Quality Worldwide

Having spread surrogate terms like “4IR” (somewhat of a 'mask' for software patents, by the EPO's own admission in the Gazette), the EPO continues with several more terms like “ICT” and now we’re grappling with terms like “AI”, which the media endlessly perpetuates these days (in relation to patents it de facto means little more than "clever algorithms")
Links 15/6/2018: HP Chromebook X2 With GNU/Linux Software, Apple Admits and Closes a Back Door ('Loophole')

Links for the day
The '4iP Council' is a Megaphone of Team UPC and Team Battistelli at the EPO

The EPO keeps demonstrating lack of interest in genuine patent quality (it uses buzzwords to compensate for deviation from the EPC and replaces humans with shoddy translators); it is being aided by law firms which work for patent trolls and think tanks that propel their interests
Grünecker, Hoffmann Eitle, Maiwald and Vossius & Partner Find the Courage to Express Concerns About Battistelli's Ugly Legacy and Low Patent Quality

The astounding levels of abuse at the EPO have caused some of the EPO's biggest stakeholders to speak out and lash out, condemning the Office for mismanagement amongst other things
IAM Concludes Its Latest Anti-§ 101 Think Tank, Featuring Crooked Benoît Battistelli

The attack on 35 U.S.C. § 101, which invalidates most if not all software patents, as seen through the lens of a Battistelli- and Iancu-led lobbying event (set up by IAM)
Google Gets Told Off -- Even by the Typically Supportive EFF and TechDirt -- Over Patenting of Software

The EFF's Daniel Nazer, as well as TechDirt's founder Mike Masnick, won't tolerate Google's misuse of Jarek Duda's work; the USPTO should generally reject all applications for software patents -- something which a former Commissioner for Patents at the USPTO seems to be accepting now (that such patents have no potency after Alice)
From the Eastern District of Texas to Delaware, US Patent Litigation is (Overall) Still Declining

Patent disputes/conflicts are increasingly being settled outside the courts and patents that aren't really potent/eligible are being eliminated or never brought forth at all