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

04.21.13

Patent Trolls and ‘Royalties’: Distracting From the Real Issue Which is Software Patents

Posted in Patents at 9:12 am by Dr. Roy Schestowitz

A lawyers’ (or politicians’) mindset

Parliament

Summary: A lawyers-led debate neglects to target the core issue, which is patenting of software, instead resorting to attack on the symptom, which most often exploits software patents

Software patents have always been the #1 subject in this Web site. These patents — and by extension the patent system — are the #1 barrier to GNU/Linux domination in the post-Vista, post-Nokia/Symbian, post-x86 era.

Rather than discuss what’s “Fair” and “Reasonable” (to charge innovators) we should start tackling the source of the problem we all face because lawyers and their clients took over. Weak reformists do not advocate the end of software patents, they advance coexistence with them. FRAND is a common line for software patents apologists. As one site put it, “standard-essential patent owner is obligated to enter into binding baseball-style (or “final offer”) arbitration with any willing licensee to determine the royalty rate.”

“Rather than discuss what’s “Fair” and “Reasonable” (to charge innovators) we should start tackling the source of the problem we all face because lawyers and their clients took over.”Why discuss rates for something that might not be valid in the first place, such as the case in Europe? In the USPTO, where Apple is allowed just about any crazy monopoly it asks for (the institutional bias for large corporations), software patents might be acceptable and even enforceable internationally through the ITC (in the latest from the Apple versus Samsung case it likes to block Korean, i.e. non-US, companies). Watch this amazing bit of news, which is part of a bigger picture of Apple versus Android FRAND battles [1, 2]. Here is more on that from patent lawyers’ (hence biased) blogs.

Mark Lemley, an academic lawyer himself, proposes adjustments for FRAND rather than rejection. From his new paper:

Standard Setting Organizations (SSOs) typically require their members to license any standard-essential patent on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Unfortunately, numerous high-stakes disputes have recently broken out over just what these “FRAND commitments” mean and how and where to enforce them.

One lawyers’ site says that FRAND disputes start to expand outside the US, meaning that patents on software become enforceable in bulk where those patents, individually, are neither valid nor legal.

Aiming at trolls is another pattern of distraction, for instance with Obama nominating/appointing the problematic people while claiming to address the issue of trolls. Where is the protest? Where it the uproar? SOPA need not have a monopoly on outrage.

Here is some food for thought for Obama. As Pamela Jones notes: “Don’t miss this incredible article, everyone. It’s eye-opening. Mr. Ewing advises WIPO and is the attorney who first coined the phrase “patent privateering”, and this letter is his comment filed, along with many others which he makes available here — scroll down — in connection with a workshop that the FTC held on PAEs, or trolls, in December. The link doesn’t work any more, by the way, the one he includes in his letter regarding the workshop, but the cache is still available if you go to that page and then search for atr/public/workshops/pae in the search box.”

The EFF, not to its credit, left aside its old pitch of “against software patents” and now it is back too focusing on trolls and going after particular patents or players one by one (like the ineffective Patent Busting project). Here is a new example.

“Targeting trolls is not enough. All these reformists are going after the symptom rather than the disease.”Pamela Jones notes that the US government is studying trolls with special powers on its side, but it is not enough. Jones points out the article titled “Patent trolls launched majority of U.S. patent cases in 2012″ and then correctly points out: “That means that if you solve the patent troll problem, you still have nearly half of the problem unsolved.”

Nazer from the EFF is among those who focus not on the real solution to the mess and with phrases like “Crappy Software Patents” in the headline he helps imply that some software patents are “good”.

“Considering that algorithms are mathematics,” writes Jones, “and mathematics is non-patentable subject matter, I can’t see how this proposal will solve the fundamental problem.”

Rackspace, on the other hand, has gotten Jones’ support. With posts like these, the company shows that it wants the system itself fixed. In its blog it says: “When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed.”

Watch the response from the troll’s site (it says “monetized to date” at the top). They call patent infringement theft. Here is a Patent Progress guest post from Rackspace, titled “STOP ABUSIVE PATENT LITIGATION, FOR THE SAKE OF OUR ECONOMY”

The site Patent Progress makes some suggestions for the ITC study and cheers for the FTC to shase down trolls as if it’s the only problem these days:

USING THE FULL POWERS OF THE FTC TO COMBAT PATENT TROLLS

A century ago there was a lively debate in Congress over the enforcement of the antitrust laws. Much of the 1912 presidential campaign had focused on the lack of effective antitrust enforcement by the Justice Department and the failure of the Sherman Act to stop growing anticompetitive conduct in the marketplace. In 1913, Congress focused on the urgent need for reform of the antitrust laws and stronger enforcement.

Targeting trolls is not enough. All these reformists are going after the symptom rather than the disease. That’s not to say that patent trolls are not an issue; they are. But if a huge number of people petition President Obama on the subject of software patents and receive a response about trolls, then someone is trolling and distracting them; the trolls will go away when large corporations, which are behind the government, decide that they must go away. Pursuing the end of trolls is leaving all the power in the hands of corporate cartels that use patents to harm everyone, including Android (a notable victim).

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 25/4/2018: Ubuntu 18.04 Coming Shortly, Fedora 28 Next Month

    Links for the day



  2. Koch Brothers and Big Oil Could Not Buy the Decisions in Oil States, SAS

    In Oil States Energy Services v Greene’s Energy Group, a case which Koch-funded think tanks meddled in (including those whose panel guests send me threatening legal letters), ends up with dissent from a Koch-connected Justice citing or quoting those very same Koch-funded think tanks



  3. The European Patent Office (EPO) Wastes a Lot of Money on External PR Agencies for Battistelli's 'Heist'

    The EPO's management is once again scattering/throwing EPO budget at PR agencies and media companies (publishers/broadcasters) to disseminate a bunch of puff pieces and virtually ignore the very obvious conflict of interest, which should be a scandal on par with that of FIFA (resulting in the arrest of its boss, Mr. Blatter)



  4. Today's EPO is Not Compatible With the Law and It's Grossly Incompatible With Truth and Justice

    Today, once again, the EPO openly advocates software patents while media promotes loopholes (notably hype waves)



  5. Quick Mention: As Expected, the US Supreme Court Cements PTAB's Role With Trump-Appointed Gorsuch Dissenting

    Oil States has been decided and it's very good news for the Patent Trial and Appeal Board (PTAB); even Conservatives-leaning Justices support PTAB



  6. Links 24/4/2018: Preview of Crostini, Introducing Heptio Gimbal, OPNsense 18.1.6

    Links for the day



  7. Patent Maximalists Step Things Up With Director Andrei Iancu and It's Time for Scientists to Fight Back

    Science and technology don't seem to matter as much as the whims of the patent (litigation) 'industry', at least judging by recent actions taken by Andrei Iancu (following a hearing before the Senate Judiciary Committee)



  8. Mythology About Patents in the East

    Misconceptions (or deliberate propaganda) about patent policy in the east poison the debate and derail a serious, facts-based discussion about it



  9. Patent Trolls Watch: Red River Innovations, Bradium Technologies/General Patent, and Wordlogic

    A quick look at some patent trolls that made the news this Monday; we are still seeing a powerful response to such trolls, whose momentum is slipping owing to the good work of the Patent Trial and Appeal Board (PTAB)



  10. Holding Benoît Battistelli Accountable After the EPO

    The many abuses and offenses committed by Mr. Battistelli whilst he enjoyed diplomatic immunity can and should be brought up as that immunity expires in two months; a good start would be contacting his colleagues, who might not be aware of the full spectrum of his abuses



  11. Links 23/4/2018: Second RC of Linux 4.17 and First RC of Mesa 18.1

    Links for the day



  12. The Good Work of the Patent Trial and Appeal Board (PTAB) and the Latest Attempts to Undermine It

    A week's roundup of news about PTAB, which is eliminating many bad (wrongly-granted) patents and is therefore becoming "enemy number one" to those who got accustomed to blackmailing real (productive) firms with their questionable patents



  13. District Courts' Patent Cases, Including the Eastern District of Texas (EDTX/TXED), in a Nutshell

    A roundup of patent cases in 'low courts' of the United States, where patents are being reasoned about or objected to while patent law firms make a lot of money



  14. The Federal Circuit's (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

    The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)



  15. Patents Roundup: Metaswitch, GENBAND, Susman, Cisco, Konami, High 5 Games, HTC, and Nintendo

    A look at existing legal actions, the application of 35 U.S.C. § 101, and questionable patents that are being pursued on software (algorithms or "software infrastructure")



  16. In Maxon v Funai the High 'Patent Court' (CAFC) Reaffirms Disdain for Software Patents, Which Are Nowadays Harder to Get and Then Defend

    With the wealth of decisions from the Court of Appeals for the Federal Circuit (CAFC) wherein software patents get discarded (Funai being the latest example), the public needs to ask itself whether patent law firms are honest when they make claims about resurgence of software patents by 'pulling a Berkheimer' or coming up with terms like “Berkheimer Effect”



  17. Today's European Patent Office Works for Patent Extremists and for Team UPC Rather Than for Europe or for Innovation

    The International Association for the Protection of Intellectual Property (AIPPI) and other patent maximalists who have nothing to do with Europe, helped by a malicious and rather clueless politician called Benoît Battistelli, are turning the EPO into a patent-printing machine rather than an examination office as envisioned by the EPC (founders) and member states



  18. The EPO is Dying and Those Who Have Killed It Are Becoming Very Rich in the Process

    Following the footsteps of Ron Hovsepian at Novell, Battistelli at the EPO (along with Team Battistelli) may mean the end of the EPO as we know it (or the end altogether); one manager and a cabal of confidants make themselves obscenely rich by basically sacrificing the very organisation they were entrusted to serve



  19. Short: Just Keep Repeating the Lie (“Quality”) Until People Might Believe It

    Battistelli’s patent-printing bureau (EPO without quality control) keeps lying about the quality of patents by repeating the word “quality” a lot of times, including no less than twice in the summary alone



  20. Shelston IP Keeps Pressuring IP Australia to Allow Software Patents and Harm Software Development

    Shelston IP wants exactly the opposite of what's good for Australia; it just wants what's good for itself, yet it habitually pretends to speak for a productive industry (nothing could be further from the truth)



  21. Is Andy Ramer's Departure the End of Cantor Fitzgerald's Patent Trolls-Feeding Operations and Ambitions?

    The managing director of the 'IP' group at Cantor Fitzgerald is leaving, but it does not yet mean that patent trolls will be starved/deprived access to patents



  22. EPO Hoards Billions of Euros (Taken From the Public), Decreases Quality to Get More Money, Reduces Payments to Staff

    The EPO continues to collect money from everyone, distributes bogus/dubious patents that usher patent trolls into Europe (to cost European businesses billions in the long run), and staff of the EPO faces more cuts while EPO management swims in cash and perks



  23. Short: Calling Battistelli's Town (Where He Works) “Force for Innovation” to Justify the Funneling of EPO Funds to It

    How the EPO‘s management ‘explained’ (or sought to rationalise) to staff its opaque decision to send a multi-million, one-day ceremony to Battistelli’s own theatre only weeks before he leaves



  24. Short: EPO Bribes the Media and Then Brags About the Paid-for Outcome to Staff

    The EPO‘s systematic corruption of the media at the expense of EPO stakeholders — not to mention hiring of lawyers to bully media which exposes EPO corruption — in the EPO’s own words (amended by us)



  25. Short: EPO's “Working Party for Quality” is to Quality What the “Democratic People's Republic of Korea” is to Democracy

    To maintain the perception (illusion) that the EPO still cares about patent quality — and in order to disseminate this lie to EPO staff — a puff piece with the above heading/photograph was distributed to thousands of examiners in glossy paper form



  26. Short: This Spring's Message From the EPO's President (Corrected)

    A corrected preface from the Liar in Chief, the EPO's notoriously crooked and dishonest President



  27. Short: Highly Misleading and Unscientific Graphics From the EPO for an Illusion of Growth

    A look at the brainwash that EPO management is distributing to staff and what's wrong with it



  28. Short: EPO Explains to Examiners Why They Should and Apparently Can Grant Software Patents (in Spite of EPC)

    Whether it calls it "CII" or "ICT" or "Industry 4.0" or "4IR", the EPO's management continues to grant software patents and attempts to justify this to itself (and to staff)



  29. Links 21/4/2018: Linux 4.9.95, FFmpeg 4.0, OpenBSD Foundation 2018 Fundraising Campaign

    Links for the day



  30. As USPTO Director, Andrei Iancu Gives Three Months for Public Comments on 35 U.S.C. § 101 (Software Patenting Impacted)

    Weeks after starting his job as head of the US patent office, to our regret but not to our surprise, Iancu asks whether to limit examiners' ability to reject abstract patent applications citing 35 U.S.C. § 101 (relates to Alice and Mayo)


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