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Software Patents Are Core Issue, But New Obsession Names Just Patent Trolls as the Issue

Posted in Patents at 3:50 am by Dr. Roy Schestowitz

It’s about scope, not scale


Summary: New examples from Internet news sites which show how the debate on software patent is being warped to focus on small players (trolls) and not large ones whose parasitical existence resembles that of trolls

THE DEBATE regarding patent reform is being derailed somewhat. It got reshaped by stakeholders with lobbyists. We addressed the subject several times recently, in posts such as:

  1. Regulators Target Patent Trolls But Lose Sight of Patent Cartels
  2. Patent Trolls Increasingly Recognised as an Issue, Taking Attention Away From Software Patents as Key Issue
  3. Patent Trolls and ‘Royalties’: Distracting From the Real Issue Which is Software Patents
  4. The Notion of “Software Patent Trolls”

An unnamed author in Rupert Murdochs’ press ran a poll on patentability of software. Well, two thirds say “no” to software patents, but the total number of votes is low and thus it is easy to rig (real public opinion may be more hostile towards software patents). Is this a fair introduction?

The first patent for software in the U.S. was awarded in 1968. The question of whether patents should be granted for software has been debated ever since. In recent years, with the numbers of software patents and lawsuits involving those patents both growing rapidly, the debate has intensified.

Fair enough. It is worth adding that much of the world deviates from the US on this and suffers far less litigation such as troll atacks. Here is yet another article which focuses on trolls rather than software patents. It says:

Most of us are familiar with the famous Norwegian fairy tale, “Three Billy Goats Gruff.” where three hungry goats must cross a bridge to find more grass to eat. The problem is, underneath that bridge is a ferocious troll who wants to eat each one as it passes by.

This is not the main issue though; scope is the root of this issue. The Microsoft-run Nokia is still fighting to ban Android in Europe using patents which are probably invalid. Remember that Nokia is not a patent troll but a zombie patent portfolio currently exploited by Microsoft.

Nokia will have to start legal processes in each country as there is no such thing as a worldwide enforceable [patent] injunction.

See the article “Nokia could get the HTC One banned in Europe” and this one too. There is no injunction but a lot of intimidation, typical Microsoft FUD. Nokia is being used like a patent troll in this case, it is not just being used to arm patent trolls. So why talk about patent trolls as the principal or only issue? Perhaps because the government is still run by and funded by large corporations. It’s them who call the shots.

The FTC has been notified by Linux and Android players, spoiled by misplaced focused and with further idiocy from Google which just strengthens software patents. B&N says the patent system is “broken” (more on that another day), whereas Google continues to liaise with the USPTO and dodge criticism of software patents.

Here is one wiser suggestion from a US Senator who at least identify the root issue correctly:

A U.S. senator has announced plans to introduce legislation that would expand patent law to create a method to challenge software patents, much like the one currently available to review covered business method patents.

It is a move welcomed by some members of the technology community, including Google, Inc, who believe there should be more rigorous review of what software is eligible for patents.

Senator Charles Schumer, a New York Democrat, plans to introduce the bill on Monday, his spokesman Max Young said on Wednesday.

Contrariwise, some continue to bicker about trolls. Here is a new example:

In the decade since it was founded in Dallas, IP Nav has established itself as a global leader in the increasingly lucrative business of “patent assertion,” offering clients the ability to “maximize the value of their IP assets.” Put more bluntly, it’s a patent troll, shaking down companies by threatening them with lawsuits over patents that they or their clients are squatting on. They are a big problem in the tech world, and IP Nav is a big part of it. Rackspace, the San Antonio-based cloud computing firm, recently called the company “one of the most notorious patent trolls in America.”

Ask what type of patents they use. Therein lies the real issue. It is worth noting that the world’s largest patent troll (which spawned from Microsoft) is lobbying with a new ‘study’ that Mike Masnick covers as follows:

Giant Patent Troll Intellectual Ventures Does ‘Study’ To Show How Much Everyone Loves Patents

Apparently Intellectual Ventures’ attempts to improve its dismal reputation as the worlds largest, most obnoxious patent troll don’t seem to involve finding a legitimate business to be in, or actually doing something to help the world, but rather to ask some execs some loaded questions to produce a study pretending that execs really love patents and think they’re great for innovation. The thing is, the study also shows that the execs they asked are somewhat clueless about patents or how they’re being abused today.

Masnick concludes by saying: “See, next time why not ask them something a bit more accurate, like how they feel about “companies who go out and buy weak, broad patents on obvious things, and then use them to demand cash from companies actually competing in the market?” Or, rather than call them “patent licensing companies” call them by what everyone knows them as: patent trolls.”

This strategy is not unique to patent trolls. Some dying companies, Nokia for instance, do something similar. The important thing is to discuss the patents and not those who use them. The patents are the root cause. Their issuer is the key culprit and it is often controlled by large corporations such as IBM.

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