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06.01.13

Patent Lawyers Fight to Keep and Facilitate Software Patents Worldwide, Using Misinterpretation, Distraction, and Loopholes

Posted in Patents at 9:22 am by Dr. Roy Schestowitz

Court

Summary: Why reform addressing patent scope is becoming ever more elusive and who is responsible for this

With software patents in New Zealand not entirely dead yet, some lawyers in the London-based pro-software patents blog try to promote the notion of software patenting, as always. “It all comes out in the wash: New Zealand grapples with computer programs ‘as such’” says the headline. To quote the lawyers’ echo chamber, “[t]his means that a computer program will not be a patentable invention if the sole inventive feature is that it is a computer program, explain Simpson Grierson. It will, though, be possible to obtain a patent for a computer program if the invention’s contribution lies outside of the computer, or if the contribution affects the computer itself but is not dependent on the type of data being processed or the particular application being used.”

Why is this relevant? They lobbied for something similar (“as such”) to enable or facilitate software patents in Europe. It’s becoming a trending topic again. Matthias Kirschner of the FSFE says that “[o]ut of 58 innovations of the most important software innovations only 5 may be subject to patents,” based on a recent paper. He wrote some articles on the subject of software patents recently (those are in German though). He also noted that “#Google gets some more time in the #swpat fight with #Microsoft [link to Microsoft Florian omitted] When will this patent insanity stop?” Maybe when we start identifying where this mess comes from and start getting more active.

Watch another lawyers’ Web site promoting software patents this week, citing David Kappos. They are providing ammunition to overzealous lawyers who keep (even this week) discrediting progress. The microcosm of lawyers continues to discredit those who claim CAFC put software patents in a dark alley, as evidenced here. It is important to recognise that patent lawyers are doing this, knowingly impeding progress.

James Love wrote the other day that “The ideology around patents is so strong that people tolerate extreme inequalities of access to cancer drugs, and access-related deaths.”

These debates are usually dominated by clueless bureaucrats and lawyers (often the same group). Pamela Jones, a paralegal, says that “Finally, Computer Scientists Speak” in the biggest case over Android. She writes: “An amazing collection of the leading computer scientists in the world have joined together to stand with Google and against Oracle in the Oracle v. Google appeal about APIs, and they ask the court to affirm Judge William Alsup’s decision that the Java APIs are not copyrightable. It’s in an amicus brief [PDF] that EFF has just filed.”

Josh Mendelsohn says Public Radio International (PRI) is to “revisit software patents this weekend” in this show, but it seems to involve EFF lawyers who focus on trolls and not software patents like they promised they would. We shall see. We have already criticised the EFF for this. “No mention of the problem patent(s),” says iophk about the latest EFF action (about podcasting). “Also, fighting the patents one at a time is just playing expensive whack-a-mole at $4,000,000 a hit. Better to concentrate the effort on eliminating software patents, that’s a one-time investment, not a subscription activity” (prior to this, the EFF ran the futile patent busting endevaour — a one-by-one effort).

iophk is right. The EFF is just feeding lawyers in a trial and it’s usually lawyers who write for them on this topic, serving as a bit of a distraction.

The real problem with patents is not trolls. Some trolls, such as MPEG-LA, act as a proxy for giants like Apple and Microsoft, doing this for many years despite complaints to the government.

The problem is software patents, which MPEG-LA is all about. To give another infamous example, consider the caller ID patent and its impact. Like podcasting and multimedia patents, it is a software patent.

Lawyers may deliberately lead us down the road of pseudo reform that would achieve too little and legitimise so much of the status quo. Here is another new post which focuses on trolls rather than patent scope. It says: “Retailers are finally fighting back against so-called patent trolls, firms that buy patents and then threaten retailers to get whatever licensing fees they can. These firms generally don’t want to go to court. They’d rather send letters and make a nice living from the checks of chains that can’t be bothered to fight.”

These retails are almost always hit by software patents. The fact that the holders are patent trolls is not so relevant.

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