08.03.13

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Who Focuses on Patent Trolls and Who Targets Real Reform or Advocates Elimination of Software Patents?

Posted in Google, Patents, Red Hat at 7:19 am by Dr. Roy Schestowitz

Red Hat and Google continue to be among those who disappoint by losing focus

Glass-Steagall
Sen. Carter Glass (D—Va.) and Rep. Henry B. Steagall (D—Ala.-3), the co-sponsors of the Glass–Steagall Act which brought real reform after the Wall Street collapse

Summary: Distinguishing between those who say they want “patent progress” and those who actually want and pursue proper progress

“Good” patent lawyers are as few as “good” software patents (we wrote about this quite recently); there’s none. Lawyers are devouring companies and organisations that oppose software patents and then hire the wrong people to help out. Those people profit from the mess and they protect their new job by never resolving the mess. There is some new EFF initiative called Trolling Effects, which is being used to focus attention on patent trolls. As one site, Patent Progress, put it:

Many a small business has been there. In the owner’s hands a letter filled with tons of legalese that makes little sense. They stare at the letter shocked, trying to figure out what the hell they are being accused of doing and how it means they might be liable for millions of dollars. It is becoming too real a story in America today – the plight of the patent demand letter recipient.

Here’s more on this initiative, which the EFF is behind. To quote: “Wednesday also brought the launch of EFF’s Trolling Effects, a crowd-sourced database of patent demand letters, to bring transparency and attention to that troubling practice. And yesterday Matt Levy also pointed out that comedian Marc Maron (who was sued by Personal Audio, the infamous podcast patent troll) gave a great explanation and framing of the patent troll issue in a recent interview.”

The EFF’s approach towards patents as been somewhat ambivalent. Some lawyers there target just patent trolls, whereas others address (or claims to address) issues of scope. Patent Progress merely reports about the EFF, but it too seems to have lost focus on scope. As this site points out, “Comedian Marc Maron Gets That Patent Trolls Are Failed Inventors Trying to Hit the Lottery” (here is a famous example), but why focus so much on trolls? Another new post from this site says:

Yesterday, I attended a panel sponsored by the American Constitution Society, “Patent Assertion Entities: Helping or Hurting Innovation?” It was a great panel discussion, but, of course, there wasn’t time to respond to some points that needed responding to.

Rob Tiller too focuses on trolls. In Red Hat’s platform he points out:

Patent reform is hot! The momentum seems to be building in Congress for patent reform to address the problem of nefarious patent exploiters (also known as non-practicing entities, patent assertion entities, and, less politely, trolls). As previously noted here, there are a number of serious legislative proposals circulating, and the President is pressing for new legislation.

Why doesn’t Tiller ever target software patents properly? We highlighted this recurring pattern before (his tune three or four years ago was different]). Doesn’t Red Hat want them over with? Maybe its own lawyers are creating a self-feeding mechanism which keeps them necessary? This sure seems to have happened in Google, as we noted several times before. The EFF too seems to have hired too many lawyers. The real problem is patent scope and as the new article “Broward firm ordered to pay $8.1 million for software patent violations” helps show, the problem is software patents, not just those which trolls are using. Becker gets it and even some writers at the Washington Post get it (citing him), motivating posts like this new one that says:

Dislike of software patents is no longer confined to wild-eyed Redditors and Mark Cuban. The Washington Post points us to two Nobel Prize-winning economists who have recently come out against the very idea of software patents and have said that their existence is actually inhibiting innovation more than helping. Economist Gary Becker, for one, acknowledges that some software developers will lose their incentive to create software if they aren’t guaranteed intellectual property protections. However, he thinks this is an acceptable price to pay if it means freeing other software developers from the burden of high legal expenses.

Patrick Hall, who recently criticised software patents, is being slammed by patent lawyers who complain that Wired dared to give one single columns to a non-lawyer. Meanwhile, reminding us that not just trolls are a pain, Motorola gets another day in court after Microsoft sued:

This was the hearing on their RAND dispute building up to the second part of the trial in this litigation which is set to begin on August 26th, and, as is typical before a trial, both sides brought motions for summary judgment or partial summary judgment. There was a trial already, part one, with the judge only, no jury, and he set a RAND rate Microsoft should pay to Motorola, a very low rate. But there is a second trial coming up in August, this time with a jury, on whether or not Motorola breached its RAND obligations, which is what Microsoft claims, and if so, whether Microsoft should receive damages and attorneys fees. Motorola filed a motion for partial summary judgment [PDF] on those issues. Here’s Microsoft’s opposition [PDF].

FRAND is about patent cartels, not trolls, and these too are a problem. Let’s remember to focus on the real issue and not a red herring.

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