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12.10.13

IBM and Microsoft Crushed Patent Reform in the United States, Last Resort is SCOTUS Again

Posted in IBM, Law, Microsoft, Patents at 8:03 am by Dr. Roy Schestowitz

Though the people in black costumes have a poor record on software patents

Supreme Court US, 2009

Summary: Legislation in the US continues to be steered by large companies (or their lobbyists) with heaps of software patents; SCOTUS receives another opportunity to cross out software patents

HAVING destroyed Linux backers like Nokia (Jolla/Neo ⇆ Nokia ⇆ MeeGo/OpenMoko/Sailfish survive in other forms, thankfully enough), Microsoft is now destroying US law, as well.

Based on this new poll, Microsoft is still the most widely loathed company in the eyes of FOSS people. This is not because Microsoft is some scapegoat; Microsoft has done a lot to deserve this, including crimes.

Currently in the US there is some useless reform which mostly serves large corporations. it’s not about people’s interests and the only reason Congress passed it is that large corporations supported it (like they support Congress, financially). As one site put it: “As Congress gets ready to pass a greatly watered down patent reform act – watered down largely due to the lobbying of the two biggest patent trolls, IBM and Microsoft – and the Supreme Court begins to contemplate abolishing software patents, there are a few other news items.”

We already explained the role of IBM and Microsoft.

One FOSS site said: “This week, the U.S. House of Representatives voted with a huge majority of 325 to 91, to pass the Innovation Act, which would put significant constraints on patent system abusers.”

No, only a particular subset of them. The U.S. House of Representatives would not have passed this (with considerable majority) if it did not satisfy the desire of large corporations which control Congress through lobbying and bribes.

We should really stop referring to this ‘reform’ as a real sign of progress. The real test is still ahead of us. The software patents-friendly Court of Appeals for the Federal Circuit (CAFC) is still expected to decide whether APIs can be copyrighted (even worse than patents) and SCOTUS, which almost always rules in favour of large corporations, is now the last resort when it comes to software patents. Despite some optimism, all it shows are decisions going into the wrong courts with all the biased (towards lawyers) judges, no jury in sight. As one pundit put it, “the Supreme Court agreed to hear the appeal on the Alice vs. CLS Bank case which is yet another case that looks at the patentability of software. The ruling in the Federal Circuit appeals court (CAFC) was one of the biggest judicial messes you’ll ever see. The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on — one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree. Chief judge Randall Rader has called that decision “the greater failure of my judicial career.””

Rader has repeatedly shown his bias in favour of software patents, inside and outside CAFC. He even gives himself away to patent lawyers’ sites which lobby for software patents.

At the end of the day we are left sort of defending countries outside the US (including Europe) from the invasion of USPTO practices and SCOTUS rulings that permit software patenting. Nokia, which has become Microsoft's biggest troll, mostly uses hardware patents for now, but it shows the threat of big trolls, irrespective of the scope of patents. “EU warns Nokia not to become a “patent troll”,” says this article, but it is “too late” according to iophk, who is Finnish. When Nokia is left to become part of a US company (like Skype being passed to Microsoft) it will become an instrument of abuse inside Europe, embargoing and eavesdropping, respectively.

TechDirt, a US-based site which is highly critical of US policy on copyrights, patents, privacy and other matters, suggests this fix and yet another fix which tackles public funding. To quote: “For many years we’ve been incredibly critical of the famous Bayh-Dole Act, which was passed in 1980 with the idea that it would encourage greater innovation by pushing universities to patent the research they were doing. The theory — based on a rather ignorant view of innovation and research — was that patents would create a market, which, in turn, would enable easier knowledge transfer from academia to industry, leading to a research boom. The actual results have been a near total disaster. What’s actually happened are two very bad things. First, it’s seriously harmed university research, by guaranteeing much less information sharing between researchers. And, it turns out, that information sharing is a big part of how innovation and big scientific breakthroughs occur. Not surprisingly (if you understand basic economics), when you try to lock up each idea with a patent, researchers (and, more importantly, their administrator bosses), suddenly don’t want to share any more. The end result? Lots of important research stifled. What a shame.”

In other words, taxpayers’ money in the US (or growing national debt) goes towards feeding the problems which further increase national debt. How can politicians not see it and why is nothing substantial being done to stop this trend? It is almost a rhetorical question.

Change will come from people, not Congress, and as long as Congress is funded by corporations no change will be permitted, not when it comes to surveillance or even intellectual monopolies, as TTP shows. The latest TTP leak [1,2] shows people power [3] at work, almost stopping business takeover [4] and shameless attack on democracy [5].

To stop the patent maximalists we need some actions like leaks, perhaps even bold protests and lots of angry phonecalls to politicians. Anything else would be defeated by lobbyists and bribes. Politics is business and no level of logic will beat a large-figure cheque.

Related/contextual items from the news:

  1. Wikileaks exposes secret, controversial Trans-Pacific Partnership negotiations
  2. Second release of secret Trans-Pacific Partnership Agreement documents

    On 13 November 2013 WikiLeaks released the draft text of the crucial Trans-Pacific Partnership Agreement (TPP) Intellectual Property chapter during the lead-up to a TPP chief negotiators’ meeting in Salt Lake City on 19-24 November 2013. Today, 9 December 2013, WikiLeaks has released two more secret TPP documents that show the state of negotiations as the twelve TPP countries began supposedly final negotiations at a trade ministers’ meeting in Singapore this week.

  3. Members of Congress: Fast Tracking the TPP is a Non-Starter
  4. Anti-poverty groups condemn WTO pact as big business boost
  5. The Secret Trade Agreement About to Complete the Corporate Takeover of Democracy

    The Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) enshrine the rights of Corporations under International Law, restricting future governments from overturning the changes through fear of costly legal action. They are the largest trade agreements in history, and yet are not open for review, debate or amendment by national parliaments or the public.

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