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05.03.14

The Debate About Software Patents is Still Dead Because Large Corporations Killed It

Posted in IBM, Law, Patents, Red Hat at 7:58 am by Dr. Roy Schestowitz

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Summary: Corporate overloads have successfully shot down any chance of attaining freedom for software developers

HAVING spent about a decade of my life fighting against software patents, it is just too hard to let the cause go. I sometimes revisit relevant news sites and blogs, hoping to find some relevant coverage, parliamentary action, activism, etc. Over the past year or so this has been a depressing exercise because on people’s lips there’s no longer (or rarely) the goal of eliminating software patents. Companies like Google joined the ranks of IBM and are now hiring patent lawyers, acquiring software patents, and so on. I had warned managers at Google about it and their responses to me were largely defeatist. The SCOTUS, which historically is just a plutocrats’ tool for authorising the plutocrat’s will, continues to support the USPTO’s patent maximalism (the USPTO is headed by corporations such as IBM).

There is no substantial bill seeking to truly reform the patent system and those which exist, including corresponding press coverage, are focusing on trolls, costs, and other side issues. The EFF, which once upon a time promised to fight against software patents, recently hired some more lawyers whose articles on the matter tend to be a waste of time (and whose focus is truly bizarre, misguided at best). Here is one new example, the latest of many that we covered last year:

The Supreme Court heard oral argument today in another patent case, Limelight Networks, Inc. v. Akamai Technologies, Inc. In this case, the Court considers what to do when one party performs some steps of a patented method and another party performs the remaining steps. Specifically, Akamai wants to hold Limelight liable for patent infringement even though its customers perform one of the steps of the patent (i.e. four steps are performed by Limelight, one by the customers). The Federal Circuit had ruled for Akamai and effectively held Limelight responsible for the actions of its customers.

But that’s not the point. The point is, patents like these should be out of scope, it doesn’t matter who performs which action, who pays for litigation, who the plaintiff is, and so forth. Even Red Hat, which takes pride in “Open Source” (not so much in freedom) focuses on “trolls” in this latest post on the topic:

Patent trolling—the aggressive assertion of weak or meritless patent claims by non-practicing entities—is a frequent target of disdain from open source enthusiasts. Thus it may be of some comfort to readers that the highest court in the US has recently decided the issue is worth looking into. Three cases have already been heard, but decisions are, as usual, still a ways off.

When even entities like the EFF and Red Hat waste their efforts (if not hijack the voice of patents opposition) trying to tackle the wrong question it seems clear that activists against software patents (that’s software developers, both free/libre and proprietary) are pretty much alone. We oughtn’t expect corporations, corporate press or even politicians to help our cause. They don’t understand, they don’t care, and if they care, then it’s not because they want to see software patents abolished. IBM is probably one of the worst pretenders; unlike Microsoft, it also tries to convince us that it’s on our side and many people fall for it.

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