EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

06.25.14

Patent Lawyers Fail to Grasp That Software Ideas Rather Than Code Are Abstract and Hence Cannot Endure a Proper Court’s Test

Posted in Courtroom, Deception, Patents at 11:27 am by Dr. Roy Schestowitz

The LLP echo chamber

Businessman

Summary: Heaps of editorials and analyses from patent-centric firms pretend that nothing has changed after the Supreme Court abolished patents on “abstract ideas” (as opposed to working implementations)

POTENTIALLY substantial patent changes are afoot, especially owing to a decision from SCOTUS. A new article by Timothy B. Lee chastises this court for not understanding technology, which is a typical problem with judges. “The Supreme Court doesn’t understand software, and that’s a problem,” says Lee. “Patent litigation has become a huge problem for the software industry. And on Thursday, the Supreme Court could have solved that problem with the stroke of a pen. Precedents dating back to the 1970s place strict limits on software patents. The court could have clearly reiterated that those old precedents still apply, and that they rule out most patents on software.

“Instead, perhaps fearing the backlash from invalidating billions of dollars worth of patents, the court took an incremental approach. It ruled that the specific patent at issue in the case was invalid. But it didn’t articulate any clear rules for software patents more generally. In effect, the court kicked the can down the road, leaving a huge question mark floating over most software patents.”

SCOTUS can hardly distinguish between UML, pseudo code, and source code. The ambiguities left behind are already being exploited by patent lawyers and here is a new example from Akin Gump Strauss Hauer & Feld LLP, another from Sterne, Kessler, Goldstein & Fox P.L.L.C., and one from Choate Hall & Stewart LLP, to name just three (these flood the media these days, day after day). Well, at first came lots of media reports (written by journalists) declaring a lot of software patents dead and later came (and still comes) the flood of “analyses” by lawyers, rewriting the history to assure their clients that it is worth patenting software and that nothing has really changed.

In recent days we found more examples from Proskauer Rose LLP, saying that “Applying this rationale, the Court found that the claims at issue recited computer steps that are “purely conventional” and a “basic function[] of a computer.”15 The Supreme Court therefore affirmed the Federal Circuit and held the claims were ineligible under § 101.”

The SCOTUS decision was too weak in some sense and law firms are spinning it in their favour. Here is an example where the title says “Supreme Court silent on general eligibility of software patents” (not entirely true). Cooley LLP , Fenwick & West LLP, Seyfarth Shaw LLP and Lathrop & Gage LLP also try to assure their clients that patenting more algorithms is OK, as if nothing has changed. “Although the Court’s decision provides some clarity concerning the inventive effect of reciting computer implementation within patent claims,” says the last analysis, “there remains some ambiguity concerning how courts will define “abstract ideas” moving forward (indeed, the Court stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”).”

Code is already copyrighted, so one might argue that patenting anything but code would be patenting “abstract ideas”. Suffice to say, this is not what greedy patent lawyers are going to tell customers for whom they produce useless papers that the USPTO almost blindly stamps for approval.

Patent lawyers continue to rely on the ignorance or gullibility among judges (who are themselves lawyers and are rarely technical enough to grasp programming). Perhaps any court that deals with patents should have an imperative to be technical. CAFC, for example, needs to be abolished for being corrupt and also utterly dumb on technology.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. Michael said,

    June 25, 2014 at 4:12 pm

    Gravatar

    The idea of, say, using icons as nouns maybe abstract, but it was still a very important jump in the ideas of GUI (one not made at Xerox). Same with using pull down menus and more. The actual code of these things is not that important (though, of course, poorly coded implementations would not work well – there are many ways to code it well).

    So how do you propose these things be protected? Or should companies who work hard on making such innovations not be allowed to protect what they have done, not even for some limited time?

What Else is New


  1. Links 18/9/2014: Windows Copying GNU/Linux, Germany Moves to Security

    Links for the day



  2. Web Site 'Patent Progress' Now Officially 'Powered by CCIA' (FRAND Proponent, Microsoft Front)

    After talking a job at CCIA, "Patent Progress" and its chief author should be treated as dubious on real patent progress



  3. Articles About the Death of Software Patents in the United States

    Recent coverage of software patents and their demise in their country of origin, where even proponents of software patents are giving up



  4. The Death of Software Patents is Already Killing Some Major Patent Trolls

    VirnetX seems to be the latest victim of the demise of software patents in the United States



  5. More Microsoft Layoffs

    More Microsoft layoffs go ahead as the company is unable to compete



  6. ODF on the Rise

    Milestones for OpenDocument Format (ODF) and the launch of FixMyDocuments



  7. Links 17/9/2014: CoreOS, ChromeOS, and systemd

    Links for the day



  8. Italy is Cracking Down on Microsoft's Monopoly Abuse While Gradually Moving to GNU/Linux

    Italy is not only moving to Free/Open Source software but also to GNU/Linux while at the same time barring Microsoft from forcibly tying Windows to new PCs



  9. OpenSUSE's 'Assurances' Are Classic MBA School Hogwash

    OpenSUSE is not part of any commitment, except for SUSE's; the impact of the Novell/SUSE acquisition casts uncertainty on the project's future



  10. Links 16/9/2014: Firefox OS Smartphones in Bangladesh, “Treasure Map” of the Internet

    Links for the day



  11. The United Kingdom Should Dump Microsoft For the Sake of National Security

    The UK has issues of Microsoft dependency and Windows viruses; its migration to Free software and GNU/Linux is not fast enough to guard its autonomy in the age of digital imperialism



  12. CBS Hires Even More Microsoft Staff to Cover Microsoft Matters

    CBS continues to be infested with Microsoft staff past and present (this time Dave Johnson) and the bias in output is quite revealing



  13. Microsoft Has Just Killed Minecraft for GNU/Linux and the Possibility of Free/Open Source Releases

    Persson sells out to Microsoft and lets the abusive monopolist destroy the popular cross-platform game that a community has been built around



  14. Another Reason to Boycott Intel UEFI

    More anti-competitive aspects are revealed inside UEFI, which helps merginalise GNU/Linux



  15. Quick Mention: Novell and SUSE Passed to Microsoft's 'Partner of the Year', Microsoft Focus

    Novell is changing hands again, and falling into the hands of even more Microsoft-friendly actors



  16. Links 16/9/2014: Linux 3.17 RC5, KDE Frameworks 5.2.0

    Links for the day



  17. Željko Topić, Benoît Battistelli, and the European Patent Office (EPO): Part II

    Part II of our look into the EPO appointment of Željko Topić and other matters showing the dubious integrity of the EPO



  18. Links 14/9/2014: Android-based Watches Earn Optimism

    Links for the day



  19. Links 14/9/2014: Eucalyptus Devoured

    Links for the day



  20. Links 11/9/2014: Linux Toilet Project, Linux-Based Wheelchair Project

    Links for the day



  21. Links 10/9/2014: Brian Stevens in Google, Ubuntu 14.10 Expectations

    Links for the day



  22. Links 9/9/2014: Hating/Loving Linux, Android Aplenty

    Links for the day



  23. Links 8/9/2014: Linux 3.17 RC 4, Switzerland Welcoming Snowden

    Links for the day



  24. Suspicion of High-Level Corruption at the European Patent Office (EPO): Part I

    The European Patent Office (EPO) Vice-President has a background of corruption and his appointment to the EPO too is believed to be reliant on systemic corruption



  25. Links 6/9/2014: Core OS at DigitalOcean, Women in Xorg

    Links for the day



  26. Software Patents 'Quality' Debated in Courts, Microsoft's Biggest Patent Troll Still a Chronic Liar

    Intellectual Ventures, Microsoft's and Bill Gates' largest patent proxy, continues to spread lies about its motivations, claiming that patent assessment is among the goals when in fact only the courts and patent offices do this



  27. New Article Explains How Bill Gates Prevents Schools From Moving to GNU/Linux and Free Software

    A new article from Al Jazeera provides details about the role of so-called 'charities' of billionaires inside school systems



  28. Microsoft Sued for Large-scale Copyright Abuses

    Microsoft reveals its disregard for copyright law which it loves so much to wield as a weapon against its competition and clients



  29. Links 5/9/2014: New WordPress, Systemd Debate Continues

    Links for the day



  30. 'Embrace and Extend' at Microsoft: The New Generation

    Some of the latest examples of Microsoft's predatory acts against Free software and against competition in general, disguised as acts of friendliness


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts