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07.14.14

Professor James Bessen Presents the Case Against Software Patents After Important SCOTUS Ruling

Posted in Law, Patents at 5:01 am by Dr. Roy Schestowitz

SCOTUS and apartment

Summary: The debate about software patents in the Unites States continues, with academia on one side and greedy patent lawyers on the other

Vox has published a new article titled “The case against software patents, in 9 charts”. It was authored by James Bessen, a professor widely known for his well-researched publications which show that software patents are bad (for the economy, for science, and just about everything except patent lawyers and monopolies or trolls). Recently, the decision from SCOTUS led patent lawyers to deep denial, trying to pretend that nothing has changed and that software patents are as valid as before. These so-called ‘law’ firms have their own agenda. The Webb Law Firm wrote: “Alice Corp. v. CLS Bank International [PDF] is the last of several patent law cases decided by the US Supreme Court in its October 2013 term. While the decision has generated considerable speculation questioning the future of “software patents,” conclusions on the scope of patent-eligible subject matter will have to wait.”

Wait for who? Lawyers?

Moritt Hock & Hamroff, another so-called ‘law’ (technology monetisation by bureaucracy) firm wrote: “Patent eligibility, up until a few years ago, was even easier. Basically, anything new under the sun made by man (or woman) was patentable. That has now changed. Eligibility excludes from patent protection some obvious exceptions such as laws of nature and mathematical ideas. For example, you can’t get a patent on Maxwell’s equations. How would you enforce such a patent? But you can get a patent on a new application of Maxwell’s equations. A less-developed exception to patent eligibility is the concept of an “abstract idea.” Such abstract ideas are not patentable. Here’s the problem, what is “abstract”? What test do we use to determine whether an invention is an abstract idea? And what level of abstraction do we look at?”

This seems like a more rational analysis than the previous one. Here is an analysis from lawyers who alluded to the European law. To quote a fraction:

It is not possible to obtain a patent in Europe for a program for a computer “to the extent that a patent or application for a patent relates to that thing as such”. In the United States, however, that has not been the case and this has proven a fruitful source of dispute in the Courts. This may be about to change.

The danger is that patent trolls from the United States (and especially from Texas where Daniel Nazer says they like to hang out in for patents [1] if not other ludicrous causes [2,3]) will one day land in Europe, due to a sort of unification of patent laws. Right now we can only hope that the US will work to eliminate software patents for good, pushing back against a European trend of gradually legitimising such patents.

Related/contextual items from the news:

  1. Why Do Patent Trolls Go to Texas? It’s Not for the BBQ

    There is a lot in our current patent system that is in need of reform. The Patent Office is too lax in granting patents. Federal Circuit case law has consistently favored patentees. Another part of this problem is the forum shopping by patentees that leads to a disproportionate number of cases being filed in the Eastern District of Texas.

    Back in 2011, This American Life did a one-hour feature called “When Patents Attack!” The story included a tour of ghostly offices in Marshall, Texas, where shell companies have fake headquarters with no real employees. For many people, it was their first introduction to the phenomenon that is the Eastern District of Texas, a largely rural federal court district that has somehow attracted a huge volume of high-tech patent litigation.

  2. Tor Embroiled in $1M Revenge-Porn Lawsuit

    A Texas lawyer intent on shutting down Pink Meth, a site known for facilitating revenge-porn, has named the Tor Project in a lawsuit claiming at least $1 million in damages. The inclusion of Tor apparently was based on a statement on Pink Meth’s site that thanks the project for enabling users’ anonymity. “Once we verify that they’re not helping Pink Meth, we will dismiss them,” the lawyer said.

  3. Anonymity Network Tor Sued For Allegedly Protecting A Revenge Porn Business

    Tor, which offers encrypted software and an open network of protected communications, has been sued in the state of Texas over a revenge porn website that used its free service.

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