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01.02.15

Growing Resistance to Software Patents in the US While USPTO Expected to Review Subject Matter Eligibility

Posted in America, Law, Patents at 12:22 pm by Dr. Roy Schestowitz

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Summary: Signs that the US is turning against software patents, not just against patent trolls which so-called patent reforms strive to tackle

THE UNITED STATES is improving when it comes to patents sanity because scope is being narrowed, especially when it comes to software patents. We wrote over a dozen articles about it, but the media is still full with so-called ‘reports’ (shameless self-promotion and self service) from patent lawyers, who would deliberately have the public believe that not much has changed. Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.

“Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.”The EFF recently made this good move against software patents, specifically naming software patents as the issue (not “trolls” or “stupid” patents as the EFF habitually addresses the issue).

To quote the EFF: “There are many reasons software patents cause so much trouble. The Patent Office does not do a good job reviewing software patent applications to see if they are claiming something new. And these patents often describe the purported invention with highly vague and ambiguous language. Software patents also tend to claim every way to solve a problem, rather than the particular solution developed by the applicant. This is known as functional claiming. While it may seem like an arcane legal dispute, functional claiming is a key feature of overbroad software patents.”

The EFF recently improved its activism in this area, having wasted nearly a decade tackling one patent at a time (so-called ‘busting’), talking about patent trolls, or alluding to patents that are “stupid” rather than ones whose class/type/scope makes them illegitimate. Alas, the “Stupid Patent of the Month” series from the EFF continues. It usually names software patents, but does not refer to them as such. Here is the example from a few days ago:

In the Spirit of the Holidays: It’s Not Too Late for Uber to Avoid Stupid Patent of the Month

[...]

Because Uber did just that, Uber is being forewarned of its risk of receiving the Stupid Patent of the Month award. Specifically, Uber has applied for a patent on a form of dynamic pricing, a practice that (even if it didn’t exist before the study of economics) has been heavily in use by various industries, including most famously by airlines, for over 20 years.

Stallman recently published a good list of reasons not to use Uber (the car ride brokering company), but that is a subject for another day. The EFF has provided yet another reason to avoid Uber.

Make no mistake however. The EFF’s lawyers are outnumbered by patents-loving lawyers who flood the media with pro-software patents articles (we are reviewing this on a daily basis). The only exception we have found in the past fortnight was Timothy B. Lee, who published the article titled “Software patents are a disaster. The courts finally did something about it in 2014.” Here are some opening paragraphs:

For two decades, people in Silicon Valley have been complaining about software patents. People would get patents on broad concepts like checking email wirelessly or scanning documents to an email account, and then sue anyone who happened to stumble across the same concept. Thanks to this kind of frivolous litigation, patents in the software industry may actually be discouraging innovation instead of encouraging it.

But until recently, complaints about excessive patenting of software mostly fell on deaf ears. The patent office issued tens of thousands of new software patents every year, and the courts upheld most of them. Congress showed little interest in addressing the issue.

The fiercest pro-software patents sites refuse to talk about the demise of software patents or even call patent trolls “trolls” (they use other words). What they do care about is the patent reform in the US; yes, even patent lawyers’ sites speak about it and some worry about the (rather likely) imminent appointment of Michelle Lee, who is one of them (a lawyer, albeit with a scientific background as a computer scientist). Louis J. Foreman says: “I’m concerned independent inventors, small businesses and the property protections we all depend on are about to become collateral damage as Congress once again tries to crack down on “patent trolls.” The popular definition of a patent troll as used in the congressional debate is a company that doesn’t make any products itself, but that owns patents and tries to make money by accusing other companies of infringement.”

We have seen more of that argument elsewhere, basically complaining that patent trolls are not a problem. As one person put it, “obviously, these guys have never been sued by a patent troll…the Wright Brothers…really?”

It was said in reference to this odd article. “Take a look at the website of the ‘tech’ company 1 of the authors works for,” said one person. It sure looks like those who defend trolls are either trolls themselves or those who work with trolls.

In relation to a patent reform this puff piece from The Hill gave a platform the the BSA (Microsoft front group). One relevant part says:

“I think the change in the Senate is a good thing for patent reform,” said Craig Albright, a top lobbyist with BSA | The Software Alliance. “And that change is important for the prospects of getting patent reform done and it’s one of the reasons why we’re optimistic.”

As we have shown before, when Microsoft and its partners speak about patent reform they don’t speak about eliminating or limiting software patents, which they love dearly. Here is another new article titled “Patent Reform Likely to Succeed in Next Congress” and further commentary from TechDirt:

As we’ve noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?

That is pretty much where favourable coverage ends. The biased media of patent lawyers still dominates the news feeds, aided by large corporations’ press.
Bloomberg, i.e. Wall Street, gives them a platform with which to defend software patents in the wake of Alice v. CLS Bank and blogs of patent maximalists write about it in a self-serving fashion. “Look at those patent guys scared to death about loosing their jobs with the removal of software patents,” wrote the FFII’s President. There is more where it came from (bypassing limitations), glorification of patents and revisionism (disguised as ‘history’) about software patents, as noted in an article we published 2 weeks ago. When Gene Quinn talks about history he speaks of a highly modified version that helps patent lawyers fool judges or lawmakers.

A lot of other legal sites, such as Mondaq, Lexology and Law 360 showed their clear bias. Only patent lawyers write there on this topic and it’s unsurprisingly biased. Some are willing to acknowledge the fact that software patents are in trouble, but they selective pick cases where software patents endure. To quote an example from today: “In discussing computer software patentability, the court stated outright that “software must be eligible under § 101″ and that the Supreme Court has implicitly endorsed the patentability of software, including in Alice. Specifically, the court reasoned that patent law must balance between encouraging creation of new computing solutions and protecting against applying established ideas through a computer environment. Caltech, 156 C.D. Cal. at 9095. The court also interpreted Alice as acknowledging the patent eligibility of software if it improves “the functioning of the computer itself” or “any other technology.””

“No, Mr Crouch,” insists the FFII’s Present, “loading software on a PC does not make it a new machine” (Crouch is one of the most prominent boosters of patents).

Joe Mullin recently showed that not only software patents are dying in the US but patents on genetics too. As Susan Decker from Bloomberg put it: “Myriad Genetics Inc. (MYGN) can’t block competitors’ DNA tests to determine risk for breast and ovarian cancer after a U.S. appeals court said three patents on the tests never should have been issued.

“The patents cover products of nature and ideas that aren’t eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted today on the court’s docket. The court upheld a trial judge’s decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market.”

It sure looks like the US improves a lot on the patent front, but reading the lawyers-dominated press won’t quite reinforce this impression.

“Comments will be accepted until March 16, 2015,” says the USPTO regarding the “Interim Guidance on Subject Matter Eligibility”. Three weeks from now we shall receive some new sregarding patent scope in the US and perhaps also find out who is going to head the USPTO,

A public forum will be hosted at the Alexandria campus of the USPTO on Jan. 21, 2015, to receive public feedback from any interested member of the public. The Eligibility Forum will be an opportunity for the Office to provide an overview of the Interim Eligibility Guidance and for participants to present their interpretation of the impact of Supreme Court precedent on the complex legal and technical issues involved in subject matter eligibility analysis during examination by providing oral feedback on the Interim Eligibility Guidance and claim example sets. Individuals will be provided an opportunity to make a presentation, to the extent that time permits.

It is very likely that law firms and large corporations will submit the lion’s share of comments and those who are unaffiliated will be ignored or mostly unaccounted for. Software patents will lose when the wealthy interests against them outweigh the likes of Microsoft. In a world where Free software increasingly dominates (sharing and collaboration among software companies) the vision of a software patents-free world is no fantasy.

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