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02.09.15

The Pro-Software Patents Lobby Continues Trying to Rewrite Outcome of Alice v. CLS Bank Case

Posted in Patents at 5:57 am by Dr. Roy Schestowitz

Same old stuff “on a computer”

Typewriter with screen

Summary: Despite Alice v. CLS Bank showing that the US has crushed many software patents, those who make money from software patents (not developers but lawyers) continue their attempts to bamboozle the world and rewrite the record

FOR a number of months we have shown how patent lawyers and other proponents of software patents have systematically distorted the truth or selectively reported so as to hide the truth. They would rather have the world believe that nothing has changed following the SCOTUS ruling on Alice v. CLS Bank. It is worse than willful ignorance; it is nefarious and dishonest.

“It is worse than willful ignorance; it is nefarious and dishonest.”One lawyers’ site says that “[o]nly in DDR Holdings, LLC v. Hotels.com, L.P. has the Federal Circuit found a software invention patent eligible in the face of a challenge” (this is important because CAFC is the original source of software patents and one of the most zealous courts in the world, favouring software patents almost without exception).

Another lawyers’ site says that the USPTO addresses the eligibility of software patents, based on a recent forum that we mentioned last month. The lawyers say that “on January 21, 2015, the USPTO held a public forum in Alexandria, VA to receive feedback from the public regarding the 2014 Interim Guidance on Subject Matter Eligibility. Many practitioners provided accounts of their experiences regarding recent interactions with the USPTO related to subject matter eligibility rejections and recommendations for the future.”

When they say “practitioners” they mean lawyers. It’s mostly them, i.e. people who profit from patents, who drive this debate. Now, watch this rhetorical question. Penn Law has titled a session “Will SCOTUS rulings on software patents help or hurt innovation?”

This has nothing to do with innovation, as something called “Innovation Act” may lead people to thinking. It’s about protectionism.

Do patents promote innovation at all? Depends who you ask. Lawyers, who offer no innovation at all, love to speak ‘on behalf’ of people who write computer programs. Consider this new article that perpetuates a myth: “another thing that grows more quickly than population is the rate of innovation, which is partly measured by how many patents are granted to people in that city.”

No, not really. Patents granted are a function of paperwork, not innovation. This is the sort of shallow rhetoric we expect to hear from patent lawyers and their rich clients. Their goal is to repress competition, thus preventing many good ideas from ever being implemented.

From the Penn event’s introduction: “An event hosted by Penn Law and the Penn Center for Innovation asks: “Are Software Patents Critical to Innovation?” A panel of experts will weigh in.”

How many on this “panel of experts” will actually be programmers? This is a Penn Law event, so expect “law” professionals to reign.

Martin Goetz, one of the most vocal proponents of software patents, is meanwhile distorting facts in a pro-software patents site, bizarrely enough claiming that “Alice v. CLS Bank is a Victory for Software Patents”. That’s as inane as saying that a ruling in favour of police brutality helps victims of police. It just makes no sense at all. It’s not just a “man bites dog”-type sensationalism but a misleading statement.

In the absence of clarity in the press on this subject, as opposed to propaganda from patent lawyer, we may continue to see complete nonsense (obviously abstract) ideas from Apple hailed as genius patents [1, 2]. Dell in the mean time is pushing software patents into India, which in principle does not allow these.

To quote a new article from Economic Times (of India), “Dell is looking towards India to transform its research and development capabilities that have lagged rivals for years. The US technology company is strengthening its engineering team here and increasing the number of patent applications filed from India — which, a senior executive said, has already become the largest contributor to software patents for Dell — as the local unit gets a large piece of investment that chief executive Michael Dell has promised for its R&D push.”

Someone should tell Dell that software patents are not legal in India and increasingly they are not accepted in the US, either. Then again, now that Dell is partly controlled by Microsoft we can expect this kind of abusive behaviour, setting aside Dell’s lowering of salaries by driving jobs to Asia (Dell is definitely not going to offer them the same wages it offers in North American and Europe).

The bottom line is, the debate, the law, the media coverage etc. continue to be driven by large corporations. They are foisting myths and misleading statements onto us to make us complacent or at best apathetic if not supportive.

The ‘Innovation Act’ is Not Patent Reform, It’s Corporate Amendment Strengthening Patent Regime

Posted in America, Patents at 5:31 am by Dr. Roy Schestowitz

Only Texas might worry…

Austin State Capitol

Summary: Prominent politicians in the United States say they are pursuing a patent reform, but whose? FRAND in the meantime suffers a setback owing to the US Department of Justice

IN THIS increasingly negative climate and depressing/chilling (to developers) atmosphere of patent lawsuits we are often told that a ‘reform’ is right around the corner and politicians will soon stop the “bad actors”, who usually are those that harm corporations which bankroll politicians. It’s protectionism driven by lobbying. Follow the money. Some groups which claim to seek a patent ‘reform’ are doing the same as politicians as in tackling patent propaganda comics they too perpetuate the idea that the core problem is patent trolls (not patent scope). Suffice to say, it’s the large corporations which fund these groups. This one example we have given is supported by big businesses including Microsoft, which claims it wants so-called patent reform, as long as it’s the corporations’ reform. To quote Microsoft’s lobbying blog: “House Judiciary Committee Chairman Bob Goodlatte and a bipartisan group of cosponsors introduced H.R. 9, the “Innovation Act of 2015.” This action marks an important first step toward enactment of a patent litigation reform measure aimed at curbing patent litigation abuses. Microsoft is pleased to support the Innovation Act, as we did in the previous Congress; we will continue to work with Chairman Goodlatte and leaders in both the House and Senate to move expeditiously to pass a meaningful patent reform bill.”

“It’s protectionism driven by lobbying.”If Microsoft, a strong proponent of patent bullying (its own) and software patents, seeks to pass the so-called “Innovation Act of 2015”, then we immediately know what kind of ‘reform’ it really is. Here is some press coverage about it [1, 2, 3], focusing on patent trolls excepting huge trolls like Microsoft.

“I am optimistic that this bill will get overwhelming bipartisan support again in Congress,” Ali Sternburg wrote in a Microsoft-sponsored (indirectly) post.

Michael Risch, an apologist of software patents, said that “Intellectual Ventures wins $17m jury mixed verdict against Symantec,” whereupon he asked: “Would patent reform change anything?”

No, Intellectual Ventures too is quite likely exempted from the changes. Only the small (not corporations-funded) trolls are likely deterred by the so-called ‘solution’. The same bullies that attack FOSS will continue doing so and nothing will be done to tackle software patents, except perhaps for the SCOTUS ruling we’ll write about in our next post.

Steven J. Vaughan-Nichols, a FOSS proponent, explained some days ago that “​some patents [had] become less troll friendly”. He cites Andy Updegrove and says: “In one small step for patent law interpretation, one giant leap forward for patent sanity, the Department of Justice (DoJ) has agreed to let the Institute of Electrical and Electronics Engineer (IEEE) new Standard Association (SA) patent policy stand. This new policy, in turn, will reduce the cost of fair, reasonable, and non-discriminatory (FRAND) patents and make it far harder for patent holders to sue others using these patents.

In Updegrove’s own words: “in the case of a product that implements a standard, an injunction is even more powerful, since the vendor cannot make a design changes to avoid infringement – by definition, the patent claim in question is “essential.” Moreover, in the case of an essential claim owned by someone subject to a RAND obligation, the owner has already agreed to extend a license, subject to reaching agreement on the terms of license on RAND terms. If the vendor is willing to pay a fee, but not one that is as high as the owner of the essential claim has demanded, providing injunctive relief feels wrong until a court can determine which one is right.”

RAND (or FRAND) has commonly been a weapon used by Microsoft against FOSS, even in Europe. FRAND is inherently incompatible with FOSS, so anything that weakens FRAND is in some sense helping the adoption of FOSS by reducing perceived risk and sometimes cost as well.

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