02.09.15

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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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