Summary: The debate about software patents in this post-Alice era parallels the Net neutrality debate, where voices of people with vested interests contribute to confusion and meddle with largely-accepted views/consensus

OVER the past month and a half there have been quite a few articles about software patents. We have kept track of them and accumulated what amounts to an alta vista of sorts -- a kind of zeitgeist of patent debate trends. Back when this site was born (2006 being the year of establishment, i.e. almost a decade ago) debates about software patents were habitual; later we saw these debates distracted, diluted, and then virtually extinguished, i.e. largely gone. It wasn't an accident; the debates are controlled by corporate media, which is in turn motivated by the wills and itches of large corporations. Now they love to moan about "patent trolls", despite the strong correlation between trolls and software patents, let alone the fact that many big corporations act just like trolls. Those who insist that the only problem worth tackling in patents is "patent trolls" are probably just trying to protect multinationals from them; this includes some patent lawyers who perceive trolls as a legitimacy problem (serving to discredit the system they make money from and thus must protect).

Alice Changed Everything

The article "“Ineligible Subject Matter” Patent Litigation Spikes In 2014" (note date) provided an interesting perspective. "More than 20 lower court rulings since the Alice decision have invalidated software patents," said this other article about the HP patents (see [1, 2, 3, 4, 5, 6] or this analysis which says one "can help to have these [HP] patents revoked by providing ‘prior art’ examples on Stack Exchange"). Clearly enough there continues to be progress in this area, but the media is largely absent from it. The voices of patent lawyers dominate and they contribute to the illusion that nothing has changed after the Alice decision, or that very little has changed.

"CAFC affirms invalidity of patent on computerized meal planning," Charles Duan wrote the other day. "Case was so easy they didn't issue an opinion."

Now, for CAFC, the most overzealous pro-software patents court to do this must truly count for something.

"Lenovo Says Alice Kills Tranxition Software Patents," according to this article which states: "Lenovo (United States) Inc. on Tuesday asked an Oregon federal court to find invalid two Tranxition Inc. software patents it is accused of infringing, saying the patents are abstract and unpatentable under the U.S. Supreme Court's Alice Corp. decision."

Also consider reading the article "Future Of Software Patents In Doubt After Supreme Court Decision Last Year", despite it being a little older.

Vivek Wadhwa, a longtime critic of software patents, weighed in last month and said that "Patents are like nuclear weapons". "Vivek Wadhwa," said the introduction, "Indian-American tech entrepreneur and academician is an outspoken advocate of abolishing software patents in the US." Vivek Wadhwa also published some other pieces in large newspapers, noting that the "Founding Fathers of the United States considered intellectual property so important that they gave it a special place in the Constitution: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”"

Satish Babu said that the "'Improve Patent Quality' campaign Is a distraction & doesn't lead to elimination of software patents [according to] RMS delivering the keynote at #lp2015" (recent event).

To quote an article about it, “Big companies that don’t really want to get rid of software patents but do want to get rid of nuisance patents have launched a competing, weak, not-worth-bothering campaign to quote ‘improve patent quality,’ unquote,” Stallman said, presumably in reference to the lobbying group United for Patent Reform, which launched in January."

Stallman is right. As we'll explain later, there is one effort to blame it all on "bad patents" and another to blame it all on "trolls", as CCIA (a front group) likes to do. Uniloc, which is clearly a patent troll, was mentioned here a short while ago because "PTAB Will Review Widely Asserted Uniloc Software Patent". To quote: "The Patent Trial and Appeal Board agreed Tuesday to conduct an inter partes review of a patent on software registration technology that Uniloc USA Inc. has asserted against dozens of companies over the years, in a win for Sega of America Inc. and other accused infringers."

Here is another development in the realms of software patents. BreezyPrint dodges a software patents lawsuit in Texas, where the courts are very favourable to plaintiffs. Quoting Law 360: "A Texas federal judge ruled Thursday that BreezyPrint Corp., a small mobile printing company, did not infringe several printing software patents owned by rival PrinterOn Inc., which was recently acquired by Samsung Electronics Co. Ltd."

"Software patents at center of abuse problem, report says" is the title of another report. Thankfully, some people do realise/understand the core issue and this issue has already been addressed to a large degree by the highest court in the US. One oughtn't be surprised to see patent lawyers panic.

Lawyers Distort the Record

So all in all one might assume that we're moving in the right direction and the world can finally grasp that software is not patentable, not even in the US. Sadly, however, patent lawyers and people in the patent 'industry' still flood the channels (news, forums, etc.) and it shows. They are fighting back against this new reality.

A Microsoft-backed pro-software patents lobbying group (BSA) was given the platform right here, promoting software patents of course. This piece of lobbying/propaganda was posted by Dennis Crouch, who is himself very biased.

Crouch gives his platform not just for lobbyists to exploit (for software patents around the world) and to dismiss Alice but also for other pro-software patents voices, usually patent lawyers. Consider this "Guest Commentary" by Robert Stoll and the notoriously pro-software patents Michael Risch (he believes and insists that some software should be patentable).

Other patent lawyers took on other media. An article by James M. Singer (Fox Rothschild LLP) remarks on Alice and Singer again did this when it comes to patent reform. They are pushing forth the interests of patent lawyers. "We’re hearing a lot of claims about the STRONG Act as an “alternative” to patent litigation reform," wrote the CCIA-backed (and powered) site. "The campaign supporting the bill has been misleading at best." This CCIA-backed site keeps focusing on trolls, as usual, as it last did even a fortnight ago. It's not asking for real "Patent Progress" (the name of the site) but a 'progress' that its funders (which include Microsoft) want. A patent bill's acceptability is determined by the paymasters and "trolls" remain the only mentionable issue. "According to Lex Machina’s data," says Levy (CCIA), "in January this year, there were 442 patent cases filed compared with 334 cases in January 2014. That’s a 32% increase. In February this year, there were 500 patent cases filed compared with 440 cases in February 2014. That’s a 13.6% increase. For the year so far, there are about 22% more patent cases filed in the first two months of 2015 compared with the first two months of 2014." But that's not the point; the real issue is not just litigation but the scope of patents. Why not tackle the core issue?

Patent propagandist Gene Quinn published "The Road Forward for Software Patents post-Alice", one among his many pro-software patents posts (he makes money from these). Gene Quinn derives revenue from this parasitic system, so his torrent of pro-software patents pseudo-patriotism and salesmanship (appeal to emotion with terms like "Problem Child") should not be shocking.

In another lawyers' site we find another post-Alice pro-software patents piece. "Given past precedent," it says, "counsel should not expect the pendulum to stop swinging back-and-forth on software patent eligbility" (it has already swung).

In another lawyers' site we found more of the same and other lawyers' sites offer no exception. They are teaching patent lawyers what to do as they are trying to get around the rules and share tricks for doing so. That's what lawyers do, not just when it comes to patents. They want to keep patenting software, i.e. generate business for themselves. Watch how one firm, Akin Gump Strauss Hauer & Feld LLP, selectively covered cases where software patents were upheld by courts. It's this bias by omission that we covered in prior month.

In conclusion, the world is changing, but don't expect it to change without aggressive and persistent resistance from the parasites. ⬆