Bonum Certa Men Certa

PATENT Act a 'Reform' for Big Corporations, Hence Does Not Address the Core Issues, Including Patent Scope and Massive Patent Aggressors

Chuck Grassley
Chuck Grassley's 1979 congressional photo



Summary: Big corporations, including some of the biggest patent aggressors out there, successfully lobbied for what has essentially become a bipartisan bill to eliminate the thorn in their side

"TROLLS" has become the dominant term in today's news about patents. It has been like this for at least a couple of years. It's all about trolls, trolls, trolls. The EFF, which sometimes speaks about software patents (especially this year), is still obsessing over "patent trolls". In one of its recent articles it said: "Suppose you get sued by a patent troll. You then learn that the troll has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the troll."



To rephrase the above text, suppose you get sued by a large corporation. You then learn that the corporation has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the corporation.

"Busting one patent at a time is not a practical approach to solving the overall issue."The point here is simple; it makes no difference if the plaintiff is some corporation or a troll, but large corporations want to only eliminate the trolls, not themselves. Watch the ongoing AP obsession with trolls, this time too courtesy of Anne Flaherty. The Associated Press has almost literally flooded news houses and newspapers with articles that only focus on trolls, as we showed last week (dozens if not hundreds of large papers reposted/reprinted AP). This looks like propaganda. It's a form of lobbying through media. AP's obsession with trolls is exceptional mostly in the sense of impact, it's not necessarily unique. AP is embedded or put in hundreds of Web sites around the world, shifting all focus to one misdirected 'reform' effort [1, 2, 3, 4, 5, 6]. The headlines vary a little, but the storyline is always the same.

Here is a better article from the EFF, focusing on a patent it squashed quite recently. The site says "EFF recently won our challenge to invalidate claims of the “podcasting patent” using a procedure at the Patent Office called inter partes review. This procedure allowed us to challenge a patent that was being used to demand licenses from individual podcasters, even though EFF itself had never been threatened by the patent owner. EFF’s ability to file this petition was important because many of those targeted by the patent owner—small podcasters—would be unable to afford the $22,000 filing fees to challenge the patent, let alone the attorneys’ fees that would come along with it. Also, if an individual podcaster had filed an inter partes review it would have faced a risk of retaliation in the form of a district court lawsuit from Personal Audio. Instead, EFF was able to defend the public interest on behalf of the community as a whole."

The word "troll" is not even mentioned. Compare that to related coverage from "IP Troll Tracker", which wrote: "Let’s just come right out with my point…the “podcasting patent” is no more. I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here). Why? Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process. You know, like Intellectual Ventures does. Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets."

Busting one patent at a time is not a practical approach to solving the overall issue. It is impractical and expensive to do this a million times. The only proper solution is to eliminate software patents, which obviously would invalidate this “podcasting patent” (along with hundreds of thousands -- if not over a million -- other US patents).

So, now there's this relatively new talk about some 'reform' with a new name. It's not really reform for the people but reform for the nation's largest corporations (to better suit large corporations' interests). The New York Times used a misleading headline: "With Patent Litigation Surging, Creators Turn to Washington for Help" (by "Creators" they don't mean individuals). We quickly found a lot more coverage of this (usually following trend-setting media) and it kept mentioning this thing called "PATENT Act", which is fairly new. Lawyers' sites covered it [1, 2, 3] and so did a lot of corporate news sites [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]. Mike Masnick wrote about this thing called "PATENT Act" a few days ago, highlighting early signs that this is just another "act" with gimmicks and branding rather than substance, just like "Freedom" Act and "Patriot" Act. He said that the "Patent Reform Bill [is] A Good Step, But Still Falls Way Short Of Fixing A Broken System", explaining that: "As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done."

It looks like it will really become law (based on dozens of articles we saw), but what will this achieve? "2015 could be the year Congress takes action on patent trolls," wrote Timothy B. Lee, noting that it's all about trolls.

"There's a growing problem with patent trolls," he wrote, "the companies that create no products of their own but earn money threatening other companies with patent lawsuits. The problem has become so widespread that even low-tech companies like restaurants and grocery stores have begun lobbying Congress to do something about it.

"It's not really reform for the people but reform for corporations (to better suit large corporations' interests).""Now Congress could be on the verge of taking action. On Friday, a Senate aide close to the negotiations told me that a bipartisan group of senators is "very close" to introducing legislation with broad support in the Senate.

"Supporters of the legislation have good reason to be optimistic, as the coalition supporting the legislation is broader and more unified than in the past. But given Congress's penchant for gridlock, it's far from a sure thing."

We wrote about Grassley before (in relation to Microsoft) and mentioned some of the other supporters of this bill. They are not necessarily corrupt, they are probably just misled by the lobbying. Our conjecture is that to make the bill passable they don't really want a proper and complete reform, they just amend it based on input from corporations (lobbying). A slightly later (and very good compared to the rest) article from Timothy B. Lee explains "how big companies are stopping Congress from fixing the patent system". He hits the nail on the head when he says that "the problem of large companies exploiting the patent system hasn't gone away. If anything, it's gotten worse as the courts made it easier to get broad, vague patents in the 1990s and early 2000s.

"A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That's not because Google was caught copying Microsoft's Windows Phone software (which has never been very popular with consumers). Rather, it's because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft's patent arsenal has become so huge that it's effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.

"The proliferation of software patents has triggered an arms race. Google, for example, spent $12.5 billion for Motorola, largely for access to its large patent portfolio. A consortium of technology companies including Microsoft and Apple spent another $4.5 billion on patents from the defunct technology company Nortel. Their vast patent libraries help protect them from each other — but they could also help them crush potential future competitors."

Grassley, we venture to guess, is not trying to tackle abuse by large corporations, he is just listening to some abusive large corporations (and the corporate media). As The Hill put it not so long ago: "Bipartisan senators on the Judiciary Committee are close to unveiling legislation to fight so-called patent trolls.

"Judiciary Chairman Chuck Grassley (R-Iowa) told reporters at the National Press Club that negotiators are "close to getting a final agreement," with his office later saying it could come as soon as this week. Another aide familiar with the talks said senators are close to a bill.

"The proposal is not expected to look like the House's Innovation Act but will include some of the same provisions. It will have provisions on discovery and pleading requirements that are less strict than the House version, according to Grassley."

Call it "PATENT Act" or "Innovation Act", these are just labels. What it's really about is tackling trolls, but not promoting innovation or even improving patents. The bill targets the plaintiff type, not the patent type. These are just an opportunist's methods for promoting oneself without really serving the public. Recall the patent 'reform' from the GOP and watch this latest publicity stunt for Rick Santorum (disgraced GOP candidate who never gained traction).

As with many giant corporations that support Linux (IBM or Google), there's no chance of them tackling software patents as a whole. They are not Free software communities. Their problems are different. "Google collects patents while lobbying against them," wrote one vocal proponent of software patents. It is a correct observation actually, exploited by proponents of overly broad patents in this case. Here are the British lawyers from IP Kat taunting Google as well in their article "Google says 'We want your patent. Maybe.'"

Never expect large corporations to do the right thing unless their interests somehow coincide with the interests of people (which is rare). Patent reform will require popular action and pressure from the public, not from the likes of IBM and Google, not even Red Hat. This is why the effort to stop software patents must regain some momentum (lost several years ago).

Recent Techrights' Posts

Representing and Speaking for Animals
If I ever choose to take this matter to tribunal with animals-centric NGOs on my side, it'll get some press coverage for sure
The UEFI 9/11 - Part II - Campaign of Censorship and Defamation Against Critics
In dictatorships, humour serves an important role. It's tragic.
How Not to Build Software
code forges that need a Web browser perhaps fill some 'niche' demand
GAFAM and "MATA"
The use of dark humour there hopefully helps illuminate what a lot of "modern" technology became like and how it interacts with human civilisation (to what ends and whose gain)
Flying in 2025
worse than ever before
The UEFI 9/11 - Part III - Chaos is Scheduled to Happen Second Thursday of September (No Matter What the Microsofters Tell You)
The clock is ticking
Downplaying the Impact of "UEFI 9/11" is a Losing Strategy
we won't publish much whilst on holiday
 
Slopwatch: Google News Assisting Plagiarism and Anti-Linux FUD, Serial Slopper Rips Off Linux-Centric Journalists
This makes the Web a much worse place and lessens the incentive to do journalism
Links 30/08/2025: NVIDIA Fakes Results to Hide a Bubble Already in Implosion Phase, Data Breaches Galore, Important Win for Workers' Union in Canada
Links for the day
In Kazakhstan, Yandex Estimated to be 20 Times Bigger Than Microsoft
Bing is measured as down this month
Shutterstock Not Enough? The Register MS Uses Slop Images in Articles (Seemingly More and More Over Time)
Cost-saving trajectory amid office shutdown?
Gemini Links 30/08/2025: Games, PostmarketOS, and Slop
Links for the day
Links 30/08/2025: Imgur Uproar and Many Ukraine Updates (Mediazona Reports Over 200,000 Russians Died for Putin)
Links for the day
Birds Are Not "Pests and Vermin", Privacy is Not a Crime, and GNU/Linux is Not 'Hacking Platform'
I could not help but think of Free software analogies
The Sites Should Be Very Fast Again
That issue is now resolved
Activists, Including Technical Activists, Need Not Pursue Affirmation
Techrights doesn't play or participate in a "popularity contest"
Government Sites Should Run Free Software
Not proprietary bloatware with buzzwords
LLM Slopfarms Take No Breaks
When people run sites by bots they don't need to worry about "breaks"
GNOME Having a Meltdown Again
Thanks and farewell to Steven Deobald
Gemini Links 30/08/2025: Low Tech and Hunchbin 1.0.6
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 29, 2025
IRC logs for Friday, August 29, 2025
Financiers and Sponsors of the Slop Hype (Pyramid Scheme Waiting to End, Bubble That Will Inevitably Implode)
It's also burning the planet
Slopwatch: Fake Articles About "Linux", Google Helps Ponzi Schemes and Slopfarms in Google News
Slopfarms are a real pain
Gemini Links 29/08/2025: Retiring at 62 and URL Filtering HTTP(S) Proxy on Qubes OS
Links for the day
Links 29/08/2025: Lisa Cook Sues Convicted Felon and Backdoor Mandate in UK Resisted
Links for the day
Links 29/08/2025: Arti 1.5.0, War on Public Health (CDC), and Slop 'Bros' Made to Pay for Their Mass Plagiarism
Links for the day
No, 4Chan is Not Fighting for You by Lawyering Up Against Ofcom (UK)
Don't mistake proto-fascists for people who "fight for you". They don't.
In Many Places in the World Vista 11 "Market Share" is Going Down, Not Up
In some countries Windows is already down to third place or lower
More Microsoft-Connected Layoffs, at Least Third Time This Month! (Also Another Death on Campus)
Microsoft as a "gaming" company is where studios, projects, games, and even developers come to die
Slopwatch: Fake Articles About "Linux", Slop Images in VentureBeat, Linux Foundation Spam Made With LLM Slop and Slop Images
The only relief or upside - if any exists - is that the pace of slop was down a bit this week
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 28, 2025
IRC logs for Thursday, August 28, 2025
Gemini Links 29/08/2025: Poems, Games, and Java 25 Performance
Links for the day
Links 28/08/2025: Greenland 'Interferences' by US and Skinnerboxes to Get Banned in Korean Schools
Links for the day
Richard Stallman (RMS) Talk in Ethereum Cypherpunk Congress Will be Remote
This past week RMS received lots of accolades online
The Register MS (Run by Microsoft Operatives): Free Software is Putin, Hence Evil and Dangerous
The current editor in chief is an American Microsofter, the previous one went to work for Google (US)
Links 28/08/2025: Chatbots Distorting/Fabricating History and Also Driving Suicide
Links for the day
Gemini Links 28/08/2025: Back in Japan and Why "Hacker News" Sucks
Links for the day
A Much-Needed Wake-up Call to Users of Wordpress.com, Blogspot, Substack and All Those Other Outsourced (and Centralised) Platforms
There are several lessons in there
Open Source Initiative (OSI) Resists Software Freedom, Even by Attacking Its Own
The OSI is compromised
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 27, 2025
IRC logs for Wednesday, August 27, 2025
Slopwatch: linuxsecurity.com, Slopfarms in Google News, and More
Some readers of ours end up sending us links that are from slopfarms, not realising those are slopfarms