05.19.15

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The PATENT Act, Distraction of Trolls, and Lobbying for Software Patents by Protectionists

Posted in Patents at 6:56 pm by Dr. Roy Schestowitz

Scientists need not apply

Congress

Summary: Only large corporations and their lawyers are able to formally change the US patent system through public officials and politicians, despite recent rulings from very high courts

THE PATENT Act may be better than nothing, but it is nowhere near a solution to the patent mess that even Chinese actors complain about. In a very recent article at IDG Robert X. Cringely called it a “sick, sluggish U.S. patent system”. See the article “Even Uncle Sam admits: US patent law is whack”. It says that the “US Federal Trade Commission (FTC) is calling on the Patent and Trademark Office (PTO) to overhaul its rules on licensing intellectual property.” Well, it is Bloomberg (front of Wall Street) that celebrates monopolies, not developers or scientists. It’s all about big business now. It’s about occupation of the industry, not creation or expansion. The Economist has this interesting article which says “Patent records reveal that the way inventions are made has changed over the years” (growing in terms of number by making rules more lenient). Here is an interesting part about a notorious patentor: “Invention can come about in two ways. Thomas Edison’s light bulb, for example, was not so much the product of a metaphorical light-bulb moment of discovery as of the bringing together of pre-existing components—an electricity supply, a heated filament, a vacuum and a glass envelope. None of these things was novel in the 1870s, but in Edison’s hands the combination became a patentable invention. In contrast, William Shockley’s transistor, invented 70 years later, involved a lot of new physics that Shockley and his colleagues had to work out for themselves. Both devices changed the world, though (Shockley’s was the foundation on which IT was built). And together they exemplify the two sorts of novelty that exist, in differing proportions, in any successful invention: discovery and recombination.”

A lot of large corporations are battling small ones and they are artificially elevating prices using software patents. It’s an attack on any emergent entity and it slows down science and technology for the sake of profit (of few large entities alone). See this new article titled “Is Big Business a Bigger Problem Than Patent Trolls?” To quote one of the opening sentences: “It’s easy to point fingers at so-called patent trolls for problems with the U.S. patent system, but corporations might be posing the biggest threat to innovation.”

A large entities-funded Web site which serves to shift focus to trolls (under the misleading guise of “Patent Progress”) wrote this: “Mark Lemley and Robin Feldman have just put out a new paper that shows something many of us suspected: patent licenses tend to be for the freedom to operate, not for technology transfer. That is, in their survey, they found that the overwhelming majority of the time, companies took licenses in order to settle an infringement claim for technology they’d developed independently; they generally did not take licenses in order to be able to develop new products.”

This aligns very well with corporations’ lobbying because it serves to distract from much bigger issues. What this site calls “Real Patent Reform” is not the “Patent Reform” that would actually fix the problems in one fell swoop, it would just empower large corporations even more. Watch this three-part series [1, 2, 3] about a mirage of a ‘reform’. It is clear that the goal there is not to solve the big issues but instead to shift attention to bogus ‘reforms’. It’s about protecting the likes of Apple from lawsuits such as this new one [1, 2, 3, 4, 5, 6, 7, 8, 9, 10], not about tackling the patents themselves. The US is reportedly going as far as allowing patents on brain processes [1, 2, 3, 4], but no politicians speak about limiting patent scope as part of the overall solution. How come? Are they just couriers or spokes(wo)men for large corporations? Are too many blogs that cover these issue written by lawyers of large corporations or lobby groups that are funded by large corporations? It’s probably a bit of both. It is even complementary because if sites serve to inform (or misinform) politicians and decision-makers, then this whole situation is cyclic. It is an echo chamber.

A Red Hat-run site recently commented on the Supreme Court’s impact on need for reform, stating: “The thrust of the HJC hearing was pretty clear: Congress needs to act. And while the Supreme Court has taken some steps, it is not a substitute for legislative actions focused on the fundamental issues in the system that abusive patent litigants use to game the system.

“As Sen. John Cornyn—a key member of the Senate Judiciary Committee and one of the key advocate for reforms that failed to reach the Senate floor last May—put in a speech at the end of January, the Supreme Court’s actions around the standards for fee shifting and the modified pleading requirements introduced by the Judicial Conference are welcome, but essentially “marginal changes.””

“A lot of large corporations are battling small ones and artificially elevating prices using software patents.”This latter observation is important because it reminds us that there is already a way to restrict patents (scope of patenting), even without a bill in Congress. Therein lies the real solution and it is scaring a lot of patent lawyers whose biggest clients are very large corporations.

TechDirt recently aired a show titled “How The Patent System Can Be Fixed” and in it there was a “patent attorney [called] Hersh Reddy [who] helped us navigate the many ways in which the patent system is broken.”

They are not focusing on trolls. “Lawyers who know their way around a software patent,” wrote The Register in a recent article, “the blokes who supply those 1s and 0s in the bulk so vital for programming, coffee shops up to date with the latest weird milk for that latte (have they got to badger or vole yet?).”

Actually, these lawyers rarely even understand computers, they are just good with trickery, they are skilled enough at English, and they know how to sneak patents past a system that at least attempts — however loosely — to control their quality. “Drafting Software Patents In A Post-Alice World” is a recent headline from a patent lawyers’ Web site. It gives tips on dodging the rules. “It has been a challenging year for software patent owners,” it says, “following the Supreme Court’s decision in Alice Corp. v. CLS Bank International. Since that ruling was handed down, a large number of software patents have been invalidated in the Federal Circuit and in district courts. So what should IP owners do if they are seeking to file a patent in today’s legal environment? Attorneys Seth Northrop and Sam Walling discuss the current state of affairs and offer some useful advice.”

What they mean to say is that they want to dodge the rules. Here is the previous Commissioner for Patents at the USPTO (apropos, Patent Commissioner Peggy Focarino is retiring now) writing for a pro-patents site, providing an opinion in yet another patent lawyers’ site (echo chamber), trying to highlight ways to dodge the rules and successfully patent software in spite of Alice Corp. v. CLS Bank.

The EFF is clearly upset, but it hardly scolds/scoffs at all this. It merely asked a few weeks ago: =”Why Does The US Patent Office Keep Approving Clearly Ridiculous Patents?”

The original article is here (by Daniel Nazer) and it says: “Imagine you’re on your way to deliver a case of beer to a party. Before you get there, your boss sends you a text: They want 2 cases now. You read the text while driving (don’t do that), so you deliver an extra case when you arrive. Having successfully completed that task, you leave for your next delivery.”

Well, that’s a patent, sort of. Provided it’s encoded in software. That’s how bad things have become in the USPTO. The EFF has been somewhat of a mixed bag as of late. Julie Samuels (EFF) promotes the PATENT Act, despite its inherent flaws and suppositions (that trolls alone are the core issue). The PATENT Act is also promoted by Adi Kamdar (EFF) right here. To quote: “The PATENT Act fixes this by requiring patent owners to supply certain specific information when filing suit: which patents and claims are being infringed, what product is infringing, and how. If such information isn’t accessible, the patent owner must state why.”

Nothing is being done to actually limit patent granting or create new rules (not precedence) regarding patent scope. Then there is this return to the term “bad patents”, yet again, courtesy of Daniel Nazer (EFF). Writing about patents and especially software patents has become increasingly depressing because the corporate media is only willing to blame ‘trolls’ right now. Lobbyists of large corporations (like Microsoft or Apple) would rather name companies that feed patent trolls, omitting names of companies that these lobbyists represent or work for. The EFF plays along with this, so who is left to fight the good fight? The FFII is mostly defunct now.

“This week,” writes the EFF, “together with Public Knowledge and Engine, EFF submitted written comments to the Patent Office regarding its Patent Quality Initiative.” When they talk about quality they don’t quite talk about scope and the EFF is preoccupied with patent trolls these days, especially when it puts so much effort into the PATENT Act. Everyone talks about it, even in Canada and on television in the US (e.g. John Oliver at HBO, who still receives flak from patent lawyers and opportunists such as Mintz Levin Cohn, Ferris Glovsky, and Popeo PC [1, 2]).

The patent lawyers are still working hard to ensure they can patent everything under the sun [1, 2, 3, 4] and patent academics like Dennis Crouch provide some tips. One of these so-called ‘professionals’ goes as far as suggesting that people register copyrights even though they’re automatically in effect, without needing to be “registered”. Here is why: “CLS Bank International, which has created significant obstacles in patent protection for software. Numerous US patents covering software applications have been invalidated by the courts in recent months relying on the Alice decision.”

So this ‘genius’ now suggests “copyright registration” for software. USPTO is for trademarks and patents to be registered, copyrights do not need to be registered; that’s just the way they work, that’s their nature and that’s why they’re cheap to ‘acquire’ (no cost at all). These tips are just horribly misinformed then.

“Corporate Counsel”, another site for patent lawyers and the likes of them, published “Technology Patent Licensing Trends in 2015 and Beyond”, whereas another bunch of lawyers’ sites cited the Nautilus v. Biosig case [1, 2, 3] because it challenges a heart monitor patent [1, 2]. We generally found a lot of coverage about this in “legal” sites, but not in sites that are not run by lawyers, except in one case (corporate media coverage). Here is the gist about the same case: “The Federal Circuit considered the question of indefiniteness on remand from the Supreme Court’s reversal in Nautilus v. Biosig and, perhaps not surprisingly, found again that the Biosig’s claims were not indefinite.”

The Court of Appeals for the Federal Circuit (CAFC) is actually the most pro-software patents court in the US. One site asks, “Is Federal Circuit Really ‘Terrified’ of Reversals?”

As we demonstrated last year, there’s corruption in CAFC, which led to its head leaving. There are conflicts of interest. Corruption is in fact endemic in the US patents system and the court system, as this new report serves to show. To quote, the “US District Judge Leonard Davis said this week he’s going to leave the bench to join Fish & Richardson, a large law firm focused on intellectual property.

“Davis, who has presided in the Eastern District of Texas since 2002, has one of the most active patent dockets in the nation and has presided over some of the biggest technology lawsuits of the past decade. Corporate Counsel magazine reported this week that he has handled more than 1,700 individual IP cases as a judge. Before becoming a judge, he worked for 23 years in private practice.”

“Here again we see tips being given for getting around the rules.”We wrote about Fish & Richardson before and so did Patent Troll Tracker [1, 2, 3]. As a quick reminder, East Texas is like the capital of patent trolls and Texas media insists these days that “There’s no crisis in current patent law”. Texas Lawyer (capital not only of patent trolls but also stagnant in education amongst US states) wrote about the USPTO‘s new guidelines on software patentability, noting: “The recently revised USPTO guidelines for subject matter eligibility offer an effective summary of the case law post-Alice, and should be closely considered by any attorney representing patent owners.”

Here again we see tips being given for getting around the rules. It’s disregard or even mockery of the law. All the proponents of software patents are very much worried about fees and patent scope being restricted, due to changes in law. Some lawyers’ sites and law firms pursue change to law pertaining to design patents, hoping to latch onto the reform all sorts of expansions in terms of scope exceptions. To quote this one new article: “With all the patent reform legislation discussion going on, PARTS are not getting as much attention. Specifically, in February, members of the House and Senate each re-introduced the “Promoting Automotive Repair, Trade and Sales Act,” known as the “PARTS Act.” The House bill and the Senate bill are identical.” Here is what the PARTS Act is about: “The PARTS Act would amend 35 U.S.C. § 271 to provide an exception from design patent infringement for certain external component parts of automobiles, which include collision-related parts such as hoods, fenders, tail lights, and side mirrors.”

Here is the Washington Post, a front for large business interests, alluding to “design patents” as well. To quote part of the report: “Though design patents play a valuable role in the system that encourages innovation by inventors, they’ve also proven to be a rich source of meritless litigation.”

How does it promote innovation? That’s nonsense. “The patent system has been in focus all year,” says the article, “with the Senate last week announcing a bipartisan proposal to reform the system. Similar to legislation that passed the House last year, the Senate bill will be aimed at making life more difficult for abusive lawsuits by so-called patent trolls — companies that buy up dubious patents from inventors and use them to extract settlements from innovators and users rich and poor.”

The problem is not trolls, it’s broad patent scope that facilitates patent trolls. Bradley J. Hulbert, a lawyer, defended software patents the other day. In a pro-software patents site he wrote: “In following this mandate, the U.S. patent system should be implemented in a way to promote software innovation. In recent years, U.S. courts have developed a series of guidelines defining boundaries for patent eligibility. To the extent that such rules block patents from being issued too freely, they should be applauded as consistent with the Constitutional mandate. However, over the past decade, the U.S. Supreme Court’s decisions have presented a “moving target” of when software and other computer-implemented inventions are eligible for patent protection. This lack of clarity is reducing business incentives to develop software.”

This is complete nonsense. People don’t stop developing software just because they cannot patent algorithms. Since he wrote in the site of Gene Quinn, who works hard to undermine any reform that jeopardises broad patent scope, much of this should be expected.

One new article is titled “Does your mobile app need a patent?”

It is a loaded question and so is the part which says: “So you’ve got an app idea and want to protect it. Is a patent the right route to keeping it safe?” No, there are already copyrights. Besides, app developers need to worry about being sued over patent infringement, not about imitations. If one is entitled to a software patents, everyone else is too. It makes the environment unpleasant to work in. Besides patents there are already copyrights and failing that, there are trade secrets. Here is a major patent case being dropped, with the press release and press coverage saying that “CA had alleged that AppDynamics misappropriated trade secrets, among other things.”

Eventually they settled, so the only winners are the lawyers who make money from the two-year-old dispute. Sadly enough, it is those parasites that continue to dominate the debate (also in the media) over patents while many scientists remain apathetic or uninvolved. This ought to change.

Andy Updegrove recently related the subject of patents to Free/Open Source software development. He focused on patent pledges, noting: “For all its benefits, one aspect of open source software does cause headaches: understanding the legal terms that control its development and use. For starters, scores of licenses have been created that the Open Source Initiative recognizes as meeting the definition of an “open source license.” While the percentage of these licenses that are in wide use is small, there are significant and important differences between many of these popular licenses. Moreover, determining what rights are granted in some cases requires referring to what the community thinks they mean (rather than their actual text), and in others by the context in which the license is used.”

In a world where there are no software patents issues such as these would not emanate. For a lot of developers in many countries patents are not a factor in choosing a licence, but if they want to bring their software to the US, for example, then it starts to matter. The issue does not affect just Free/Open Source software but also proprietary software. It affects every software developer and to a lesser degree software users as well.

Where has the opposition to software patents gone?

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