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06.03.15

When Patent Lawyers Attack the Messengers for Stopping Software Patents, Ignoring Patent Law’s New Post-Alice Reality

Posted in America, Law, Patents at 8:15 am by Dr. Roy Schestowitz

“Distrust any enterprise that requires new clothes.”

Henry David Thoreau

Summary: Analysis of recent articles from patent lawyers, highlighting their bias and disregard for facts in this system which has become increasingly intolerant toward software patents

TECHRIGHTS has very serious concerns about media coverage of patent matters. The corporate media is still stuffed with lawyers, acting as experts despite a conflict of interests or vested interests (informing versus profiting). Asking patent lawyers about patent law is like asking oil and coal executives about global warming and preferable energy sources.

We have closely watched patent lawyer’s Web sites, blogs, and news sites ever since the Alice case was concluded (one year ago at SCOTUS level). It wasn’t quite over because then, almost immediately, there was a trial in the media, whereupon opinions on the outcome were publicly distributed and consensus was being shaped, mostly by biased lawyers. The comical thing about it is that lawyers twist the truth or distort the truth in order to defend their business, which involves bending the system or finding loopholes for getting around the rules (that is what people often pay lawyers for).

We were hardly astounded to learn that yet more software patents have died because of the Alice case. As Akin Gump Strauss Hauer & Feld LLP put it: “To determine whether the asserted patent fails to claim patentable subject matter under § 101, the court applied the Federal Circuit’s two-step Alice test.”

This is an example of coverage which is rare because patent lawyers rarely cover legal cases where software patents get eliminated. As we have demonstrated many times before, they would rather emphasise cases where software patents withstand a court’s scrutiny. It’s lie by omission. It’s worse than half-truths.

“Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists.”Another site, a lawyers’ site called Law 360, says that “co-founder of an online diamond sale facilitator wants the startup’s lawyers tossed from a case accusing him of stealing its proprietary software, arguing in New York federal court Wednesday that one lawyer represented him for 16 years and the other is bound to be a witness.” The phrase “stealing its proprietary software” serves to remind us that lawyers view software as a property that can be stolen, not merely copied. Another article from Law 360 focuses on Alice , turning to the software patents-friendly Court of Appeals for the Federal Circuit (CAFC). Titled “A Look At Everything The Fed. Circ. Has Said About Alice”, the article serves to echo the pro-software patents arguments rather than remind us of the findings of the Court it got escalated/elevated to (the highest court in the US), by means of an overruling appeal.

The National Law Review says that “Another Sequenom Patent Appeal Heads To The Federal Circuit” and we are assuming that everything will be done by this court, as always, to legitimise the patent and by extension many like it. If only more lawyers’ sites were sincere enough and objective enough to cover the many known cases where software patents are dropping like flies…

McDonnell Boehnen Hulbert & Berghoff LLP, another law firm, has just published “Software Patents Are Still Very Useful Despite Alice, But Are Business Method Patents?” What a loaded headline. Actually, software patents lost in a very big way, much more so than after the Bilski case.

Gene Quinn, a vocal proponent of software patents, went the furthest (among the patent lawyers). In no effort to come across as professional or polite (or even moderately diplomatic for the courts’ sake), he starts a long series of personal attacks on the intelligence of SCOTUS Justices as if he, a patent lawyer, is all that technical himself. “Naked Emperors” he calls them, stating:

Given that we live in an age of software innovation, where 50% or more of all innovation is in one way, shape or form related to software, why are many Article III and Administrative Judges declaring that software is not patent eligible? Perhaps a more important question is why is Congress letting these Judges get away with what they are doing? There is no legislative support for the existence of any so-called judicial exceptions to patent eligibility, yet Article III and Administrative Judges are striking down patent after patent in this economically vital area.

His arguments are clearly flawed and are easy to debunk (for instance the poor assumption that expansion of scope must follow digitisation of existing processes), but what we wish to highlight is the rudeness, arrogance, and poor attitude from some patent lawyers who view themselves as flag-bearers.

Another lawyer, a good lawyer (fighting for ethical software and against patents on software), expresses concern about a new ruling regarding willful or unwilling infringement of patents, noting: “Most engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”

“As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers…”

As a lawyer for the Linux Foundation, Andy Updegrove analyses the threat this poses to Free/Open Source software and he reminds of the injustices in current patent law, be it because of patent scope or the definition of infringement. Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists. A reset of this who system is well overdue, but large corporations won’t permit it. Nor will patent lawyers who make a career out of this sordid mess…

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