06.08.15

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Demise of Software Patents and Refusal of the Patents ‘Industry’ to Accept That

Posted in Patents at 3:53 am by Dr. Roy Schestowitz

Limiting entry of patents on software

Sign - no entry

Summary: More stories about the invalidation of software patents in the US and some responses from people who make a living handling patents

PATENTS on software are gradually being invalidated, not just failing to be granted in the first place. The Supreme Court (also known as SCOTUS) decided that if a patent on an abstract concept has insufficient merit, then it shouldn’t be upheld and should instead be discarded. This discouraged some litigation, as numbers serve to demonstrate. Patent trolls and giant corporations would rather intimidate using patents (shakedown) than actually sue. SCOTUS has of course endorsed patent trolling since then and it very much knew what it was doing:

Not only did Scalia acknowledge such a beast as a patent troll, but threw in my second-most favorite Latin phrase of all time, in terrorem which means “into or about fear”.

This new Securus press release, published from Texas, says “Securus Expects Some Patents To Be Invalidated – No Impact On Quality Or Scale Advantage of Securus’ Industry Leading Patent Portfolio” (the context being some of their patents having been invalidated).

It seems clear that companies which base their business around patents are worried. It looks like the landscape is changing and SD Times, a magazine focused on software development and Microsoft promotion, has asked: “What just happened to software patents?”

Well, as lot of them are going away. “Rightly or wrongly,” says the author, “these voices against software patents have become a cacophony. Courts listen to public opinion—don’t let anyone fool you into believing differently. So, when the public became concerned about the software-patent “threat,” so did courts, including the U.S. Supreme Court.”

Activism in the area does make a different, make no mistake about it. That’s why patent lawyers have been so adamant and determined to take over the media, spreading the false impression that nothing has changed after Alice.

“Software is reducible to mathematics, so software must never be patentable if we are to advance science rather than guard or create monopolies.”The author proceeds to stating: “This mutated strain of cases harks back to a Supreme Court case decided in 1948 that had nothing to do with computer software: Funk Brothers v. Kalo. A fundamental tenet of patent law has long been that laws of nature (e.g., E=MC2) cannot be patented. Funk Brothers pushed that much further, saying that a newly discovered law of nature cannot even be the basis for patenting a practical application of that law to solve a real-world problem. Thirty years later, the Supreme Court applied this reasoning to a software-related patent in Parker v. Flook.”

Software is reducible to mathematics, so software must never be patentable if we are to advance science rather than guard or create monopolies. Here is a company in DC bragging about acquiring patent monopolies on software, boasting some more in a press release [1, 2]. This is in no way advancing science; in this particular case it can even harm health.

A patent lawyers’ blog, which often gives the platform to Microsoft and pro-software patents voices (never the opposite), is giving the platform to a Judge who is defending patent trolls. Among his words of ‘wisdom’: “The less enforceable the patent is in various ways, the lower the value of the patent for the whole portfolio.”

In other words, this judge advocates more lawsuits (business for him) or shakedowns. Recall what patents were conceived for in the first place. It was about publication in exchange for a temporary monopoly, not a parade of litigation. A lot of patent lawyers, whose business is litigation and armament (in the legal sense), seem to conveniently forget or ignore that. Thankfully, as the SCOTUS tries to revert back to some level of sanity, the future of software patents does not look promising.

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