Unlocking the door for parasites
Summary: Analysis of the views of academics (profiting from solid research), contrasted with patent lawyers (profiting from feuds and conflicts), and the latter group’s exploitation of Benoît Battistelli’s misguided policies
THERE is excellent new coverage about the uniquely US patent troll problem in the Washington Post, which is read by many US politicians. It was composed by James Bessen and Michael J. Meurer, whose work in this area has been influential. Bessen is a Lecturer in Law at the Boston University School of Law, but he’s not a maximalist of litigation, unlike many law professors. In fact, he studies the economics of innovation and patents and he works quite closely with Meurer (they co-authored Patent Failure).
“Bessen is a Lecturer in Law at the Boston University School of Law, but he’s not a maximalist of litigation, unlike many law professors.”They begin their coverage by stating that a “third of the economy is at stake — and patent trolls are to blame”. They say that “[p]atent lawsuits have become a big business. Over six times as many patent lawsuits are filed today as in 1980, and businesses of all sorts have become vocal about the burden of undeserved lawsuits, many over vague or overreaching software patents.”
They then ask about a reform: “Is this necessary? The evidence suggests that it is, but even more should be done.”
Well, patent lawyers fight back in social media. They deny there is even a problem and the echo chambers of patent lawyers (patent profiteers inviting patent profiteers speak to other patent profiteers) are a big part of this problem.
“They feel empowered by Battistelli’s controversial practices because he actively lobbies on scope rather than focus on examining patents based on rules handed down to him.”The biggest proponents of software patents, including Patent Watchtroll (or Watchdog, although they’re watchers in the opposite/inverted sense), still try to influence the EPO by pushing for the UPC, citing the maximalist Benoît Battistelli for support. They feel empowered by Battistelli’s controversial practices because he actively lobbies on scope rather than focus on examining patents based on rules handed down to him. To quote the patent maximalists (and lawyers):
In October, Italy, one of the last holdouts to the European Unitary Patent, joined the party, leaving Spain and Croatia as the only members of the 28-member European Union (EU) opting out. As the fourth largest market in Europe in terms of population, gross domestic product (GDP) and patent validation, Italy’s reversal is a huge step forward. According to Benoît Battistelli, president of the European Patent Office (EPO), “Italy’s accession will … render the Unitary Patent more attractive to companies from other European countries and from across the globe.”
However, there are still many more hurdles to cross before companies or individuals can expect to use the unitary patent to protect their intellectual property throughout the EU, although Battistelli is confident it can be completed by the end of 2016.
So what is it exactly, and what hurdles is it still facing?
Under the new system, one patent will be in effect across all of the participating EU member states, including at least Germany, the United Kingdom, France and 10 others, without having to further validate the patent in each of the individual countries. Infringement, invalidity determinations and injunctions on the unitary patents will be enforceable across the participating states as well. The unitary patent will not only reduce the complexity of protecting IP in Europe, but will significantly reduce the strain on IP budgets, as it currently costs around 36,000.00 EUR (approximately $48,000 USD) today to acquire patent protection in all 27 EU member states.
But at whose expense? What UPC practically means is that more business in more countries shall become instantaneously exposed to more patent lawsuits. Who pays the price? Everyone. Who benefits? Patent lawyers and their largest clients, who wield massive patent portfolios in a lot of countries. To these large multinational this can mean cost savings and easier/broader injunctions/royalty-gathering.
We occasionally hear from critics of the European patent system and they too worry about the UPC.
“I haven’t gone over to the dark side of the force [i.e. patent attorneys],” told us one reader, “but have nevertheless been reading volumes and volumes on patent law. My feeling is that there is a gulf between those who write laws, and those like me who have [or had] to apply them, sitting down and staring at the documents wondering where to begin, to eventually reach a solid decision. The former talk about “flexibility” and not presuming about the direction where innovation will head into, and the latter must figure out what the former actually meant. I banged my head on the wall over with expressions like “technical” or “as such”, and the US approach [e.g. Alice] isn’t a whole lot better.”
It is clear that even patent examiners don’t quite know how to deal with patent scope and boundaries, especially as patent lawyers try to blur gaps and mislead by lobbying. Non-technical managers contribute to this and pressure examiners (calling it “production” or “efficiency” rather than maximalism).
“What would be needed from critics of the patent system [such as Greenpeace],” our reader said, “is clear thinking. If there is to be a patent system, then one should strive for a fool proof litmus test for deciding what is allowable and what’s not, and not something of the “I know it when I see it” kind. I know, it’s hard, if not impossible.
“The people attempting to draft implementing regulations and reflect about the way in which these may be applied on real-life applications by real-life examiners, and how these would interact to obtain a patent law framework consistent across all fields, e.g., from chemistry to computer science.
“Industry lobbies know how to be at the right place at the right time to slip in their favoured wording, or drafting sweeping treaties bypassing national parliaments [e.g. TRIPS].”
We are seeing much of the same in UPC right now. We previously wrote about how can usher in a lot more software patents.
“A case in point is the biotech directive of the 1990s,” our reader said, “where the EU eventually adopted an outwardly impressive, but in practice rather useless biotech directive, which found its way in EPC Regulations. The tale of how it came into existence was told in German in at least two different books, and is impressive in its illustration of the shabby PR tactics employed by industrial interests.
“Farmers, software people, generic manufacturers, third world countries, patients and the NHS, etc. should heed this example, and aim upstream [the legislator], rather than downstream [the patent offices].”
What we are close to getting right now in Europe is a lot more patent trolls (this is already becoming a serious problem), having repeated the mistakes of the US with low examination standards (for the sake of artificially elevating numbers), little in terms of borders (cross-state separation), and expansion of patent scope to software (empirical evidence shows that most patent trolls use these). █
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Paid by Microsoft, still serving Microsoft’s agenda under misleading organisational names, hoping nobody will notice
Summary: The Microsoft-connected ACT has just morphed into another entity, in an apparent effort to derail Android (as well as other Linux-powered mobile operating systems boasting Free/libre code) with patent tax in ‘thicket’ form
SO, Microsoft’s most infamous lobbyists are still around and they use patents as a weapon, not just lock-in such as OOXML. There is now a new mask for this particular group of lobbyists, and a new Web site too. Watch who follows and promotes this site (and Twitter account), it’s just people from ACT. This is yet another campaign Web site (one of many) belonging to this longtime Microsoft AstroTurfing group.
“The name of their site/campaign is probably designed to imitate or borrow the reputation of AllThingsD (Wall Street Journal) or All Things Open (ATO), a conference about FOSS.”See our Wiki for some background on Association for Competitive Technology, formerly known as ATL. It had previous names, but evidently it saw the need to keep renaming/rebranding because its agenda and clients become public knowledge, compromising its ability to operate effectively as a lobbying group.
In recent years these lobbyists were trying to masquerade as an alliance for ‘apps’ developers, disguising the anti-Linux and anti-FOSS agenda as ‘apps’. “Today marks the launch of http://AllThingsFRAND.com,” they announced in Twitter. “Follow our site for the latest news & analysis on patents, standards, and FRAND licensing” (the inherent foes of FOSS, Android, and Linux).
Anyone who follows this site will basically be following lobbyists. They are selling something. They sell agenda, not information.
“[W]hen you see all the complains at the EU level against Google, some company is pulling the strings from behind”
–Benjamin HenrionThe name of their site/campaign is probably designed to imitate or borrow the reputation of AllThingsD (Wall Street Journal) or All Things Open (ATO), a conference about FOSS.
André Rebentisch (FFII) noticed this and said that “ACT [had] launched a #FRAND web site” (FRAND in this context are patents — mostly software patents — that act as a tax that’s virtually impossible to avoid).
“ACT launched a FRAND web site…”
–André RebentischSomeone should perhaps tell the not-so-open-anymore Red Hat that Microsoft is still attacking FOSS (via front groups), with patents inside so-called ‘industry standards’ (thickets/cartels Microsoft is in). Well, so much for ‘standstill’… they are still on the offensive, albeit discreetly (through satellites).
Benjamin Henrion (FFII) told André that “ACT is still ACT. [Is] Zuck still around?” (he was one of their leading lobbyists even back in the ATL days)
Henrion added that “when you see all the complains at the EU level against Google, some company is pulling the strings from behind” (indeed, and we have covered this many times before).
“Here too we have patent lawyers trying to pressure politicians to support misguided policies that enrich lawyers and their big clients (multinational monopolies/oligopolies) at the expense of everybody else.”Henrion has noticed yet another curious thing about lobbyists. “Patent lawyers are forming working groups,” he wrote, citing Patent Watchtroll, a longtime prominent booster of software patents, “in order to draft law for software patents in the US after the Alice storm” (Alicestorm is a term used to refer to the avalanche of software patents after the Alice case).
Patent lawyers are basically the equivalent of weapons companies with their pro-war lobbying groups, set aside their soft bribes to people in Congress (to ensure politicians become hawkish or that only hawks are electable). This is why US Congress supports militaristic policies which in turn pass public money to weapons companies. Here too we have patent lawyers trying to pressure politicians to support misguided policies that enrich lawyers and their big clients (multinational monopolies/oligopolies) at the expense of everybody else. █
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Microsoft is openwashing its lock-in (like greenwashing or whitewashing)
Summary: Ill-informed journalists are helping Microsoft disseminate false messages (or half-truths) about Visual Studio
MICROSOFT finally addressed a criticism we made here before, but it wants the world to misinterpret that and wrongly extrapolate. The following criticisms are still applicable:
Remember that Visual Studio is not “open source” and is not “cross-platform”. Microsoft probably hopes to mislead or confuse the public by opening up and then merely compiling for other platforms just a portion, whereupon it can use misleading headlines to give people the impression that Visual Studio is on equal footing with Eclipse, for instance. It’s the “just enough” openwashing strategy.
It might actually work!
See this week’s news headlines.
Cynthia Harvey  deemed .NET “open source” even though it’s still proprietary and patented (we have more promises than deeds), Apple-oriented sites covered it from a Mac-centric point of view , some Linux sites [3-5] focused on just one small component of a large proprietary bundle (with no plans of becoming “open source”), and Microsoft apologists  or dedicated boosters [7-9] did their best to openwash Microsoft because this tiny portion of a proprietary software suite, Visual Studio (with a proprietary compiler that can potentially sneak in back doors into a lot of programs), had its source code liberated.
This might help get some non-Windows developers ‘addicted’ to Microsoft’s tool and if they later want the full (complete) bundle they’ll need to buy a Windows licence, buy a Visual Studio licence, and then rely on proprietary software from an NSA partner.
Is the world really better off with yet another code editor? One that is Microsoft-leaning? █
Related/contextual items from the news:
A version of the clang/C2 compiler is already used for Project Islandwood. Extending it to all Visual Studio C++ development is an exciting prospect for C++ developers; although Microsoft’s own compiler has made great strides in recent years, clang offers superior standards support in a number of areas. Being able to take advantage of that in Visual Studio will be very welcome indeed.
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“We have no desire to dominate, no ambitions of empire. Our aim is a democratic peace – a peace founded upon the dignity and rights of every man and woman.” –George W. Bush
Summary: Benoît Battistelli uses a disaster to make ludicrous claims and attempt to unify an office that’s truly divided
THE EPO‘s official Twitter account capitalised on Friday’s events, but it did not publicly mention its own (crushing unions and potentially jeopardising people’s lives). The EPO is in a state of meltdown and we were told that even Directors went out to demonstrate against the management yesterday.
“Well, the EPO’s President says he believes in “freedom” but operates his own Stasi-like unit. It illegally spies on staff, journalists, and so on.”Benoît Battistelli’s own response was even more hypocritical than the Twitter account’s. Battistelli would have us believe — to paraphrase Bush — that he has “no desire to dominate, no ambitions of empire.” To quote Battistelli himself: “As an international organisation the European Patent Office believes in an open and inclusive society based on fundamental principles of freedom, equality and justice.”
This is a classic exploitation of a disaster, not for capital gain (so-called disaster capitalism) but for nationalist of pseudo-nationalist (e.g. office) gain.
Well, the EPO’s President says he believes in “freedom” but operates his own Stasi-like unit. It illegally spies on staff, journalists, and so on. The EPO’s President says he believes in “equality” but some businesses (large ones) are more equal than others, and they get preferential treatment. The EPO’s President says he believes in “justice” but he ignores/disregards court orders against his office (for serious abuses against his staff).
Who was Battistelli kidding when he typed down these words? █
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