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Now It’s Just Patent Lawyers (and Their Rich Clients) Against Everybody Else, Seeking to Maximise Protectionism

Posted in Patents at 8:13 pm by Dr. Roy Schestowitz

How to keep the rich in power and make them even richer, immune to competition


Summary: A roundup of recent articles, mostly those composed by patent lawyers in an effort to eternally expand the scope of patents (hence monopolies on ideas and beyond) irrespective of their collective effect on society

THE greed-driven maximalism in the area of copyrights is bad enough (see the current Anne Frank controversy) and the same goes for patents. Expanding copyright’s length and scope seemingly infinitely (to a hundred years or even more beyond the creator’s death) is irrational. Allowing people to copyright two-word phrases is also outright ridiculous. In the case of patents, letting people patent mere concepts and abstract ideas wouldn’t help innovation or improve society. Letting life itself be patented would in some cases increase the frequency of deaths and the number of deaths. So what gives? Now there are even new secrecy (euphemism is ‘trade secrets’) laws in the making, including those deep inside highly extensive treaties that the public cannot see (well, secrets!). I.S.D.S. goes a step further and strives to allow the rich people to sue governments, supposedly in the interest of so-called ‘shareholders’.

“I.S.D.S. goes a step further and strives to allow the rich people to sue governments, supposedly in the interest of so-called ‘shareholders’.”Watch out for maximalism and notice how often the maximalists are basically a bunch of parasites who benefit (as a tiny minority) from the maximalism. In the case of the EPO we now have patents on life — a serious error that even the EU Commission recently criticised. To quote one article about it: “In a resolution backed by a large majority of its members, the European Parliament has taken a clear position against granting patents on plants derived from conventional (“essentially biological”) breeding. In its statement the European Parliament says that these plants, seeds, native traits or genes should be excluded from patentability. Furthermore, plant breeders should not be prevented by patents from accessing biological diversity needed for further breeding. The members of European Parliament insist further that prohibitions in existing European patent law to exclude patents on plant varieties and conventional breeding, are not undermined by the erroneous interpretation currently followed by the European Patent Office (EPO). Not long ago, the EPO granted several patents on tomatoes, pepper and broccoli derived from crossing and selection.”

‘Poor’ patent lawyers, people who are now angry because they have become accustomed to making money from applying for and suing with software patents, are not having a field day anymore. Here they are moaning about Alice, referring to is as “regime” (that’s a new one). To quote the lawyers’ media (from yesterday): “It seems that might be the test. Well, it could be. Under the new Alice regime, it’s hard to tell, but the U.S. Supreme Court’s recent decision to refuse a patent owner’s appeal based on dismissal of its patent as an “abstract idea” under Alice shows the high court is standing behind the new rule being enforced by what may be best coined as the “Thought Police.””

“Müller appears to have sort of flip-flopped again.”See how other patent lawyers admit that they are fearful of the word “abstract” right now. To quote this one new example from a vocal proponent of software patents: “A case currently pending before the Federal Circuit is anticipated to provide greater guidance into the answer to this question, namely, how district courts should determine whether a claim is directed to an abstract idea.”

Florian Müller, who earlier in his career campaigned against software patents in Europe, now lashes out at Apple in his blog and in Twitter (over a dozen such tweets in the past couple of days). “This blog,” he explains, “which used to be rather sympathetic to Apple’s patent enforcement efforts because the “rip-off” story appeared credible for some time, has been highlighting the weaknesses of such patents as the ’647 “quick links” patent or the slide-to-unlock patent family for a couple of years. Even though things that judges say at a hearing are not the same as an actual decision, the mere fact that the Federal Circuit has expressed massive doubts about those patents already validates my skepticism.”

Müller appears to have sort of flip-flopped again. He already met Apple executives, who simply failed to convince them of their merit in suing Android (and by extension Linux).

“We urge any lawyer, judge, examiner etc. who reads this to antagonise the maximalists.”In other news, sites of patent lawyers suggest new ways to patent software after the Alice case. This is the trend right now. They’re looking for new ways to fool/trick/bamboozle judges and examiners. Don’t let them get away with it (e.g. by adding diagrams and using physical-sounding analogies). These people want more for themselves at everyone’s expense; their clients are usually large multinational corporations such as Apple and Microsoft. They’re actually suing to ban Linux-powered counterparts. It’s an attack on the sharing economy and whatever typically drives innovation the fastest and most efficiently.

This one new article is titled “Is software still patent eligible?” Well, it’s nothing like it used to be. Software cannot be patented anymore, unless the examiners and judges can be caught off guard. As the author put it:

One of the first questions asked by any U.S. patent examiner when reviewing a new patent application is whether the subject matter the inventor is trying to protect is patent eligible. Can the invention be patented, or is it excluded from patentability?

The U.S. Supreme Court, for only the second time in 30 years, tackled this question in the context of a software business method when it issued its decision in the case of Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355, 189 L. Ed. 2d 296 (2014).

In its decision, the court solidified the test for patent-eligible subject matter and indicated that software patents (e.g., patents claiming steps implemented by a general-purpose computer) can be patent eligible under certain circumstances.

Patent-eligible subject matter is defined by a combination of statute and case law. Section 101 of the Patent Act states that “whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. 101.

We urge any lawyer, judge, examiner etc. who reads this to antagonise the maximalists. They’re not serving society and not seeking to advance/speed up innovation. They are just serving their own pockets and their ultra-rich clients to whom innovation (disruption) is perpetually a threat that mustn’t be tolerated; they’re willing to even just SLAPP it out of existence.

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