EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

01.10.16

Patent Lawyers and Judges Don’t Understand Software Development and It Harms Programmers, Practicing Software Companies

Posted in America, Europe, Patents at 7:27 am by Dr. Roy Schestowitz

Metaswitch logoSummary: Europeans, including European companies such as Metaswitch (British), continue to suffer from software patents in the United States and from British patent lawyers to whom the whole notion of software development is elusive, grossly misunderstood (they profit from the misunderstanding)

HAVING written literally thousands of articles on this subject, it often feels like repetition even when it isn’t. It’s never repetitive because new cases and new observations come to light. The other day, Patent Buddy fished out this recent court’s decision [PDF] (originally OOXML) and said that “TX [Texas] Magistrate Report Rejecting Alice101 Ineligibility Argument Against a Firewall Patent” (used against Metaswitch Networks, a British company). We have looked at this 18-page decision and found Alice mentioned in page 3 as follows: “The Supreme Court has held that there are three specific exceptions to patent eligibility under § 101: laws of nature, natural phenomena, and abstract ideas. Bilski v. Kappos, 561 U.S. 593, 601 (2010). In Mayo, the Supreme Court set out a two-step test for “distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97 (2012)).”

“So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company).”Alice is also mentioned many times in page 4, then 14-15 and in page 17 it says: “Metaswitch is likewise wrong to characterize “an application proxy” and “a packet filter” as inherently abstract components because they refer to “broad ‘types’ or ‘classes’ of firewall components and do not require or connote any specific structure.” (Dkt. No. 255 at 24). A hypothetical claim limitation directed to “a cup” might encompass an extensive class of objects of varying shapes, sizes, materials, and functions (a coffee mug, a champagne flute, a disposable paper cup), and thus the word “cup” is abstract in the sense that it spans many different structures. But a cup is not an “abstract idea” in the sense meant by Alice, and neither are the “application proxy” and “packet filter” components recited in the claims. These components are not “building blocks of human ingenuity,” “a method of organizing human activity,” a “fundamental truth,” an “idea of itself,” or the like. See Alice, 134 S. Ct. at 2354–56. The “application proxy” and “packet filter” terms refer to specific components that have been construed to perform specific functions within a network. See (Dkt. No. 310 at 7–13). The fact that these components can be implemented in the form of “hardware and/or software” does not change their concrete, network-specific nature.”

So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company). In page 18 it says: “For the foregoing reasons, Claim 12 of the ’561 Patent is patent-eligible under § 101. The Court agrees with Metaswitch that Claim 12 is representative for purposes of the § 101 analysis; the other asserted claims of the ’561 Patent are likewise patent-eligible.”

Here is the court’s conclusion: “For the reasons stated above, summary judgment of no willful infringement should be GRANTED. Partial summary judgment of no indirect infringement prior to April 14, 2014 should be GRANTED. Partial summary judgment of no indirect infringement after April 14, 2014 should be DENIED. Summary judgment of invalidity under 35 U.S.C. § 101 should be DENIED.”

“Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents?”This is a classic case where software is being described as non-abstract by trying to tie it to “network” and the likes of that. There is a whole infamous class of “over the Internet” patents and this one too resembles that. The decision cites a case of the world’s largest patent troll, Intellectual Ventures v. Capital One Bank, in page 4 along with Alice and Bilski.

How clueless could the judge be? Did the judge ever write a computer program? Was a degree in some scientific discipline earned/acquired? Was the judge bamboozled by mumbo-jumbo from lawyers? Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents? Does US law dominate globally? Well, rhetorical question actually. This is similar to the cases of Finjan, which is a patent aggressor in a similar field of technology.

As a British programmer myself, I cannot help but worry that the Texan courts now threaten the British industry as well. The UPC would make things even worse and there are already signs of that happening with patent trolls that come to Europe and attack from London (Unwired Planet). Apple too is attacking companies from inside Europe, with help from ridiculous software patents that are found invalid by European courts after EPO negligently issues them. Recall the case of Wi-Lan v. Apple, which pro-software patents sites are writing about these days. Why is the industry tolerating this? How can anyone wrongly deduce that this is good for innovation, or in other words, encourages the creation of better computer products, programmes, etc. available in the market?

“Developers of software don’t brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms.”When patent lawyers, who don’t actually create anything, speak of (or hijack the word) “innovation” we end up with clueless blog posts such as this new one from IP Kat. While EPO coverage from IP Kat has been rather good, much of the rest constitutes UPC promotion, patent maximalism, and clueless prose such as this: “Second is the recurring assertion that the patent system is intended to encourage innovation. There are various implications that flow from this, most notably that any patent that does not further the innovation interest is at odds with the patent system. Weak patents, patent trolls, patent thickets, patent hold-up and other patent undesirables all derive from the underlying assumption that patents are the hand-maiden of innovation. As such, at least in the US, a material driver of proposed patent legislation is to better align the patent system with the needs of innovation. The only problem with this view is that it is not correct. Patents are about encouraging invention and not impeding competition in a manner consistent with the patent grant, where the legal system has developed tools to define invention. Some forms of innovation (however defined) can be expected to flow from improving the manner by which we encourage and protect invention, but innovation is not a surrogate for invention. Introducing innovation as a construct within the patent system, parallel to invention, novelty and inventive step, is simply inappropriate.”

“Software developers don’t “invent”. They write code, and some code may be better than other.”The above says “innovation is not a surrogate for invention”, but these are just clueless repetitions (regurgitations) or rather meaningless/vague terms, none of which actually alludes to or pertains to programming (these words predate computer programs). Developers of software don’t brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms. Everything is being reused and built on top of existing work. One should expect people who never saw or wrote a computer program to actually grasp this. The comments from readers, who are mostly patent lawyers, are equally clueless or weak. One says regarding “Innovation vs. Invention”: ”

If innovation = ‘new’
Then innovation is one prong of a three-prong test for invention.
The other two prongs are ‘useful’ and ‘non-obvious’

Software developers don’t “invent”. They write code, and some code may be better than other. Lawyers using terms like “innovation” are clueless. They’re reusing terms from centuries ago and another one says

One has to focus on the fact that the patent system is about disclosure of inventions. Although such disclosure may impact innovation, invention and innovation are not the same thing. One looks at various comments distinguishing the two.

What needs to be assessed is whether more (or less) code is generated which is solid and reliable in the presence of 100,000-1,000,000 software patents. Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don’t even bother reading patent applications (it’s infeasible). They just get sued, often by trolls that produce nothing at all.

“Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don’t even bother reading patent applications (it’s infeasible).”It should be noted that several people sent us links to the above article and several programmers expressed annoyance at this level of ignorance. Why is a system that presents itself as “protecting inventors” (or whatever) run by non-inventors? When will it be geeks and computer science professors running such courts* (if any courts “as such” are necessary at all)? The system, as is, became besieged by parasites preying on software developers, rather than people with the required skills and knowledge. It’s a form of takeover or coup. Programmers need to unite so as to fight to regain control.
___
* I myself have been writing software since I was 14 and it’s what I currently do for a living in many languages and paradigms, as well as (peer) reviewing papers about software for international journals, so the opinions above don’t come from a position of cluelessness but from genuine concern for a scientific discipline which multinational conglomerates want to monopolise as a matter of law.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Sickness of the EPO – Part IV: Cruel Management That Deliberately Attacks the Sick and the Weak

    The dysphoric reality at the European Patent Office, which is becoming like a large cell (with bolted-down windows) where people are controlled by fear and scapegoats are selected to perpetuate this atmosphere of terror and maintain demand (or workload) for the Investigative Stasi



  2. Links 23/2/2017: Qt 5.9 Alpha, First SHA1 Collision

    Links for the day



  3. UPC Roundup: War on the Appeal Boards, British Motion Against the UPC, Fröhlinger Recalled, and Fake News About Spain

    Taking stock of some of the latest attempts to shove the Unitary Patent (UPC) down Europe's throat, courtesy of Team Battistelli and Team UPC



  4. The Sickness of the EPO – Part III: Invalidity and Suicides

    An explanation of what drives a lot of EPO veterans to depression and sometimes even suicide



  5. The Appeal Board (PTAB) and Federal Circuit (CAFC) Maintain Good Pace of Patent Elimination Where Scope Was Exceeded

    The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene



  6. Software Patents Are Ebbing Away, But the “Swamp” Fights Back and Hijacks the Word “Fix”

    The club of patent maximalists, or those who profit from excess prosecution and legal chaos, isn't liking what has happened in the United States and it wants everything reversed



  7. Report From Yesterday's Debate About the European Patent Office (EPO) at the Bavarian Landtag

    A report of the EPO debate which took place at the Bavarian Landtag yesterday (21/2/2017)



  8. Links 22/2/2017: Wine-Staging 2.2, Nautilus 3.24

    Links for the day



  9. French Politician Richard Yung Tells the Government About Abuses at the European Patent Office (EPO)

    The subject of EPO scandals has once again landed in French politics, just a couple of months since it last happened



  10. The Sickness of the EPO – Part II: Background Information and Insights

    With a privatised, in-house (sometimes outsourced and for-profit) force for surveillance, policing, justice, public relations and now medical assessment (mere vassals or marionettes of the management) the EPO serves to show that it has become indistinguishable from North Korea, where the Supreme Leader gets to control every single aspect (absolutely no separation of powers)



  11. EPO Cartoon/Caricature by KrewinkelKrijst

    A new rendition by Dutch cartoonist and illustrator KrewinkelKrijst



  12. Inverting Narratives: IAM 'Magazine' Paints Massive Patent Bully Microsoft (Preying on the Weak) as a Defender of the Powerless

    Selective coverage and deliberate misinterpretation of Microsoft's tactics (patent settlement under threat, disguised as "pre-installation of some of the US company’s software products") as seen in IAM almost every week these days



  13. The Sickness of the EPO – Part I: Motivation for New Series of Articles

    An introduction or prelude to a long series of upcoming posts, whose purpose is to show governance by coercion, pressure, retribution and tribalism rather than professional relationship between human beings at the European Patent Office (EPO)



  14. Insensitivity at the EPO’s Management – Part VII: EPO Hypocrisy on Cancer and Lack of Feedback to and From ECPC

    The European Cancer Patient Coalition (ECPC), which calls itself "the largest European cancer patients' umbrella organisation," fails to fulfill its duties, says a source of ours, and the EPO makes things even worse



  15. Links 21/2/2017: KDE Plasma 5.9.2 in Chakra GNU/Linux, pfSense 2.3.3

    Links for the day



  16. EPO Caricature: Battistelli's Wall

    Battistelli's solution to everything at the EPO is exclusion and barriers



  17. The 'New' Microsoft is Still Acting Like a Dangerous Cult in an Effort to Hijack and/or Undermine All Free/Open Source Software

    In an effort to combat any large deployment of non-Microsoft software, the company goes personal and attempts to overthrow even management that is not receptive to Microsoft's agenda



  18. PTAB Petitioned to Help Against Patent Troll InfoGation Corp., Which Goes After Linux/Android OEMs in China

    A new example of software patents against Free software, or trolls against companies that are distributing freedom-respecting software from a country where these patents are not even potent (they don't exist there)



  19. Links 20/2/2017: Linux 4.10, LineageOS Milestone

    Links for the day



  20. No, Doing Mathematical Operations on a Processor Does Not Make Algorithms Patent-Eligible

    Old and familiar tricks -- a method for tricking examiners into the idea that algorithms are actual machines -- are being peddled by Watchtroll again



  21. Paid-for UPC Proponent, IAM 'Magazine', Debunked on UPC Again

    The impact of the corrupted (by EPO money) media goes further than one might expect and even 'borrows' out-of-date news in order to promote the UPC



  22. Lack of Justice in and Around the EPO Drawing Scrutiny

    The status of the EPO as an entity above the law (in Germany, the Netherlands, Switzerland and so on) is becoming the subject of press reports and staff is leaving in large numbers



  23. Links 19/2/2017: GParted 0.28.1, LibreOffice Donations Record

    Links for the day



  24. The EPO is Becoming an Embarrassment to Europe and a Growing Threat to the European Union

    The increasingly pathetic moves by Battistelli and the ever-declining image/status of the EPO (only 0% of polled stakeholders approve Battistelli's management) is causing damage to the reputation of the European Union, even if the EPO is not a European Union organ but an international one



  25. Patent Misconceptions Promoted by the Patent Meta-Industry

    Cherry-picking one's way into the perception of patent eligibility for software and the misguided belief that without patents there will be no innovation



  26. As the United States Shuts Its Door on Low-Quality Patents the Patent Trolls Move to Asia

    Disintegration of Intellectual Ventures (further shrinkage after losing software patents at CAFC), China's massive patent bubble, and Singapore's implicit invitation/facilitation of patent trolls (bubble economy)



  27. Links 17/2/2017: Wine 2.2, New Ubuntu LTS

    Links for the day



  28. Bad Advice From Mintz Levin and Bejin Bieneman PLC Would Have People Believe That Software Patents Are Still Worth Pursuing

    The latest examples of misleading articles which, in spite of the avalanche of software patents in the United States, continue to promote these



  29. Patents Are Not Property, They Are a Monopoly, and They Are Not Owned But Temporarily Granted

    Patent maximalism and distortion of concepts associated with patents tackled again, for terminology is being hijacked by those who turned patents into their "milking cows"



  30. SoftBank Group, New Owner of ARM, Could Potentially Become (in Part) a Patent Troll or an Aggressor Like Qualcomm

    SoftBank grabbed headlines (in the West at least) when it bought ARM, but will it soon grab headlines for going after practicing companies using a bunch of patents that it got from Inventergy, ARM, and beyond?


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts