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

01.12.16

Why the Corporations-Leaning US Political System Does Not and Will Not Help Resolve the Patent Chaos

Posted in America, Patents at 9:21 am by Dr. Roy Schestowitz

Where money calls the shots corporations and their owners almost always get their way at the public’s expense

Money envelope

Summary: Commentary on the US patent system and why it has never quite healed itself, nor will it ever be able to heal itself if large corporations dominate political figures

BEFORE we were focused on the EPO we had been writing literally thousands of articles about the US patent system (USPTO), which is utterly dysfunctional, unjust, and detrimental to human progress.

IP Watch, a site mostly critical of the existing systems or frameworks, has just said that “More than 50 members of the United States Congress today sent a letter urging the US Department of Health and Human Services (HHS) and National Institutes of Health (NIH) to exercise their legal authority to require medical patents that have emerged from government-funded medical research projects to be licensed on reasonable and affordable terms for public use.

“It helps show that patents are often more to do with protectionism than innovation or public service. It’s about corporations, not about people.”“The letter [pdf], rooted in a growing public concern with the rising prices of prescription drugs, argued that failure to use this measure would drive an image that the American government funds projects with taxpayer money that allow profiteering from struggling patients and families rather than simply earning enough profit to provide for future research and the researchers’ own incomes.”

It is easy to spot the inherent problems here, seeing the absurdity of granting a patent monopoly, a government-enforced monopoly, derived from tax money which the government ordered to be given. It helps show that patents are often more to do with protectionism than innovation or public service. It’s about corporations, not about people.

A new article from bankers’ media alludes to the CLS Bank case, which is better known by the plaintiff’s name, Alice. Here is what it says about software patents:

A landmark case in this area was the 2014 decision in Alice Corp. v. CLS Bank, in which the U.S. Supreme Court ruled that patents on software related to an electronic escrow service were found to be unpatentable, since the patent’s claims were drawn from abstract ideas.

“I think there’s a movement in the courts and in Congress to restrict the scope of software patentability,” Knight said.

Yes, well, once upon a time there was a healthy debate out there about whether software patents should be abolished. Those days were gone after large corporations had hijacked the debates and warped these into debates about patent trolls (meaning small entities that typically use software patents, often against large entities/corporations). All of these “reform” (for large corporations) talks virtually vanished (from the media and from politics) right after the summer break. It all got squashed and lost all its momentum. This is politics. It’s total nonsense when it’s clogged up by sponsors, donors etc.

“…once upon a time there was a healthy debate out there about whether software patents should be abolished.”Florian Müller tells IP Troll Tracker (Steph): “I agree that a focus on trolls is poor justification for reform. Trolls are merely a symptom of the underlying problems.” He also asks “So you also feel that patent reform advocates have been too timid so far in their portrayal of problems and proposals?”

This was after he wrote a long rant about the role of political correctness (or maybe the sixth sense which is campaign contributions money) in the reluctance to put to rest the bad patent system which promotes extortion rackets. To quote the apolitical part (not GOP promotion):

U.S. patent reform advocates have been disappointed term after term, presidency after presidency. Washington has a “do nothing” reputation, but a sea change appears to be around the corner and it may also create an environment in which, at long last, the massive and dramatic problems caused by a broken patent system may be addressed more forcefully and courageously than before.

Political correctness has terrible effects because it prevents politicians, the media and the general public from discussing the real issues without mincing words, and when you can’t even talk about the real issues, you’re very, very unlikely to identify and implement solutions.

Political correctness is the root cause of many problems not only in such contexts as immigration policy or the problem with certain ethnicities’ crime rates.

There are many areas in which a dogma has been turned into an axiom. Even though I’m an environmentalist (my house has a groundwater heat pump and uses groundwater temperature for cooling), I’d like there to be a more open discussion of the causes of global warming. Just an example.

Political correctness is also a huge problem in the debate over U.S. patent reform. Organizations and individuals probably feared that they would be “anti-American” if they simply said that the U.S. patent system is broken and fails to serve true innovators.

In all those congressional hearings on patent reform that I watched, each and every politician repeated the mantra of the U.S. patent system being key to innovation and allegedly being the envy of the world, when the reality is that it’s the laughing stock of patent and industry professionals in the rest of the world. Over the years I’ve talked to so many patent lawyers from Europe and Asia, and even to patent examiners (though not the ones the EPO leadership accuses of having been in contact with me), about the overall situation, and no one believes that U.S. juries are qualified to determine infringement and validity issues, no one has ever disagreed with me that the Federal Circuit is generally too patent-holder-friendly, and no one has ever disagreed with me that the quality of USPTO-granted patents is generally even lower than that of European patents.

Impactful patent reform in the U.S. won’t happen until at least a significant percentage of all politicians and stakeholders participating in the debate will start to tell the truth, which is that most information and communications technology patents are invalid as granted, that a high percentage of all claim construction decisions are reversed on appeal, that even those patents that are not invalid and are ultimately deemed infringed generally don’t protect anything that justifies a 20-year monopoly, and that there is no point in incentivizing “being first to file” when the combination of copyright, trademarks, trade secrets, and the first-mover advantage in relatively fast-moving fields are more than sufficient to protect investment in innovation. Reform advocates must place more emphasis on the fact that ever more U.S. patents are not granted to U.S. companies, just like most European patents are not held by European companies. It must be said that the correlation between patents and innovation in a country is hardly a causation of patents promoting innovation, that patents increasingly serve as a substitute rather than an incentive for innovation, and that studies linking patents to innovation are often based on circular logic, considering each patent an innovation.

Less is more. How can anyone seriously believe that patent inflation has anything to do with increased innovative activity? Would anyone believe that merely printing more money creates prosperity? Reform advocates should talk about how to gradually bring the number of patents granted per year down to a fraction of the current rate.

The US patent system isn’t the only one permitting patents on software. Under the EPO’s regime (like Brimelow’s “as such” loophole) many companies apply for and get software patents in Europe. The patent lawyers like it because it means more business (income) for them. Looking at sites of patent lawyers (IAM for instance), we do find very recent evidence that the patent system doesn’t quite function as was originally intended (when patent laws were conceived as means as providing an incentive to those publishing their physical inventions). As part of Xiaomi’s notorious campaign to amass thousands of patents, it now reportedly buys Broadcom patents. So, here again we have hardware-related patents being passed around, sold, changed in terms of ownership/assignment, serving to show that as a reward for innovation patents don’t quite function, not as stated on the tin. They’re more like weapons or tools of coercion.

“One way to tackle these issues is to inform the public, not politicians, who are easily influenced by corporate cash (bribes/donations/revolving doors) and are therefore unlikely to become part of the solution.”“In an assignment dated 23rd October 2015 and recorded with the USPTO on 7th December,” IAM wrote, “US semiconductor company Broadcom transferred 19 US patent assets to an entity named Xiaomi H.K. Ltd.”

In similar news, “Qualcomm asks U.S. court to force Apple, Samsung and others to surrender documents” and “Public patent licensing company index declined 24.4% in 2015″.

The term “patent licensing company” can be viewed as a gentler term for patent trolls, such as the Microsoft-connected Acacia, which habitually attacks Linux with patents. According to this report from IAM, Acacia is not doing too well. To quote: “Capping off 12 months of slumping share prices was the resignation in late December of Acacia CEO Matthew Vella. His exit came after the NPE was on the wrong end of a damaging decision in the Eastern District of Texas as a jury found in favour of the defendants, including Alcatel Lucent, ruling that the Acacia patent was invalid and not infringed. If that ruling had gone the other way it’s fair to say that Vella would probably still be in a job.”

Irrespective of this one patent troll and putting aside the impact of Alice on software patents, the problem is far from resolved and some of Müller’s observations (not the political slant) have earned praises from critics of the patent system, such as Jamie Love. One way to tackle these issues is to inform the public, not politicians, who are easily influenced by corporate cash (bribes/donations/revolving doors) and are therefore unlikely to become part of the solution.

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. Links 21/4/2018: Linux 4.9.95, FFmpeg 4.0, OpenBSD Foundation 2018 Fundraising Campaign

    Links for the day



  2. As USPTO Director, Andrei Iancu Gives Three Months for Public Comments on 35 U.S.C. § 101 (Software Patenting Impacted)

    Weeks after starting his job as head of the US patent office, to our regret but not to our surprise, Iancu asks whether to limit examiners' ability to reject abstract patent applications citing 35 U.S.C. § 101 (relates to Alice and Mayo)



  3. In Keith Raniere v Microsoft Both Sides Are Evil But for Different Reasons

    Billing for patent lawyers reveals an abusive strategy from Microsoft, which responded to abusive patent litigation (something which Microsoft too has done for well over a decade)



  4. Links 20/4/2018: Atom 1.26, MySQL 8.0

    Links for the day



  5. Links 19/4/2018: Mesa 17.3.9 and 18.0.1, Trisquel 8.0 LTS Flidas, Elections for openSUSE Board

    Links for the day



  6. The Patent Microcosm, Patent Trolls and Their Pressure Groups Incite a USPTO Director Against the Patent Trial and Appeal Board (PTAB) and Section 101/Alice

    As one might expect, the patent extremists continue their witch-hunt and constant manipulation of USPTO officials, whom they hope to compel to become patent extremists themselves (otherwise those officials are defamed, typically until they're fired or decide to resign)



  7. Microsoft's Lobbying for FRAND Pays Off as Microsoft-Connected Patent Troll Conversant (Formerly MOSAID) Goes After Android OEMs in Europe

    The FRAND (or SEP) lobby seems to have caused a lot of monopolistic patent lawsuits; this mostly affects Linux-powered platforms such as Android, Tizen and webOS and there are new legal actions from Microsoft-connected patent trolls



  8. To Understand Why People Say That Lawyers are Liars Look No Further Than Misleading Promotion of Software Patents

    Some of the latest misleading claims from the patent microcosm, which is only interested in lots and lots of patents (its bread and butter is monopolies after all) irrespective of their merit, quality, and desirability



  9. When News About the EPO is Dominated by Sponsored 'Reports' and Press Releases Because Publishers Are Afraid of (or Bribed by) the EPO

    The lack of curiosity and genuine journalism in Europe may mean that serious abuses (if not corruption) will go unreported



  10. The Boards of Appeal at the European Patent Organisation (EPO) Complain That They Are Understaffed, Not Just Lacking the Independence They Depend on

    The Boards of Appeal have released a report and once again they openly complain that they're unable to do their job properly, i.e. patent quality cannot be assured



  11. Links 18/4/2018: New Fedora 27 ISOs, Nextcloud Wins German Government Contract

    Links for the day



  12. Guest Post: Responding to Your Recent Posting “The European Patent Office Will Never Hold Its Destroyers Accountable”

    In France, where Battistelli does not enjoy diplomatic immunity, he can be held accountable like his "padrone" recently was



  13. The EPO in 2018: Partnering With Saudi Arabia and Cambodia (With Zero European Patents)

    The EPO's status in the world has declined to the point where former French colonies and countries with zero European Patents are hailed as "success stories" for Battistelli



  14. For Samsung and Apple the Biggest Threat Has Become Patent Trolls and Aggressors in China and the Eastern District of Texas, Not Each Other

    The latest stories about two of the world's largest phone OEMs, both of which find themselves subjected to a heavy barrage of patent lawsuits and even embargoes; Samsung has meanwhile obtained an antisuit injunction against Huawei



  15. The EPO Continues to Lie About Patent Quality Whilst Openly Promoting Software Patents, Even Outside Europe

    EPO patent quality continues to sink while EPO management lies about it and software patents are openly being promoted/advocatedEPO patent quality continues to sink while EPO management lies about it (the article above is new) and software patents are openly being promoted/advocated



  16. SCOTUS on WesternGeco v Ion Geophysical Almost Done; Will Oil States Decision Affirm the PTAB's Quality Assurance (IPRs) Soon?

    Ahead of WesternGeco and Oil States, following oral proceedings, it's expected that the highest court in the United States will deliver more blows to patent maximalism



  17. Links 17/4/2018: Linux 5.x Plans and Microsoft's 'Embrace'

    Links for the day



  18. The European Patent Office (EPO) Grants Patents in Error, Insiders Are Complaining That It's the Management's Fault

    The EPO has languished to the point where patents are granted in error, examiners aren't happy, and the resultant chaos benefits no-one but lawyers and patent trolls



  19. The European Patent Office Will Never Hold Its Destroyers Accountable

    With only one in seven EPO stakeholders believing that Battistelli's pick (António Campinos) will turn things around for the better, it certainly does not seem like people are happy and there's no real hope that Battistelli will ever be held accountable for his abuses after his immunity expires



  20. With Liars Like These...

    The European Patent Office continues to lie about the Unified Patent Court (UPC) amongst other things, still revealing its reluctance to say anything which is truthful or work to repair the damage caused by Benoît Battistelli



  21. Links 16/4/2018: Linux 4.17 RC 1, Mesa 18.0.1 RC, GNOME 3.28.1

    Links for the day



  22. IAM, Patently-O and Watchtroll (the Patent Trolls' Lobby) Try to Stop Patent Oppositions/Petitions (PTAB)

    In spite of fee hikes, introduced by Iancu's interim predecessor, petitions (IPRs) at the PTAB continue to grow in number and the patent maximalists are losing their minds over it



  23. The Patent Trial and Appeal Board (PTAB) is Ending Software Patents One Patent at a Time

    At an accelerating pace and with growing determination, PTAB (part of AIA) crushes patent trolls and software patents; the statistics and latest stories speak for themselves



  24. Academics and Think Tanks for Patent Maximalism

    Right-wing think tanks and impressionable academics continue to lobby for patent maximalism, rarely revealing the funding sources and motivations; in reality, however, such maximalism mainly helps large (already-wealthy) corporations, monopolists, and law firms



  25. Killing Patent Quality and Encouraging 'Covert' Software Patents Using the Buzzwords Du Jour

    The epidemic of buzzwords and/or hype waves that are being exploited to dodge or bypass patent scope/limitations, as seen in Europe and the US these days



  26. Crisis of Quality at the EPO Extends to Staff (Notably Examiners) and Management as Institutional Integrity is Severely Compromised

    A rather pessimistic but likely realistic outlook for the European Patent Office (EPO), which seems unable to attract the sort of staff it attracted for a number of decades



  27. The 'Blockchaining' of Software Patents (to Dodge the Rules/Guidelines) Now Coming to Europe

    A lot of software patents are being declared invalid (or not granted in the first place); having said that, using all sorts of hype waves (like calling databases “blockchains”) firms and individuals manage to still be granted software patents and sometimes patent trolls hoard these



  28. Links 14/4/2018: Wine 3.6, KDE Elisa 0.1

    Links for the day



  29. East Asia Should Have Adopted the Patent Strategy of South Asia, Notably India

    China seems to be so interested in patent maximalism that it has lost sight of the effect on foreign investment, e.g. US/European/Taiwanese/Japanese/Korean firms operating/manufacturing in mainland China



  30. Samsung is the 'New IBM', Sans the Trolling With Patents

    The 'relic' company, IBM, loses its patent leadership (as measured using some yardstick) to Samsung, a company which is relatively calm when it comes to patent activity (unless/only when sued, as happens a lot nowadays)


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