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01.24.16

Patent Lawyers and Their Sites/Media Still a Barrier to End of Software Patents and Patent Wars

Posted in Patents at 12:19 pm by Dr. Roy Schestowitz

The profit motive twists the news or the nature of public debates

The profit motive

Summary: Like the Military Industrial Complex, lawyers’ establishments work hard to guard the system which they are constantly milking, profiting from feuds and perceived risks (patent armament)

TECHRIGHTS is accomplishing a long-term goal with the foreseeable end of many software patents in the US. A SCOTUS ruling on Alice became truly a nightmare to a lot of patent lawyers and some of these self-serving patent maximalists bicker about future SCOTUS cases, much like Bilski at one time. We have come to rely a great deal on the Supreme Court, whose judgments are often cited (sometimes both Alice and In Re Bilski) to help convince judges to invalidate patents and dismiss patent lawsuits.

This one Web site of patent lawyers has published China’s “Annual Report on Intellectual Property Cases” (Issued by the Supreme People’s Court on April 21 2015) and stated: “In 2014, the Supreme People’s Court adhered to “administration of justice for the people and impartial justice” as the main themes of its work, actively implemented the state’s intellectual property strategy, fully leveraged the guiding role of judicial protection of intellectual property, intensified the reform of the intellectual property judicial regime, continuously enhanced judicial capabilities and judicial credibility and continuously expanded the international influence of the judicial protection of intellectual property, thereby making positive contributions to the development of an innovation-oriented country and a China ruled by law.”

Now that a lot of the producing industry has already been moved to China, one is led to wondering if China is seen as a fertile ground for Western patent lawyers as well. The US patent system sure isn’t showing them much love anymore, especially if they deal with software patents (which are at the core of a large number of patent cases these days, based on publicly-accessible figures).

See this Entrepreneur article titled “Get a Software Patent to Protect Yourself, But Be Prepared for a Frustrating Process” (misleading headline).

“For a software startup,” says the author, “a patent can be the intellectual property providing the key competitive advantage, or it can be an expensive non-defensible bureaucratic nightmare — or both. I still generally advise software startups to file a patent as a barrier to entry from competitors and to increase their valuation by investors, but every entrepreneur needs to understand the tradeoffs.”

Well, we explained repeatedly why patents don’t and cannot help startups, especially in the area of software. They cannot sue (back) trolls and they cannot sue giants because every piece of software is almost guaranteed to infringe lots of different patents; those with a stockpile of software patents always win. The author says: “The free and growing open source software community, which covers most mobile and web apps, oppose software patents as impeding or prohibiting the distribution of free software. By definition, patents limit the commercialization rate and range for a new innovation.”

“We have come to rely a great deal on the Supreme Court, whose judgments are often cited (sometimes both Alice and In Re Bilski) to help convince judges to invalidate patents and dismiss patent lawsuits.”The title of that part says “Patents are counter to open source initiatives and free software.” This is why we got into this type of activism in the first place, way back in 2006.

Rob Tiller (Red Hat) recently spoke about “hacking the patent system” — an article that got him plenty of criticism from FFII figures because rather than combat software patents he tries to ‘hack’ the system. Software patents cannot coexist with Free software, but Riller “caught up with Daniel Nazer of the Electronic Frontier Foundation (EFF) to pose a few questions relating to software patents. Daniel is a staff attorney at EFF, where he occupies the Mark Cuban Chair to Eliminate Stupid Patents and focuses on patent reform.”

It’s a dialogue between two lawyers, one of whom is funded by a funder of a patent troll, Vringo, and another by an applicant of software patents, Red Hat.

Remember that patent lawyers make a money from disputes. For a person like Tiller, patents are money, so he doesn’t necessarily want software patents to go away. It’s what makes Red Hat pay him a salary. We generally trust programmers (or examiners) a lot more than we can ever trust lawyers. it’s worth noting that Tiller enjoys (as a platform of publication) a Red Hat ‘news’ site that’s not really news (it’s often Red Hat marketing, book tours, and other self-serving promotion).

“The US patent system sure isn’t showing them much love anymore, especially if they deal with software patents…”There are many people out there, especially patent lawyers and their rich clients (like Microsoft), who work hard to expand the scope of patents. They’re maximalists. They also have their own media, which they call/deem “magazines”, “news”, etc.

Over at IAM ‘magazine’, which receives money from the EPO, patent lawyers and their cheerleaders say that India needs more patents, probably software patents ; it’s like Raytheon saying that we need more wars. This relates to a lot of different reports (we saw dozens of them) about Modi trying to encourage patenting, even when it’s clearly misguided.

Two articles [1, 2] from Dennis Crouch, another proponent of more patents (a maximalist), add fuel to the patent bonfire. “Boiled down,” one says, “the court affirmed the grant of the firm’s Rule 12(b)(6) motion to dismiss a complaint that in broad terms alleged that the Finnegan firm had a conflict because it represented the plaintiff and another client in obtaining patents claiming screwless eyeglass hinge inventions. There are two broad issues: when is prosecution of patents for one client adverse to another, and when are two patent applications so close that prosecuting them creates a material limitation on the lawyer’s ability to represent either client.”

“…we explained repeatedly why patents don’t and cannot help startups, especially in the area of software.”Another says that “the Federal Circuit has rejected Carl Cooper’s challenge to constitutional propriety of the inter partes review (IPR) system as implemented by the USPTO. The identical issues had already been decided in MCM v. HP (Fed. Cir. 2015). In that case, the Federal Circuit held that the IPR system does not violate Article III of the U.S. Constitution nor does it violate the Seventh Amendment of the U.S. Constitution. As I wrote in December, the MCM decision “essentially forecloses Carl Cooper’s parallel proceedings.””

For some details about CAFC’s biases see the previous post about Alice and software patents in the US. We previously wrote about corruption in CAFC and we generally consider this court to be in the patent lawyers’ pocket.

Earlier on, back in December, a case against Mercedes got mentioned here. It involved software patents. Australian patent attorney Justin Blows (Australia is too soft on software patents, said patent lawyers from Australia this month) wrote about this case (“Vehicle Intelligence v Mercedes Benz, a 101/ Alice case”) and noted: “Claims of US patent 7,393,392 in the name of Vehicle Intelligence and Safety LLC were found not to be patent eligible subject matter under 35 USC 101 because the claims cover only abstract ideas coupled with routine data-gathering steps and conventional computer activity.”

“Remember that patent lawyers make a money from disputes.”This was another case where Alice beat software patents. “Software is patentable subject matter generally,” Blows added in relation to another case, “however if the purpose of the software invention is abstract then there must be a further inventive concept that appropriately limits the claims to prevent prohibition of a vast amount of future inventive activity.”

Blows also cited this one case in favour of software patents, noting: “To be patentable, a computer related invention must be necessarily rooted in computer technology in order to overcome a problem specifically arising in computer technology”

Well, the USPTO is said to have changed its guidelines at least once since the Alice case, but unlike the courts, it is driven by greed and grants far too many patents (for about 92% of applications).

“There are many people out there, especially patent lawyers and their rich clients (like Microsoft), who work hard to expand the scope of patents.”‘Revolving doors’ are a common issue at the USPTO (people from IBM or Google run it) and now it’s ‘ex’ Oracle staff that will be trusted to run the USPTO in Colorado. As WIPR put it the other day, “Kocialski previously worked at Oracle as a senior patent counsel and has experience in post-grant procedures and patent investigations.”

There’s a serious issue when a patent system is run by political people, as the EPO serves to show. It’s arguably even worse when people from large corporations are left to run it. Here is IAM’s take on presidential role in the patent system (no such role should exist).

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