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02.04.16

The Siege Continues: Patent Lawyers Want More Patents, Including Software Patents, In Spite of Alice

Posted in America, Patents at 9:03 am by Dr. Roy Schestowitz

Patent peace (or absence of patent conflict) an existential threat to some…

Threat of Peace
Image source: Threat of Peace

Summary: Lawyers who make money from patent disputes make rather apparent their aspirations, which include patent saturation even in domains that are patents-exempt

WE are often reminded of the sharp contrast, separation or distinction between practicing and non-practicing (or parasitic) elements in today’s industry. This isn’t just limited to software. Some people make money from making technology and some try to make money from writing about it, talking about it, or taxing it. The latter group isn’t even capable of making technology. It’s professionally trained to babble and fool judges (or examiners), not to make factual statements (or commands/instructions) so as to make machines accomplish a task.

This week we still see EPO-funded media and other such patents-centric ‘news’ sites writing about “Africa IP” (as if Africa has anything to gain from ‘IP’, which is mostly used to pillage and plunder Africans) and give bogus ‘awards’ to law (litigation) firms that charge many hundreds of dollars per hour (even dentists, private medical specialists and prostitutes would not charge this much). We cannot help but feel that there’s a silent war between those capable of scientific and technological progress and those who just try to exploit those people. Sadly, a lot people inside the former group don’t even realise that there’s this war going on. A lot of the public does not understand why prices are artificially elevated to absurd levels.

“We cannot help but feel that there’s a silent war between those capable of scientific and technological progress and those who just try to exploit those people.”Yesterday we saw even universities getting dragged into this war. Well, “the NPE known as Columbia University” is what Dennis Crouch called the university, perhaps humorously implying it was little more than a troll in this case. To quote Crouch: “Symantec argued that the term “byte sequence feature” includes more than merely machine code instructions, and also extends to other non-compiled elements of an executable attachment. On appeal, the Federal Circuit rejected that argument — finding that the specification indicates that the byte sequence feature “represents the machine code in an executable.” The court also found that the machine-code limitation “most naturally aligns” with the inventor’s description of his invention.”

Notice that it’s unambiguously about software patents. They’re dealing with processing of commands/instructions by a general-purpose machine. Why should this be taken for granted? Who benefits from these patents?

Media of patent lawyers is often (but not always) wrongly assumed to be more accurate because it is authored by the “pros” (law professionals). Well, quid pro quo sure is a “pro”. “Quid pro quo,” as Wikipedia puts it, “means an exchange of goods or services, where one transfer is contingent upon the other. English speakers often use the term to mean “a favour for a favour”; phrases with similar meaning include: “give and take”, “tit for tat”, and “you scratch my back, and I’ll scratch yours”.”

“Media of patent lawyers is often (but not always) wrongly assumed to be more accurate because it is authored by the “pros” (law professionals).”Months ago and even a year ago we showed that patent lawyers still refuse to understand Alice because it's a threat to their livelihood. What they say is simply what’s good for them. Yesterday I stumbled upon the stupidest headline I’ve seen in a long time about Alice. It was published in the National Law Journal and the headline said: “After ‘Alice,’ Are Software Patents the Answer?” (behind paywall, so I cannot read the rest)

Well, no, they’re a problem, not the answer.

It’s so often that we find patent lawyers lecturing other patent lawyers on how to get around rules that exclude many software patents, effectively fooling patent examiners. Here is an example from yesterday [1, 2], including an example from Europe. A false dichotomy is presented in the latter with the headline “Software patents in Germany: Should you file with the EPO or the German Patent Office?”

“Remember when the EPO granted Apple patents which were later ruled (in the courts) invalid?”How about neither? Is that even an option in the eyes of patent lawyers?

Another new article by Dennis Crouch said that SCOTUS would soon deal with more patent cases, just like Alice, which was truly a game changer. to quote Crouch: “With Washington DC snowed-in, action within the Supreme Court has also been somewhat slow. Briefing is now complete in ePlus v. Lawson. In that case, a district court originally held an adjudged infringer in contempt-of-court for refusing to comply with its injunction order. Following the contempt order, the USPTO independently cancelled the patent claims and, at that point, the Federal Circuit vacated both the injunction and the contempt order.”

“At this point, with a few exceptions, it’s nearly impossible to find the patents that your company might infringe and analyze them.”
      –Matt Levy, Patent Counsel at CCIA
According to the aforementioned maximalists: “PTAB Data and Analysis: the IPR count ticked past the 4,000 mark in January, which also saw the first challenge to an Apple patent, the USPTO deeming two decisions precedential, a case showing the dangers of a motion to amend, and an ironic Federal Circuit ruling on an IPR appeal”

Remember when the EPO granted Apple patents which were later ruled (in the courts) invalid? We quite liked this statement from a lawyer who had just admitted: “At this point, with a few exceptions, it’s nearly impossible to find the patents that your company might infringe and analyze them.”

That’s what patent maximalism leads to. But it’s good for patent lawyers. The greater the mess they help generate, the more money they make. It’s time for engineers to regain control and say to patent lawyers where they can go.

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