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

02.29.16

Why the US Political Debate About Patent ‘Reform’ is Still Deficient and the Legal System Probably Broken Beyond Repair

Posted in America, Patents at 9:37 am by Dr. Roy Schestowitz

When the Establishment serves Power rather than Justice

Trump with supporters
Photo credit: Evan Guest, licensed under the Creative Commons Attribution 2.0 Generic license.

Summary: As the number of patents granted by the USPTO doubles (in just a few years), lawsuits leap through the roof, small businesses are severely harmed, and the political debate, the corporate media, the patent office and so on are all controlled by predators whose interests align with patent lawyers, patent lobbyists and their large clients (multinationals)

THE USPTO is the world’s most dominant patent system. It issues patents on software even though it’s becoming much harder a thing to enforce in a court of law, especially after Alice. Patent lawyers are still trying to undo or reverse Alice because it hit them where it hurts: patent scope.

Longing for Scalia/GOP Influence

Pro-patents (or patent maximalism) Web sites bemoan what they call “Change Inventorship on Issued U.S. Patent” and even long for corporations-leaning Justices like Scalia (see this new article by Louis Carbonneau), who died earlier this month, leaving SCOTUS more liberal (or leftist) than before.

“Patent lawyers are still trying to undo or reverse Alice because it hit them where it hurts: patent scope.”As of last week, we have begun seeing the debate about patents resurfacing in US politics, even if it’s the same old misguided debate about “patent trolls” rather than about patent scope. Here is the latest lobbying by patent maxlmalists (for USPTO lenience and greed). It says: “The U.S. government has a bad history of taking money from the USPTO. Since 1991, $1 billion has been skimmed from the office’s budget during the appropriations process and diverted to unrelated agencies. This isn’t taxpayer money, but fees paid to the USPTO by patent and trademark applicants (i.e., inventors and brand owners).”

Yeah, whatever…

“It has made a killing by doubling the number of granted patents (innovation did not double at all).”So now USPTO is the poor victim? It has made a killing by doubling the number of granted patents (innovation did not double at all).

“All these conclusions came together,” wrote a respected patents blog the other day, “to confirm a finding that Colvin had intent-to-defraud the USPTO.”

Foxes and Hen Houses

Well, generally speaking, the problem with the USPTO is that it’s run by a lot of lawyers and thus it serves lawyers. The examiners there, who are mostly qualified scientists with practical experience, don’t have much of a say. It more or less mirrors what happens in the EPO in the policy/scope sense. “Join free IP Seminar “Overcoming Alice in Electronic Signal Processing”, March 10, Munich,” wrote European patent lawyers the other day.

“Patent lawyers have a twisted view on things, where laws and rules are seen as obstacles to leap over rather than something that should be respected and obeyed.”Well, “Overcoming Alice” is like “Overcoming the law,” or simply getting around the rules. Patent lawyers have a twisted view on things, where laws and rules are seen as obstacles to leap over rather than something that should be respected and obeyed.

Watch this this article by Nicholas Landau (Bradley Arant Boult Cummings LLP). After the Alice decision at SCOTUS level (2014) the patent lawyers still struggle as they try to convince the public that software patents are legitimate and potent. They are not. That’s ill advice. “Due to the rapidly shifting requirement for subject matter eligibility,” says the author, “some patent examiners seem to believe that, when it comes to software inventions, they are entitled to assume the invention is not patent eligible subject matter under § 101, and it is the applicant’s duty to prove otherwise.”

Well, “some patent examiners seem to believe…”

“Not too long ago Apple managed to bamboozle EPO examiners into granting it software patents, only to have them invalidated in a court (several times in fact).”So much for respect to examiners. They’re viewed as naive and misguided by patent lawyers.

Apple’s Bogus Software Patents

Not too long ago Apple managed to bamboozle EPO examiners into granting it software patents, only to have them invalidated in a court (several times in fact). These were invalidated only after the defendants had spent millions (in legal fees) and years in the courts defending Android/Linux. See this new article (among many on the subject) titled “Appeals Court Dumps Apple’s Slide To Unlock Patent, Tosses Massive Jury Award Against Samsung In The Trash”. To quote this non-mainstream/non-conformist piece from TechDirt: “Apple may have been able to convince a jury that Samsung violated a bunch of its patents, on concepts like “slide to unlock,” but apparently the Court of Appeals for the Federal Circuit (CAFC) disagrees. Despite the court’s reputation for regularly expanding the power of patents (and getting smacked around by the Supreme Court for doing so), CAFC has sided with Samsung and tossed out a jury’s $120 million award and with it some Apple patents — including “slide to unlock.”

“This is the outcome of the infamous “thermonuclear war,” to quote the megalomaniac Steve Jobs, who simple could not stand competition.”This is a software patents — a callback functionality on a mock-up/design/UI.

This is the outcome of the infamous “thermonuclear war,” to quote the megalomaniac Steve Jobs, who simple could not stand competition. Watch what people think of this misguided war. Even former Apple proponents are upset at Apple right now. Who is this good for anyway? Patent lawyers of course. As many people consider Apple to be anything but a patent troll (even if it does no manufacturing, mostly branding and design), it ought to be clear that the problem does not boil down only to patent trolls. We wrote about this very recently

More Patent Litigation for Happier (Richer) Patent Lawyers

See this new article from IP Watch. It says: “The United States worked hard over the last five years to reduce patent infringement suits. Congress enacted patent reform, the courts handed down important anti-patentee rulings, and the US Patent and Trademark Office began a campaign of energetically rejecting patents and patent claims. Despite all this, from 2014 to 2015, new patent infringement suits increased 18 percent and the number of defendants sued for patent infringement increased 21 percent. What went wrong?”

“It is an epidemic of feuds which software patents are a large cause of and patent lawyers are beneficiaries of.”MIP also looked into litigation figures from 2015 and any way one looks at it, there’s more litigation, which is hardly a positive development. It is an epidemic of feuds which software patents are a large cause of and patent lawyers are beneficiaries of.

Excessive Focus on Patent Trolls, Not Patent Scope

When it comes to US public policy, only “trolls” are currently mentioned as the problem. Matt Levy (CCIA) focuses on patent trolls, as usual, not on software patents, noting that “Tyler, TX Brags About Its “Friendliness” to Patent Trolls”. Here is what patents do to small companies, as put in the words of United for Patent Reform the other day: “In 2014, 62% of companies sued by patent trolls had revenues <$100M. Ask Congress to protect #smallbiz & #fixpatents http://bit.ly/1FgqNiT ”

“Even when cases are dismissed the legal costs can rarely be recovered by the damaged defendant (except in rare cases, like NewEgg’s recent win).”Remember that this is a matter of life or death to them. To successfully shoot down a patent it can cost millions of dollars. Even when cases are dismissed the legal costs can rarely be recovered by the damaged defendant (except in rare cases, like NewEgg’s recent win). To quote another new tweet: “Patent trolls sued 4000+ companies in 2015, incl. homebuilders & other #smallbiz. Congress needs to #fixpatents”

But not only trolls are the problem. Nevertheless, all the debate is about them. See for instance this new article titled “Bill Designed to Subdue “Patent Trolls” Loses Momentum”. To quote:

Nearly a year after it was reintroduced and met with widespread support from House Republicans, the Innovation Act, designed to subdue “patent trolls,” has lost momentum after various businesses, universities, and conservative groups deemed it harmful to innovators.

Before the bill died in the Senate, the Innovation Act passed the House in 2013 after a substantial bipartisan vote of 325–91. A new bill reintroducing the Innovation Act, H.R. 9, which was formulated last July, has since passed the Judiciary Committee with a 24–8 vote.

Why not tackle the sorts of patents which patent trolls are using? They are not going after some utility companies over use of particular screw and pipe designs. They almost always use software patents. Therein lies the problem. Here is a new press release that says “Knowledge Group’s webcast entitled: “Emerging Issues: Patent Trolls and Deceptive Tactics – Impacts and Implications Explored!””

“What about large companies that act like patent trolls and extort/blackmail small companies similarly?”What about patent scope? Not noteworthy? What about large companies that act like patent trolls and extort/blackmail small companies similarly? The patent propaganda alliance (“Innovation Alliance”) has released this misleading statement on the matter, without even stating who’s funding it anyway. It’s patent maximalists. The patent propaganda alliance pretends to represent SMEs with tweets such as CPIP’s. It says: “Great to see recognition of importance of patents to startups at today’s hearing!” Well, neither entity cares about startups. These are just patent maximalists and they pretend to speak for small businesses, just like Microsoft’s ACT does.

“Get the facts straight,” Gary Shapiro (president and CEO of Consumer Technology Association) wrote the other day. “Patent trolls drain $1.5B a week from the economy…”

Here is his article, “Patent trolls drain US economy,” which says: “To preserve our nation’s entrepreneurial spirit and grow our innovation economy, patent trolls must be driven back under the bridge where they belong. Letting them run amok is, well, patent nonsense.”

“Well, they should work hard to abolish software patents in the US, as that too would contribute a lot to trolls’ demise.”The Consumer Technology Association (CTA) even issued a press release to express opposition to patent trolls, but what about patent scope? Not a word.

Another new article, “What retailers can do about patent trolls,” was published the other day by Beth Provenzano. “We’ve been talking about patent reform for a while,” she wrote, “and for good reason. The number of patent disputes reached a record high last year, and retailers are often the targets of “patent trolls” — companies that own patents for technologies they didn’t invent and don’t use.”

“All that these things are doing is patent tax collection, like a vigilante knocking on every door to collect money for the vigilante that’s supposedly intended to protect from the patent Mafia.”Well, they should work hard to abolish software patents in the US, as that too would contribute a lot to trolls’ demise.

Protection Money and the Vigilante Non-Solution

The solutions proposed by patent maximalists are not solutions but merely additions to the problem. ‘Protection money’ and vigilantes in the patent world don’t make anyone any safer (overall), but this is what IAM is proposing in this article. To quote: “As a network designed to provide coverage from patent suits, Freedom has some obvious parallels with the License on Transfer Network (LOTNet). LOTNet was launched in 2014 by a group of operating companies led by Google. Those that join agree that if they transfer any patents to an NPE then the other members of the network automatically receive a licence to those patents. This is in large part because the vast majority of NPE lawsuits involve patents developed and filed by operating companies.”

There is actually one such patent vigilante that calls itself “Freedom”? All that these things are doing is patent tax collection, like a vigilante knocking on every door to collect money for the vigilante that’s supposedly intended to protect from the patent Mafia. Therein lies exacerbation of the issues/problem, but then again, when you’re a patent lawyer, it’s “mo’ problems, mo’ money.”

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 EPO's Media Partners Like Les Echos Already Produce EPO Puff Pieces (Marketing/Stenography)

    EPO promotion disguised as reporting or journalism, as seen in the media partners of the EPO well before these partnerships even begin



  2. Unitary Microsoft: EPO Excludes People Who Are Not Microsoft Customers From UPC Participation

    The EPO just can't help providing special treatment to Microsoft, not only when it comes to patent applications but also when it comes to rejecting stakeholders/applicants who dare not become Microsoft customers



  3. Links 30/5/2016: Linux 4.7 RC1, Best Linux Distros

    Links for the day



  4. Make Nothing, Sue Everybody: The Reality of Patent Trolls Increasingly Understood by the 'Mainstream'

    New patent stories and even extensive coverage at PBS, which dedicated a whole program to these matters but failed to address the core issue, which is software patenting



  5. [ES] Advertencia: La Vigilancia de la EPO Surveillance Puede Haberse Convertido en Más Intrusiva

    BlueCoat, que la EPO usa para oprimir a sus empleados en sus premisas Europeas, acaba de ajustar más y hacerse más intrusiva y los empleados pueden estar en riesgo



  6. [ES] Tarjeta de Victima Termina en Otra Torpeza para Battistelli Seis de su Guardia Pretoriana

    Battistelli esta destruyéndo lo que queda de la reputación de la EPO (después de las décadas que le costó a ella construírla) mientras los medios continúan escrutinando su desastroso régimen



  7. [ES] La EPO esta Excelente, Dice Sitio de ‘Noticias’ Conectado a Ella

    Los caraduras de la ‘revista’ IAM, viejo aliado de la EPO, da la impresión a la gente de que en la EPO todo esta bien y dandy aunque claramente ese no es el caso



  8. New EPO Caricature: Nouveaux Garde-Vélo (New Bicycle Guards)

    A new cartoon poking fun at Battistelli's bicycles and the perceived threat these are under



  9. Battistelli's 'Special Relationship' With Portugal and the 'Inventor of the Year' Charade

    What makes Portugal rather unique when it comes to Mr. Battistelli, who is allegedly desperate for support from smaller countries whose vote is easier to 'win'



  10. Patent Lawyers' Marketing Dominates and Marginalises Meaningful Analyses of Software Patenting in the US

    In an effort to create demand for software patents again, patent lawyers produce a huge heap of so-called 'analyses' which piggyback just one single decision (the exception, not the norm)



  11. A Mix of Patent Aggression and Sanctions/Raids (Using Controversial Patents) Against East Asian Companies

    New stories that demonstrate patent protectionism and show how Western industry, which barely makes anything anymore, relies on patents (software and design patents included) and this self-serving patent regime perpetuates itself even in Asia, where almost everything is actually being manufactured (and often/increasingly designed/developed too)



  12. Rumour: Battistelli Wants to Extend the Term of Topić's EPO Appointment in Spite of Criminal Charges Against Him

    The EPO's 'ringleader', Mr. Battistelli, is trying to keep his confidants (like Mr. Minnoye and Željko Topić) together for several more years to come, even defying rules regarding retirement age



  13. Links 29/5/2016: NetBSD 7.0.1, Genode OS 16.05

    Links for the day



  14. [ES] La Gerencia de la EPO Bajo Creciénte Estres por las Autoridades Legales Croatas, Políticas Alemanas, y los Medios Italianos

    Las cosas no son color rosa como la calma relativa sugiere, y esperamos en las próximas semanas mayores eventos otros que la protesta en todas las sedes de la EPO a través de Europa



  15. [ES] Los Medios de Comunicación Comienzan a Informar al Público Europeo Acercas de las Desventájas de la UPC Mientras que la EPO Acelera su Cabildeo por Ratificación

    La vergonzósa promoción de la UPC por parte de la EPO da otro paso adelánte mientras que venues de la prensa Europea (incluso canales de televisión) comienzan a explorar el arreglo secreto que es negociado por los abogados de patentes (con clientes corpórativos) y las oficinas de patentes, no el público o cualquier grupo que represente los intereses del público en general



  16. [ES] Algunos Detalles Acerca de ¿Cómo el Presidente de la EPO Es Rumoreado Estar Comprando Votos, y el Porqué es Suficientemente Base Para un Despido Inmediato?

    Algo de información tras las cortinas y una detallada explicación de la dependencia finánciera sistemática, creada por Battistelli a un costode €13 millónes o más, la cuál evita una efectiva supervisión de Battistelli



  17. Mishi Choudhary and Mike Masnick Explain Why India Should Reject Software Patents

    Both an Indian activist-lawyer and a widely-recognised author from the US explain to Indians why over-reliance on patents -- and acceptance of patents on software in particular -- is a very bad idea



  18. Microsoft Boosters Pretend Microsoft Fights for Privacy While the Company Uses Malware Tactics to Put Keyloggers on Everyone's Computers

    In spite of malware-inspired tactics that should land Microsoft in courts of law all around the world (as a defendant), Microsoft-friendly circles pretend that the company fights for people's rights like privacy -- all this when Microsoft installs keyloggers on people's PCs without their consent and obviously against their will



  19. Battistelli's Assault on EPO Staff's Right to Strike in Relation to French Politics and That 'Bicycle' Pretext for Crackdowns

    The latest bicycle 'gossip' and how it's being used, based on expectations from EPO staff, to introduce further crackdowns on human/labour rights



  20. Vice-President of the EPO Under Investigation: Treason, Abuse, Violations, Giving and Receiving Bribes

    An English translation of documents involving the Organised Crime Section of the Criminal Police Department in Zagreb, where the Vice-President of the EPO faces criminal charges



  21. EPO Management Warns People About Scams When the EPO's Management is Itself Falling for Scams

    Jesper Kongstad, the Chairman of the Administrative Council of the European Patent Organisation, helps demonstrate that not even the EPO is intelligent enough to spot an obvious scam



  22. Links 28/5/2016: Wine 1.9.11, New Gentoo

    Links for the day



  23. Links 27/5/2016: Android for Raspberry Pi, Google Beats Oracle in Court

    Links for the day



  24. Warning: EPO Surveillance May Have Just Gotten Even More Intrusive

    BlueCoat, which the EPO uses to enable oppression inside its European premises, has just gotten even nastier and staff may be at risk



  25. Victim Card Ends up in Another Blunder for Battistelli and His Six Bodyguards

    Battistelli is wrecking what's left of the EPO's reputation (after decades it took the Office to earn it) as the media continues to scrutinise his appalling regime



  26. Italian Report About EPO Now Available in English

    An English translation of a TV program which earlier this month documented some of the glaring problems at the EPO



  27. The EPO is Doing Great, Says EPO-Connected 'News' Site

    IAM 'magazine', a longtime ally of the EPO, gives people the impression that all is fine and dandy at the EPO even though that's clearly not the case



  28. Microsoft Has Killed Nokia (and Its Own Mobile Ambitions), But Watch What it Does With Patents

    Microsoft announces many more layoffs, having already caused tremendous damage to the Finnish economy, and patents are left astray for Microsoft's favourite patent trolls to pick



  29. EPO Management Under Growing Stress From Croatian Law Enforcement Authorities, German Politicians, Italian Media

    Things are not as rosy as the relative calm may suggest, and in the coming weeks we expect some major events other than the protest at all EPO sites across Europe



  30. Microsoft, a Dead Company Walking, Resorts to Malware Tactics, Now Truly Indistinguishable From Crackers

    Microsoft is essentially taking over people's PCs and installing on them a large piece of malware, complete with keyloggers, against the will of these PCs' owners


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