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A Post-Alice Reality (World Without Software Patents) Takes Its Toll on the Patent Microcosm in the United States

Posted in America, Courtroom, Patents at 4:18 pm by Dr. Roy Schestowitz

And it doesn’t take the truth too well…

Shooting messengers

Summary: Discussion about the closure of patent law firms and the inability to defend software patents, which were granted in error for many years and are finally facing proper scrutiny

THE patent landscape surely came under long-overdue judgment and certainly it is changing. It’s changing quite rapidly. It is not changing in favour of patent law firms, that’s for sure; it’s actually the other way around as these firm are trying to adapt to these recent changes and learn new tricks — if any exist at all (here is Alexander P. Ott from McDermott Will & Emery trying new tricks to patent software in spite of the rules this week) — in order to pretend that everything is the same as before and ultimately convince examiners/judges likewise. As we have shown in recent months, this rarely works anymore and they have very little control over what PTAB does (appeals by the patent holder/s are rare and usually ineffective). The figures and the facts are out there, but patent lawyers actively suppress them and even attack the messengers. For few instances of this, see the example above (Breyer) and recall more recent insults. It makes patent law firms look rather mean-spirited and vindicative. They’re like a pack of hyenas now.

“The figures and the facts are out there, but patent lawyers actively suppress them and even attack the messengers.”As one might expect, uncertainty over a large proportion of patents (existing and prospective/pending) reduces confidence among patentors. They might as well not bother attempting to patent (or renew patents on) abstract things like “something on a device” or “something over the Internet” (notorious but ubiquitous types of patents). There’s plenty of prior art therein and usually no inventive step, just the ‘dressing up’ of an old idea. Judges can see that. Judge Jacob would have said “technical” = restatement of the same problem,” Benjamin Henrion wrote, suggesting that they should formally “abolish swpats and the biggest negative points disappear. Otherwise face abolitionists. Will find Pilch’s quote” (see Henrion’s tweet to that effect; Pilch is the FFII’s founder).

We sometimes hear about patent law firms struggling, but rarely do we hear about large ones (with nearly 100 staff) taking the beating. Let’s face it; reduced demand for patents would inevitably shrink the market (or meta-industry which is patent bureaucracy). Deflation is to be expected now (or soon), as growing realisation of the status quo spreads further than just to lawyers, who still try to keep their clients in the dark (longing for pre-Alice days and selectively covering new developments so as to maintain an illusion).

“They might as well not bother attempting to patent (or renew patents on) abstract things like “something on a device” or “something over the Internet” (notorious but ubiquitous types of patents).”Another patent law firm has just imploded and there was plenty of press coverage about it early in the week, e.g. [1, 2, 3, 4, 5, 6, 7, 8, 9]. The patent bubble seems to be bursting with Alice and Mayo, so this patent law firm — like others before it — is virtually being taken over by another firm from Texas (the capital of trolls where there is still affinity for software patents). Here is the ‘damage control’ or the face-saving PR about this now-defunct patent law firm. They try to make the staff transfer look like good news. “Lipstick on a pig” comes to mind here.

One patent lawyers’ site meanwhile bemoans the departure from an era of software patents (it’s a rare exception for them to be upheld by courts or boards post-Alice).

The detailed breakdown of the post-Alice situation for software patents is preceded by the following text:

It has now been a two years since the Supreme Court rendered its now infamous Alice v. CLS Bank decision. It is safe to say that the Alice decision has had a profound impact on software patent enforcement, both at the Federal Circuit and in the Federal district courts.

Here is a summary of Federal Circuit Section 101 software eligibility decisions. As you will see, very few software patents have been upheld by the Federal Circuit in the last few years.

Breakdown of Federal Circuit 101 Cases, Post-Bilski, by Inventive Subject Matter

Here come the patent maximalists to berate PTAB, quoting something new from CAFC. “The Federal Circuit has remanded the Veritas v Veeam Software case back to the Patent Trial and Appeal Board, finding its reason for denying a motion to amend “unreasonable”,” Michael Loney writes in MIP. This is probably seen by them as an opportunity to overturn, but still, that would not count in the figures above.

CAFC‘s hostility towards software patents is especially noteworthy because it’s the fault of this court that software patents exist in the US in the first place. Suffice to say, more people now recognise the correlation between software patents and trolling. It’s also unsurprising that patent attorneys are unhappy about this new “Unpatent Manifesto”, which attempts to take things even further. The person behind it explains his point with a hypothetical analogy, stating “it wouldn’t be possible for anyone to patent the next biological change in the human body, it shouldn’t be possible for anyone to patent the next invention that will represent a great evolution of our species.”

“The “Unpatent Manifesto” might as well just be renamed the Patent Quality Manifesto.”The author is especially concerned about patent trolls, which are a symptom of no (or far too little) patent quality at the USPTO. He wrote: “The patent system is also the home of the so called “patent trolls”, or non-practising entities. Their mission is to accumulate patents with the only purpose of extorting money to those pushing for innovation. They patent already invented things, and patent or buy obvious inventions so they can later threaten companies with a lawsuit.”

The “Unpatent Manifesto” might as well just be renamed the Patent Quality Manifesto. In our view, patents themselves are not inherently the problem to tackle; the lack of quality control means that in the US, for example, there are now nearly 10 million patents (including expired ones). That’s far too much as it shows that the system long ago got detached or deviated away from its original purpose. And it’s impossible for any one person or firm to keep abreast of. There’s a huge overhead.

British Telecom (BT) is Still a Patent Bully: Next Target is Yet Another GNU/Linux Supporter

Posted in Action, America, Debian, Europe, Patents at 3:56 pm by Dr. Roy Schestowitz

Valve of Steam OS (Debian GNU/Linux) fame

Summary: The latest target of BT’s patent bullying (shakedowns and lawsuits) is the company that has turned into somewhat of a Debian proponent (albeit with DRM)

BT is a patent aggressor whose activities in the court we haven't heard of in a while (it even targeted Android). BT shows no sign of relenting. This unpopular strategy carries on and the latest suggests that “British Telecommunications (BT) have filed a lawsuit against Valve claiming patent infringement. The action was brought “based on Valve’s continued willful infringement” of four patents (I’ll go into what they are in a moment) and was filed in Delaware on 28 July.”

“It resorts to patent aggression to make up for commercial issues, just like IBM (it too became a patent bully).”Notice the choice of Delaware. The British and US media wrote quite a lot about this lawsuit [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]. So far we have found 22 articles about this lawsuit alone (that’s a lot for patent news) and it looks rather obvious that BT is just getting desperate. It resorts to patent aggression to make up for commercial issues, just like IBM (it too became a patent bully).

The Long Reach of Battistelli’s Policy of Retribution

Posted in Europe, Patents at 3:40 pm by Dr. Roy Schestowitz

Control by fear even in Berlin?

Battistelli in Germany

Summary: A former EPO staff representative from Berlin got laid off, reinforcing the perception that anyone who dares criticise the misguided policies of the Office takes a huge risk

THE Napoleonic vision that Battistelli has of himself is truly an infectious disease (at the top management) and it’s hard to understand how such a character, which is inherently and fundamentally political (where lying — not science — is one’s art and trade), made it into high EPO positions (Council, then the Office). It’s not even allowed, as per the rules.

Like (in)famous autocrats, Battistelli chose to treat critics not as a source of guidance but as enemies. This is very common in the political world, but not in science, where people openly debate competing theories and present evidence for their views (like peer review).

We have already learned about Battistelli’s attacks on staff representatives in Munich (resulting in dismissals) and similar attacks in The Hague (dismissals seem inevitable at this stage). What we did not know, however, is that a former staff representative in Berlin was dismissed earlier this year. Whether or not it may be related to staff representation activities we don’t know, but we have asked around.

As people can recall, the EPO arrogantly pretends that all these disciplinary actions are mere coincidences and nothing to do with union-busting (it’s arrogant as it assumes people are utterly foolish and might actually believe this). Will this dismissal in Berlin too turn out to be connected to union activity? If anyone has information about this, please get in touch. In Vienna, the fourth EPO site, people who represent staff rarely identify themselves by name and in an expression of solidarity for fellow staff (in other sites) all we ever saw were hands of people.

Battistelli has nothing to be proud of. He fostered a culture of fear, no free thought (not openly anyway), and at the same time he scared away (or drove away) some of the key members of staff at the Office. One might dare say that if Battistelli ran a political party of his own, it would be a total disaster, driving a nation into recession or bankruptcy. Never again should the Council appoint a politician to manage scientists, especially not a psychopath like Battistelli. A lot of the top-level management is now stuffed with friends of his.

Links 1/9/2016: Fedora 25 Alpha, GhostBSD 10.3, OpenBSD 6.0

Posted in News Roundup at 11:03 am by Dr. Roy Schestowitz

GNOME bluefish



Free Software/Open Source

  • How eBay Uses Apache Software to Reach Its Big Data Goals

    eBay’s ecommerce platform creates a huge amount of data. It has more than 800 million active listings, with 8.8 million new listings each week. There are 162 million active buyers, and 25 million sellers.

    “The data is the most important asset that we have,” said Seshu Adunuthula, eBay’s head of analytics infrastructure, during a keynote at Apache Big Data in Vancouver in May. “We don’t have inventory like other ecommerce platforms, what we’re doing is connecting buyers and sellers, and data plays an integral role into how we go about doing this.”

  • Technical documentation doesn’t have to be dull
  • University fuels NextCloud’s improved monitoring

    Encouraged by a potential customer – a large, German university – the German start-up company NextCloud has improved the resource monitoring capabilities of its eponymous cloud services solution, which it makes available as open source software. The improved monitoring should help users scale their implementation, decide how to balance work loads and alerting them to potential capacity issues.

    NextCloud’s monitoring capabilities can easily be combined with OpenNMS, an open source network monitoring and management solution.

  • Events

    • Wayland at QtCon

      On Friday QtCon starts and there will be of course an update about the current state of Wayland support in Plasma. See you during the lightning talk session on Friday between 17:30 and 18:30 for my lightning talk “We are in Wayland!”

    • A Webinar on Big Data

      For all you open source data scientists out there, this hour-long recorded webinar explains the big data tools and services you can use on Amazon. I learned a lot of data science lingo watching this video.

    • LinuxCon talk slides: “A Practical Look at QEMU’s Block Layer Primitives”
    • FOSSCON 2016 –Event Recap

      FOSSCON 2016: Free & Open Source Software CONference was hosted at the International house of Philadelphia on Aug 20th 2016, and showcased nearly 20 vendors and nearly as many talks (plus ‘lightning talks’) and a Key Signing party.

    • Most LPC passes sold out; refereed track proposals deadline nears
    • September is here!

      September is the Software Freedom Day month (among other things) since 2005 (SFD 2004 was in August) and this year is no exception! As of last night we have a total of 58 events in 34 countries, with only 42 fully registered (you can see the location on our famous SFD map). There is always a delay between wiki page creation (which includes the plan, speakers, date and location) and the registration which ask organizers to specify where the event will happen.

  • SaaS/Back End

    • The open source backlash is here. Is HPE’s Big Data foray the answer?

      Open source Big Data tools are undoubtedly seen as fresher, hotter and more capable than proprietary resources, but companies are growing tired of sifting through open source for the magic combination that will make their data profitable.

      Some are starting to miss the stewardship of the “proprietary dinosaur,” yet they can’t afford to miss out on open-source innovation. One company is aiming to turn its awkward position in the middle into a value proposition to solve customer conundrums.

  • Pseudo-Open Source (Openwashing)

  • BSD


  • Public Services/Government

    • Swiss administrations may share their software

      Public administrations in Switzerland have the right to share their software under an open source licence, conclude Prof. Dr. Tomas Poledna and Prof. Dr. Simon Schlauri, two legal specialists, in a report for the Canton of Bern (Switzerland). The canton says that the report clears the way for the IT department to make available to others the business solutions that were developed for the Bern administration.

    • The US Military Will ‘Be Left Behind’ If It Doesn’t Embrace Open-Source Software, Report Says

      Amid a rising China and Russia, the Pentagon’s slow pace on the software front could cost it tactically for years to come.

      Unless the Defense Department and its military components levy increased importance on software development, they risk losing military technical superiority, according to a new report from the Center for a New American Security.

    • Is United Kingdom a leading country in the FOSS world?

      There is no secret that I am a born Russian living in the United Kingdom. I travel to my motherland for different reasons from time to time.

      I must admit that I am not that fond of the current Russian government. They more often talk about the use of free open source software than make any practical steps toward applying it. I even wrote several critical articles about this a few years ago.

  • Openness/Sharing/Collaboration

    • Sweden to compare Nordic eHealth initiatives
    • France assesses its public policy evaluations

      The French government is assessing how it evaluates its public policies. The assessment of its ‘Évaluer les politiques publiques’, (public policy evaluation, EPP) started in July and will last until December. Following 68 EPPs, it is now time to study the evaluation itself, comments SGMAP, France’s government modernisation unit.

    • 6 tips for interviewing with open culture companies

      For the last several years, I’ve been studying under an open organization and future of work guru. And for longer than I can remember, I’ve felt that business should operate differently—really move at the speed their people can innovate rather than standing on who’s held office the longest.

      So you can imagine how long it took for me to embrace the open organization mindset. It was rather like an old school touchdown dance in my mind. I’m excited by the value proposition open organizations present.

      Knowing I wanted to be engaged in a company that leverages the value of those at its table, I decided to begin seeking out one I could join. I knew the impact I could personally have on the world could become exponential if I did.

    • Open Hardware/Modding


  • Thrill-seekers suspended mid-air as Alton Towers Smiler ride is halted

    Thrill-seekers have been left stuck on a rollercoaster at Alton Towers which last year crashed, seriously injuring five people.

    The theme park visitors were on the Smiler when there was a “temporary stoppage” but nobody was injured, a spokesman said.

    The £18 million ride at the Staffordshire attraction smashed into another carriage on June 2, 2015.

  • Security

  • Finance

    • The new TTIP? Meet TISA, the ‘secret privatisation pact that poses a threat to democracy’

      An international trade deal being negotiated in secret is a “turbo-charged privatisation pact” that poses a threat to democratic sovereignty and “the very concept of public services”, campaigners have warned.

      But this is not TTIP – the international agreement it appears campaigners in the European Union have managed to scupper over similar concerns – this is TISA, a deal backed by some of the world’s biggest corporations, such as Microsoft, Google, IBM, Walt Disney, Walmart, Citigroup and JP Morgan Chase.

    • A ‘private, global super court’ you’ve never heard of is changing the world

      A little-known international arbitration system is gaining global power and allowing multinational corporations to sue entire countries.

      Buzzfeed News spent months reporting on the scope and power of the investor-state dispute settlement, or ISDS, and just published a nearly 10,000-word investigative report on the system. If you don’t have two hours to go through the whole tome, here are some highlights.

    • Apple: You can have taxes or you can have jobs, but you can’t have both

      Apple’s official statement on the European Union ruling against its Irish tax arrangements tells you all you need to know about what is at stake: You can have taxes or you can have jobs, but Apple is in no mood to deliver both.

  • AstroTurf/Lobbying/Politics

    • Former Bush official endorses Clinton

      Democratic presidential nominee Hillary Clinton on Wednesday picked up an endorsement from another member of former President George W. Bush’s administration.

      “Secretary Clinton has demonstrated her skills as Secretary of State, especially but by no means exclusively in helping other Asian countries counter Chinese bullying in the western Pacific,” James Clad, the former deputy assistant secretary of Defense under Bush, said in a statement.

      “For Republicans and Democrats alike, everything in national security requires clarity and steadiness, whether managing nuclear weapons or balancing great power rivalries.”

      Clad talked about the importance of never losing sight of national interest. He said that is a “discipline which Secretary Clinton possesses in full measure.”

      “Our adversaries must never hear flippancy or ignorance in America’s voice,” he added.

      “They should never take satisfaction from an incompetent president. Giving an incoherent amateur the keys to the White House this November will doom us to second or third class status.”

      Clad tied in his own experiences, saying he has seen what can happen when “American reliability falters.”

      “It’s not pretty, for us or for the world,” he said.

    • A New McCarthyism: Greenwald on Clinton Camp’s Attempts to Link Trump, Stein & WikiLeaks to Russia

      Pulitzer Prize-winning journalist Glenn Greenwald says Democrats have adopted a “Cold War McCarthyite kind of rhetoric” by accusing many its critics of having ties to Russia. “It’s sort of this constant rhetorical tactic to try and insinuate that anyone opposing the Clintons are somehow Russian agents, when it’s the Clintons who actually have a lot of ties to Russia, as well,” Greenwald said. “I mean, the Clinton Foundation and Bill Clinton helped Russian companies take over uranium industries in various parts of the world. He received lots of Russian money for speeches.”

  • Censorship/Free Speech

    • Did the UN Redefine ‘Hate Speech’ over a Singaporean Blogger?

      The United Nations’ comments on a controversial Singaporean blogger “effectively narrows the definition of ‘hate speech’ under international law,” a U.S. human rights advocacy group says.

      Seventeen-year-old Amos Yee (余澎杉) faces potential jail time after posting controversial material related to the beliefs of Christians and Muslims in videos, blogs and Facebook posts. The trial, which started on Aug. 17, is still on-going, but Yee has pleaded guilty to three of six charges of intending to wound religious feelings and two counts of not reporting to a police station.

    • Microsoft services to crack down on ‘hate speech’

      The end may be nigh for trolls on Skype and Xbox. Microsoft is launching a customer support service that allows users to report hate speech. Conversely, the new system also includes an appeals forum to reinstate contested content.

      For hate mongers on the internet, Microsoft would become judge, jury and executioner. On Friday, the software conglomerate rolled out a new system for airing grievances regarding hate speech posted on Microsoft-hosted services.

  • Privacy/Surveillance

    • Building a new Tor that can resist next-generation state surveillance

      Since Edward Snowden stepped into the limelight from a hotel room in Hong Kong three years ago, use of the Tor anonymity network has grown massively. Journalists and activists have embraced the anonymity the network provides as a way to evade the mass surveillance under which we all now live, while citizens in countries with restrictive Internet censorship, like Turkey or Saudi Arabia, have turned to Tor in order to circumvent national firewalls. Law enforcement has been less enthusiastic, worrying that online anonymity also enables criminal activity.

      Tor’s growth in users has not gone unnoticed, and today the network first dubbed “The Onion Router” is under constant strain from those wishing to identify anonymous Web users. The NSA and GCHQ have been studying Tor for a decade, looking for ways to penetrate online anonymity, at least according to these Snowden docs. In 2014, the US government paid Carnegie Mellon University to run a series of poisoned Tor relays to de-anonymise Tor users. A 2015 research paper outlined an attack effective, under certain circumstances, at decloaking Tor hidden services (now rebranded as “onion services”). Most recently, 110 poisoned Tor hidden service directories were discovered probing .onion sites for vulnerabilities, most likely in an attempt to de-anonymise both the servers and their visitors.

    • NSA ‘Cyber Weapons’ Leak Shows How Agency Prizes Online Surveillance Over Online Security

      With a name like the National Security Agency, America’s chief intelligence outfit might at least attempt to promote American security online. At the very least, one would hope its activities don’t actively undermine U.S. cybersecurity. But—bad news—a recent leak of the agency’s digital spy tools by a myterious group called the Shadow Brokers shows how the agency prioritizes online surveillance over online security.

    • FBI Director wants ‘adult conversation’ about backdooring encryption

      FBI Director James Comey is gathering evidence so that in 2017 America can have an “adult” conversation about breaking encryption to make crimefighters’ lives easier.

      Speaking at Tuesday’s 2016 Symantec Government Symposium in Washington, Comey banged on about his obsession with strong cryptography causing criminals to “go dark” and making themselves harder to catch. Comey said that once the election cycle is over, he will be resuming his push to force technology companies to bork their own products, and this time armed with plenty of supporting documentation.

      “The conversation we’ve been trying to have about this has dipped below public consciousness now, and that’s fine. Because what we want to do is collect information this year so that next year we can have an adult conversation in this country,” he said, AP reports.

    • Comey: FBI wants ‘adult conversation’ on device encryption

      FBI Director James Comey warned again Tuesday about the bureau’s inability to access digital devices because of encryption and said investigators were collecting information about the challenge in preparation for an “adult conversation” next year.

    • James Comey Claims He Wants An ‘Adult Conversation’ About Encryption; Apparently ‘Adults’ Ignore Experts

      This is not just insulting, but counterproductive. Plenty of experts have been trying their damnedest to have an “adult conversation” with Comey, explaining to him why he’s wrong about the risks of “going dark,” while others have — in fairly great detail — explained the serious dangers behind Comey’s approach.

      Comey’s response to these efforts so far has been the equivalent of sticking his fingers in his ears and screaming “nah, nah, nah — can’t hear you!” while repeating his “nerd harder” mantra.

      An “adult conversation” has to be one where someone in Comey’s position is able to admit that maybe, just maybe, he’s wrong. It’s not one where he gets to keep demanding a new conversation until people tell him that night is day. Because that’s just silly.

      This new claim about an “adult conversation” is also stupidly counterproductive. All it’s going to do is make the actual experts here — like the authors of that MIT paper on the dangers of backdoor — dig in and have absolutely no interest in dealing with Comey. How could you when he so flippantly brushes off all the work they’ve done already?

  • Civil Rights/Policing

    • De Lima: No shortcut to law and order

      Sen. Leila de Lima admitted that there is a need to intensify the campaign against illegal drugs in the country but with the least number of killings.

      The neophyte senator suggested that the country’s criminal justice system and law enforcement should be reformed.

      “There should be no shortcuts in trying to achieve law and order in our society,” De Lima said in an interview with CNN Chief International Correspondent Christiane Amanpour on Wednesday morning.

      The senator added that law enforcers and prosecutors should be trained in the “proper manner” for them to be more efficient.

    • De Lima files 7th case vs Marcos’ ‘hero’ burial at SC

      Senator Leila M. de Lima has filed the seventh legal challenge against the plan to bury dictator Ferdinand E. Marcos at the Libingan ng Bayani, on the eve of the Supreme Court’s oral arguments on the divisive issue.

      In her 38-page petition, De Lima said that “no President has the power to rewrite history.”

      De Lima argued that interring Marcos’ remains at the heroes’ cemetery would go against the very spirit of the 1987 Constitution, as the charter was crafted precisely to prevent the abuses committed under his regime.

    • By Sitting Down Kaepernick Challenges Americans to Reflect on What They Really Stand For

      Standing up and singing the Star-Spangled Banner before sporting events is a time honored American tradition. It is a rousing anthem that champions in song the nation’s values of freedom and liberty for all. It is also meant to remind fans in the stadium and at home that there are more important things that unite us than sporting rivalries.

      At the heart of this ritual is a profound contradiction. It too often serves as a force for forgetfulness. In belting out “O say can you see” Americans are allowed to unthinkingly celebrate the USA. They can forget for a moment the illegal invasions of foreign countries that have left millions dead. They can turn the mind away from the black citizens being killed by police with seemingly almost total legal immunity. They can close their eyes to the fact that they are now an oligarchy ruled by corporate elites and their bipartisan political supporters instead of a vibrant democracy governed for, by and of the people.

      There is a also a deeper forgetting at play. It is to overlook the country’s history of systematic racism starting with slavery. It is to be given a few minutes pause to close one’s eyes to its tradition of classism at home and economic exploitation abroad. It is a stirring moment of collective amnesia to an America’s past that from the beginning has continually betrayed its avowed commitment to life, liberty and the pursuit of happiness for many of its citizens as well as those it has oppressed around the world.


      Kaepernick’s rejection of the anthem is therefore a political protest that should not and cannot be ignored. Unfortunately, so much of the coverage is on that action itself as opposed to what it represents.

      The tragedy of the anthem is that its music all too commonly drowns out genuine voices for justice. It is a blaring cacophony of American triumph that silences all critical reflection. The tune and the words stir emotions so that those singing it no longer have to hear the cries of its country’s victims.

    • Homeland eyes special declaration to take charge of elections

      Even before the FBI identified new cyberattacks on two separate state election boards, the Department of Homeland Security began considering declaring the election a “critical infrastructure,” giving it the same control over security it has over Wall Street and the electric power grid.

      The latest admissions of attacks could speed up that effort possibly including the upcoming presidential election, according to officials.

      “We should carefully consider whether our election system, our election process, is critical infrastructure like the financial sector, like the power grid,” Homeland Security Secretary Jeh Johnson said.

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