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

10.03.16

Software Patents Are Against the First Amendment, Rules a CAFC Judge in Historic Decision That is Another Nail in the Software Patents Coffin

Posted in America, Patents at 4:44 pm by Dr. Roy Schestowitz

Screenshots taken by Jan Wildeboer (Red Hat)

Opinion on IV

Opinion on IV

Summary: Further reinforcing the current trend, software patents’ demise in the United States has just been ascertained again, even if legal firms and patent maximalists prefer not to comment on it (as it would give this latest decision more visibility)

THE latest decision (see portions above) from the Court of Appeals for the Federal Circuit (CAFC) is eye-catching, but either it hasn’t caught the eye of legal firms or they’re just trying to ignore it, so we’ll be covering it more than we usually cover such decisions. We have made a local copy [PDF] (original here) of the full decision. We also mentioned it earlier today and yesterday, reaffirming that several software patents are dead, potentially implicating many more (by precedence/extrapolation).

Jan Wildeboer wrote to us (and few others) [1, 2]: “Wow! Software patents can violate #1stamendment according to #CAFC judge! [...] Can’t get enough. Judge defines patent trolls. #CAFC level. Huge. Page 36…”

Some people are also writing to us about it in our IRC channels today. They want this subject covered.

Where is the news coverage about it? It has been several days since this decision and patent law firms are still a month behind the times (McRO again), obsessing over very old news. Consider as a new example Sterne Kessler Goldstein & Fox’s “Patent Rights in the U.S.: Is the Pendulum Finally Swinging Back to Center?” (earlier today)

They speak about McRO while ignoring everything that has happened since. Shame on them. It seems as though bad legal advice from patent law firms is becoming the norm. They mislead scientists for cash (litigation, patent applications etc.), attempting to convince them that patents on algorithms are still a ‘thing’ after Alice. One does not even need to sue a company with software patents in order to lose these patents, owing to inter partes reviews (IPRs). The above lawyers reveal their biases with their obligatory rants about PTAB, stating that “PTAB [is] causing uncertainty over validity and enforcement of patents.”

We are still waiting to see patent law firms which offer their bogus ‘analyses’ (if any) of this latest CAFC ruling on software patents; they hope we don’t see it, judging by the fact that only Patently-O wrote about it (we covered it this morning). The ruling is very important because it serves to demonstrate a loss for patent trolls and for software patents (or patent trolls that use software patents, which is typical). The decision criticises patent trolling as well.

Judging by this new press release (from Trend Micro, which is itself a patent aggressor, not the patent microcosm), some other companies breathe in relief.

So far, based on our research, only one press article has been published about this decision. It’s titled “Here’s Why Software Patents Are in Peril After the Intellectual Ventures Ruling” and it says:

The end may be in sight for software patents—which have long been highly controversial in the tech industry—in the wake of a remarkable appeals court ruling that described such patents as a “deadweight loss on the nation’s economy” and a threat to the First Amendment’s free speech protections.

The ruling, issued on Friday by the U.S. Court of Appeals for the Federal Circuit, found that three patents asserted against anti-virus companies Symantec symc and Trend Micro were invalid because they did not describe a patentable invention. The patents were owned by Intellectual Ventures, which has a notorious reputation in the tech world as a so-called “patent troll,” a phrase that describes firms that buy up old patents and wage lawsuits in order to demand payments from productive companies.

[...]

Software Patents as a Threat to Free Speech

Friday’s ruling is also significant because Judge Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.

Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place.

IAM ‘magazine’ has not said anything about this decision. So much for ‘news’; it was so quick to crow about McRO (beating everybody to it), but not a word about Intellectual Ventures? They have just released a new issue of the magazine and this time the Intellectual Ventures troll is not on their main feature/cover page (puff pieces galore); not this time around…

Over at Twitter IAM wrote: “Trolls don’t fight it out in the courtroom. They seek to leverage low quality patents to secure quick licensing wins” (does not mention Intellectual Ventures)

Funny that IAM mentions the VirnetX case but not Intellectual Ventures, which speaks directly to IAM. This case was actually mentioned here twice in the past few days alone and it was challenged in court. David Kravets wrote about it, publishing this article that clarifies Texan courts (i.e. notorious bias) ruled on it, not CAFC:

An East Texas jury concluded late Friday that Apple must pay a patent troll $302.4 million in damages for infringing two patents connected to Apple’s FaceTime communication application.

The verdict is the third in the long-running case in which two earlier verdicts were overturned—one on appeal and the other by the Tyler, Texas federal judge presiding over the 6-year-long litigation.

The latest outcome is certain to renew the same legal arguments that were made in the earlier cases: Apple, for one, has maintained all along that the evidence doesn’t support infringement. VirnetX, as it did in the past and is now doing, is seeking more damages for what it says is “willful” infringement on Apple’s part. What’s more, in the previous litigation, the Nevada patent-holding company had asked the judge to shutter the Apple service at issue. Apple has maintained that such a demand was made “So that it can be used to extract a massive licensing fee.”

The case began with four of VirnetX’s patents (1, 2, 3, 4), which had originated at a company called Science Applications International Corporation, or SAIC. VirnetX has been saying for years that it plans to market various products, but its income comes from licensing patents.

If Apple can escalate this upwards, then a court like CAFC would quite likely invalidate the patents, as usual. The higher one goes (in the courts/legal system), the less room for mischief and leeway for software patents. It’s a shame that courts lower down don’t obey rulings that are handed from above, especially courts that are based in Texas.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Google Bookmarks

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

A Single Comment

  1. Needs Sunlight said,

    October 4, 2016 at 6:05 am

    Gravatar

    Software as expression goes further back than 2015:

    http://archive.arstechnica.com/wankerdesk/2q99/freespeech-1.html

    It is, after all, covered by copyright and that has to do with expression.

    Whether that expression is speech or not is also rather settled, and not something new:

    “Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code.”
    http://digital-law-online.info/lpdi1.0/treatise50.html

    I suspect that the ADD nature of social media and the proliferation of shills and astroturfers on the topic have caused people to forget. A lot of people like to pretend that the noise coming from social media is somehow informing or empowering them and giving them a leg up on the world so to speak rather than the exact opposite. Also, average people only remember things for a few months at best, especially when that thing is outside the area of their immediate interest. That is why M$ brings up the same attacks and disinformation again and again every 18 months or so.

What Else is New


  1. There's Apparently a New Boss (or Policy) at Red Hat/IBM

    The Fedora project doesn’t seem to care much about free speech, no matter one’s seniority in the project; as the person who relayed it to us has just put it, “they even eat their own.” (Longtime contributors) “He’s not a troll. He’s a contributor who rubbed some people the wrong way and now the banhammer is coming out. Fedora KDE was already collapsing and now it finally will.” (Note: Rex Dieter leads or led this project)



  2. There Cannot be Software Freedom Without Free Speech (Which is Nowadays Being Wrongly and Creatively Conflated With Racism)

    The time to speak out in favour of free speech is now; because the next phase typically involves removal (to be sold as "voluntary") of people whose political views are seen as professionally inadequate (recall what they did to Richard Stallman last September)



  3. [Humour/Meme] 'Offensive' Jokes

    Even humour itself is under attack now; people who cannot take/tolerate cartoons and banter are targeting the stand-up comedians, the cartoonists and so on



  4. The Media Does Not Like Talking About Linux (Which It Doesn't Understand Anyway). It Makes the News All About Linus.

    Just like back in May (or every other week) the news about Linux itself is being ignored and the subject is getting personified to make Linux seem rude and unruly



  5. Links 13/7/2020: Linux 5.8 RC5, Qt Creator Beta, Mexico Threatens GNU/Linux

    Links for the day



  6. [Humour/Meme] Embrace, Extend, and Curl

    The Curl project, a high-profile prisoner of GitHub, is again being 'embraced' by Microsoft (which already controls the project through GitHub)



  7. IRC Proceedings: Sunday, July 12, 2020

    IRC logs for Sunday, July 12, 2020



  8. [Humour/Meme] Half a Decade Has Passed and EPO Management Was Never Held Accountable for Illegal Surveillance

    A lot of people may no longer remember it, but the EPO can break privacy laws — as it still routinely does — with no consequences whatsoever



  9. Cleaning the Code

    War must go on; but it'll be more diverse and inclusive



  10. Why We Care About (Mis)Use of Language in Technology

    Software development communities are being divided over issues that would likely not tackle actual racism in any meaningful and profound way (just a symbolic way)



  11. Links 12/7/2020: KF6 Progress Report, GNUnet 0.13.1, Nano Becomes Default Terminal Text Editor in Fedora

    Links for the day



  12. They Always Worked for Microsoft (Directly and Indirectly) and Were Financially Rewarded for That

    Nat and Miguel, now put in charge of new weapons against software freedom (e.g. GitHub and NPM), have long worked for Microsoft (Nat was also an intern there); Techrights was right all along about this pair



  13. Red Hat Betrayed the Free Software Community With Its Software Patents' Stockpiling Drive and Then a Sale to the Biggest Software Patents Lobbyist

    In 2020 Red Hat is little but a shadow of IBM, whose patent policy continues to threaten software freedom and whose lobbying for software patents (under the guise of "HEY HI") persists uninterrupted; this growing problem oughtn't be unspeakable



  14. Politically Correct Tech

    This new video entitled “Politically Correct Tech” covers a topic we’ve spoken a great deal about



  15. [Humour/Meme] High on Production, Stoned on Pseudoscience

    All-time high ‘production’ levels at the European Patent Office (EPO) do not mean what they want people to think and what they try hard to hide



  16. Missing From EPO Management: Actual Scientists

    Political figures and opportunists with connections occupy top positions at top European agencies; this assures self-destructive policies that diminish progress and cushion corruption



  17. All Software Should Come With a Cheat Mode

    Cheat modes are useful for developers because they enable debugging, and are sometimes called "Debug mode"



  18. Linus Torvalds Checks If It's Still Inclusive Enough to 'Bash' Bad Technology (of the Company Whose TPM Pusher Has Just Successfully Pushed to Remove Many Words)

    In the age of endless control of language (e.g. large corporations pushing for "inclusive" language whilst earning billions from bombing of 'inferior' countries) we see that it is still possible to condemn corporations on technical grounds (at least if you’re Linus Torvalds)



  19. Even Before Microsoft Paid ('Joined') the Linux Foundation Jim Zemlin Had a Preference for Microsofters

    Even years before the Linux Foundation was receiving money from Microsoft it had a tendency to hire Microsoft’s people for key positions (a lot of people no longer remember that, but it’s still in the public record; it was Jim Zemlin who approached if not chased Mr. Ramji to offer him the job and the colleagues saw no problem with that)



  20. IRC Proceedings: Saturday, July 11, 2020

    IRC logs for Saturday, July 11, 2020



  21. Links 12/7/2020: KDE Plasma 5.20 Preview and Elive 3.8.14 Beta

    Links for the day



  22. [Humour] The 'Orange One' Does Not Respect Judges Either

    More than two years after taking over the European Patent Office (EPO) António Campinos has done absolutely nothing to restore judicial independence of the Boards of Appeal of the EPO



  23. The Systemd Song

    Speak out about IBM's strategy before we're all using GNU/Linux distros 'barcoded' with systemd



  24. Monopoly (or Vendor Lock-in) is Not Modularity

    IBM cannot totally control the kernel, Linux; IBM's control over GNU/Linux may be worth even more than what it paid for Red Hat as that's the key to overpriced support contracts and the general direction of development (important trends such as file systems and various low-level stacks)



  25. The Internet Archive Doesn't Forget, Whereas the Internet and the Web Forget Very Fast

    World Wide Web history is grossly undervalued and preservation of such history (e.g. by the Wayback Machine) is taken for granted by far too many people; the robber barons of today benefit the most from erosion of collective memory as they get to rewrite the past to suit their present and future interests



  26. Environmentalism and Free Software Can be Viewed as Closely Connected and Help One Another

    Modest lifestyles are an overlapping pattern in the Free software community and green activists; there's room for alliances and collaboration, bettering society by reducing consumption and discouraging voyeurism



  27. Free (as in Freedom) Software + Social Control Media ≠ Free Speech

    Speaking through middlemen and private platforms is bad enough (that gives others unjust power over speech); to claim that because the underlying platform is free/libre software it therefore becomes a non-issue is also dishonest



  28. António Campinos: President or Quasi-Autocratic Corporate Puppet?

    The culture of oppression — and censorship of evidence of oppression — is what today’s EPO is all about; the EPO learned how to better avoid (or block) negative publicity without actually changing its ways; and due to unprecedented speech restrictions you won’t hear that from SUEPO



  29. The Media Continues to Ignore Corruption of António Campinos

    António Campinos has Croatian scandals on his lap; the obedient media, however, refuses to even talk about it (or uses COVID as an excuse to write nothing on the subject, as some journalists have told us)



  30. A Call for Patent Sanity

    The public's call for reform is motivated by improved understanding of today's debased patent system and how out-of-order (detached from its original mission statement) it has gotten; patent maximalism, if it does not completely unravel this whole system, severely discredits it


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

Recent Posts