Bonum Certa Men Certa

Microsoft's Evil Patent Agenda, Issues Pertaining to Patent Scope, and the Mass Invalidation of Software Patents in the US

Sweeping changes continue to sweep up the patent mess in the USPTO

Broom



Summary: News about Microsoft's love of [patents against] Linux, the persistent issue of patent maximalists guiding US patent law, and an update regarding the Patent Trial and Appeal Board (PTAB) that cleans up the mess left by these aforementioned actors

SOFTWARE PATENTS have always been our primary focus, since the site began exactly 10 years ago.



"I’m not talking about software patents, whose disappearance I would welcome," said the author of this new article titled "The End of Intellectual Property?"

Patent practitioners must understand that in order for their profession to maintain legitimacy (positive public perception) they need to ensure that patents are granted only on things where patenting can be justified, economically in particular. Not every thing in existence should be patented. That's just common sense, as authors who studied the effects of monopolies explained in scholarly work for decades if not centuries. Patent law -- like copyright law -- must examine/study the broader effects, including the externalities.

Today's article is a mix of news found and collected over the past week. We present the news in no special order.

Microsoft Still Evil and Dangerous



Microsoft is lobbying against Alice (and for software patents, as usual). How do we know? This report from last week reminds us that Microsoft is a nasty, malicious company that intends to continue to sue rivals using software patents. To quote: "As Microsoft's Micky Minhas sees it, Alice may be dissuading IP owners from other countries from patenting their products here, placing the US at a disadvantage. As China considers accepting patents for business methods, the US is heading "in the opposite direction," he said."

Does that mean that China's patent system is getting better? No, it's getting worse and patent trolling has gotten a foothold there, as we so often/habitually noted this year. Looking at what Microsoft actually continues to do, consider this new and timely article titled "No, Microsoft does not love open source" (published by the corporate media about a week ago). To quote the key part:

I used to follow Microsoft's intellectual property Twitter account in order to see exactly how much Microsoft loved open source as it bragged about all the people it had coerced into signing patent agreements. I guess someone realized that crowing about that was not a great idea, because today the feed tweets puff pieces about how great software patents are and how they drive innovation (through litigation).

The truth is that Microsoft’s principal open source strategy hasn’t changed and probably never will. The point of open source to Microsoft (or any other company) is to give you an on-ramp to its platform. For Microsoft, that platform is morphing from Windows to Azure, so of course Microsoft has dialed back its rhetoric toward Linux. If you read Microsoft hates Linux, then you probably won’t host your VMs on Azure -- same deal if you have a choice between two virtual private clouds. Duh, Microsoft loves Linux ... on Azure. Why wouldn’t it?

Microsoft may even be willing to accept open source that's tied to its technologies, but not directly to its platform. Generally these will be “children’s edition” versions like .Net Core. I’m not saying Visual Studio for Linux isn’t progress, but is anyone really itching to run .Net on Linux? I mean, after the outrageous commercial success of Mono (/sarcasm), are any of you going, “Woo-hoo, I want to write .Net code and run it on Linux”? Bueller? Bueller? Anyone?

Now, about those lawsuits -- Microsoft likes it both ways: Embrace on one hand, and get tidy patent settlements on the other. People who work at Microsoft say it's a big company, and as with all big companies, the left hand doesn’t know what the right hand is doing. Actually, that would be dismal management -- if “we love open source” was really part of Microsoft's strategy.

As evidence that Microsoft loves open source and Linux, last year Microsoft noted some long-running lawsuits that it wasn't really winning and dropped them. Repositioning “we cut our losses” to “because we love you” is good PR. Respect! But let’s talk about real change.


For those who think that Microsoft has changed, be sure to check if media coverage changed rather than Microsoft itself. We wrote quite a few articles this year about new instances of Microsoft blackmail using patents, targeting companies which distribute Linux devices.

Patents That Harm Society



There is a new paper (more than a fortnight old by now, which in academic terms/by academic standards is very little) that focuses on patent litigation. Litigation is rarely indicative of success; rather, litigation is invoked when there is a failure and when parties fail to agree about patents. Who benefits from all this the most? Patent lawyers of course, at both sides (offensive and defensive). Here we have a new report about a patent lawsuit against solar panel company . Earth Solar Power, a Chinese solar panel company, got sued. Does the environment benefit from it? Certainly not. What does public interest say about all this? Also see this report about Octane. "Ninth Circuit’s en banc ruling says a case in which fee-shifting is appropriate is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position”," to quote MIP. Where does the public stand on this? Whose fees are "shifting" and who pays the price for all these lawsuits? Here is another new MIP article, this one speaking about a lawsuit with a decision composed by Justice Ginsberg. It's not a new case, but here's what MIP says:

In 2014, the US Supreme Court heard Petrella v Metro-Goldwyn-Mayer, which asked the same question of copyright law. In a majority opinion written by Justice Ginsberg, the Court decided that laches should not be an available defense in copyright infringement cases. The Court has recently shown a tendency to want to maintain consistency across the branches of IP law. In this case the Justices will have to interpret whether the statute creates a statute of limitation for damages in patent infringement cases, or if this is not established, whether laches are needed to effect this limitation upon suit delays.


Baby products are not improving because of lawsuits like this (see context in this article) and certainly society loses a lot. Maybe the problem is that too many patents are being granted in too many domains.

Tastelessly enough (in our view), Professor Crouch now uses his student Zachary Kasnetz to criticise a decision he doesn't seem to approve of. Crouch is part of that crowd (or the insulated choir) that wants us that believe that more patents mean more success, more innovation, or whatever. His blog is usually quite informative (with detailed graphs and everything), but he is clearly subjective and he has become a symptom of a patent system led and steered by maximalists, not moderates. Some of them have become so greedy that they burn down the system and alienate the public. No wonder the connotation with patents among many members of the public isn't quite so positive. Many now find "patents" synonymous with "trolls" rather than light bulbs, innovation, etc.

Here is a new article where Crouch shows the proportion of abandoned patent applications in the US going down over time. Is this indicative of a patent quality problem? Remember that the real number is FAR higher than what's shown by Crouch, around 92% if one considers revisions and re-applications. Here is another Crouch article about "USPTO Allowance Rate" and further commentary about it ("What is the Steady-State Patent Allowance Rate?"). In recent years, based on these figures, the USPTO got ever more terrible at rejecting bogus patents. David Kappos as Director (now lobbyist) made things ever more dire.

Courts Meet Avalanche of Bogus Patents



The USPTO has created a mess. It certainty did, but it profited from it. It's obvious at whose expense and to whose gain. The incompetence (top-down, management instructing examiners) now overloads the PTAB staff and leads to a sort of 'scatterback' that falls back on courts. Only lawyers and trolls win here.

How did it all happen and what does the USPTO plan to do about it now? Well, based on Patently-O (Crouch's blog), the "USPTO Proposed to Revise Rule 56". David says in this article, while linking to a PDF, that the "announcement is here. I will be submitting comments before the 12/27 deadline, and so if you have any ideas or thoughts, please post away."

So basically policy is being shaped by those who profit from it. We don't expect public interest groups to have anything to say. Here is the nasty Watchtroll pushing his own agenda with this article about a "new memorandum on software eligibility". Want to guess what Watchtroll will tell them?

Here is Watchtroll bemoaning the CAFC for smashing about 90% of software patent cases that it deals with. These people just can't help themselves. Whenever the system tries to correct itself they panic and try to keep it ruined, as from ruin comes more business to them (consulting, applications, litigation etc.) and it's frustrating to think that the public pays the price for all this unproductive chaos. The public pays, these people pocket it all.

The mess created by the USPTO, which granted patents on software for a number of decades (because it got greedy), scatters back on CAFC now. We see a growing number of reports about it. Kyle Bass, a person whom patent maximalists like to hate, goes on a PTAB winning streak ahead of the winter break. By invalidating crappy patents (granted by USPTO in error) he actually makes money. While opportunistic and selfish, at least it helps keep applicants honest (out of fear). Here is how MIP put it the other day. "The Coalition for Affordable Drugs has notched a flurry of PTAB wins in the past two weeks. The next decisions will not come until the new year," Michael Loney wrote.

Drugs being more affordable is a good thing, right?

Here is another new update about PTAB, courtesy of Mr. Loney:

The past four months have been stable for Patent Trial and Appeal Board filings, while October saw the Federal Circuit giving another ruling on reviewability of IPR institution in Medtronic, the PTAB issue Kyle Bass and printed publication decisions, and the USPTO propose fee increases and changes to patent agent privilege

The monthly numbers of Patent Trial and Appeal Board (PTAB) petitions filed for the past four months have been within a 14-petition range, after displaying volatility at the start of the year.


There is no sign of stopping at PTAB and we are gratified to know that those who attack PTAB (Watchtroll for example) are not succeeding. In another report from MIP it's stated that the "Federal Circuit [is] falling behind as PTAB appeals stack up," confirming what we saw other sources claim. IAM 'magazine', in the mean time, has a new "Report" (usually paid) which shows that CAFC further limits patent scope (not just impacting software but also logic circuit designs) and it leaves us very hopeful. Is this combination of CAFC and PTAB, inheriting the 'genes' of the SCOTUS, going to make software patents a thing of the past everywhere? It's definitely an attainable future. We're partly there already.

What got a lot of this reform rolling was the America Invents Act (AIA), which brought PTAB just a few years before Alice. According to Patently-O,"AIA Patents [are] Approaching 50% of newly issued patents" and here is what they mean by AIA Patents:

By the end of the calendar year, most newly issued US utility patents will be considered “AIA Patents.” AIA-patents are examined under the first-to-file rules of the America Invents Act of 2011 and are also subject to potential post-grant-review proceedings. The chart below shows results from a random sample of 7,300 recently issued patents.


Soon enough there might not be many software patents left (not already expired) and Alice/Section 101 accomplished more than just software patents abolition, based on this report about industrial machines. It seems too good to be true, but it's true. This is why patent law firms are hopping mad.

The US patent system is still messy, but we are optimistic and we believe it's getting better; most developments these days are positive ones.

Recent Techrights' Posts

Coming Soon: Microsoft Fake Results, Mass Layoffs, and Silence About All the People Microsoft Pressured to "Quit" (So That They Don't Get Counted as Layoffs)
there will be more mass layoffs
Speed of GNU/Linux
The media seldom speaks of the dangers of "proprietary software"
Proprietary Windows Versus "Linux" News (Trying to Keep People on Windows, Never Exploring GNU/Linux)
Good editors know better how to recognise threats and not give them lip service
Ensuring That Every Computer User Anywhere in the World Can Take Control of All His or Her Computers
We must fight the people who attack general-purpose computing, in particular those who push this agenda very aggressively inside Linux
Gemini Links 28/04/2025: Autism and Structural Navigation
Links for the day
What Happened to the Open Source Initiative (OSI) Elections: The Purge, the Cover-up, and the Witch-hunts
OSI has gone "full Microsoft"
 
China is Already Culling GAFAM (Not Just Microsoft Windows)
OS monoculture or "OS hegemony" may be coming to an end
The "Telephone Operating System in the Vatican" is 95 Years Old, Vatican Moved to GNU/Linux
Maybe Microsoft is down to zero already
If Tesla Shares (and Alleged Value) Fell 55% (From $489 to $222) in a Few Months Maybe It's Not Worth Anything At All (It's Just Gambling)
Tesla swasticars have turned from a "status symbol" into a "public embarrassment" and cause for casual humiliation
Chromebooks' Adoption in Sweden No Longer Depends on Schools
School breaks are when classrooms are shut
No, IBM is Not Investing $150 Billion in the US and It Doesn't Even Have That Kind of Money
Here we go again... media as a vehicle of lobbying and misinformation
Leak: The EPO's General Consultative Committee (GCC) Does Not Consult Staff on Crucial Matters and Bypasses the Administrative Council (AC) to Do Illegal Things
violations against the EPO's very staff
New Leaks Coming Soon, We Maintain 100% Record of Successful Resistance to Censorship
We won't be told what we can and cannot say (especially when it's true)
Central African Republic (CAR): Vista 11 is Only ~0.2% Market Share
99.8% to go!
BSD and GNU/Linux Replaced Microsoft in Secure Servers, All Microsoft Has Left is LLM Slop for Fear, Uncertainty, and Doubt (FUD)
the FUD machine never rests
Gemini Links 28/04/2025: A Simple Task Tracking and Auto-Prioritization Tool and Other Programs
Links for the day
Links 28/04/2025: Canada's Election, Pakistan-India Conflict
Links for the day
Glue Inside Your Pizza (or Why People Will Get Fed Up With Slop)
People are given "answers" from non-intelligence word dumpsters
Links 28/04/2025: Cyberattacks Happening, Chatbots Disappointing, and "Free Speech Under Fire"
Links for the day
Phone Adoption Very Low in Vatican, Windows Usage Fell Nonetheless
Even in places where people still use desktops/laptops most of the time (and have access to these) Windows is gradually losing ground
GNU/Linux 9% in Cuba, Vista 11 Waning, Android Dominant
Microsoft has pretty much lost Cuba
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 27, 2025
IRC logs for Sunday, April 27, 2025
In 24 Countries Observed by statCounter Vista 11 is Still Less Than a Quarter of Windows Users Despite All Other Versions Being 'Expired'
They ought to move to GNU/Linux
Links 27/04/2025: Pope Goodbyes, "Politics of Fear", Slop Redux and More Google Shutdowns (Google Debt Had Grown This Year)
Links for the day
Links 27/04/2025: Serenity Dialectics, Hockey Jersey Ethics, and More
Links for the day
Links 27/04/2025: Death of Nest Thermostats, Death of Metaverse
Links for the day
Links 27/04/2025: Projects Workflow and Discovering Technology
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 26, 2025
IRC logs for Saturday, April 26, 2025
Microsoft Isn't on the Map in USSR
To them, it's either Google or Yandex
In Central America Windows Became a Small Force
These are countries where Windows used to have well over 95% of the "market"
What's Very Vexing to GAFAM, EPO and Others Is That It's Incredibly Hard to Censor Us (and Nobody Ever Successfully Did That Before)
resist, do not capitulate
Site May be Even Faster Now
It basically takes less than a tenth of a second to serve the page
Receiving SLAPPs and Collecting Them Like Trophies (the SLAPPs Always Fail)
People who file lawsuits bring even more attention to themselves (or to embarrassing statements about them)
Year of GNU/Linux on the Laptop?
It's not happening only in Lenovo
What People Must Understand About the Open Source Initiative (OSI)
some facts about the Open Source Initiative (OSI)
Many of the Scandals Are Interconnected (Overlapping People and Corporations)
We're only getting started
More Copyright Lawsuits Against LLM Slop Providers and Suppliers of LLM Slopfarms Would Benefit Society
It's not just bad for the Web and for society; it's also legally dangerous
Links 26/04/2025: General Assassinated in the Town of Balashikha, US Promoting Seafloor Mining
Links for the day
Links 26/04/2025: Facebook Layoffs Again, Remembering What's Real, and Say No to Mass Surveillance
Links for the day
Links 26/04/2025: NOAA Budget Cuts and "Dog Days Ahead"
Links for the day
In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025