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

03.04.17

Using “China!” and Distortion of Data From Lex Machina, the Litigation Lobby Promotes Software Patents

Posted in Africa, Asia, Deception, Patents at 11:45 am by Dr. Roy Schestowitz

“The Chinese Are Coming!” (British Empire’s national broadcaster on the weak — and obviously hypocritical — narrative of Chinese ‘imperialism’)

The Chinese Are Coming

Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)

China seems to have become almost a role model or a poster child to Battistelli’s EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don’t matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can’t stop talking about “China!”). It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).

Their argument in a nutshell is, if we don’t allow algorithms be to patented, China will “win” — a loose term for simple-minded and careless people like Donald Trump (there are many reports like “Donald Trump stokes foreign policy fears in China”).

“It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).”“Good to see that SIPO aligns with the EPO’s “any hardware approach” when it comes to patent-eligibility,” said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That’s the same man who had also linked to Steve Lundberg’s “patents4software” blog (non-developer speaking ‘on behalf’ of developers [1, 2]). Lundberg says “Kudos to China on Software Patents,” alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.

Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled “China relaxes rules on software patentability – and the United States loses more ground”.

Front groups like IAM are using shame tactics against the USPTO. It’s part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).

“Front groups like IAM are using shame tactics against the USPTO.”Ellis says “United States loses more ground,” as if it’s a bad thing to control quality. Ar they really losing by improving their system? IAM’s lobbyists just can’t help but show what they really are. It’s not a news site and it’s just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of ‘journalism’.

Watchtroll was of course all over this too, pushing for software patents under the headline “China relaxing barriers to software, business method patents with revised patent guidelines,” which added business methods to it.

IAM didn’t stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled “Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts” and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.

“IAM is lying/distorting things again, but that’s just its business model.”The core of their argument is CAFC, where it says: “The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect.”

There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that’s just its business model. That’s what many firms are paying it for. It’s their propaganda mill, it’s tasked with perception management, e.g. softening the image of patent trolls.

Writing about the same data as above — albeit without the lobbying (or pseudo-activist) slant — Law 360 said that Lex Machina “tallied the number of patents that courts have invalidated under Alice.” To quote the opening paragraph (most of it is behind paywall anyway):

The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.

We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM’s conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that’s what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.

“We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills.”Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have ‘teeth’. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained “Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter,” but if one looks at all the other CAFC cases, then it’s abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse — not something that IAM would touch even with a 5-foot bargepole (bias by omission).

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. 2019 Microsoft Glossary

    How Microsoft internally interprets words that it is saying to the public and to the press



  2. 2019 Surveillance Glossary

    Distortion of technical and nontechnical terms in this day and age of '1984'



  3. Openwashing Report: It's Getting Worse, Fast. Everything is Apparently 'Open' Now Even Though It's Actually Proprietary.

    The latest examples (this past week's) of openwashing in the media, ranging from 5G to surveillance



  4. GitHub is a Dagger Inside Free/Open Source Software (FOSS); This is Why Microsoft Bought It

    A year later it seems pretty evident that Microsoft doesn’t like FOSS but is merely trying to control it, e.g. by buying millions of FOSS projects/repositories at the platform level (the above is what the Linux Foundation‘s Jim Zemlin said to Microsoft at their event while antitrust regulators were still assessing the proposed takeover)



  5. Microsoft Grows Within and Eats You From the Inside

    Microsoft entryism and other subversive tactics continue to threaten and sometimes successfully undermine the competition; Microsoft is nowadays doing that to core projects in the Free/Open Source software world



  6. Links 18/8/2019: New KNOPPIX and Emmabuntus Released

    Links for the day



  7. Links 17/8/2019: Unigine 2.9 and Git 2.23

    Links for the day



  8. Computer-Generated Patent Applications Show That Patents and Innovations Are Very Different Things

    The 'cheapening' of the concept of 'inventor' (or 'invention') undermines the whole foundation/basis of the patent system and deep inside patent law firms know it



  9. Concerns About IBM's Commitment to OpenSource.com After the Fall of Linux.com and Linux Journal

    The Web site OpenSource.com is over two decades old; in its current form it's about a decade old and it contains plenty of good articles, but will IBM think so too and, if so, will investment in the site carry on?



  10. Electronic Frontier Foundation Makes a Mistake by Giving Award to Microsoft Surveillance Person

    At age 30 (almost) the Electronic Frontier Foundation still campaigns for privacy; so why does it grant awards to enemies of privacy?



  11. Caturdays and Sundays at Techrights Will Get Busier

    Our plan to spend the weekends writing more articles about Software Freedom; it seems like a high-priority issue



  12. Why Techrights Doesn't Do Social Control Media

    Being managed and censored by platform owners (sometimes their shareholders) isn’t an alluring proposition when a site challenges conformist norms and the status quo; Techrights belongs in a platform of its own



  13. Patent Prosecution Highways and Examination Highways Are Dooming the EPO

    Speed is not a measure of quality; but today's EPO is just trying to get as much money as possible, as fast as possible (before the whole thing implodes)



  14. Software Patents Won't Come Back Just Because They're (Re)Framed/Branded as "HEY HI" (AI)

    The pattern we've been observing in recent years is, patent applicants and law firms simply rewrite applications to make these seem patent-eligible on the surface (owing to deliberate deception) and patent offices facilitate these loopholes in order to fake 'growth'



  15. IP Kat Pays the Price for Being a Megaphone of Team UPC

    The typical or the usual suspects speak out about the so-called 'prospects' (with delusions of inevitability) of the Unified Patent Court Agreement, neglecting to account for their own longterm credibility



  16. Links 17/8/2019: Wine 4.14 is Out, Debian Celebrates 26 years

    Links for the day



  17. Nothing Says 'New' Microsoft Like Microsoft Component Firmware Update (More Hardware Lock-in)

    Vicious old Microsoft is still trying to make life very hard for GNU/Linux, especially in the OEM channel/s, but we're somehow supposed to think that "Microsoft loves Linux"



  18. Bill Gates and His Special Relationship With Jeffrey Epstein Still Stirring Speculations

    Love of the "children" has long been a controversial subject for Microsoft; can Bill Gates and his connections to Jeffrey Epstein unearth some unsavoury secrets?



  19. Links 16/8/2019: Kdevops and QEMU 4.1

    Links for the day



  20. The EPO's War on the Convention on the Grant of European Patents 2000 (EPC 2000), Not Just Brexit, Kills the Unitary Patent (UP/UPC) and Dooms Justice

    Team UPC continues to ignore the utter failures that have led to lawlessness at the EPO, attributing the demise of the Unified Patent Court (UPC) to Brexit alone and pretending that it's not even a problem



  21. Links 15/8/2019: GNOME's Birthday, LLVM 9.0 RC2

    Links for the day



  22. 'Foundation' Hype Spreads in China

    Nonprofits seem to have become more of a business loophole than a charitable endeavour; the problem is, this erodes confidence in legitimate Free software and good causes



  23. Links Are Not Endorsements

    If the only alternative is to say nothing and link to nothing, then we have a problem; a lot of people still assume that because someone links to something it therefore implies agreement and consent



  24. The Myth of 'Professionalism'

    Perception of professionalism, a vehicle or a motivation for making Linux more 'corporate-friendly' (i.e. owned by corporations), is a growing threat to Software Freedom inside Linux, as well as freedom of speech and many other things



  25. Links 14/8/2019: Best Chromebooks, EPEL 8.0, LibreOffice 6.2.6

    Links for the day



  26. Being in Favour of Free/Libre Open Source Software Means Rejecting Software Patents

    Those who believe in Software Freedom cannot at the same time believe that software patents are desirable; we've sadly come to a point where many companies that dominate so-called 'Open Source' groups actively lobby for such patents, in effect betraying the community they claim to be a part of



  27. Links 14/8/2019: Apache Evaluated, HardenedBSD Has New Release

    Links for the day



  28. Planet Python is Being Overrun by Microsoft, Just Like PyCon and Python in General

    Microsoft is perturbing the Free/Open Source software (FOSS) world from the inside, promoting Microsoft's most malicious proprietary software from within that world while taking positions of power in powerful FOSS projects



  29. Coming Soon: The Innards of the Eric Lundgren Case That Microsoft is Desperate to Hide or Spin (by Defaming Lundgren)

    Microsoft is rather stressed about Eric Lundgren coming out of prison and telling how Microsoft put him there; right now Microsoft is mostly name-calling while seeking to control public dialogues



  30. Wrong Person in Charge of the Linux Foundation (and in Charge of Linus Torvalds)

    There are several glaring issues when it comes to the leadership of Linux's steward; for one thing, it lacks actual background in... Linux


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