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04.01.17

Bad Patent Quality (and Software Patents) Good for Patent Law Firms and Trolls, But Not for Anybody Else

Posted in America, Asia, Europe, Patents at 8:08 am by Dr. Roy Schestowitz

“Those in the West who pushed China to show more “respect” for patents must be feeling so proud of the progress that Chinese companies have made in this regard, and so pleased now to see Apple being sued in local courts using China’s patent laws.”

Glyn Moody

Summary: Proponents of patent maximalism — those to whom more patents would necessarily translate into higher income — have led patent systems to the trap of losing sight of their original goals

THE concern we so often express about patent quality at the patent offices (notably at the EPO and USPTO) is a concern rooted in the very fundamentals of patent law. Patents were never meant to be granted by the millions on just about every trivial ‘brainfart’. Complexity and scope constraints are cornerstones of this system. Without them, all we have is monopolisation and retardation of scientific progress. Academics have voiced similar views over the years/decades/centuries.

“Complexity and scope constraints are cornerstones of this system.”The EFF has just named [1, 2] the latest “Stupid Patent Of The Month”. We urge readers to look what kind of patents are being granted these days, in order to fully appreciate how wrong patent scope has gone. To quote the summary:

Our ongoing Reclaim Invention campaign urges universities not to sell patents to trolls. This month’s stupid patent provides a good example of why. US Patent No. 8,473,532 (the ’532 patent), “Method and apparatus for automatic organization for computer files,” began its life with publicly-funded Louisiana Tech University. But in September last year, it was sold to a patent troll. A flurry of lawsuits quickly followed.

Louisiana Tech sold the ’532 patent to Micoba LLC, a company that has all the indicia of a classic patent troll. Micoba was formed on September 8, 2016, just a few days before it purchased the patent. The patent assignment agreement lists Micoba’s address as an office building located in the Eastern District of Texas where virtual office services are provided. As far as we can tell, Micoba has no purpose other than to sue with this patent.

As is common. Trolls are the means.

As the headline suggests, what this patent is about is “Storing Files in Folders” — nothing novel that wasn’t already done well before computers. Why was this patent granted and how much will it cost to invalidate it? Trolls typically go after weak and vulnerable companies to whom settling would be cheaper than a legal challenge, hence the severity of wrong grants — something which we believe routinely happens these days at the EPO, helping a new surge of patent trolls in Germany. Based on the latest figures, patent litigation also skyrockets in China, where there has clearly been a patent bubble (over a million patent applications last year alone).

“The spread of software patents to China is a growing issue, which is likely going to merit increased coverage of SIPO here at Techrights (Battistelli is mimicking SIPO).”AnJie Law Firm of Beijing, writing at MIP a couple of times in the past 24 hours (it was bumped up again this morning), chose the headline “Examination Guidelines amendments good news for patentees”. As a reminder, starting today, China loosens restrictions on software patents (like the above) and this is terrible news for software companies. When patent law firms spread the lie that low patent quality is “good news for patentees” (rather than to themselves) they fool nobody except sites like MIP (which choose to actually print this tripe). Even if a software business chooses to pursue a patent and succeeds, it will not be good news. Patents are a two-edged sword and these businesses will get sued too. And who benefits from lots of lawsuits at the expense of businesses? Law firms like AnJie.

The spread of software patents to China is a growing issue, which is likely going to merit increased coverage of SIPO here at Techrights (Battistelli is mimicking SIPO). Recently, the EPO repeatedly promoted [1, 2] (publicly even) software patents in Europe.

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