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07.02.17

Professor Pamela Samuelson Debunks the Concept of ‘IP’ by Separating Copyrights From Patents and Demonstrating That Copyrights Are Sufficient for Software

Posted in Intellectual Monopoly, Patents at 11:18 am by Dr. Roy Schestowitz

Various approaches for assessment of copyright infringement (in software) are outlined by an academic from Berkeley who specialises in copyrights

Pamela SamuelsonSummary: In a paper entitled “Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement” Samuelson (shown on the right) explains that working around copyright infringement isn’t as trivial as proponents of software patents want us to believe

IT IS often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism. The same is true for prose.

Pamela Samuelson, linking to her guest post from May, did some scholarly work on the subject. Pamela Samuelson was even cited by proponents of software patents, who added: “Rediscovered 1991 PTO/Copyright Office study concluded that #copyright & patent are mutually exclusive re software”

“It is often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism.”Yes, software is covered by copyrights but not by software patents in most of the world and after Alice (2014) it seems ever more evident that developers should focus on copyright assignment rather than pricey patent applications. It’s interesting (albeit not too surprising) that she chose Patently-O as her platform, preceded by “Professor Samuelson’s newest article Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement, is forthcoming in the Berkeley Technology Law Journal.”

Does this mean people should quit using buzzwords like “IP”? Wherein even trade secrets and trademarks are lumped into the same pile?

Some proponents of software patents have since deleted their reference to that, but Manny Schecter from IBM cited Samuelson and twisted what she showed by stating: “And yet some think (wrongly) that #copyright is a substitute for #patent protection…”

“Does this mean people should quit using buzzwords like “IP”?”They don’t say “substitute” and either way, this totally misses the point of what she argued. IBM, being a patent bully, can’t help lobbying everywhere in the world for software patents. Such IBM spin on an article, which — in our assessment — proves the very opposite, says a lot about IBM.

“German courts in the seventies said the same,” the FFII’s President told him. So there’s nothing unusual about what Samuelson has shown.

“This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”
      –Pamela Samuelson
For those wishing to read the complete article, it is here (direct link to the 65-page PDF although directs may lead to static HTML). The abstract says: “Courts have struggled for decades to develop a test for judging infringement claims in software copyright cases that distinguishes between program expression that copyright law protects and program functionality for which copyright protection is unavailable. The case law thus far has adopted four main approaches to judging copyright infringement claims in software cases. One, now mostly discredited, test would treat all structure, sequence, and organization (SSO) of programs as protectable expression unless there is only one way to perform a program function. A second, now widely applied, three-step test calls for creation of a hierarchy of abstractions for an allegedly infringed program, filtration of unprotectable elements, and comparison of the protectable expression of the allegedly infringed program with the expression in the second program that is the basis of the infringement claim. A third approach has focused on whether the allegedly infringing elements are program processes or methods of operation that lie outside the scope of protection available from copyright law. A fourth approach has concentrated on whether the allegedly infringing elements of a program are instances in which ideas or functions have merged with program expression. This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”

India Continues to Reject Software Patents in Spite of Pressure From Foreign Companies Like IBM

Posted in America, Asia, IBM, Patents at 10:32 am by Dr. Roy Schestowitz

Gate in India

Summary: The Indian patent office reaffirms its commitment to banning software patents in spite of growing pressure from companies that are not even Indian (and their law firms)

THE situation in India matters a great deal because India is probably the world’s largest software maker (depending on how it’s measured). Software patents are not allowed in India, which is absolutely commendable and is the correct approach. Just ask any software developer (anywhere)…

According to several articles in English-speaking media from India, the India Patent Office had “software patent rules reissued” or “reissued norms for software patenting” (a lot of articles about this are identical but were published across several English-speaking networks).

“So despite of all that pressure and in spite of the loopholes, Indian examiners do their job.”Manny Schecter‏, who has been pushing for software patents on behalf of IBM, took note of it and wrote: “India has released new guidelines for examining computer-related inventions for patentability http://www.ipindia.nic.in/newsdetail.htm?”

But don’t expect much to have changed. As this recent article put it: “The Patent Office raised objections stating that the method is a mere software application…”

“Just a buzzword like “innovation” is meaningless and considering IBM’s use of software patents against FOSS we should watch quite closely what Schecter‏ et al do in India.”So despite of all that pressure and in spite of the loopholes, Indian examiners do their job. They cull out the garbage.

“The #patent system should promote #innovation for all technologies without discrimination,” Schecter‏ wrote not too long ago, alluding to software patents in India, but it didn’t take long for FFII’s President to respond with, “what if it does not? Plus there are no metrics for innovation.”

“Later this month we will show that Schecter‏ and his highly controversial friends (like Watchtroll) do immense damage to the US patent system as well.”“Innovation” in IBM’s terminopoly just means “IBM making a profit.” Just a buzzword like “innovation” is meaningless and considering IBM's use of software patents against FOSS we should watch quite closely what Schecter‏ et al do in India. Later this month we will show that Schecter‏ and his highly controversial friends (like Watchtroll) do immense damage to the US patent system as well. They still promote software patents in India and in the US, as we noted in a post last Sunday. Will they ever succeed? Not if the population stands up to them…

The Patent Trial and Appeal Board (PTAB) is Under Attack From the Patent Microcosm, Which Wants It Not to Exist Anymore

Posted in America, IBM, Microsoft, Patents at 10:02 am by Dr. Roy Schestowitz

Proponents of software patents are, as expected, wishing nothing but harm to patent reform

PTAB

Summary: Attempts to revert back to a system full of lawsuits, trolls and blackmail are publicly seen in the form of “STRONGER Patents Act” — a supposed ‘improvement’ that strives to roll back PTAB

THERE are many patent myths abound. They are being spread by those who profit from patents, not from products. In fact, they rarely make anything at all (except destructive lawsuits). Among the myths is the concept that an economy with a lot of patents (even too many) will thrive. But it’s based on a lie. Number of patents, for instance, is not indicative of progress or invention but investment (money and effort) in patent applications. In some countries patents are simply granted on just about anything; see what happens in China at the moment. See this new article celebrating “high number of patents” as if it’s a meaningful yardstick (it usually just says something about where large companies are based).

“Put in simple terms, there are court cases that now make trivial the invalidation of abstract patents such as software patents; but enforcing the rules against such patents, especially old patents, can be difficult without PTAB.”We have approximately two dozen articles on the way about patents, but we lack the time to publish them all. Some of these (to be published some time in summer) will expose the lobbying effort for a patent system that serves the patent ‘industry’ (law firms, patent trolls, and patent bullies) at the expense of science and technology. We are very eager to write about it, having researched the subject for months, but we publish based on priority (timing, urgency, relevance to current events). Today we wish to focus on PTAB, which is basically under attack again. PTAB has been responsible for eliminating more software patents than any other branch (even all courts combined), so it needs to be defended. According to this new post, “Analog Devices filed for the inter partes review against Knowles’ U.S. Patent No. 8,018,049 covering a Silicon Condenser Microphone Package. The PTAB agreed with the challenge and found a substantial number of the claims unpatentable.”

In another domain, the domain of pharmaceutical patents, someone is profiting by crushing so-called ‘Big Pharma’ (which use their patents for drug inflation or artificial price hikes). As PTAB expert Michael Loney put it the other day: “This month saw the PTAB issue the final decision on a Kyle Bass inter partes review.”

Kyle Bass won. We wrote about his petitions many times before.

This is the kind of thing we want. Here is another new example:

The Patent Trial and Appeal Board has issued a rare granted motion to amend in Valeo North America v Schaeffler Tech, suggesting the Board is willing to consider well-crafted substitute claims

The Patent Trial and Appeal Board (PTAB) has granted two substitute claims in Valeo North America v Schaeffler Tech.

Meanwhile, Dennis Crouch continues trying to slow PTAB down and discredit its decisions. Here is his latest attempt to draw attention that inflames or harms the relationship between CAFC and PTAB (in spite of them agreeing ~80% of the time).

We recognise that many of our readers are new to this and rely on expansion of acronyms etc. Put in simple terms, there are court cases that now make trivial the invalidation of abstract patents such as software patents; but enforcing the rules against such patents, especially old patents, can be difficult without PTAB. The patent microcosm — i.e. firms that profit from litigation and shakedowns — is trying to corrupt politicians right now. It tries to bamboozle them into killing PTAB after it eliminated many bogus patents and as one new headline put it, “STRONGER Patents Act would “gut” the PTAB” (if it got passed, but not even the patent microcosm expects it to pass).

“The direct attack on Alice itself is still in the making and there are companies like IBM and Microsoft pushing hard for it.”We wrote about this subject before. It overlaps several other efforts to weaken if not eliminate reform. As TechDirt put it the other day, “Could You Design A Worse Patent Reform Bill Than The STRONGER Patent Act By Senator Coons? Don’t Think So” (wait, there’s more on the way… as we shall show soon).

The direct attack on Alice itself is still in the making and there are companies like IBM and Microsoft pushing hard for it. Don’t take AIA, PTAB, or even Alice for granted. Not even taking Michelle Lee for granted was a safe bet because personal attacks from the patent microcosm seem to have pushed (if not forced) her out. After IAM tried to push a corrupt man into her position Watchtroll is having a go also (suggesting replacements [1, 2]), multiple times in fact after it repeatedly attacked Michelle Lee with baseless ‘scandals’ (over a dozen times). IAM still cites Watchtroll as an authority and whines about SCOTUS doing the right thing on patents (like Alice). Here is the relevant paragraph:

That was definitely one of the takeaways from the ‘US pendulum’ session in which the panelists debated a slew of recent court decisions and the overall state of patent rights in the US. IP Watchdog’s Gene Quinn was clear on the impact that Lexmark might have. “It could be the biggest decision of our lifetime, there are a lot of people panicked by the case,” Quinn said. “It will dramatically decrease the revenue for companies doing business overseas, I don’t see any way around it.”

Maybe he can just attack some more judges in his blog, defame Directors of patent offices, and resort to whatever dirty tricks (with IBM’s help) to perturb the system. They already buy themselves some ‘academics’, moles and lobbyists like David Kappos to help with this, as we shall probably show in greater detail later this month.

Microsoft’s Troll Intellectual Ventures, via Dominion Harbor, Goes Patent-Trolling in China

Posted in Asia, Free/Libre Software, GNU/Linux, Microsoft, Patents at 9:17 am by Dr. Roy Schestowitz

Remember that, according to press reports, Intellectual Ventures operates through literally thousands of entities

Dominion Harbor Group's Twitter account

Summary: The patent assault on the market, funded directly and indirectly by Microsoft and Bill Gates, will target companies that typically use Android or other Linux-based operating systems

FIVE DAYS ago, in response to Arnt Karlsen in a public mailing list, Bruce Perens (of Debian and Open Source Definition fame) wrote: “If you’d like to help with software patents, that would be nice, as none of the organizations that purportedly support Linux do. Linux Foundation is an [GPL] infringer’s club. Open Invention Network protects patents from Linux, not the other way around.”

“Linux Foundation is an [GPL] infringer’s club. Open Invention Network protects patents from Linux, not the other way around.”
      –Bruce Perens
Yes, very few entities and people out there actively fight against software patents. There are certainly too few companies that do this; Red Hat is actively pursuing software patents (including developers of systemd) and the debate is mostly off the headlines and out of the mainstream.

Not too long ago we wrote about Microsoft and Bill Gates growing their direct role in the world’s largest patent troll, Intellectual Ventures (IV). We said we would keep an eye on it, so we have and it didn’t take long for us to find this Microsoft-connected patent troll making its move — in the form of Dominion Harbor. As a pro-trolls site put it the other day, they now go after companies in China:

Dominion Harbor scored the Kodak portfolio in Intellectual Ventures’ biggest known divestment to date, back in February. The 4,000 or so total patents changed hands in a $525 million deal back in 2012, which was financed by a coalition of tech companies including Chinese giant Huawei, which received a licence to the portfolio in the process. That leaves plenty of potential customers in the market. Pridham told IAM in February that Asian smartphone manufacturers represented a major opportunity for the portfolio, which includes a wide range of imaging and camera technologies.

Expect them to demand ‘protection’ money from all sorts of GNU/Linux and Android vendors (or initiate legal action).

“Expect them to demand ‘protection’ money from all sorts of GNU/Linux and Android vendors (or initiate legal action).”Another recent bit of news (only 3 days old) noted that the CTO of this Microsoft-connected patent troll had left. To quote the relevant part, “deversus, an Austin-based background checking software company, added John Leonard as director of product development. Leonard, who is co-inventor of four software patents, was most recently CTO at Dominion-Harbor Group in Dallas. He was also the co-founder of IdealAsset, which was acquired by Dominion-Harbor Group.”

Dominion Harbor is closely connected to Intellectual Ventures, which is headed (and was created) by Microsoft’s CTO and a close friend of Bill Gates.

“Dominion Harbor is closely connected to Intellectual Ventures, which is headed (and was created) by Microsoft’s CTO and a close friend of Bill Gates.”In other news, PTAB’s invalidation of patents from this troll is now being challenged by CAFC — the same court that previously served a legal blow to the troll (having taken away its cluster of software patents, alleging these were in violation of the First Amendment). “In a short opinion,” as Patently-O put it, “the Federal Circuit has rejected a PTAB IPR determination finding IV’s patent invalid and has remanded for reconsideration of the case. U.S. Patent No. 7,382,771. Because the patent at issue here was filed prior to March 2013, the pre-AIA first-to-invent rules apply.”

They say pre-AIA, but does that matter if judged on the basis of patent scope? Moreover, as we shall show in our next post, AIA itself is under attack right now, partly funded by and supported by Microsoft.

The Decline in Patent Quality at the European Patent Office (EPO) Already Causes Mass Abandonment of Patents

Posted in America, Europe, Patents at 8:38 am by Dr. Roy Schestowitz

Vacating one’s place in a system where reputation is absent

Battistelli and IAM
The latest revision of Battistelli’s famous lie (reinforced by his friends at IAM)

Summary: The systematic cheapening of patents at the EPO, i.e. the lowering of patent bars by Battistelli with his ludicrous policies, is already causing serious damage to the perceived value of European Patents (EPs)

THE EPO not only emulated the errors of the US patent system when it comes to patent scope. It went beyond it by granting patents even on genome — something which should never have happened. It is laughable and it leads to public protests (not just online but also in the streets).

“It is laughable and it leads to public protests (not just online but also in the streets).”6 weeks ago an article was published that’s entitled “Open source science or intellectual property: Should we allow patenting of synbio organisms?” It said that “the open-source counterculture [was] inherited from computer science and engineering. In those fields, researchers typically share their findings in public repositories.”

Considering the fact that a lot of genome research was funded by the public (grants), it should not be patentable. There are other reasons for that which we covered here some months back.

Days ago an article was published about the “EPO’s amends [to] patentability of plants and animals regulations” and a better headline would say that the EPO effectively revokes a lot of patents on plants and animals (granted in error).

Here is the opening part:

The European Patent Office (EPO) has amended its regulations to exclude plants and animals obtained by an essentially biological breeding process from patentability.

Yesterday, June 29, the EPO’s Administrative Council announced the decision, following a proposal from the office.

The proposal took account of European Commission notice from November last year, which discussed certain articles in the EU Directive on biotechnological inventions (98/44/EC).

These patents should never have been granted in the first place, but the mirage of ‘production’ led to this disgrace which severely damages confidence in the EPO. What other patents might be revoked (or rendered worthless) overnight, months or years after a fortune was spent pursuing them and renewing them?

Bristows, in one of its latest posts at IP Kat, speaks of ‘correction’ of patents (e.g. editing, expiry dates in this case), but the fundamental notion of a patent means that it cannot be extended, amended, modified etc. once granted (this conventional wisdom is being challenged because of PTAB in the US these days).

Taking note of some utterly stupid patents previously granted by the USPTO, a few days ago the EFF named the following:

This month’s stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the ’863 patent) is titled “Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning.” It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.

The ’863 patent is owned by a patent troll called Dynamic Nutrition Information, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the ’863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.

This is just a software patent, which in light of Alice is obviously worthless; but if used against a poor person or firm, legal challenge would be more expensive than settlement (‘protection’ money).

Bad patents should never ever be granted in the first place. They cause enormous damage and mostly harm innocent people. The EPO, at present, is building up a bubble that can unleash great chaos across the continent and beyond. The Liar in Chief, Battistelli, does not seem to care.

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