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07.10.17

Lobbying Against the US Supreme Court’s Landmark Decision (Alice) by Bristows, IBM, David Kappos, IPO, ABA, AIPLA, Adam Mossoff and Kevin Madigan

Posted in America, Deception, Patents at 1:50 am by Dr. Roy Schestowitz

They want software patents back and they work hard to mislead politicians on it, sometimes under the guise/pretense of “academia”

A stacked panel
Echo chamber-like panels (“stacked” by their own admission) designed to talk about how wonderful software patents are

Summary: Using paid-for lobbyists and influence that’s up for sale, companies such as IBM set up events and initiatives to compel politicians to change Section 101, gut patent progress, and basically give patent aggressors a free rein

THE one article we were extremely eager to publish (for over a month now) pertains to the efforts to overturn Alice or at least compel the US patent office to ignore it.

A lot has happened since we intended to publish this (pending some more fact-checking and research), including the pushing forth of a bill. Watchtroll, for example, has moved on to other matters and it’s almost as though the lobbying effort completely lost steam by now. Nevertheless, we want to keep documented what happened around the month of May (and to a lesser degree June). There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO. Will they be back at it? We certainly think so.

“There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO.”IP Kat used to be a good blog, but we hardly cite it anymore. It has become terrible. It’s used for marketing and agenda-pushing. It plays a role in some of the most regressive activities. A longtime proponent of software patents (not that she ever wrote any software), Annsley Merelle Ward from Bristows, attacked the US patent system over Section 101 — essentially the means for invalidating software patents these days. She piggybacked a bunch of people who lobby against Section 101 (or lobby to water it down). “His heightened sense of alarm stems from a concern that America’s patent system has been going in the wrong direction while other patent systems have been improving,” she wrote. Pure nonsense. If anything, the US patent system is improving! Quality is up, lawsuits are down.

IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy. There were many examples of this back in June, e.g. [1, 2, 3]. Is this what IP Kat boils down to now? A mouthpiece for AIPPI/AIPLA? Thrice in June alone (so far, based on a quick ‘literature’ survey) Bristows exploited the blog for marketing or lobbying by patent maximalists. This may sound benign, but considering what AIPLA has been up to recently, it’s anything but benign. The US Supreme Court is under attacks from these think tanks and pressure groups (like AIPLA), primarily for stopping software patents with Alice (2014). See this article titled “AIPLA releases Section 101 legislative proposal” (one among several such reports). AIPLA, a pressure group, along with IBM and some other patent vultures, try to undermine the law itself. As United for Patent Reform put it at the time, “Steven Anderson of @culvers tells @HouseJudiciary that to lose #Alice “would be extremely disappointing and costly” to #smallbiz” (obviously).

IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy.”People start to worry that the lobbying might actually work and Section 101 (in its current form) will be thwarted. Under Trump it will probably be easier to bribe politicians to ‘buy’ USPTO policies in defiance of SCOTUS. As The National Law Journal put it at the time (in its headline), “After SCOTUS Shake-Up, Lawmakers Plot Next Steps on Patent Reform” (we now know the resultant bill, which seeks to gut PTAB as well).

As is usual from IP Kat these days, comments are a lot better than the ‘articles’ (lobbying/advertising). Someone pointed out that Annsley Merelle Ward “lacks a grasp of what the subject matter in each STILL means.” Well, exactly the opposite of what she said (AIPPI/AIPLA propaganda) is true. To quote the comment:

I must take issue with the statement of:

“The incredible developments in technology – how information is created, by what technological process, how information is accessed and where it is used – means the subject matter once the purvey of the patent world has crossed into the copyright realm.”

It is not only incorrect, but troubling so, to think that that a person charted with writing on the subject does not understand that the subject matter of what patents protect and what copyright protects has “crossed into.”

The subject matter remains clearly different between the different areas of Intellectual Property protection.

What perhaps has “crossed into” (and certainly, this crossing has been going on now for many decades) is that a particular manufacture of the hand of man (as those terms are understood in the various Intellectual Property legal terrains), has multiple aspects, each of which may earn protections in the different IP areas.

This is most definitely NOT a matter of “subject matter” crossing from one IP terrain into another.

Patents still protect that which patents protect.
Copyrights still protects that which copyrights protect.

It is decidedly unhelpful to contribute to the view that somehow “subject matter” is “crossing into” one IP arena from another IP arena – and shows that the author lacks a grasp of what the subject matter in each STILL means.

Watch how Annsley Merelle Ward gets completely skewered in the comments in another one of her posts (again for distorting facts):

Terrible proposal. Assessing patent eligibilty without regard to sections 102, 103, and 112 is absurd. This allows completely ineligible subject-matter to become patentable simply by including a conventional and known piece of apparatus e.g. a computer doing something that can be performed solely in the human mind. It should be the new and non-obvious subject-matter that is assessed for patent eligibility.

And here is another:

Your post contains so many legal (and factual) errors that I scarcely know where to begin.

First, subject matter eligibility and patentability are separate concepts.

Second, the US law – as established by the Act of 1952 broke apart 101 and the other sections of law (102/103/112) for a reason. That reason is exactly the same reason that the current legislative suggestions are coming forth.

Third, eligibility remains something determined for a claim as a whole, so the notion that ineligible subject-matter now “becomes eligible” has nothing to do with the legislative changes – your “concern” already IS the law in the US. The easiest example of this is the Diehr case, where everything in that case was old, except for the use of a computerized math equation. The important aspect was that the math equation was there in the sense of applied math. Your over-stated concern of “a computer doing something” is exactly the type of thing that patent law was meant to protect. It was, is, and will remain a question (for eligiblity) as to WHAT the “doing” is, and whether that “doing” falls into the realm of patent protection of the Useful Arts.

Fourth, your position denigrates the factual situation that the known and conventional piece of apparatus is in fact improved. US patent law allows for improvement patents. In fact, a very large percentage of patents are of the improvement patent type. Your view exhibits the fallacy known in the US as the House/Morse fallacy. A television show called House has a protagonist that believed that only the first computer should have been patentable and that all improvements (via software) belonged to that first inventor. This though is the opposite of the US case of Morse which held that all future improvements were NOT captured by a first (grand) invention.

Fifth, your view ignores the actual factual state of what software is. Software is a manufacture (in the legal sense, as it is a fabrication by the hand of man intended to be a machine component). That is the nature of what software is, and always has been. It is a “ware” that is soft, or easily modified, changed, reconfigured, and the like. In the patent sense, this “ware” is every bit a patent-equivalent to other “wares” i.e., hard and firm “wares.” There is nothing that can be claimed as a software invention that also could not be set completely in hardware.

Sixth, you conflate 102/103 with 101, and this conflation evidences an attempt to apply 101 on some per element basis. This gets each and every section of US law wrong.

I could continue, but I hope that you see the error in your views by now.

This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents. The matter of fact is, all the above is pure lobbying and it’s happening right here in the UK.

Over in the US, things are just as bad because the patent microcosm (Jeff Lindsay‏ in this case) resorts to alarmist tone: “Many patents being allowed in Europe &China are rejected as ineligible in US, a sign of trouble in USPTO & SCOTUS.…”

So?

That’s a good thing, no?

“This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents.”Well, not for a “patent agent” like Mr. Lindsay‏. High patent quality is not “trouble” and Watchtroll promoting a right wing corporate think tank is hardly shocking (that’s what Mr. Lindsay links to). The latest among all those think tanks involves Adam Mossoff, a pro-trolls academic who spoke of “Dave Kappos @ IIPCC conf on patents & innovation: the 101 situation is not improving, it has at best only stabilized in a terrible space” (yes, he calls David Kappos “Dave” as if this lobbyist is a buddy of his).

As can be expected, the company that hires these lobbyists, IBM, was there too. Mossoff wrote that “@MannySchecter @ IIPCC conf on patents & innovation: legal uncertainty is enemy of R&D & #innovation, & massive legal uncertainty today” (Schecter is IBM’s patent chief). Nice lobbying platform you got there. IAM helped with this article:

US businesses deal with devastating effects of SCOTUS decisions; support grows for subject matter reform bill

[...]

In March, a paper by Adam Mossoff and Kevin Madigan from George Mason law school analysed a dataset of 1,400 patent applications, finding marked differences between patent eligibility in the US compared with Europe and China.

By their own admission, this is a “stacked” panel (lacking anyone from the other side of the argument). To quote, “@JackBarufka of @pillsburylaw moderating the stacked Section 101 panel #GWIP pic.twitter.com/kt1hAO65IM”

“Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101.”As a reminder, the Intellectual Property Owners Association (IPO), the American Bar Association’s (ABA) IP section and the American Intellectual Property Law Association (AIPLA) play a big role in this, aided by Adam Mossoff and Kevin Madigan in “scholar” clothing. IPO and IBM even created a “task force” for this. They actively support sites like Watchtroll.

Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101. They are not only smearing SCOTUS (Watchtroll and his sidekicks) but are also insulting their own country. “America’s patent system favors low tech, not groundbreaking innovation,” said one recent headline from Watchtroll. So says a man who doesn’t invent anything and just attacks anyone (even judges) who applies patent law and issues a judgment based on the rules. Here is another example of Watchtroll posts. It says that “patent analytics software can be utilized to assess the corporate patent portfolio on an asset-by-asset basis, by technology or product focus, and within the context of a broader IP landscape.” Seriously? Letting some machine do an in-depth analysis of the underlying concepts? Pure science fiction. Like that stuff Battistelli tends to fall for…

“It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever).”Here is Watchtroll using terms like “piracy” and “patent owner” to further perturb the debate.

It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever).

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