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

08.08.17

Adobe Speaks Out Against Patent Maximalism and Software Patents Are on the Retreat

Posted in America, Patents at 1:17 pm by Dr. Roy Schestowitz

The Retreat Inn

The Retreat Inn

Summary: The momentum against software patents is growing as large firms which specialise in software — even proprietary software — speak out against what the US patent system has become

THE granting of software patents by the US patent office ought to stop because almost all of these patents turn out to be worthless. Courts reject them.

“We suspect there is going to be a patents battle in Wi‑Fi mesh software,” The Register wrote yesterday, but if these are patents on software they will find themselves in the ashtray of history (even if the patents state something about “Internet”).

Every now and then we find articles which make arguments similar to ours. We gave an example earlier today regarding trolls. There is another new article, this one from Dana Rao, a vice president of intellectual property and litigation at Adobe. He uses wording similar to ours in relation to patent quality and a “patent gold rush” (it’s almost as though he might be reading Techrights). To quote some portions:

Improving Patents Will Not Kill Innovation

[...]

Every patent holder is proud of their patent. As they should be. Obtaining a patent is expensive, time-consuming, and there is an adversarial process with the U.S. Patent and Trademark Office that you must overcome to establish that your invention is valid. But the business of patents has changed. It used to be a system that rewarded an inventor for a genuine innovation, one that the patent clearly described, and entitled that inventor to prevent anyone else from making that invention. That was a good system; it produced good patents, and strong businesses were built on the backs of those patents. That system provided an incentive for innovation that has kept America the technology leader for more than 200 years.

Unfortunately, that system is broken. Patent filings have surged over the years. Twenty years ago the USPTO granted 123,147 patents. Last year, the USPTO granted 333,583 patents. That’s 168 percent growth! Does anyone think that the number of true innovations has increased by more than 200,000 patents in just 20 years? Not a chance.

What happened? A patent gold rush built by patent profiteers.

[...]

History tells us that a refocus on quality in our patent system will not end innovation in this country. Good patents will still be awarded for good inventions, with clear claims that limit the patent to the invention the inventor invented — the way it is supposed to be. And businesses will be built on the backs of those good patents, just like they always have. Instead of complaining about the end of the age of bad patenting and patent profiteering, we should be celebrating the rebirth of a strong and credible patent system, one that will enable America to maintain its technology leadership now and into the future — built on the backs of good patents.

There is a lot to be criticised about Adobe, whose views may be inferred from the above. But when it comes to software patents, Adobe was rarely a problem or even a nuisance. Adobe’s Douglas Brotz once officially stated this: “Let me make my position on the patentability of software clear. I believe that software per se should not be allowed patent protection. […] We take this position because it is the best policy for maintaining a healthy software industry, where innovation can prosper.” (this was Adobe’s official position statement at the time)

“Software patents harm the industry,” he argued, “with no corresponding benefit.”

There is a patent bubble. It really needs to burst already. “A patent gold rush built [was] by patent profiteers,” Dana Rao explains, echoing what we’ve been saying for a long time. The EPO under Battistelli shows the same kind of thing right now, with low-quality patents being granted and the UPC pushed by the patent/litigation ‘industry’.

Speaking of the patent ‘industry’, watch what Frank Zhu from Baker Botts LLP (the patent microcosm) wrote earlier this week. He painted a negative picture of patent reform in order to thwart any improvements to patent quality. He also referred to trolls as “PAEs” and “NPEs” (the euphemisms). Here are some portions of what he wrote:

A troll is an ugly mythological creature that lives under a bridge, waiting to extort a hefty fee from whomever crosses the bridge. This vivid description of a patent troll often provides a sufficient reason to despise such an entity without giving it a second thought. However, missing from this picture is that the so-called patent trolls, often referred to as non-practicing entities (NPEs) or patent assertion entities (PAEs), actually own the bridge. A string of recent news reports seems to portray impending victory against the notorious troll: patent trolls were ordered to pay attorney’s fees;1 the original PAE law firm announced its shutdown;2 a number of PAEs have dramatically laid off employees;3 others announced that the environment has been so hostile and the business model is no longer feasible.4 However, today’s perceived success of the crusade against patent trolls may have come with a significant price.

[...]

he consensus of a panel discussion, titled “The Current Patent Landscape in the US and Abroad,” was “that dramatic changes to the US patent system are driving investment in research and development outside the country and threatening the future of American innovation.”

[...]

Hopefully, the Court is well aware that the fate of the despised is closely intertwined with that of the patent law system critical to the prosperity of this country.

That’s utter nonsense. As Adobe said (above), what harms innovation (or “the future of American innovation” as he puts it) is a legion of patent trolls. They use software patents to shake down companies to the point where some of these companies decide to just move overseas.

Here is a new example, courtesy of the Computer & Communications Industry Association (CCIA). Josh Landau wrote about one patent troll yesterday, noting that “CustomPlay doesn’t deal with DVDs. Instead, its patents cover basic concepts in digital video playback.”

Here’s more:

The asserted patents claim to cover the concept of skipping back in a video and turning on the subtitles in order to figure out what someone said, the concept of identifying who appears in a scene of a video, the concept of providing an icon indicating information about a video scene exists, and the concept of providing information about a current video scene and a previous video scene. (The first one is asserted against Apple; the remainder against Amazon.)

So, yes, CustomPlay has essentially claimed to own the concepts of rewinding and rewatching a section of a scene with subtitles on, annotating media, the identifier for a footnote,

[...]

This is exactly what Bilski and Alice told us was unpatentable—claiming an abstract idea, and in this case, claiming an automated process for organizing a human activity. In this case, the human activity of rewatching a segment with the closed captions on so you can figure out what exactly they said.

Yes, Bilski and Alice ought to have already rendered this patent dead, yet the patent is still being used against real companies.

And speaking of Alice, Saurabh Vishnubhakat has this new paper (presented in brief today) on why abstract patents may be invalid not just because they’re abstract but also anticompetitive. As he put it in his abstract:

Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation.

Here is what he had published in Patently-O last night:

Subject-matter eligibility is becoming a sort of per se shortcut for patent invalidity, in contrast to more costly inquiries like nonobviousness or enablement analogous to the rule of reason. The historical lesson of antitrust, though, has been that per se rules should be used very sparingly because a wide range of economic practices may prove to have procompetitive effects. This does not mean the conduct is definitively legal under the antitrust laws—or that a given patent is definitively valid. It simply means that more information and more careful judicial consideration are needed before an accurate decision can be reached.

Until now, the use of subject-matter eligibility at the pleading stage may be conserving decision costs, but without sufficient regard for error costs in decisions on patent validity. In my paper, I discuss problems with the current approach and propose three ways to guard against this irresponsible borrowing from antitrust.

We wrote a great deal about antitrust aspects of patent litigation/threats back when we focused on Microsoft’s attacks on Linux and the FUD campaign it had launched with Novell in 2006. But at the same time we also pointed out that virtually all the patents were on software, so ending software patents would be an indirect remedy. Alice got us a lot closer to that.

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. Links 22/1/2018: Linux 4.15 Delayed Again, Libinput 1.9.901

    Links for the day



  2. Team UPC Calls Critics of the UPC Idiots, Deletes Their Comments, and Blocks Them

    A new low for Team UPC, which is unable to cope with reality and has begun literally mocking and deleting comments of people who speak out truths



  3. How the Opposition to CRISPR Patents at the EPO Sent Shockwaves Through the Industry

    Additional reports/coverage on the EPO (European Patent Office) revoking Broad Institute's CRISPR patent show that the issue at hand isn't just one sole patent but the whole class/family of patents



  4. Unified Patents Says That RPX, Which Might Soon be Owned by Patent Trolls, Paid Patent Trolls Hundreds of Millions of Dollars

    Unified Patents, which helps crush software patents, takes note of RPX’s financial statements, which reveal the great extent to which RPX actually helped trolls rather than stop them



  5. IAM Together With Its Partner, IIPCC, is Lobbying the USPTO to Crush PTAB and Restore Patent Chaos

    Having handled over 8,000 petitions (according to Professor Lemley's Lex Machina), PTAB champions patent quality at the USPTO, so front groups of the litigation 'industry' creep in and attempt to lobby the likely next Director of the USPTO (inciting him against PTAB, as usual)



  6. Software Patents Are Still Dropping Like Flies in 2018, Thanks to Alice v CLS Bank (SCOTUS, 2014) and Section 101 (USPTO)

    Section 101 (§ 101) is thriving in the sense that it belatedly throws thousands of patents -- and frivolous lawsuits that depend on them -- down the chute; the patent trolls and their allies in the patent microcosm are very furious and they blame PTAB for actually doing its job (enforcing Section 101 when petitioned to do so)



  7. Patent Troll Finjan Looks Like It's About to Collapse, But Patent Maximalists Exploit It for Software Patents Promotion

    Patent trolls are struggling in their use of software patents; few (if any) of their patents are upheld as valid and those that miraculously remain in tact become the subject of fascination if not obsession among trolls' advocates



  8. The Attacks on PTAB Are Slowing Down and Attempts to Shield Oneself From Inter Partes Reviews (IPRs) Are Failing

    The Patent Trial and Appeal Board (PTAB) reapplies patent eligibility tests/guidelines in order to squash likely invalid patents; The litigation 'industry' is not happy about it, but its opposition to PTAB is also losing steam



  9. Links 21/1/2018: Wine 3.0 Coverage, KaOS 2018.01, Red Hat Among 'Admired Companies'

    Links for the day



  10. Blockchain Patents Are a Catastrophe in the Making as Trolls and Aggressors Accumulate Them

    As patents pertaining to blockchains continue to be granted -- even in defiance of Alice/Section 101 -- it seems likely that patent wars will sooner or later erupt, involving some large banks, IBM, and patent trolls associated with the notorious Erich Spangenberg



  11. Qualcomm/Broadcom/NXP Combination Would Become a Disastrous Patent Thicket Which Benefits Nobody

    Worried by the prospect of mega-mergers and takeovers which would put far too much market power (and monopoly through patents) in one place, governments and corporations speak out



  12. Patent Litigation in East Asia: Huawei, Samsung, HTC, Nintendo and COLOPL

    A quick look at some high-profile cases in which large Asian firms are embroiled; it seems clear that litigation activities have shifted eastwards (where actual production is done)



  13. Patent Litigation in the US is Down Sharply and Patent Trolls' Demise Has Much to Do With It

    Docket Navigator and Lex Machina both show a significant decline in litigation -- a trend which is likely to carry on now that TC Heartland is in tact (not for just half a year but a whole year) and PTAB completes another record year



  14. Cheating the US Patent System is a Lot Harder After TC Heartland

    Some new examples of tricks (and sometimes cheats) attempted by patent claimants and their representatives; it does not go as well as they hoped



  15. RPX Might Soon be Owned by Patent Troll Erich Spangenberg

    RPX, whose top executives are leaving and business is gradually dying, might end up as another 'asset' of patent trolls



  16. Patent Quality (Not Numbers) as an Asset: Oppositions, Appeals and Rejections at the EPO

    Benoît Battistelli wants a rubber-stamping operation (like INPI) rather than a functional patent office, but oppositions at the Office prove to be fruitful and many erroneously-granted patents are -- by extrapolation -- already being revoked (affecting, in retrospect, Battistelli's so-called 'results')



  17. Links 19/1/2018: Linux Journalism Fund, Grsecurity is SLAPPing Again

    Links for the day



  18. The EPO Ignores This Week's Decision Which Demonstrates Patent Scope Gone Awry; Software Patents Brought Up Again

    The worrisome growth of European Patents (EPs) — a 40% jump in one year in spite of decline in the number of patent applications — is a symptom of the poor judgment, induced largely by bad policies that impede examiners’ activities for the sake of so-called ‘production’; this week's decision regarding CRISPR is another wake-up call and software patents too need to be abolished (as a whole), in lieu with the European Patent Convention (EPC)



  19. WesternGeco v ION Geophysical (at the US Supreme Court) Won't Affect Patent Scope

    As WesternGeco v ION Geophysical is the main if not sole ‘major’ patent case that the US Supreme Court will deal with, it seems safe to say that nothing substantial will change for patent scope in the United States this year



  20. Links 18/1/2018: MenuLibre 2.1.4, Git 2.16 Released

    Links for the day



  21. Microsoft, Masking/Hiding Itself Behind Patent Trolls, is Still Engaging in Patent Extortion

    A review of Microsoft's ugly tactics, which involve coercion and extortion (for businesses to move to Azure and/or for OEMs to preload Microsoft software) while Microsoft-connected patent trolls help hide the "enforcement" element in this whole racket



  22. Patent Prosecution Highway: Low-Quality Patents for High-Frequency Patent Aggressors

    The EPO's race to the bottom of patent quality, combined with a "need for speed", is a recipe for disaster (except for litigation firms, patent bullies, and patent trolls)



  23. Press Coverage About the EPO Board Revoking Broad's CRISPR Patent

    Even though there's some decent coverage about yesterday's decision (e.g. from The Scientist), the patent microcosm googlebombs the news with stuff that serves to distract from or distort the outcome



  24. Links 17/1/2018: HHVM 3.24, WordPress 4.9.2

    Links for the day



  25. No Patents on Life (CRISPR), Said EPO Boards of Appeal Just a Few Hours Ago

    Broad spectacularly loses its key case, which may soon mean that any other patents on CRISPR too will be considered invalid



  26. Only Two Weeks on the Job, Judge Patrick Corcoran is Already Being Threatened by EPO Management

    The attack on a technical judge who is accused of relaying information many people had already relayed anyway (it was gossip at the whole Organisation for years) carries on as he is again being pushed around, just as many people predicted



  27. EPO Board of Appeal Has an Opportunity to Stop Controversial Patents on Life

    Patent maximalism at the EPO can be pushed aback slightly if the European appeal board decides to curtail CRISPR patents in a matter of days



  28. Links 16/1/2018: More on Barcelona, OSI at 20

    Links for the day



  29. 2018 Will be an Even Worse Year for Software Patents Because the US Supreme Court Shields Alice

    The latest picks (reviewed cases) of the Supreme Court of the United States signal another year with little or no hope for the software patents lobby; PTAB too is expected to endure after a record-breaking year, in which it invalidated a lot of software patents that had been erroneously granted



  30. Patent Trolls (Euphemised as “Public IP Companies”) Are Dying in the United States, But the Trouble Isn't Over

    The demise of various types of patent trolls, including publicly-traded trolls, is good news; but we take stock of the latest developments in order to better assess the remaining threat


CoPilotCo

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

CoPilotCo

Recent Posts