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Our Position on Patent Scope and Patent Breadth

Posted in Law, Patents at 4:26 am by Dr. Roy Schestowitz

Patent maximalism ruins everything, except firms which exist to promote — and profit from — patent maximalism

Patent breadth
Reference: Patent breadth

Summary: For the sake of innovation and in the interests of progress, patents need to be reserved to few and highly-specialised domains rather than granted sparingly to cover every single facet of life (including life itself)

THE world’s patent offices are clearly coming to grips with the sunset of software patents. These patents are ebbing away in the courts and the boards, even at the USPTO. It’s only China and the EPO that still publicly advocate software patents.

For many years we have been watching software patents very closely. Yesterday we saw this press release which says: “Fantasy Sports Co., a leader in the Daily Fantasy Sports space, today announced that it has been issued two software-based utility patents by the U.S. Patent Office that cover the assembly of Virtual Teams and Live Scoring.”

Considering Alice, these patents would be invalid and thus worthless at any court in the US. It’s pretty incredible that such patents even get granted in 2017.

There are silly software packages, even after Alice, which make companies deal with patents like they’re computer games. Earlier this week we saw another example of worse-than-useless software which merely gives companies the illusion they have “assets”. There was this press release and article about it which said: “Anaqua 9 includes a forecasting tool that will calculate and project future IP costs, while new dashboards give users competitive analysis and licensing opportunities.”

The word “licensing” is a frequently-used euphemism for extortion and litigation. Some patent lawsuits, as we pointed out a week ago, can spell the death knell for a lot of people. We said this in relation to the Amgen case, which made some more headlines last week. We can safely bet that very few people in the jury actually know what patents really are and how they really work/affect people.

Longtime readers would know that we’re neither against patents nor against litigation. However, the problem is an epidemic of patent maximalism (striving to have millions of patents on trivial ideas) and patent trolling by companies that either have no products or no longer have any products. Neither of these things can be described as beneficial to science and technology. There’s a large body of scholarly work and extensive evidence to that effect. The concept of patent specificity, moreover, applies here, not just patent scope. How broad a claim (of set of claims) can be made when obtaining a monopoly on something? The National Law Review spoke the other day about limitations, arguing that “positive limitations are preferred and negative limitations are to be avoided.”

To quote:

Negative limitations, using words like “not”, “without”, or “excluding” in a patent claim, understandably make patent practitioners and clients nervous. Generally, positive limitations are preferred and negative limitations are to be avoided. Why is that?

Probably because they strive to have a monopoly as broad as possible — one that’s harder if not impossible to work around.

The other day we saw a site of a patent maximalist meddling in IEEE patent policy — a subject we’ve been covering for a number of years. I often regret peer-reviewing papers for their journals because they’re openly promoting software patents. Here’s the latest:

I recently wrote a paper for 4iP Council about the effect of the Institute of Electrical and Electronics Engineers’ (IEEE) 2015 patent patent policy change on submissions of Letters of Assurance (LOAs) indicating whether patents are pledged to the new policy. In this, I have reviewed some third-party analysis on adoption of the new patent policy and LOAs. And, I have also included my own analysis of LOA data available from IEEE.

The IEEE is a steward of a great number of standards, so its patent policy matters a lot (impacting so-called FRAND, SEP etc.) and if we lose sight of the very purpose of standards they will become merely a tool of monopolisation by one (or few) large company/ies. This is already happening in several domains.

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