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

10.29.17

Large US Companies Continue to Stockpile Patents, But US Courts Have Learned to Repel Patent Maximalism

Posted in America, Apple, IBM, Patents at 7:49 pm by Dr. Roy Schestowitz

Patents on software are just about as inane and worthless as patents on musical notes

Papers with musical notes

Summary: In spite of misguided campaigns to accumulate/hoard tens of thousands of patents and then cross-license these, courts do not see the legitimacy of most of these patents

SEVERAL days ago someone pointed out this case of a lawyer who had been fired for being ethical. It’s not too shocking; lawyers aren’t expected to be honest, only to maximise profit. To quote:

The Third Circuit reversed the grant of the dismissal of a lawsuit by in-house counsel who sued because, he alleged, he was forced to choose between complying with an application filing quota or complying with his ethical obligations to the USPTO. The case, Trzaska v. L’Oreal USA, INc., (3rd Cir. July 25, 2017), is here.

“The complaint alleged that complying with the quota meant filing “frivolous” patent applications,” Generare Oy Ltd. told me about this. The situation may seem familiar to some.

What’s with all the stockpiling? Why has this become so normal? Yesterday we saw blind acceptance of patents and endless admiration of Apple/Steve Jobs, leading to this kind of terrible Web site which equates/conflates patents with innovation and celebrates accumulation of patents based on quantity alone (because large companies just cross-license a massive number of patents without even assessing these individually).

“What’s with all the stockpiling? Why has this become so normal?”The above is about Apple, but IBM too plays that game and IBM is far too proud of software patents that are likely invalid (it still uses these to bully rivals). See this press release [1, 2, 3] which said “IBM leadership in storage systems and software is based upon more than 380 system patents, including IBM FlashCore technology and more than 700 patents for IBM Spectrum Storage software.”

Around the same time (as this press release) we saw IBM’s patents chief gloating that “Snap-On gets hammered” by patents, having just been judged by a jury that probably does not understand what patents are. The report in question says this:

The Journal Sentinel reports Snap-on’s Rick Secor says the company strongly disagrees with the jury’s verdict and will “vigorously appeal.”

In the lawsuit, the Brookfield-based Milwaukee Tool says the lithium-ion battery packs it invented revolutionized the industry after the technology was introduced in 2005. It replaced packs that used nickel-cadmium batteries.

This particular case is not about software patents, but it’s interesting that IBM is keen to promote it. The patents chief has also just linked to a patent troll’s site (Dominion Harbor) in support of software patents. “The sad, confused state of US #patent eligible subject matter described here,” he said in relation to a patent troll known as Secured Mail Solutions (SMS) — a troll we just mentioned here the other day. To quote:

Because I believe that everyone, as a means of self-improvement, should occasionally test their patience and evaluate their ability to manage pain, I was reading the Federal Circuit’s recent decision in Secured Mail Solutions, LLC v. Universal Wilde Inc., upholding the district court’s ruling on the pleadings that Secured Mail’s seven asserted patents were all ineligible under 35 USC § 101. These patents all address tracking mail through an encoded marking, e.g., a barcode, QR code or URL, on the outside of a mailer which is intended to provide information to the recipient about the contents and the sender. Setting aside that when you see a panel of Prost, Clevenger and Reyna you know the patent’s dead, it’s just a matter of how they will craft the language to that desired effect, let’s just look at how the famed Alice test was handled in this case in general.

It’s safe to say that almost every such case now yields invalidity. Courts understand, in light of Alice, that it’s a matter of great certainty. Software patents are out.

“Software patents are out.”If the rumours are true, the USPTO‘s patent examiners too will soon follow suit. Maybe the EPO‘s also?

The EPO mentioned PCT applications a few days ago and so did Patently-O (compare China to Korea in this graph). PCT is the Patent Cooperation Treaty and if one nation abandons software patents, we can expect others to follow the lead.

Moreover, as Patently-O pointed out a few days ago, better examiners will result in fewer incorrect patent grants. The research explores the “[r]elationship between examiner specialization and examination outcomes.”

“So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents.”The summary says, “we find a significant degree of technological specialization among patent examiners working in the same art-unit. This specialization is less pronounced in some of the computer-related technology centers. We found no evidence that examiners specialize in handling important or controversial applications. And it seems that specialization is associated with a more stringent examination process, perhaps because it allows examiners to more easily identify relevant prior art.”

So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents. Here we see the importance of the recruitment process, or the ability to attract top talent. It’s hard to mislead examiners who assess patents in their own field of expertise. Consider for instance this new example that says: “The court found the defendant’s argument “not unreasonable,” but nonetheless rejected it. The “great weight of the case law” made clear that the duty to “disclose all material information to the patent examiner” did not extend to ensuring that “the patent examiner understands that information.””

Sadly, if the examiners don’t understand, they often just grant patents. It should be the exact opposite. If the applicant cannot properly explain to the examiners what is being claimed, then the examiner should assume it’s likely intentional. “If you can’t explain it simply, you don’t understand it well enough,” Albert Einstein famously said. He too was a patent clerk (before becoming famous).

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 17/8/2019: Unigine 2.9 and Git 2.23

    Links for the day



  2. Computer-Generated Patent Applications Show That Patents and Innovations Are Very Different Things

    The 'cheapening' of the concept of 'inventor' (or 'invention') undermines the whole foundation/basis of the patent system and deep inside patent law firms know it



  3. Concerns About IBM's Commitment to OpenSource.com After the Fall of Linux.com and Linux Journal

    The Web site OpenSource.com is over two decades old; in its current form it's about a decade old and it contains plenty of good articles, but will IBM think so too and, if so, will investment in the site carry on?



  4. Electronic Frontier Foundation Makes a Mistake by Giving Award to Microsoft Surveillance Person

    At age 30 (almost) the Electronic Frontier Foundation still campaigns for privacy; so why does it grant awards to enemies of privacy?



  5. Caturdays and Sundays at Techrights Will Get Busier

    Our plan to spend the weekends writing more articles about Software Freedom; it seems like a high-priority issue



  6. Why Techrights Doesn't Do Social Control Media

    Being managed and censored by platform owners (sometimes their shareholders) isn’t an alluring proposition when a site challenges conformist norms and the status quo; Techrights belongs in a platform of its own



  7. Patent Prosecution Highways and Examination Highways Are Dooming the EPO

    Speed is not a measure of quality; but today's EPO is just trying to get as much money as possible, as fast as possible (before the whole thing implodes)



  8. Software Patents Won't Come Back Just Because They're (Re)Framed/Branded as "HEY HI" (AI)

    The pattern we've been observing in recent years is, patent applicants and law firms simply rewrite applications to make these seem patent-eligible on the surface (owing to deliberate deception) and patent offices facilitate these loopholes in order to fake 'growth'



  9. IP Kat Pays the Price for Being a Megaphone of Team UPC

    The typical or the usual suspects speak out about the so-called 'prospects' (with delusions of inevitability) of the Unified Patent Court Agreement, neglecting to account for their own longterm credibility



  10. Links 17/8/2019: Wine 4.14 is Out, Debian Celebrates 26 years

    Links for the day



  11. Nothing Says 'New' Microsoft Like Microsoft Component Firmware Update (More Hardware Lock-in)

    Vicious old Microsoft is still trying to make life very hard for GNU/Linux, especially in the OEM channel/s, but we're somehow supposed to think that "Microsoft loves Linux"



  12. Bill Gates and His Special Relationship With Jeffrey Epstein Still Stirring Speculations

    Love of the "children" has long been a controversial subject for Microsoft; can Bill Gates and his connections to Jeffrey Epstein unearth some unsavoury secrets?



  13. Links 16/8/2019: Kdevops and QEMU 4.1

    Links for the day



  14. The EPO's War on the Convention on the Grant of European Patents 2000 (EPC 2000), Not Just Brexit, Kills the Unitary Patent (UP/UPC) and Dooms Justice

    Team UPC continues to ignore the utter failures that have led to lawlessness at the EPO, attributing the demise of the Unified Patent Court (UPC) to Brexit alone and pretending that it's not even a problem



  15. Links 15/8/2019: GNOME's Birthday, LLVM 9.0 RC2

    Links for the day



  16. 'Foundation' Hype Spreads in China

    Nonprofits seem to have become more of a business loophole than a charitable endeavour; the problem is, this erodes confidence in legitimate Free software and good causes



  17. Links Are Not Endorsements

    If the only alternative is to say nothing and link to nothing, then we have a problem; a lot of people still assume that because someone links to something it therefore implies agreement and consent



  18. The Myth of 'Professionalism'

    Perception of professionalism, a vehicle or a motivation for making Linux more 'corporate-friendly' (i.e. owned by corporations), is a growing threat to Software Freedom inside Linux, as well as freedom of speech and many other things



  19. Links 14/8/2019: Best Chromebooks, EPEL 8.0, LibreOffice 6.2.6

    Links for the day



  20. Being in Favour of Free/Libre Open Source Software Means Rejecting Software Patents

    Those who believe in Software Freedom cannot at the same time believe that software patents are desirable; we've sadly come to a point where many companies that dominate so-called 'Open Source' groups actively lobby for such patents, in effect betraying the community they claim to be a part of



  21. Links 14/8/2019: Apache Evaluated, HardenedBSD Has New Release

    Links for the day



  22. Planet Python is Being Overrun by Microsoft, Just Like PyCon and Python in General

    Microsoft is perturbing the Free/Open Source software (FOSS) world from the inside, promoting Microsoft's most malicious proprietary software from within that world while taking positions of power in powerful FOSS projects



  23. Coming Soon: The Innards of the Eric Lundgren Case That Microsoft is Desperate to Hide or Spin (by Defaming Lundgren)

    Microsoft is rather stressed about Eric Lundgren coming out of prison and telling how Microsoft put him there; right now Microsoft is mostly name-calling while seeking to control public dialogues



  24. Wrong Person in Charge of the Linux Foundation (and in Charge of Linus Torvalds)

    There are several glaring issues when it comes to the leadership of Linux's steward; for one thing, it lacks actual background in... Linux



  25. 2019 Tech Glossary

    This clavis refers to what the de facto definition may be, based on how (and when) media uses the words nowadays



  26. The Silence of the Media Lamb

    There are reasons that are perfectly legitimate to criticise media which is unable and more so unwilling to cover particular scandals for fear that coverage can be detrimental to the media's owners and sponsors



  27. LINUX.COM Managed by Apple’s MacOS Users, Open Source Managed and Covered by People Who Reject Open Source

    The narratives are being hijacked; people who we're supposed to assume speak for Linux and for Open Source support neither of these things; they're only in it for the money



  28. The Linux Foundation's Open Source Summit is a Proprietary Software Marketing Venue

    The distortion of the term Open Source and promotion of proprietary software such as GitHub shows that the foundation called after “Linux” is actually more of a front group of hostile corporations — large brands and rich people to whom Open Source represents a threat that needs to be controlled



  29. Links 13/8/2019: Mir 1.4 Released, Qt PDF Discussed

    Links for the day



  30. Links 13/8/2019: KDevelop 5.4.1 and DragonFly 5.6.2 Released

    Links for the day


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

Recent Posts