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

03.11.18

Patent Maximalists Cause a Crisis of Legitimacy for Patent Law

Posted in Intellectual Monopoly, Law, Patents at 11:13 pm by Dr. Roy Schestowitz

A crisis

Summary: The patent extremists who nowadays equate monopolies on mere ideas to “property” and “rights” gradually cause the public to lose respect for patents, more or less in the same way copyright maximalists (and copyright trolls) cause the population to seek alternatives (both legal and illegal)

THE concept of “intellectual property” is a vague one, especially because it’s a misnomer, sometimes abbreviated as “IP” or “IPR” (a third misnomer, “rights”) to avoid actual debate about suitability of pertinent words. I believe in trademarks. I see their purpose (when not overused, as often happens, granting monopolies on singular dictionary words). Copyrights are important too; they’re essential in management of software code, even if slanted as copyleft (which derives its ‘teeth’ from copyright law). Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.

“Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.”Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale. These equate a monopoly with a “right” and a “property”. Monopoly is neither of those things.

At the end of last month, on February 26th to be precise, August Debouzy’s François Pochart, Lionel Martin and Mathilde Rauline were lumping together totally and entirely different things. They used the word “IP” in their article titled “One IP standard to rule them all” and only later on they broke that down into what they actually truly meant:

All the useful data for all IP rights (patents, trademarks, designs, software …) as well as contracts are coded. Tags are provided for a very large majority of cases or facts: among them the social form of the applicant or its nationality, further the internal references to the case, the applicable law, the fact that it is a divisional application for patents or the language of the technical field for brands, the procedural deadlines, and many more.

Well, “patents, trademarks, designs” (and copyrights, trade secrets etc.) have different laws associated with them, so no serious debate can be conducted under a banner like “One IP standard to rule them all”.

“Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale.”This is symptomatic and quite so typical among law firms.

Jeffer Mangels Butler & Mitchell LLP’s Stanley M. Gibson wrote about Gemshares LLC v Arthur Joseph Lipton the other day, regarding challenges to validity of patents. Here’s a portion from the article:

GemShares LLC filed a patent infringement action against Arthur Lipton and Secured Worldwide, LLC (SWW) on U.S. Patent No. 8,706,513 B2 (the ‘513 patent). The ‘513 patent is entitled “global investment grade for natural and synthetic gems used in financial investments and commercial trading and method of creating standardized baskets of gems to be used in financial and commercial products.”

According to the district court, Lipton became a one-fifth owner of GemShares in 2013, while the patent application was pending. Lipton executed an operating agreement that included a term requiring him (and other GemShares members) to disclose and present to the company opportunities related to or likely to be competitive with GemShares’ business.

Putting aside the abstract-sounding patent (maybe a business method), what we have here is a couple of LLCs (typically entities that do not produce anything concrete) bickering over patents. The one sure thing is, lawyers will win. Lawyers will pocket a lot of money in the process, which is an attempt to challenge the patent’s validity and an (counter)attempt to outright block such a challenge. Shouldn’t it be a perfectly reasonable thing to question a patent’s validity? The US Supreme Court would indirectly decide on that quite soon in Oil States. Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property. Oil States is about IPRs, which challenge not “ownership” but the validity of some granted monopoly.

“Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property.”We are frankly appalled by some of the spin that comes from the patent microcosm. These people just aren’t honest; this dishonesty is necessary for them to continue to make buckets of money. There are upcoming lobbying events on the subject of IPRs, e.g. “Webinar on Paragraph IV Litigation and IPRs” and “FCBA Program on IPR Estoppel” (suppression of challenge) and guess who’s attending. These are all echo chambers of the patent ‘industry’. They want no patents challenged; they’re patent maximalists and absolutists.

Dealing with Solutran, Inc. v US Bancorp et al, CBM estoppel was last week considered by Docket Navigator. When a company sues you with a patent and when you show that the patent is obvious (and thus bogus), can that company then attempt to suppress or prevent judges from seeing the evidence of obviousness? As Docket Navigator put it:

The court denied plaintiff’s motion in limine to exclude evidence of obviousness because CBM estoppel did not apply to an entire statutory basis.

Got that? It’s like some of those ludicrous court cases where the defendant is prevented from presenting evidence in his/her defense. That happens a lot in military courts or in cases pertaining to “national security” (with the classic excuses that a legal defense might be to the detriment of “national security”, or in practice embarrass the state).

“Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.”We often wonder how patent lawyers sleep at night knowing that their occupation often involves subversion of justice rather than defense of the system’s integrity. Maximalists are the opportunistic vandals. We’re not against patents (we never were!); for their legitimacy or perceived legitimacy (acceptance among the public) they need to follow strict rules and be open to scrutiny. A lot of the general public already shows flagrant disdain for copyright law because of copyright maximalists who just exploit copyright law for censorship, complete control of the Internet, mass surveillance (in the name of catching ‘pirates’) and so on.

Treat patent law with respect; or else risk breaking this entire cornerstone of so-called ‘IP’. Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.

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 21/9/2018: Cockpit 178, Purism 'Dongle'

    Links for the day



  2. Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls' Plan -- Along With the Litigation Lobby -- for Unified 'Extortion Vector'

    The Unitary Patent or Unified Patent Court (UPC) was the trolls' weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification



  3. It Wasn't Judges With Weapons in Their Office, It Was Benoît Battistelli Who Brought Firearms to the European Patent Office (EPO)

    The EPO scandals deepen in light of a very major scandal which has occupied the French media for a couple of months



  4. Links 20/9/2018: 2018 Linux Audio Miniconference and Blackboard's Openwashing

    Links for the day



  5. Links 19/9/2018: Chromebooks Get More DEBs, LLVM 7.0.0 Released

    Links for the day



  6. Links 18/9/2018: Qt 5.12 Alpha , MAAS 2.5.0 Beta, PostgreSQL CoC

    Links for the day



  7. Today's European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

    The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed 'inventions' are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)



  8. The EPO Has Quit Pretending That It Cares About Patent Quality, All It Cares About is Quantity of Lawsuits

    A new interview with Roberta Romano-Götsch, as well as the EPO's promotion of software patents alongside CIPA (Team UPC), is an indication that the EPO has ceased caring about quality and hardly even pretends to care anymore



  9. Qualcomm's Escalating Patent Wars Have Already Caused Massive Buybacks (Loss of Reserves) and Loss of Massive Clients

    Qualcomm's multi-continental patent battles are an effort to 'shock and awe' everyone into its protection racket; but the unintended effect seems to be a move further and further away from 'Qualcomm territories'



  10. Links 17/9/2018: Torvalds Takes a Break, SQLite 3.25.0 Released

    Links for the day



  11. The Patent Trial and Appeal Board (PTAB) Helps Prevent Frivolous Software Patent Lawsuits

    PTAB with its quality-improving inter partes reviews (IPRs) is enraging patent maximalists; but by looking to work around it or weaken it they will simply reduce the confidence associated with US patents



  12. Abstract Patents (Things One Can Do With Pen and Paper, Sometimes an Abacus) Are a Waste of Money as Courts Disregard Them

    A quick roundup of patents and lawsuits at the heart of which there's little or no substance; 35 U.S.C. § 101 renders these moot



  13. “Blockchain” Hype and “FinTech”-Like Buzzwords Usher in Software Patents Everywhere, Even Where Such Patents Are Obviously Bunk

    Not only the U.S. Patent and Trademark Office (USPTO) embraces the "blockchain" hype; business methods and algorithms are being granted patent 'protection' (exclusivity) which would likely be disputed by the courts (if that ever reaches the courts)



  14. Qualcomm's Patent Aggression Threatens Rationality of Patent Scope in Europe and Elsewhere

    Qualcomm's dependence on patent taxes (so-called 'royalties' associated with physical devices which it doesn't even make) highlights the dangers now known; the patent thicket has grown too "thick"



  15. Months After Oil States the Patent Maximalists Are Still Desperate to Crush PTAB in the Courts, Not Just in Congress and the Office

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) improve patent quality and are therefore a threat to those who profit from spurious feuding and litigation; they try anything they can to turn things around



  16. IAM, Watchtroll and the EPO Still Spread the Mentality of Patent Maximalism

    The misguided idea that the objective (overall) should be to grant as many monopolies as possible (to spur a lot of litigation) isn't being challenged in echo chamber 'events', set up and sponsored by think tanks and pressure groups of the litigation 'industry'



  17. Watchtroll and Other Proponents of Patent Trolls Are Trying to Change the Law Outside the Courts in Order to Bypass Patent Justice

    35 U.S.C. § 101 (Section 101) voids almost every software patent — a reality that even the most zealous patent professionals have come to grips with and their way of tackling this ‘problem’ is legislative, albeit nowhere near successful (so far)



  18. Links 16/9/2018: Windows Plays 'Nice' Again, Elisa Music Player 0.3 Beta and Latte Dock 0.8.1

    Links for the day



  19. Slamming Courts and Judges Won't Help the Patent Maximalists; It Can Only Make Things Worse

    Acorda Therapeutics sees its stock price dropping 25% after finding out that its patent portfolio isn't solid, as affirmed by the Federal Circuitn(CAFC); the only way out of this mess is a pursuit of a vastly improved patent quality, thorough patent examination which then offers legal certainty



  20. Patent Trolls Are Still Active and Microsoft is Closely Connected to Many of Them

    A roundup of patent trolls' actions in the United States; Microsoft is connected to a notably high number of these



  21. Advancements in Automobile Technology Won't be Possible With Patent Maximalism

    Advancements in the development of vehicles are being discouraged by a thicket of patents as dumb (and likely invalid) as claims on algorithms and mere shapes



  22. Battistelli “Has Deeply Hurt the Whole Patent Profession, Examiners as Well as Agents” and Also the Image of France

    A French perspective regarding Battistelli's reign at the EPO, which has not really ended but manifests itself or 'metastasises' through colleagues of Battistelli (whom he chose) and another French President (whom he also chose)



  23. António Campinos Needs to Listen to Doctors Without Borders (MSF) et al to Salvage What's Left of Public Consent for the EPO

    Groups including Doctors Without Borders/Médecins Sans Frontières (MSF) and Médecins du Monde (MdM) have attempted to explain to the EPO, with notoriously French-dominated leadership, that it’s a mistake to work for Gilead at the expense of the public; but António Campinos is just another patent maximalist



  24. The Max Planck Institute's Determination on UPC's (Unitary Patent) Demise is Only “Controversial” in the Eyes of Rabid Members of Team UPC

    Bristows keeps lying like Battistelli; that it calls a new paper "controversial" without providing any evidence of a controversy says a lot about Bristows LLP, both as a firm and the individuals who make up the firm (they would not be honest with their clients, either)



  25. Links 15/9/2018: Wine 3.16, Overwatch's GNU/Linux (Wine) 'Ban', New Fedora 28 Build, and Fedora 29 Beta Delay

    Links for the day



  26. Max Planck Institute Pours More Water on the Dying Unitary Patent (UPC)

    The Max Planck Institute gives another sobering reality check for Team UPC to chew on; there's still no sign of any progress whatsoever for the UPC because even Team UPC appears to have given up and moved on



  27. EPO Seals Many Death Sentences With Acceptance of EP 2604620

    Very disappointing news as EP 2604620 withstands scrutiny, assuring that a lot of poor people will not receive much-needed, life-saving treatments



  28. Links 13/9/2018: Compiz Comeback, 'Life is Strange: Before the Storm'

    Links for the day



  29. Now We Have Patents on Rooms. Yes, Rooms!

    The shallow level of what nowadays constitutes "innovation" and merits getting a patent for a couple of decades



  30. EPO Granted a Controversial European Patent (Under Battistelli) Which May Literally Kill a Lot of People

    The EPO (together with CIPA) keeps promoting software patents; patents that are being granted by the EPO literally put lives at risk and have probably already cost a lot of lives


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