Links 26/3/2018: Linux 4.16 RC7, Slax 9.4

Posted in News Roundup at 6:11 pm by Dr. Roy Schestowitz

GNOME bluefish



Free Software/Open Source

  • How to create an open source stack using EFK

    Managing an infrastructure of servers is a non-trivial task. When one cluster is misbehaving, logging in to multiple servers, checking each log, and using multiple filters until you find the culprit is not an efficient use of resources.

    The first step to improve the methods that handle your infrastructure or applications is to implement a centralized logging system. This will enable you to gather logs from any application or system into a centralized location and filter, aggregate, compare, and analyze them. If there are servers or applications, there should be a unified logging layer.

    Thankfully, we have an open source stack to simplify this. With the combination of Elasticsearch, Fluentd, and Kibana (EFK), we can create a powerful stack to collect, store, and visualize data in a centralized location.

    Let’s start by defining each component to get the big picture. Elasticsearch is an open source distributed, RESTful search and analytics engine, or simply an object store where all logs are stored. Fluentd is an open source data collector that lets you unify the data collection and consumption for better use and understanding of data. And finally, Kibana is a web UI for Elasticsearch.

  • Coreboot Picks Up Librem Enhancements, New HP Elitebook Port, Cheza Snapdragon

    Coreboot is off to a busy start of the week with a number of notable enhancements having been merged to Git this morning.

  • The Apache® Software Foundation Celebrates 19 Years of Open Source Leadership “The Apache Way”

    The Apache Software Foundation (ASF), the all-volunteer developers, stewards, and incubators of more than 350 Open Source projects and initiatives, announced today its 19th Anniversary, and its meritocratic, community-driven process known as “The Apache Way” as the key to its success.

    The world’s largest Open Source foundation is home to dozens of freely-available (no cost), enterprise-grade Apache projects that serve as the backbone for some of the most visible and widely used applications in Artificial Intelligence and Deep Learning, Big Data, Build Management, Cloud Computing, Content Management, DevOps, IoT and Edge Computing, Mobile, Servers, and Web Frameworks, among many other categories.

  • Events

    • LibrePlanet Day 2: no software freedom? That’s incompossible!

      The second day of LibrePlanet 2018 began on a contemplative note with Seth Schoen’s keynote speech, “Incompossibilities: Ubiquitous Engineering Tradeoffs.” No, that’s not a typo: “incompossible” describes multiple things that can’t exist at once — conditions in which it’s impossible to satisfy every requirement.

      Schoen, who is a Senior Staff Technologist at the Electronic Frontier Foundation, explored the impossibility of creating absolutely perfect software, discussing how the inherent tradeoffs in software development echo those in political science, ethical philosophy, and more.

      Other morning sessions included a roundup of device and personal privacy technology; a workshop on free software desktops for kids; a talk on the progress the free software community has made on diversity (and how we still have a way to go); a talk about the necessity of ethical standards in the free software world; and more.

  • Web Browsers

    • Mozilla

      • Mozilla Weekly Project Meeting
      • Mozilla Open Policy & Advocacy Blog: Report of High Level Expert Group on “Fake News”: A good first step, more work is needed

        In mid March, the European Commission published the final report of the High Level Expert Group (HLEG) on Fake News, “A Multi-Dimensional Approach to Disinformation”. The group was established in early January of this year, and comprised a range of experts and stakeholders from the technology industry, broadcasters, the fact checking community, academics, consumer groups, and journalists. The group was expertly chaired by Dr Madeleine De Cock Buning of Utrecht University, specialised in Intellectual Property, Copyright and Media and Communication Law.

        I represented Mozilla in the HLEG, in close cooperation with Katharina Borchert, our Chief Innovation Officer, who spearheads the Mozilla Information and Trust Initiative. Mozilla’s engagement in this High Level Expert Group complements our efforts to develop products, research, and communities to battle information pollution and so-called “fake news” online.

        The HLEG was assigned an ambitious task of advising the Commission on “scoping the phenomenon of fake news, defining the roles and responsibilities of relevant stakeholders, grasping the international dimension, taking stock of the positions at stake, and formulating recommendations.” The added challenge was that this was to be done in under two months with only four in-person meetings.

      • This Week In Servo 109

        We also got Servo running under the hood of Firefox Focus on Android as a proof of concept.

      • Merge Pull Requests without Merge Commits

        By default, GitHub’s pull request (or GitLab’s merge request) will merge with a merge commit. That means your feature branch will be merged into the master by creating a new commit, and both the feature and master branch will be kept.

        Let’s illustrate with an example:

        Let’s assume we branch out a feature branch called “new-feature” from the master branch, and pushed a commit called “Finished my new feature”. At the same time someone pushed another commit called “Other’s feature” onto the master branch.

  • Pseudo-Open Source (Openwashing)


    • Linus Torvalds Remembers the Days Before ‘Open Source’

      Advocating fiercely for the term free software was Richard Stallman, who notes that the free software movement began in 1983, and argues that “In 1998, a part of the free software community splintered off and began campaigning in the name of ‘open source’…”

      “The two terms describe almost the same category of software, but they stand for views based on fundamentally different values. Open source is a development methodology; free software is a social movement. For the free software movement, free software is an ethical imperative, essential respect for the users’ freedom. By contrast, the philosophy of open source considers issues in terms of how to make software ‘better’ — in a practical sense only… Most discussion of ‘open source’ pays no attention to right and wrong, only to popularity and success.”

      In the 2001 documentary “RevolutionOS,” Eric Raymond counters that the problem with the phrase “free software” is the connotations it brings up for business executives.

    • GNU Foliot version 0.9.7

      This is a maintenance release, which brings GNU Foliot up-to-date with Guile-2.2, which introduced an incompatible module – goops related – change.

    • SDR’s Hard Side Shown in DARPA Hackfest

      During these few-times-a-year hackfests, we worked crazy-long hours, lived on fast food, and de-prioritized sleep– an energizing combination that fostered collaboration and focused our attentions in uniquely fruitful ways. As a result of some of our hackfests, core and prominent features were created that still reside inside GNU Radio today.


      Out of the many decades of work on free and open source software (FOSS) projects have come debugged and optimized software that now is helping us address technical challenges more quickly and effectively that we could before these tools became available. Although this remains true, we learned from our hackfest experience in California that there still are many hard problems to solve.

    • Tar Picks Up Support For Zstd Compression

      The latest program joining the Zstd bandwagon is Tar.

      Zstd is now the latest compression format supported by GNU Tar along with Gzip, Bzip2, Lzip, LZMA, Lzop, and XZ.

    • GNU Toolchain Update – Spring 2018
  • Licensing/Legal

    • ​FOSSA: Open-sourcing open-source license management

      Kevin Wang, CEO of FOSSA, has a different approach. The 22-year-old founder told me at Open Source Leadership Summit in Sonoma, CA: “Code scanning is not enough anymore. FOSSA’s approach to dependency scanning leverages both static and dynamic code analysis. Dynamic analysis allows FOSSA to get an accurate, live view of what dependencies are pulled into builds. Static analysis supplements the results with metadata on how dependencies are included to power deep intelligence features and recommendation engines. Both these approaches are used to build the most accurate, performant, and intelligent infrastructure for managing your open source.”

    • McHardy withdraws injunction request – Is this a victory for open source?

      When Cologne Regional Court issued an injunction in October 2017 (case no. 14 O 188/17) it should have been clear that infringing licence conditions for open source software carries dramatic consequences. Then at the oral appeal hearing before the Cologne Higher Regional Court on 7 March 2018, the claimant, software developer Patrick McHardy, withdrew a request for an interim injunction, which was issued in the first instance to avoid a decision with negative implications for him.


      Despite this partial victory, the basic question of how to achieve sufficient open source compliance still remains. Even in the case presented here, the claimant can still initiate main proceedings and prove alleged co-authorship through further submissions and expert evidence. Complaints about a lack of open source compliance are increasing as well.

      For some time now, the open source community has been critical of this claimant’s approach. The community prefers to take enforcement of open source licences into its own hands, and has previously taken action against licence infringements. Since no applications today are developed without open source software, compliance with licence conditions is becoming increasingly important. We advise the use of standardised analysis methods, and to develop appropriate compliance guidelines. Many companies have already created this capacity in their organisations.

  • Programming/Development

    • 10 Best Programming, Scripting, and Markup Languages To Learn In 2018

      2016 was the year when Apple’s homegrown programming language Swift made waves and started growing at a fast pace. In 2017, Kotlin made similar strides after Google announced the official support for Android. Overall, it means that trends keep changing each year and the developers should adapt themselves accordingly.

      Just earlier this month, a report from HackerRank focused on the shrinking gender gap in tech and helped us gain more insights into the programming language priorities of female coders. But, what about the overall popular and best programming languages?

  • Standards/Consortia

    • The Evolution of Open Networking to Automated, Intelligent Networks

      The 2018 Open Networking Summit is happening this week in Los Angeles. Just prior to opening day, we talked with John Zannos, Chief Revenue Officer at Inocybe, to get his view on the state of open networking and changes in the foreseeable future. Zannos, is on the governing board of the Linux Foundation Networking effort, and has formerly served on the OpenStack and on the OPEN-O boards.

      Inocybe has been involved with OpenDaylight since the beginning. The company is one of the top five contributors, and its engineering team is involved in helping solve some of the toughest questions associated with SDN and OpenDaylight. For example, company engineers lead the community effort focused on solving the problems associated with clustering, security, and service function chaining.

    • ONF isn’t waiting around for traditional OEMs to get their open source act together

      The industry’s traditional big infrastructure vendors aren’t exactly playing ball when it comes to what a group of leading operators are looking for, so they’re taking it upon themselves to create a new supply chain around open source and next-gen networks.

      Those operators include AT&T, China Unicom, Comcast, Google, Deutsche Telekom, NTT Group, Telefonica and Turk Telecom, all of which are partners in the Open Networking Foundation (ONF), which today announced a new strategic plan for the ONF to move open source, next-generation SDN solutions into production mode.


  • Health/Nutrition

    • Revision Of WIPO Draft Treaty On Genetic Resources Advances, Heads For Next Meeting

      After a difficult start to the week, World Intellectual Property Organization delegates on 23 March agreed on a revision of a set of articles of a potential treaty preventing the misappropriation of genetic resources through IP protection. The revised text will serve as a basis for further discussions at the next session of the WIPO committee dealing with the protection of genetic resources, in June.

    • FDA Advised of Defendant’s Litigation Misconduct and Sanctions

      The court granted in part plaintiffs’ motion for monetary sanctions after defendant disclosed corrected stability dissolution testing data during a bench trial and directed that the FDA be informed of defendant’s conduct.

    • Iwncomm provides update on China SEP campaign – Sony injunction still under appeal, battle with Apple expands

      The Xi’an company which won China’s first-ever SEP injunction last May has issued an update on its ongoing court battles, in an effort to combat what it calls ‘speculation and rumours’ in Chinese media. The statement reveals the status of Sony’s appeal against the 2017 Beijing IP Court injunction as well as an escalating conflict between the Chinese company and Apple. Most IAM readers will remember that Iwncomm (also known by its Chinese name Xi’an Xidian Jietong) is the developer of a wireless standard called WAPI.

  • Security

  • Defence/Aggression

    • Swedish Isis fundraiser statuses were on Facebook for two years before deletion

      A 35-year-old man in Sweden appealed for donations to the Islamic State (Isis) terror group using statuses posted to his open Facebook account.

    • At Least 64 Killed in Shopping Mall Fire in Siberia

      In Siberia, at least 64 people were killed when a fire tore through a shopping mall in the city of Kemerovo Sunday. At least 16 people are still missing, and authorities say the death toll is likely to rise.

    • Iran terms John Bolton’s appointment ‘shameful’, says US NSA has ties with former terror outfit Mujahedeen-e-Khalq

      Iran has called the appointment of the former UN Ambassador John Bolton to the role of National Security Adviser of the United States shameful, Iranian media reported on Sunday, citing his involvement with an opposition group once named a terrorist organisation.

    • Iran wary of new NSA Bolton

      A senior Iranian official said on Sunday it was “shameful” that U.S. President Donald Trump had named John Bolton as national security adviser because of his ties with rebels whom Iran sees as “terrorists,” the state news agency IRNA reported.

      “For a seemingly superpower country, it is shameful that its national security official would be receiving a salary from a terrorist sect,” IRNA quoted Ali Shamkhani, secretary of Iran’s Supreme National Security Council, as saying.

    • Remington, one of America’s oldest gun makers, files for bankruptcy

      The bankruptcy filing allows Remington to stay in business and keep making guns while restructuring its massive debt. The company plans to reduce its debt by $620 million through the Chapter 11 process.

      The company said, when it first announced its plan to file for bankruptcy in February, that operations “will not be disrupted by the restructuring process.”

      Founded in 1816, Remington is “one of America’s oldest and largest manufacturers of firearms,” according to court filings. Remington is also one of the best-known gun makers in the world. It’s owned by Cerberus Capital Management, which plans to shed ownership once the bankruptcy is complete.

    • Same Old Media Parade: Why Are Liberals Cheering?

      When the “War on Terror” was launched in 2001, mainstream media – especially cable TV news – started a parade. It was a narrow parade of hawkish retired military and intelligence brass promoting war as the response to the crime of 9/11, predicting success and identifying foreign enemies to attack.

  • Transparency/Investigative Reporting

    • ‘Europe arrest abuse is key reason for Brexit’ Assange rages at Catalan leader’s arrest

      Mr Assange, who has been holed-up in the Ecuadorean embassy in London for five years, drew a historical comparison between an event that took place in Nazi Germany and Mr Puigdemont arrest and said “In 1940 the elected president of Catalonia, Lluís Companys, was captured by the Gestapo, at the request of Spain, delivered to them and executed.

      “Today, German police have arrested the elected president of Catalonia, Carles Puigdemont, at the request of Spain, to be extradited.”

      He also took Britain’s side against the European Union while unleashing his anger on Twitter over the arrest – saying the European Arrest Warrant was one of the “key intellectual reasons” why people voted for Brexit.

      WikiLeaks founder Mr Assange accused the European Union of turning to an “abusive instrument that requires no evidence” to “persecute” countries’ “opponents” such as Mr Puigdemont.

  • Environment/Energy/Wildlife/Nature

    • In 11th Annual Earth Hour, Green Groups Call for Global Effort to Combat Climate Crisis and Defend Biodiversity

      “Nature is in alarming decline. Halting its loss is urgent and crucial as much as tackling climate change,” said Marco Lambertini, director general for WWF International, in a statement. “Biodiversity and nature is the foundation of life, essential to our wellbeing. Yet, we continue to take nature for granted while our actions are pushing it to the brink.”

      The Eiffel Tower in Paris, the London Eye, the Sydney Opera House, and the Petronas Towers in Kuala Lumpur were just some of the global landmarks that went dark to mark the event.

  • Finance

    • EU competition commissioner Activistager going off the deep end with Google break-up talk

      Give me a break. While Google’s market share in the EU search market is a fact, it’s not a result of any wrongdoing. There simply isn’t enough innovation in Europe. Otherwise some European company could have built a great search engine with a focus on European languages and websites. Last year, the EU’s “digital” commissioner (from Bulgaria, the least advanced but highest-crime country in the 28-member bloc) said in an interview that Europe didn’t need its own Google. But apparently some people in Brussels believe they cannot leave Google alone either.

      Breakups are the most extreme antitrust remedy. They’re talked about far more often than actually ordered. But below a certain threshold it’s simply inappropriate to mention the possibility of a breakup. Whatever charges the EU has brought against Google to date fall far short–”far” in terms of lightyears–of where a breakup could even be contemplated.

  • AstroTurf/Lobbying/Politics

    • 5 distorted headlines of the week

      Many headlines stated opinions as fact this week — here are five particularly distorted ones about the economy, politicians and their emotions. Should media outlets insert their own opinions and speculation without acknowledging them as such? Take a look at this week’s distorted headlines and let us know.

    • The Secretary and the Lord

      After he became Director of the CIA, Mike announced plans to establish a chaplaincy on the CIA campus similar to what the military has at its installations. His speeches were reportedly infused with references to Christianity. He attends weekly prayer meetings in government buildings. According to a report, in Foreign Policy, there are concerns that his religious zeal is leaking into the CIA. Complaints from some employees are that supervisors want to hold Bible study sessions during work hours. Some of the senior people in the CIA are importuning lower ranking individuals at the agency to attend Bible study in the evenings. According to the report, veteran employees at the CIA are becoming estranged from the agency they have long enjoyed serving.

    • Trump Is Staffing – or – Casting From Fox

      President Donald Trump’s favorite TV network is increasingly serving as a West Wing casting call, as the president reshapes his administration with camera-ready personalities.

      Trump’s new national security adviser, John Bolton, is a former U.N. ambassador, a White House veteran – and perhaps most importantly a Fox News channel talking head. Bolton’s appointment, rushed out late Thursday, follows Trump’s recent attempt to recruit Fox guest Joseph diGenova for his legal team.

      Bolton went on Fox to discuss his selection and said it had happened so quickly that “I think I’m still a Fox News contributor.”

    • Sierra Leone didn’t really use blockchain in their election

      The National Election Commission (NEC) of Sierra Leone released an official statement on Twitter on March 18 to set the record straight. The tweet quoted the NEC Chair Mohamed Conteh saying that “the NEC has not used, and is not using blockchain technology in any part of the electoral process.”

    • Scotland Must Defend Carla Ponsati; Sturgeon Cannot Play Pontius Pilate

      It is sickening that Spanish courts continue to jail, and remove from political life, Catalan politicians who are the victors in democratic elections. That the European political class and media is almost entirely complicit and supportive in this truly vicious repression of the Catalan people, has shocked many of us to our core, and made us realise how thin is the veneer of democracy and how fragile are the rights we believed we held.

      If the UK were any kind of a democracy, opposition parties would have held firm against the rush to conflict with Russia, until serious and thorough investigation of the Skripal case had yielded real results. At the very least, you would expect to see a select committee of the House of Commons call the head of Porton Down to give evidence and quiz him about the level of certainty they have of the identity and the Russian manufacture of the substance which poisoned the Skripals.

      Instead, we have seen all the establishment parties fall over themselves to appear as belligerent and faux-Churchillian as May and her pipsqueaks, in order to placate the tabloids. This is ludicrous. You cannot out-jingo the Tories, and the rush to increase international tension benefits nobody except the armaments and security industries.

      I am obliged to say I was disgusted by Nicola Sturgeon and the SNP leadership and their premature condemnations of Russia. By coincidence I spent much of last week at pro-Indy events and I have to say I found this disgust almost universal.

    • John Bolton named NSA: Donald Trump increasingly looking at Fox News as recruiting ground for the White House

      President Donald Trump’s favourite TV network is increasingly serving as a West Wing casting call, as the president reshapes his administration with camera-ready personalities.

      Trump’s new national security adviser, John Bolton, is a former UN ambassador, a White House veteran — and perhaps most importantly a Fox News channel talking head. Bolton’s appointment, rushed out late Thursday, follows Trump’s recent attempt to recruit Fox guest Joseph diGenova for his legal team.

  • Censorship/Free Speech

    • Sex Workers Say Porn on Google Drive Is Suddenly Disappearing

      Sex workers are reporting that their Google Drive files are mysteriously locked or vanishing.

    • Subject Of Unflattering News Story Gets Journalist Arrested For Criminal Harassment

      It seems like there should be nothing to decide. Obviously Dubé had zero interest in commenting on a story about her alleged impersonation of a licensed lawyer. Fine, but this scenario absolutely reeks of vindictive bullshit from a person who couldn’t stop a negative story from being posted and felt she should spread the misery around.

      Needless to say, Trépanier’s employer, Radio-Canada, is deeply concerned with this turn of events. The director of its French services says he’s never seen anything like this in three decades of journalism. The police likely haven’t either, but they’re sticking to their guns.

    • Trump’s Lawyer’s Lawyer Threatens Defamation Over Claims Stormy Daniels Did Not Make

      Assuming you haven’t been living under a rock, you know that on Sunday night, porn star Stephanie Daniels (real name: Stephanie Clifford) did a big interview with Anderson Cooper on 60 Minutes. Much of what was in there had been previously reported, though this is the first time many of the claims came directly from Daniels herself. But there was one “big” new claim, which hadn’t previously been reported, and which is now getting lots of attention.

    • Orwellian move: China’s President-for-life Xi Jinping now controls all media, ‘scores’ citizens

      ONE voice to rule them all.

      China’s President-for-life Xi Jinping has created a new mega media outlet — the Voice of China — by merging 14,000 employees from China Central Television (CCTV), China National Radio and China Radio International.

      It has been given the job of “propagating the party’s theories, directions, principles and policies” as well as “telling good China stories,” the state news agency Xinhua reports.

      All of the remainder — Xinhua itself, the People’s Daily and others — must now answer directly to his Central Propaganda Department.

    • Internet censorship in Kazakhstan: more pervasive than you may think

      As of April this year, internet users in Kazakhstan will no longer be able to leave anonymous comments online. In late December 2017, President Nursultan Nazarbayev signed a law obliging websites to register every internet user who wishes to leave a comment, either by SMS verification or digital signature. Websites who fail to abide by the new rules could face fines of up to $750. Kazakhstan’s Minister of Information and Communications Dauren Abayev said that everyone “must be responsible for what they want to say.” “In cases of incitement to interethnic discord or calls for unconstitutional actions, I think it should be possible for law enforcement agencies to track down commenters,” Abayev told the press before the bill was passed.

      In response to the new law, several independent media outlets including regional newspaper Uralsk Week and news portal Ratel have completely removed the option of leaving a comment from their websites. Lukpan Akhmedyarov, editor-in-chief of Uralsk Week, said that he is against the new rule and decided to remove the comment section from the newspaper’s website.

    • Twitter Nukes American Attorney’s Tweet About Unflattering Depiction Of Turkish President

      For no imaginable reason, Twitter continues to allow Turkish president Recep Tayyip Erdogan to cleanse the internet of stuff he doesn’t like. This doesn’t begin and end with Twitter — other social media platforms have obliged the president as well — but Twitter is where it’s most quickly noticed that something has gone missing.

      Kurdish-American activist and attorney Samira Ghaderi recently saw one of her tweets memory-holed in response to a Turkish court order. Now, it’s one thing when social media companies start geoblocking/vanishing posts originating in the country where the legal complaint was filed. It’s quite another when they allow Turkish law to take precedence over US law, which is what appears to have happened here.

    • Bob Murray Sends Judge Whiny Letter Saying That Losing Case To John Oliver Is Making People Say Mean Things To Him

      Right, then maybe you shouldn’t have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the “harm” to your reputation was caused by you — not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.

      So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).

    • YouTube Bans Firearms Demo Videos, Entering the Gun Control Debate

      YouTube, a popular media site for firearms enthusiasts, this week quietly introduced tighter restrictions on videos involving weapons, becoming the latest battleground in the U.S. gun-control debate.

      YouTube will ban videos that promote or link to websites selling firearms and accessories, including bump stocks, which allow a semi-automatic rifle to fire faster. Additionally, YouTube said it will prohibit videos with instructions on how to assemble firearms. The video site, owned by Alphabet Inc.’s Google, has faced intense criticism for hosting videos about guns, bombs and other deadly weapons.

      For many gun-rights supporters, YouTube has been a haven. A current search on the site for “how to build a gun” yields 25 million results, though that includes items such as toys. At least one producer of gun videos saw its page suspended on Tuesday. Another channel opted to move its videos to an adult-content site, saying that will offer more freedom than YouTube.

    • A Brief History of YouTube Censorship

      Over the last few months, YouTube has come under fire for its content moderation decisions. The company, like other hosts of user-generated content, is not obliged to take down most content under US law, nor can it be held liable for much of what it hosts, giving it significant power over its users’ expression.

      YouTube’s emergence amid the blogging boom of the mid-2000s was revolutionary. Suddenly, anyone could easily share their own videos with the entire world. The platform, created by Chad Hurley and Steve Chen—both under 30 at the time—was quickly snatched up by Google for a whopping $1.65 billion just a year after its launch. In 2006, Time magazine named “you” its person of the year, dubbing YouTube “the people’s platform” and crediting it with the “opportunity to build a new kind of international understanding.” YouTube was on its way up.

      But almost immediately, YouTube was faced with tough decisions about what types of content it should—or could, legally—allow. The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (“CDA 230”)—two of the most important regulations governing user-generated content—had only been around for a decade, and had not yet been significantly applied in the international sphere. Both would soon come to be tested as YouTube and other platforms rapidly transformed the way people communicate and share content online.

    • OPINION: Censoring climate change won’t make it go away

      Climate change was one of the top issues President Trump tackled in his campaign for presidency. He promised to pull the U.S. from the Paris Climate Accord, an international agreement that each country will reduce its contribution to climate change. On Jun. 1, 2017, Trump fulfilled his promise.

      Now as president, Trump’s refusal to accept climate change as a serious issue bleeds into other avenues of government as well. The most notable example is the censorship of “climate change” from numerous governmental websites including the Environmental Protection Agency (EPA), which was once the herald of climate information.

      Censoring any mention of climate change, however, does not make the issue disappear. The censorship only aids in clouting public understanding of the threat of climate change.

    • Anti-Fake-News Bill Sparks Concerns Over Media Censorship in Malaysia

      The Malaysian government proposed a bill imposing hefty fines and jail sentences on those found guilty of willfully publishing fake news on Monday.

      The bill defined “fake news” as any form of written, audio or visual publication “wholly or partly false,” concerning Malaysia or a Malaysian citizen, published by anyone, anywhere.

      The law would punish such offenders with fines of up to 500,000 ringgit (equivalent to around $128,000), up to 10 years’ imprisonment, or both. “The proposed Act seeks to safeguard the public against the proliferation of fake news whilst ensuring the right to freedom of speech and expression under the Federal Constitution is respected,” it read, as quoted in Reuters.

    • Pakatan: Anti-fake news Bill redundant, against freedom of speech
    • Cruz differs from Trump in decrying campus ‘censorship’

      “Colleges are getting more and more into the business of censorship,” he said. “We’re going to silence speech we don’t agree with — that is nutty.”

      His remarks, made at a daylong conference on bipartisanship at Bellaire High School, broke with President Donald Trump’s most recent statements on the topic.

      Trump last week said threats to free speech on college campuses are “overblown” in an interview with Charlie Kirk of conservative group Turning Point USA.

    • Addressing concerns of illicit images on public blockchains

      There have been several press reports this week claiming that illegal images are stored on the Bitcoin blockchain, thus potentially creating a liability for anyone who has a copy of the blockchain. The articles cite a recently published academic paper, but the fact that arbitrary data can be included in the blockchain is not new. It is a phenomenon that a simple a Google search would have revealed has been well understood since at least 2013 if not earlier, and the facts of the matter are not as damning as recent headlines suggest. We are disappointed that so many are jumping to conclusions about what it means for Bitcoin that some despicable people have exploited it and linked it to the scourge of child pornography.

  • Privacy/Surveillance

    • An Intentionally Stupid Cow Clicker Game Collected Facebook Data From 180,000 Users

      Cow Clicker, a parody Facebook game, collected personal data from 180,000 people back in 2010-2011.

      If you don’t remember “clicker” games, Farmville was a famous example. These were games where you logged into Facebook every few hours, clicked something, then sent annoying invitations to your friends so they could click things too. Ian Bogost, an indie game developer, hated these games, so he made an intentionally stupid parody of them: Cow Clicker.

    • Secure Messaging? More Like A Secure Mess.

      There is no such thing as a perfect or one-size-fits-all messaging app. For users, a messenger that is reasonable for one person could be dangerous for another. And for developers, there is no single correct way to balance security features, usability, and the countless other variables that go into making a high-quality, secure communications tool.

    • Facebook Caught Sucking Your Call Logs And SMS History For Years

      If the Cambridge Analytica story wasn’t enough, Facebook is again under fire for collecting people’s call logs and SMS history for years.

      Per reports, the said data was discovered by many Android users after they obtained the offline copy of their Facebook data. Earlier, it was said that the company did so without asking the users. But according to Facebook’s latest blog post, it’s not true.

    • Mark Zuckerberg Thinks We’re Idiots.

      Surprise: Thanks to the Cambridge Analytica revelations, we’re finding out that Facebook allowed a much broader and deeper prostitution of our private data than it had previously claimed. Facebook’s disingenuous explanations call for more questions and even less trust.

    • Facebook has been collecting call history and SMS data from Android devices

      Facebook has been collecting call records and SMS data from Android devices for years. Several Twitter users have reported finding months or years of call history data in their downloadable Facebook data file. A number of Facebook users have been spooked by the recent Cambridge Analytica privacy scandal, prompting them to download all the data that Facebook stores on their account. The results have been alarming for some.

    • Facebook’s Sandberg Says She Regrets Not Speaking Out Sooner

      Sandberg said Facebook is open to regulation and other measures that could help re-establish trust with users.

    • Growth of facial recognition software in China

      Of all the counties in the word, China seems to be making the greatest use of facial recognition software, both in the public and private spheres. A new report charts the growth of image scanning systems that aim to improve security.

  • Civil Rights/Policing

    • Utah passes America’s first “free-range kids” law
    • The Man Who Should Be Dead

      He risked his life exercising his rights to free speech and peaceful demonstration in modern day Russia and paid for it with nearly three years in prison during which time he was tortured both mentally and physically.

      Ildar Ildusovich Dadin is still alive. Yet many like him, journalists, activists, people of conscience, have wound up dead at the hands of the Russian state. Here are just some of the names of recent victims: Sergei Yushenkov, Anna Politkovskaya, Galina Starovoitova, Stanislav Markelov, Anastasia Baburova, and, perhaps most famously, Boris Nemtsov. There are many more names that could be added.

    • Kim Dotcom Wins Human Rights Tribunal Case Over Kiwi Government Withholding Info

      It’s really quite incredible how, at nearly every turn, the New Zealand government has managed to mess up the legal case against Kim Dotcom. The raid on his house was later declared to be illegal, using invalid warrants. Evidence that was seized from his home and illegally turned over to the FBI was ordered to be returned. Oh, and then there was the whole bit about conducting illegal surveillance on Dotcom, deleting evidence of that illegal spying, and ordered officials to “bury” information about that illegal surveillance to avoid embarrassing the Kiwi government.

      And now we have the latest: A Human Rights Tribunal in New Zealand has declared that the New Zealand government violated Dotcom’s rights in withholding information from him. Specifically, in July of 2015, Dotcom had made an information request (in New Zealand it’s an “information privacy request” — which appears to be a quasi-privacy/data protection-type right in New Zealand) to various officials in the government requesting whatever personal information they held on him. The recipients of the demands sent them to the Attorney General who refused to comply with the demands, claiming they were “vexatious and included information that was trivial.”

      The Tribunal disagrees. It goes through in pretty great detail the procedural issues at play here, including an attempt to discover this information by way of his extradition case — which was denied by the court. But that still left open the information privacy request. The court then goes through the question of whether or not it was even appropriate for everyone who received the request to hand them over to the Attorney General. This is done in almost excruciating detail, which we’ll save you from having to go through yourself (unless you’d like to dig in below). However, the tribunal sums up the issue by basically pointing out that the recipients of the request were not supposed to transfer those requests to the Attorney General in the first place, as they had no legitimate reason to do so under the law (the fact that Dotcom was fighting the government in an extradition case is not enough).

    • Here’s One Issue Blue and Red States Agree On: Preventing Deaths of Expectant and New Mothers

      Alarmed that the U.S. is the most dangerous affluent country in which to give birth, state and local lawmakers around the country are adopting a flurry of bipartisan bills aimed at reforming how maternal deaths are identified and investigated.

      In Indiana earlier this month, Republican Gov. Eric Holcomb signed a bill creating a maternal mortality review committee to scrutinize deaths and near-deaths among expectant and new mothers and make policy recommendations to improve maternal health.

      Oregon’s governor and Washington, D.C.’s mayor, both Democrats, are expected to sign similar legislation in the coming days. Proposals are pending in Pennsylvania, Connecticut, Maryland and New Jersey.

    • Trump to the International Community: Drop Dead

      Donald Trump has a plan to solve America’s drug crisis: kill the drug dealers.

      “We have pushers and drugs dealers, they are killing hundreds and hundreds of people,” Trump said at a recent White House summit on opioid abuse. “Some countries have a very, very tough penalty — the ultimate penalty — and by the way, they have much less of a drug problem than we do.”

      Trump claims he got the idea for killing drug dealers from his pal, Chinese president for life, Xi Jinping. That’s a first: an American president openly borrowing a criminal justice program from an autocrat (and a Communist one, to boot). To be fair, Trump clearly also had in mind the experience of a democratic country. In the last two years, Philippine President Rodrigo Duterte has encouraged a spree of extrajudicial police executions aimed at the drug trade that, according to Human Rights Watch, has left more than 12,000 Filipinos dead. Although the International Criminal Court has launched an inquiry into Duterte’s “crimes against humanity,” Trump has praised him for doing an “incredible job” with his anti-drug program.

    • ICE uses Facebook’s backend to hunt immigrants, with help from Palantir

      Public records requests have shown that the Immigration and Customs Enforcement — who have continued and intensified Obama’s program of mass deportations and separation of families under Trump — uses Facebook’s logs, merged with logs from cellular carriers and analyzed by software from Palantir (Peter Thiel’s police-state arms-dealer) to track immigrants.

    • Senators Must Hold Mike Pompeo Accountable For His Religious Prejudice

      Pompeo could join Trump in stigmatizing Muslims in America and around the world.

      Following his campaign where he declared that “Islam hates us” and vowed to ban Muslims from entering the country, President Trump was quick to bring people who shared his hostility toward Muslims into his administration. Current and former officials like Steve Bannon, Sebastian Gorka, Mike Flynn, Ben Carson, Frank Wuco, Jon Cordova, and Carl Higbie have all expressed anti-Muslim views, something Trump likely considers to be an asset.

      Another appointee with a long and troubling record of animosity toward Muslims, CIA Director Mike Pompeo, is now receiving a promotion to replace Rex Tillerson as secretary of state, as Trump announced earlier this month.

      Before leading the CIA, Pompeo was a member of Congress, where he used his position to smear Muslims as a threat not only to security but also to Christianity — promoting the idea that religions are at war with each other and undermining our nation’s values of religious freedom and pluralism.

      In one speech, he read a prayer that lamented that America “worshiped other gods and called it multiculturalism and endorsed perversion and called it an alternative lifestyle,” appearing to show disdain for the country’s religious diversity.

  • Internet Policy/Net Neutrality

    • Cannes Bans Netflix Films From Competition Because The Internet Is Bad (Or Something)

      Cannes this week declared that the long-running festival would be banning streaming services like Netflix from being able to win the Palme d’Or. That said, festival leaders weren’t able to offer a coherent reason why. Festival boss Thierry Fremaux apparently tried to offer something vaguely resembling an explanation to a variety of different news outlets, but wasn’t particularly successful.

  • Intellectual Monopolies

    • Keep the IoT Free (Patent Battles Not Welcome)

      While it has experienced nearly exponential growth, the successful adoption and use of open-source by banking networks, mobile phone manufacturers, telecom networks, smart cars, cloud computing and blockchain platforms, among numerous others, was not a foregone conclusion. In 2003, there was an IP-based attack on Linux, the most prevalent open-source software project.

      While the claims underlying the litigation ultimately were found to be without merit in the court proceeding, it was a wake-up call to several IP-savvy companies as to the potential negative impact of patent aggression on the growth of Linux and open source software projects. IBM, Red Hat and SUSE (then Novell) coordinated an effort with Sony, Philips and NEC to conceptualize and implement a solution designed to create a patent no-fly zone around the core of Linux.

    • US Files WTO Case Against China For Violations Of Global Patent Rules

      It has been considered for years that China has not been as strong as developed country trading partners in protecting intellectual property rights. Now, as China gains ground in building its own patent war chest, it has received a World Trade Organization challenge from the top patent-filing nation in the world, arguing that China’s treatment of foreign companies’ IP rights is unfavourable and its policies violate international trade rules.

    • King Spalding DQ’d from arbitrating against Former Client

      A February 22, 2018 order in Merial Inc. et al. v. Abic Biological Labs. Ltd (Sup. Ct. N.Y.), here, enjoined King & Spalding from representing Abic Biological Labs (“Abic”) and Phibro Animal Health Corporation (“Phibro”) in an ICC arbitration where Abic and Phibro were adverse to Merial Societe Par Actions Simplifiee (“Merial SAS”), which was a former K&S client.


      The court enjoined K&S. What struck me as quite concerning was that there was no overlap between patents or licenses K&S had worked on for Merial SAS and those in the ICC arbitration. Instead, the court noted that K&S “clearly knows a great deal about how the Merial entities approach issues relating to patents and licenses in the animal health and animal vaccine space.” The trial court emphasized that Merial SAS had relied on “a highly credentialed ethicist, Roy D. Simon” and noted that, although the decision was for the court to make, “King & Spalding offered no expert testimony to rebut Mr. Simon’s expert opinion.” The court then noted that “a reasonable lawyer like Mr. Simon came to the conclusion that King & Spalding’s multiple representations of [Merial SAS entities] on issues meaningful to the limited number of players in teh animal health and animal vaccine space would materially advance Abic and Phibro’s interests vis-a-vis Merial,” particular because Dr. Jarecki-Black “will play an integral role in Merial’s defense” in the arbitration.

    • PCT Species Claim Sufficient to Support Priority Claim of Later-filed Genus Claim

      Hologic, Inc. v. Smith & Nephew, Inc., No. 2017-1389, 2018 (Fed. Cir. Mar. 14, 2018 (Before Newman, Wallach, and Stoll, J.) (Opinion for the court, Stoll, J.)

    • Copyrights

      • 7 Best Places to Download Free Music (Legally)

        It’s never been a better time to be a music fan. Streaming services like Spotify serve up the latest hits, but you can dive deep and listen to true indie music. Here are some of the best places to get free, legal music.

On Media Hype, Software Patents, and 35 U.S.C. § 101 Which Annuls Both

Posted in America, Deception, Patents at 5:34 am by Dr. Roy Schestowitz

Don’t be misled by faux novelty (old ideas or abstract ideas disguised as something complicated, physical, and very new)

Entrepreneurs say ‘faux AI’ hype hurts marketing efforts
Reference: Entrepreneurs say ‘faux AI’ hype hurts marketing efforts

Summary: A lengthy roundup of software patents news and spin, culminating not only in demonisation of the current system by patent maximalists but also senseless shaming of science and technology as though these — unlike patent law firms — are the issue

THE EPO likes to refer to software patents by all sorts of three-letter buzzwords/acronyms, including “ICT”, “CII” and “4IR” (similar to “Industry 4.0″, the previous term they piggybacked). The USPTO does not use these buzzwords, but it’s habitually if not growingly subjected to buzzwords inside patent applications, e.g. “cloud” and “AI”. This can confuse examiners and this confusion (lack of clarity) can yield an erroneous grant. We wrote quite a lot about it over the past year and we gave many hundreds of examples. The general idea is to work around the law by exploiting words that sound novel and cutting-edge. Examiners cannot quite author a decision for rejection if they fail to grasp the claims, maybe because these claims are intentionally incomprehensible. The examiners do not wish to sound foolish (or unsuitable to assess the said patent/s).

Software Patents Still Being Granted

Looking at this morning’s list of “patents awarded” in just one US region, we’re still seeing patents that sound like software patents. They don’t use terms such as “software patents,” but the actual effect is the same.

Yesterday we saw this patent maximalists’ blog advertising a “Webinar [lobbying/advertising] on Patent Quality” and somehow we remain really/highly sceptical. We doubt that a bunch of lawyers will speak about the importance of patent quality; they may well hijack the word ‘QUALITY’ (they use all caps!) however, just like Battistelli does at the EPO. When he talks about “quality” he refers to things like timeliness, not patent quality. The title of this “Webinar” is “Achieve the ‘QUALITY’ in Patents and Avoid Common Mistakes” and under ““Quality” in Patents” it says “The patent value hierarchy” (whatever that means), “Definitions of “good” and “valuable”,” and “Quality in provisional applications and non-provisional applications” (that is not what patent quality technically and traditionally means).

Let’s face the fact that software patents are all abstract and are always low-quality patents. They oughtn’t be granted at all, but law firms insist otherwise because they profit from it.

Attacking the Enforcer of 35 U.S.C. § 101 (and § 101 Itself)

This same patent maximalists’ blog then mentions several other such events. It’s purely about lobbying. It’s staged to help change the status quo. It’s the usual tactic.

Another patent maximalists’ blog has just mentioned this upcoming Harvard event — yet another event stuffed/stacked by Koch-funded think tanks and lobbyists like David Kappos, who works for his pressure group and a patent law firm. Sadly, we are more or less becoming accustomed to such interventions. How about yesterday’s piece from the FRAND lobby, this time Annsley Merelle Ward (Bristows) and Richard Vary (Bird & Bird)? A lot of the patents in question are software patents, which they are attempting to put inside standards.

And speaking of lobbyists, watch what the Business Software Alliance (BSA) does politically. As reported some days ago by Bloomberg:

A House subcommittee is weighing whether to continue a Patent and Trademark Office program that allows for challenges of covered business method patents often involving financial or e-commerce-related processes.

The House Judiciary Courts, Intellectual Property and the Internet Subcommittee held a March 20 hearing to discuss specialized challenges under the program, created under the America Invents Act of 2011, that are set to expire in 2020.

Financial services industry lobbying groups have said the covered business methods program helps stem abusive patent infringement lawsuits that assert broadly defined patents. But some software industry trade groups, such as BSA|The Software Alliance, argue that the CBM process hurts U.S. innovation by making it easier for parties to challenge and kill software-related patents.

The BSA, which is backed by Microsoft, has long lobbied for software patents. Even inside standards and even in places that ban such patents. It’s like the law does not matter to them, it’s only changing the law that they strive for. They want to end or water down § 101.

Counting Occurrences of Buzzwords

For the second day in a row, Managing IP does some patent maximalists’ marketing/brainwash for CRISPR patents (not allowed, either). They too cite a biased report of an interest group:

According to iRunway’s 2018 CRISPR: Global Patent Landscape report, 4,706 patents were filed globally in 2015, which represents a 3492% rise

What’s noteworthy here is that they merely track acronyms or hype waves, which makes such statistics self-fulfilling prophecies in a sense.

Blockchain and Other New Hype

In software too there are hype waves or buzzwords. Consider, for instance, this new article on “PayPal’s Patent Pursuit” and another about blockchain. Patenting software by using buzzwords, pretending databases are also “blockchain” and stuff (riding the hype wave because it’s distributed) isn’t a genuine trick. We’ve been seeing this for a number of months if not a whole year. From the article:

Meadow has taken Oxford’s molecule, deployed it to a microchip armed with cryptographic defenses, blockchain log-filing and other software services, all patent-protected through 2035.

That’s almost two decades.

Here they are, riding hype waves to patent software because such patents will be rejected unless one fakes ‘novelty’ (with terms like “AI” or “cloud” or “blockchain”). Another new example is this: “Over 1200 Blockchain Patent Applications Filed in 2017, Up From 594 in 2016″

To quote: “The number of patents relating to blockchain in on the rise. According to data collected by the Korean Intellectual Property Office, more than 1240 applications for blockchain-related patents had been filed across South Korea, the United States, Japan, China, and Europe by the end of January 2018.”

A variant of that was posted here, unlike for example this article titled “There is a simple reason for blockchain’s spectacular rate of development, says Alex Sims. No patents” (article from New Zealand, which does not permit software patents).

To quote:

Blockchain technology, which is poised to transform everything from supply chains to insurance and health, has flourished in an open-source environment. This raises questions about whether our current intellectual property laws are fit for purpose when it comes to fostering innovation.

Intellectual property laws, such as patents and copyright, are premised on the incentive theory. To incentivise people to create, they are given, in effect, a monopoly (with some exceptions) on their creations and can go to court and stop others from free-riding on their work.

Blockchain hype isn’t a new thing. And we won’t stop hearing about it any time soon, especially from those looking to patent something with a database (while making it sound more novel). “Blockchain” is not a made up concept, but it is nowadays misused to refer to things that are not blockchains and those who count occurrences of the term (in media or in patents) merely perpetuate this hype.

How about software patents disguised using words like “Autonomous Vehicle” (another recent hype wave), as seen here some days ago? Or “Machine Learning”, as seen here? Imaging and Machine Vision Europe spoke of companies that “were recently granted four new patents for several aspects of its technology, including visual sensing and processing software that improves the efficiency and safety of automated robotic systems.”

This has § 101 all over it. Jones Day is also the latest law firm to use buzzwords and hype waves like “Artificial intelligence (“AI”) and big data (“BD”)” (yes, they gave that an acronym) to sell their worthless services under the headline “Protecting Artificial Intelligence and Big Data Innovations Through Patents: Subject Matter Eligibility” (again, same old tactics).

Artificial intelligence (“AI”) and big data (“BD”) innovations are a driving force of the current technological revolution, dramatically changing the way we search for information, communicate, operate devices, manufacture things, and solve problems. Companies have traditionally turned to patents as the strongest mechanism to protect their innovation and secure investment.


One of the bigger challenges facing the patenting of AI and machine-learning inventions is subject matter eligibility under 35. U.S.C. § 101, in particular as applied in Alice and its progeny.

So they just hope that fancy words will bypass § 101?

Even a “three-dimensional vision guidance software” isn’t patent-eligible. Geometry is mathematics. Will the examiners at the USPTO please stop granting patents on pure science-/cutting-edge-sounding software hype? From this article:

With early implementations in place and 20 patents in the pipeline, he adds that “now is the time” to build sales channels for its three-dimensional vision guidance software.

This certainly won’t be the end of that. We’ll continue to keep abreast of it.

Watchtroll Once Again Attacks and Smears the Actual (Producing) Industry

Patent maximalists work hard (or overtime, especially weekends) on making the above-mentioned maximalism the ‘norm’. They try to thwart Section 101 and PTAB for enforcing Section 101. As recently as last week PTAB was criticised by Watchtroll for tackling patents on DRM. To quote: “Grecia did file a patent infringement suit against Visa in the Southern District of New York back in November 2015. That case was dismissed with prejudice in November 2017 with both parties stipulating to the dismissal of claims. Grecia’s ‘555 patent has been challenged in four inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB); two of those petitions have been denied and one was settled pre-institution. The ‘860 patent has been challenged five times at PTAB leading to two pre-institution settlements and one post-institution disclaim.”

Not surprising at all. DRM is pure software. Watchtroll’s Gene Quinn is just pushing patent maximalism for the purpose of attracting clients rather than anything else and his protégé Steve Brachmann actively attacks technology companies as if technology itself is a threat. This lobby of patent trolls and patent predators (mostly lawyers) continues attacking and demonising technology firms as though it forgets to masquerade as caring for innovation. Do these people realise how utterly foolish and ruinous they make themselves look? They don’t help science and technology but sabotage both. 5 days ago they even gave a platform to Michael Shore, the patent 'scammer' (now a writer at Watchtroll). Not too shockingly? He too smeared technology companies. Each time these patent extremists — including patent law firms — prop up China as a model example and bash technology firms in the name of patent maximalism they merely reinforce the view that such extremism is a threat to society.

Staying with Watchtroll for a bit, watch its latest attack on PTAB from yesterday (there was actually another such attack that day). Totally ridiculous statements from Watchtroll on a Sunday say things like “The United States Patent and Trademark Office (USPTO) has admitted to stacking panels…”

No, it did not. Another bit of made-up nonsense from Gene Quinn, linking to himself as “proof” of this ludicrous claim. And it’s not just Watchtroll. In the past day alone we saw similar criticisms/posts from David at Patently-O and Patent Docs (basically, how to work around PTAB IPRs).

Still Name-Dropping Berkheimer

Days ago Berkheimer was brought up again by Michael Borella at Patent Docs. The patent maximalists now worry that § 101 is as tactful as always (and thus software patents banned); what’s at stake isn’t facts, but they carry on with their inane canard about Berkheimer:

The Court noted that some § 101 disputes may be resolved as a matter of law when there is no material issue of fact regarding whether one or more claim elements, or combination thereof, are well-understood, routine, or conventional to a person of ordinary skill in the art. Based on this reasoning, HP’s summary judgment motion for ineligibility was reversed and remanded to the District Court for further proceedings. The Court reiterated this position a few days later in Aatrix Software Inc. v. Green Shades Software, Inc. and three times since then in nonprecedential decisions.

This line of cases, all but one involving Judge Moore in the majority opinion, has sent patentees, practitioners, and commentators into a minor tizzy. And certainly it has opened the door for a number of interesting questions: What does it take for a patentee to establish that there is a material issue of fact? Will § 101 disputes become a battle of experts? Will § 101 issues now need to be explained to a jury? How “understood” does a claim element need to be in order to qualify as “well understood?”


HP goes on to note correctly that many, if not all, previous § 101 appeals were decided as a matter of law, and that the Berkheimer panel deviated from this trend. Nonetheless, neither the Supreme Court nor the Federal Circuit ever mandated that all § 101 analyses must ignore facts — only that eligibility decisions could be ripe for judgment on the pleadings or summary judgment when facts are not in dispute. HP attempts to make hay of the extent that the courts (and the USPTO) may have carried out the analysis otherwise.

HP also states that asking “whether the invention describes well-understood, routine, and conventional activities” is the wrong question. HP does have a point that “[a] claim that merely applies a new abstract idea . . . might not describe well-understood, routine, and conventional activities.” (For instance, a newly-discovered equation is abstract, but by definition not conventional).

Charles Bieneman too is still writing endlessly about Berkheimer [1, 2], as does his colleague/blog guest Mike McCandlish, who alludes to this recent decision from Judge Koh. To quote: “Claims from two out of three patents for providing haptic feedback to computer users survived a motion to dismiss based on a patent eligibility challenge under the Mayo/Alice test and 35 U.S.C. § 101. Considering their character as a whole, the court found that the claims were not directed to abstract ideas. Immersion Corp. v. Fitbit, Inc., No. 17-CV-03886-LHK, (N.D. Ca., March 5, 2018). The court held claims of a third patent to be patent-ineligible.”

That was just the latest of many examples of Section 101 being in tact and being effective.

Comparing Patent Judges to “Death Panels”

A few days ago, James Bollinger, who is a partner at Troutman Sanders in New York, wrote about § 101 and said: “Many of the existing pool of patents in software and diagnostics—fast growing and sizable market sectors—were invalidated in a single stroke. American Invents Act—Inter Partes Review of Patents.”

Very good. He continued: “These clearly high-stake cases were interspersed with the growing presence of Non-Practicing Entities (NPEs) [trolls] —patent pools, “trolls” and the like). These actions rarely involved large damage awards, but were characterized by multiple settlements for smaller amounts—settlements that however quickly grew to substantial sums.”

This sounded like a promising article, but further down the article said “Death Panels—The New Paradigm” — in effect comparing patent quality (again) to assassination. These people are radical, they’re mentally detached from reality.

Mass Invalidation of Software Patents Carries On

How about Mr. Gross, whose rants about PTAB culminate in actual acceptance that some IBM software patents are bunk? Or this other IBM patent application, which was rejected by an examiner but not by PTAB? Most of the time, like this past Friday, IBM’s patents are found to be invalid with few rejection reversals being noted and Berkheimer named aplenty. What we think we’re seeing here is growing acceptance that nothing has really changed after Berkheimer and PTAB is here to stay in its current form.

“Stupid Patent of the Month”

The EFF's Joe Mullin, in his latest example of “Stupid Patent of the Month,” has just mentioned Berkheimer as well. “A patent on “electronic tokens” is being used to sue small gaming studios,” the EFF wrote. “It’s exactly the kind of abuse we need the Alice decision to protect against.”

To quote the actual article:

Changes to the patent system, including the Alice v. CLS Bank decision, have helped make it easier for a company like Playsaurus to resist against a bogus patent demand. But Alice has threatened the trolling business model so much that it keeps facing threats, in both courts and Congress.

A recent decision called Berkheimer v. HP may make it much harder to defend a case using Alice. In Berkheimer, the district court invalidated a patent that described a system for “archiving and outputting documents.” But the district court judge was overturned on appeal, when the U.S. Court of Appeals for the Federal Circuit held [PDF] that whether or not a technology was “well-understood, routine, and conventional” is a factual determination that requires more proceedings.

This ruling could undermine a key benefit of Alice: namely, that patent defendants shouldn’t have to engage in expensive discovery and trial proceedings to negate patents that are abstract on their face. The defendant in that case, HP, has asked the full Federal Circuit to reconsider that decision, and we agree that it warrants the court’s attention.

Businesses like Playsaurus shouldn’t have to go through extensive discovery and motion practice to prove what real innovators in their industry know: e-tokens are an abstract idea and not eligible for a patent. Neither are ideas like tracking a package, or remotely diagnosing an illness, or holding a photo contest. The Alice decision is indispensable to small businesses that are being held up by such patents, and it’s worth protecting.

Berkheimer did not change much in practice. But it’s just mentioned a great deal nowadays, especially in articles composed by the patent microcosm and by groups that have Koch-funded roles.

§ 101-Hostile Scholars Unnamed

IAM’s Adam Houldsworth now shelters new propaganda behind more paywalls, so it’s hard to tell if these “law professors” that it named the other day are those notorious Koch-funded ones who attack PTAB and promote software patents for a salary.

The patent trolls’ lobby, IAM, wrote this:

Lower courts in the US have been applying overly-restrictive criteria for patent-eligible subject matter that conflict with Supreme Court precedents, six prominent patent law scholars have claimed. It is this misapplication of the Alice-Mayo test, they say, rather than the Supreme Court Alice decision itself , that has made it unduly difficult to protect diagnostic method patents since 2014. The argument is made in an amicus brief recently submitted to the Court of Appeal for the Federal Circuit in support of the Cleveland Clinic Foundation’s attempt to reverse the cancellation of its patents covering diagnostic methods for atherosclerotic cardiovascular disease.

There are no links and no names, except for subscribers. We can only imagine who these scholars are and who they are affiliated with.

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