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05.13.18

Alice/Section 101 is Fine Because Copyrights Already Cover Software and Patents Are Inadequate for Code

Posted in IBM, Law, Patents at 1:48 am by Dr. Roy Schestowitz

But IBM, Watchtroll et al continue to set up lobbying events against Section 101 (not to mention jurist-bashing tactics)

Patent Lawyers' Tears

Summary: The world has moved away from (or beyond) software patenting and companies/firms that rely on such patents try to sabotage progress, sometimes by bashing courts

THE world generally rejects software patents. Sure, the EPO and USPTO make it possible to overcome restrictions using buzzwords and semantic tricks; but courts and appeal boards (BoA/PTAB) aren’t quite falling for it.

“…Bangladesh should reject software patents like the rest of the world (bar China) does.”Hours ago we saw this new article from the Dhaka Tribune. It’s titled “Minister urges for immediate measures to reform IP laws for ICT” (the term “ICT” is one of those notorious buzzwords that the EPO likes to use). But Bangladesh should reject software patents like the rest of the world (bar China) does. Here’s the core paragraph:

Thanking Tina Jabeen for her passionate efforts to secure proper sustenance for the budding startups in the country, Mustafa Jabbar took a trip down the memory lane to elaborate the upward transition of the ICT sector in Bangladesh. “Back in our time there was no procedure to register a software, but when there is a will, there’s way and I kept applying for the patent of my product despite repeated rejections. When I applied for the patent in 1992, there was not a single person in the responsible department who could examine the product,” he told the audience about his struggle to patent the iconic software Bijoy. “Fortunately for me, an official came to my rescue and took the responsibility to inspect. It was in 2004 when I reapplied and it took four full years for me to finally get the patent. However, things have drastically changed and the procedures are way simpler now,” he added.

This almost perpetuates the false assumption that one patent covers an entire program, potentially conflating copyrights with patents. He speaks of a “procedure to register a software” as if patent applications are a registration process.

“He speaks of a “procedure to register a software” as if patent applications are a registration process.”Mythology about patents has become widespread. Patent maximalists like to ‘name-drop’ “innovation”, “protection” and so on. They typically admit that they never even wrote a computer program. They don’t understand programming.

The other day, writing about Tesla's latest legal ordeal, Josh Landau (CCIA) said that “Nikola got it all wrong.”

The “Cult Of Patents” has basically created an untenable situation where stuff covered by copyrights is now being patented too: designs!

To quote Landau:

Last week, Nikola sued Tesla over advanced technology trucks. But it isn’t about the technology. It’s not AC vs. DC or Edison vs. Tesla. It isn’t even about electric vehicles (or hydrogen-electric trucks, Nikola’s chosen technology).

It’s about the shapes of windshields and doors. It’s about design patents.

And Nikola got it all wrong.

[...]

Different curvatures, a gentler rounding at the bottom right corner and a sharper one at the top. The Tesla windshield also exhibits a significantly larger difference between tallest and shortest portions, extending much further down the nose of the truck.

And that’s just the infringement argument. If you want to claim that your wrap windshield patent covers all wrap windshields, I think that Italian automaker Lancia (among many, many others) might have had something to say about that around 40 years ago.

How does one get a patent on mere curves? What would Bézier say? Why are windshield patented? Who’s responsible for such a patent grant?

Unfortunately, among patent maximalists at least, this is considered to be “normal”. They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.

“They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.”Consider Watchtroll’s tweet from a few days ago: “Matt Troyer from Anaqua predicts Patent No. 10,000,000 will issue on June 18, 2018, and it will be issued to Qualcomm on Application 13/666670.”

This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!

The corresponding article is titled “Predicting Patent Number 10,000,000″ and it was composed by Matt Troyer from Anaqua, basically a bunch patent maximlists who profit from an abundance of patents (that’s what their product is for). The greater the number of patents, the more messy the repository of US patents will become. So they sell “solutions”. Now they obsess over the 10,000,000 mark (as laughable as it is; there aren’t 10,000,000 inventions). As readers may recall, they did this some months back and we wrote several rebuttals to their nonsense. It’s not as though the sheer quantity is what’s worth celebrating; they should speak about quality.

“This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!”It has, in the meantime, emerged that IBM implicitly attacks the US Supreme Court for doing the right thing about patents (namely improving patent quality) and it also uses former USPTO and IBM staff to lobby on it. We see that the Koch-funded think tankers, people who are paid to attack PTAB, are really boosting David Kappos this month. It’s about IIPCC (US IP & Innovation Policy). Kevin Madigan wrote: “Former @uspto Director Dave Kappos: the US #patent system has been degraded by standard setting organizations that are stacked against innovators [] Qualcomm’s Laurie Self: with the onset of 5G, the patent system must help protect the massive amount of investment in R&D that has revolutionized cellular technology…”

Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others. Watchtroll has just boosted it. Watchtroll plays a major role in this propaganda. They’re perpetuating the lie about “uncertainty” (“uncertainty created by the Supreme Court”) and just prior to it Watchtroll had this article from Manny Schecter (IBM) in which he again attacked Section 101 and the Supreme Court. IBM continues to associate with and write for judge-bashing maniacs who promote patent Armageddon. This, to us, shows that IBM not only promotes software patents but deserves bankruptcy. It’s an enemy of software developers.

“Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others.”Schecter’s concluding words: “And now, as we embark into the unknown with nearly limitless computing power in the fields of quantum computing, artificial intelligence, cyber security, medical diagnostics, and biotechnology, and in fields that have not even been thought of yet, do we really want to continue with a weakened patent system that throughout our history played such a key role in promoting “the Progress of Science and useful Arts” to bring us to this technologically-advanced state?”

It didn’t take long for Watchtroll’s Gene Quinn to attack the courts again. The following day he published an article titled “Is the Supreme Court anti-patent?”

This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.

Speaking of Alice, it was mentioned on the same day as Schecter’s article:

What kinds of trends are you seeing in patent law? The one that’s kind of a little bit of an old story right now is the Supreme Court’s 2014 Alice decision, which says you cannot patent an abstract concept.

That includes software/algorithms.

“This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.”Meanwhile, in another public forum (think tank), IAM reported/quoted: “MacKenzie – i might be in a minority but i like where Alice [101] is right now. if you have to read a claim 10 times and you still have no idea what it’s claiming then that’s bad…”

When one has a crooked boss like Battistelli (at the EPO) this means that the examiner gets all confused, grants a patent anyway. Later this weekend we’ll show some of the latest buzzwords and tricks being employed. Scholars Michael Frakes and Melissa Wasserman recently wrote about this phenomenon in relation to the USPTO.

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