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

08.08.18

Patent Maximalists — Not Reformers — Are the Biggest Threat to the Viability of the Patent System and Innovation

Posted in America, Patents at 4:20 pm by Dr. Roy Schestowitz

Rants about PTAB, Alice and so on merely make things worse. Limits exist for a reason and these limits need to be honoured.

Low maximum speed

Summary: Those who strive to infinitely expand patent scope are rendering the patent system obsolete and completely losing sight of the very purpose of the patent system, whose sanity US courts and lawmakers gradually restore (one ruling and one bill at a time)

THE USPTO will have granted fewer patents than before by year’s end. Recent numbers (a subset of the total) reaffirm rumours we’ve heard about that. That’s not bad news. To patent law firms that may be bad, but for society at large this may simply mean that patent quality is improving, unlike at the EPO, as we've just noted.

“Not every patent represents an invention; some are more like a rendition.”Not everything needs to be patented. Not every patent represents an invention; some are more like a rendition. Like music. It is not hard to understand that design patents are rubbish and the Supreme Court (SCOTUS) ought to reassess their necessity, or the lack thereof. We continue to be amazed at the sorts of design patents that we find out there; here’s a new example from Apple. Why are these not being covered solely by trademarks and copyrights, which already cover software as well (the latter does)? I suppose hardware patents (like these new ones) are OK and I’ve no real issue with those assuming prior art search was properly done and the innovative steps are sufficiently large.

“Watchtroll has created a caricature of the patent system. Judges are being mocked, courts that simply apply the law are being dubbed “anti-patent” and technologists themselves (or those who support them) are constantly derided.”Patent maximalism is a threat to the patent system because it merely serves to harm the legitimacy of this system. This means that whenever courts push back against patent maximalists they actually guard the patent system. PTAB, for instance, is still being supported by the Federal Circuit (as usual). Earlier today Patent Docs wrote about Otonomy, Inc. v Auris Medical, AG. To quote the gist of it all: “The Federal Circuit also affirmed the Board’s determination that certain claims of Otonomy Inc.’s application are not anticipated by the publication of Auris Medical’s International application. [...] The Federal Circuit therefore affirmed the Board’s determination that the WO ’949 does not anticipate Otonomy claim 38.”

Watchtroll has created a caricature of the patent system. Judges are being mocked, courts that simply apply the law are being dubbed “anti-patent” and technologists themselves (or those who support them) are constantly derided. Here comes Watchtroll ‘chum’ Steve Brachmann (simply a writer) mocking PTAB again. Watchtroll did it again today and yesterday it was Burman York (Bud) Mathis III with a rant about PTAB, Alice and so on. To quote a portion:

For those patent professionals and inventors who are not yet convinced that the exceptions to § 101 under Alice/Mayo are not presently swallowing the rule, I invite you to read the district court decision of American Axle v. Neapco. As a spoiler, I’ll tell you that the district court judge addressed the inevitable pesky preemption issue by citing Ariosa. While the Federal Circuit has yet to decide the case, which involves an apparently novel and non-obvious way to dampen engine vibrations, I am not hopeful given the Federal Circuit’s love for Ariosa, and the fact that internal combustion engines are ubiquitous and really, really old things.

Well, § 101 is something to be celebrated, not opposed. They protest what simply doesn’t serve their financial agenda; never mind if their business is nontechnical. So does this blog called “patents4software”, which has just published “Is Machine Learning Technology Going to be Collateral Damage under the Abstract Idea Exception?” [via Janal Kalis, a.k.a. Patent Buddy]

Of course. These are just software patents (glorified with buzz/hype) and they are thus invalid; they’re false ‘trophies’. They don’t represent inventions. I say this as someone who spent years working in the area of Machine Learning (I wrote detailed reports on it even a decade and a half ago). The blog says: “My colleague Janal Kalis identified 21 PTAB decisions directed to machine learning patent applications published since 4/1/2018. According to Janal, seventeen of the patent applications considered had been rejected by examiners with 101. The PTAB affirmed examiners’ 101 rejections in 16 cases and reversed in only 1 Case.”

“…§ 101 is something to be celebrated, not opposed.”We mentioned this a few days ago.

Either way, the improvement in patent quality is something that society at large should praise, not condemn. We recently wrote about how patent maximalism reduced choice in the market (Arista’s loss). That’s still in the news today and yesterday [1, 2, 3]. Cliff Saran wrote:

Arista Networks has settled its ongoing patent dispute with Cisco, making a payment of $400m to its rival.

Arista got into a legal spate over 14 Cisco patent infringements in December 2014. While Cisco claimed patent infringement, Arista argued that Cisco went after it because it was gaining share in the lucrative datacentre market.

Cisco — like IBM — makes technical people better aware of its real intentions, which are to guard a monopoly and profit from patents rather than sales. This is what patent maximalism generally leads to. It’s bad for society; it’s a fat ‘thicket’ (about 100,000 patents for some companies) which increases barrier to entry.

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 3/4/2020: Ubuntu Beta, GNOME 3.36.1, ExTiX LXQt Mini, NetBSD 8.2 Released

    Links for the day



  2. Digital Communication, Digitalisation and Videogaming Among the EPO's Latest Smokescreens for Illegal and Abstract Patents on Algorithms

    The EPO keeps liaising with the EU to promote patents which EU officials have themselves said were illegal; to make matters worse, the EPO's violations of its own laws inspire the United States to do the same



  3. Emotional Blackmail for Illegal Software Patents

    Semantic tactics the European Patent Office (EPO) uses to promote software patents in Europe and may theoretically use in the future (satire)



  4. Clear Linux is to GNU/Linux What Clearly Defined is to Open Source

    The idea that we need Intel to take GNU/Linux ‘mainstream’ is ludicrous; as OSDL co-founder (now succeeded in the flesh of the Corporate Linux Foundation), Intel is more about Linux (with DRM, “secure boot” and everything that lets it be remotely controlled) than about GNU and it’s not too keen on GPL (copyleft), either



  5. IRC Proceedings: Thursday, April 02, 2020

    IRC logs for Thursday, April 02, 2020



  6. Links 2/4/2020: Linux 5.6.2, Qt Creator 4.11.2, LineageOS ROM Based on Android 10

    Links for the day



  7. OIN in 2020 Resembles Linux Foundation in 2020 (Corporate Front Group Piggybacking the Linux Brand)

    We regret to say that the Open Invention Network seems not to care at all about Software Freedom; to make matters worse, it is a proponent of software patents and a voice for companies like IBM and Microsoft, not the "Community" it fancies misrepresenting



  8. Inside the Free Software Foundation (FSF) - Part IX: Semi-Happy Ending

    Richard Stallman is here to stay and the FSF will let him stay (as chief of GNU); we want to close the series on a positive note



  9. IRC Proceedings: Wednesday, April 01, 2020

    IRC logs for Wednesday, April 01, 2020



  10. Upcoming Articles and Research Areas

    Although we've failed to write as much as usual, we're still preparing some in-depth articles and maintaining Daily Links (in spite of unforeseen ordeals like a forced laptop migration)



  11. Links 2/4/2020: ProtonMail Bridge for Linux, GTK 3.98.2 and Red Hat DNF 4.2.21

    Links for the day



  12. Links 1/4/2020: Linux 5.7 Merges, Qt 5.14.2, GhostBSD 20.03, Linux Mint 20 Ulyana Plans, WordPress 5.4 “Adderley”

    Links for the day



  13. IRC Proceedings: Tuesday, March 31, 2020

    IRC logs for Tuesday, March 31, 2020



  14. Techrights to Delete Articles From All Past Years to Save Disk Space

    What if we deleted over 25,000 posts?



  15. IRC Proceedings: Monday, March 30, 2020

    IRC logs for Monday, March 30, 2020



  16. Links 30/3/2020: GNU Linux-libre 5.6, WireGuard 1.0.0

    Links for the day



  17. IRC Proceedings: Sunday, March 29, 2020

    IRC logs for Sunday, March 29, 2020



  18. Links 30/3/2020: Linux 5.6, Nitrux 1.2.7, Sparky 2020.03.1

    Links for the day



  19. The Fall of the UPC - Part IX: Campinos Opens His Mouth One Week Later (and It's That Hilarious Delusion Again)

    Team Campinos said nothing whatsoever about the decision of the FCC until one week later, whereupon Campinos leveraged some words from Christine Lambrecht to mislead everybody in the EPO's official "news" section



  20. Pretending EPO Corruption Stopped Under António Campinos When It is in Fact a Lot Worse in Several Respects/Aspects (Than It Was Under Benoît Battistelli)

    Germany's eagerness to keep Europe's central patent office in Munich (and to a lesser degree in Berlin) means that politicians in the capital and in Bavaria turn a blind eye to abuses, corruption and even serious crimes; this won't help Germany's image in the long run



  21. IRC Proceedings: Saturday, March 28, 2020

    IRC logs for Saturday, March 28, 2020



  22. Links 28/3/2020: Wine 5.5 Released, EasyPup 2.2.14, WordPress 5.4 RC5 and End of Truthdig

    Links for the day



  23. IRC Proceedings: Friday, March 27, 2020

    IRC logs for Friday, March 27, 2020



  24. The Fall of the UPC - Part VIII: Team UPC Celebrates Death, Not Life

    Team UPC plays psychological games now; it is trying to twist or spin its defeat as good news and something to be almost celebrated; it is really as illogical (and pathetic) as that sounds



  25. Links 27/3/2020: GNU/Linux Versus COVID-19 and Release of GNU Guile 3.0.2

    Links for the day



  26. When Your 'Business' is Just 'Patent Portfolio'

    Hoarding loads of patents may seem impressive, but eating them to survive is impossible if not impermissible



  27. LOT Network is a One-Man (Millionaire's) Operation and Why This Should Alarm You

    The ugly story of Open Invention Network (OIN) and LOT; today we take a closer look at LOT and highlight a pattern of 'cross-pollination' (people in both OIN and LOT, even at the same time)



  28. Faking Production With Fake Patents on Software

    The EPO with its illegal guidelines (in violation of the EPC) can carry on churning out millions of fake patents that European courts would only waste time on and small companies be blackmailed with (they cannot afford legal battles)



  29. With the Unified Patent Court (UPC) Out of the Way Focus Will Return to EPO Corruption

    Expect the European Patent Office (EPO) to receive more negative attention now that the ’cause’ of UPC is lost and there’s no point pretending things are rosy



  30. IRC Proceedings: Thursday, March 26, 2020

    IRC logs for Thursday, March 26, 2020


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts