THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world -- including the US, Australia and Canada -- are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.
A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.
There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg's words, as soon as the patent holder puts something "into the stream of commerce", the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice's patent interest in that widget was exhausted by that first sale to Bob.
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We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.
At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.
"It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment."Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It's good news to everybody but lawyers (remember where Iancu came from).
Seeing that there's no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. ۤ 101). It's a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry's section of Bloomberg wrote some days ago:
House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.
Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.
“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.
"The person in question is an Internet troll, not just a patent troll."It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the
Federal Circuit's stance.
It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.
Speaking of SCOTUS, mind last night's article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. "Calling a company a patent troll is not defamatory," Masnick asserted. Here's the introduction:
Over the years, there have been a few attempts -- usually by companies that most of us would call patent trolls -- to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the "patent troll" name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.