05.26.19
Much Ado About Senators Tillis and Coons (Who Failed in 2017 and in 2018)
Politicians ‘bought’ by the “legal industry” work for the “legal industry” (as if law is up for sale, a form of bribery and overt corruption)
It’s not bribery if they call it “campaign contributions” (right?)
Summary: The patent microcosm is attempting to buy laws that supersede the US Supreme Court (SCOTUS) and remove/weaken U.S.C. § 101 as well as PTAB while their blogs and sponsored ‘articles’ serve as lobbying vehicles
AT the end of last year and again at the start of this year we repeatedly stated we’d cover American patent affairs a lot less. Especially pertinent court cases, as opposed to affairs and policies at the U.S. Patent and Trademark Office (USPTO). We still put many news references about US patent cases in our daily links, usually without further remarks (most show 35 U.S.C. § 101 being applied to squash bogus US patents; the Federal Circuit cites Alice/SCOTUS).
“Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them!”We don’t wish to dwell on or spend too much time covering the latest nonsense from Senators Tillis and Coons. We thought they had disappeared already (as they typically do when this subject comes up), but the patent microcosm refuses to let go. It’s treating old news as ‘new’, so let’s just do a quick rebuttal.
Without a doubt software patents are a bad idea; just ask actual software professionals. Ask them! Who wants these patents? Typically lawyers. So-called ‘patent professionals’. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are a good idea because they help squash software patents that ought not exist. Thus, it’s hardly surprising (it’s very much predictable) that the so-called ‘patent professionals’ want PTAB obliterated along with 35 U.S.C. § 101. Follow the money; it’s about litigation dollars.
As someone put it the other day [1, 2]: “You don’t like patents. That’s a fine position to take. OSS is based entirely on patent law. If you want free software, you are free to continue wanting that. It’s a good thing, too. But [...] companies can be sued for any software they produce if the copy and patent rights are not indemnified. Starting about 1980, when US laws changed, the world of open source (not free) software has created donations to ensure that users of patents and copyright could not be sued…”
At the moment, with Alice/35 U.S.C. § 101 in place, the risk is greatly reduced. This also means that lawyers are becoming ever more obsolete. We don’t need them and we can spent more time coding. We sleep better. We share code.
Lawyers, suffice to say, aren’t happy. They think they’re entitled to the job of preying on our trade. They want their “share” (legal bills) — in essence a tax on abstract things.
Here we see Michael Borella of the litigation lobby eager to bring software patents back. Eileen McDermott of Watchtroll says “Draft Text of Proposed New Section 101 Reflects Patent Owner [sic] Input” (Watchtroll wrote a few more posts to that effect before the weekend).
Borella’s blog colleague, Kevin E. Noonan, is also having a go at it (with a sponsored copy at JD Supra for extra audience). So this pack of patent maximalists is currently very busy trying to give visibility to bad bills that have failed for years (to bring software patents back to the US).
What these patent extremists call “Bipartisan” (e.g. here, a site advocating patents on life) isn’t really that; it just has two politicians from two parties. They’re involved in particular interests/sectors, not party tribalism. It’s an attack waged by the litigation ‘industry’ against everyone else. That has nothing to do with political parties.
One can certainly expect Janal Kalis to amplify all the above. Mr. Kalis cites anything he can get his hands on to prop up the ludicrous bills. But don’t expect Kalis to cite those whom he doesn’t agree with (he even blocked me in Twitter, where I never block anyone). Here we have CCIA’s Josh Landau with a rebuttal titled “Senators Tillis and Coons Draft Fundamentally Flawed § 101 Legislation” (pretty long). To quote:
Today, staff from Senators Tillis and Coons will sit in a room with a group of stakeholders—primarily patent lawyers and lawyers from the pharmaceutical industry—and discuss their recently released draft for a § 101 bill.
That draft bill reflects little of the careful input that has been provided to the Senators over the course of the past five months, including hundreds of pages of data and suggestions explaining the concerns that the proposed legislation creates.
Instead, they’ve produced a bill that would eliminate hundreds of years of case law and replace it with untested, unclear language that will fail to provide crucial protections against vague, abusive patents. At the same time, the draft legislation would create completely new uncertainties about what is and is not patentable—the exact opposite of the predictability that Senator Tillis claims to want to promote.
So the only ‘news’ is that they decided to “sit in a room with a group of stakeholders,” that’s all. Benjamin Henrion apparently panicked about it and wrote: “US law proposal to restore software patents, stacked “meetings” with no software developer on board “stakeholder meetings on the Hill (next June 4th, 5th and 11th)…” (citing, via this tweet, an ‘article’ from Scott McKeown, basically preaching from a law firm). Any substance to it? Let’s see. To quote: “U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representatvie Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), Chairman of the House Judiciary Subommittee on Intellectual Property and the Courts, and Steve Stivers (R-OH-15) released a bipartisan, bicameral draft bill that would reform Section 101 of the Patent Act.”
“The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that.”This is, again (as before), just a handful of people. To pass a bill they’d need hundreds of politicians. Prof. Dennis Crouch wrote: “The proposal also suggests further language be added to construe the statute “in favor of eligibility” and to expressly eliminate the non-statutory exceptions to eligibility.”
But why would anybody support this? How is this different from what Coons attempted in 2017 and then again in 2018 (in vain)? That’s just a broken old record, trying again what has repeatedly failed. The only ‘news’ here is that a bunch of people gathered in a room and spoke the usual nonsense about “Patent Owners” [sic] (they're not really owners).
Why will this bill not progress? Because there’s a lot of opposition to it. The law firms have lobbyists, sure, but so do technology firms and most are happy with the way things are.
A few days ago Mike Masnick was referring to Nielsen’s software patents by the correct term, “Patent Monopolies”. He sought to demonstrate what we’re dealing with here and said:
And it’s still using patent claims to stifle competition. Back in 2016, Nielsen bought Gracenote for $560 million just three years after it had been sold for $170 million. Just what could have represented so much value for Nielsen? Well, just a couple months before Nielsen bought Gracenote, Gracenote had sued a company called Sorenson Media for patent infringement. Sorenson Media had an “automatic content recognition” ACR platform for measuring viewers of TV broadcasting — exactly the market Nielsen wishes to maintain its monopoly over.
How did that turn out? Well, Sorenson declared bankruptcy last fall (in large part due to an incredibly stupid contract it had signed), but I’m sure the cost of a patent lawsuit didn’t help. Oh, and in February, Nielsen bought up Sorenson’s assets at firesale prices.
And that’s not all. Last year another small competitor, ErinMedia, sued Nielsen, claiming antitrust violations and that Nielsen was using “predatory practices designed to prevent competitive entry by companies like ErinMedia.” A few weeks later, the company announced that it was effectively shutting down, noting that Nielsen had “chilled” its ability to close an investment round.
Oh, and remember Arbitron? The company that was at issue back in the 1960s? Nielsen bought them a few years back, leading the FTC to put some conditions on the deal in hopes that it would not “substantially lessen competition.” So far that doesn’t seem to be working.
And that brings us to the latest Nielsen use of patents against an upstart competitor. Last fall, Nielsen sued upstart competitor Samba TV, claiming patent infringement. The patents at issue — 9,066,114, 9,479,831 and 9,407,962 — all are incredibly vague and generic, and appear to be the kind of patents that aren’t supposed to be allowed in a post-Alice world.
A decade ago we wrote about Nielsen in relation to Microsoft. In more recent years Nielsen made headlines in relation to its aggressive patent strategy, which it resorted to amid its demise. The likes of Nielsen probably give a lot of business to law firms, but they aren’t innovating. People generally understand that now and hence there’s growing hostility to what’s colloquially known as “patent trolls” — an epidemic in the US. The patent microcosm can go on and on speaking about their new ‘cult leader’ Coons and misuse words like “bipartisan”; but what they’re proposing is extremely unpopular and will likely vanish later this summer, just like it did last year and the year before that. We wrote many articles on this topic in past years. █
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