Summary: A roundup of news of interest regarding patents, especially software patents whose impact on Free/Open Source software is exceptionally profound
THE NEXT couple of weeks will be quiet for this site because we’re taking a two-week break. Before we go, however, here are some important news from around the world.
There is an EPO demonstration tomorrow. It tackles issues that relate to human rights, not to software patents or the UPC, but nonetheless, those latter issues too are a growing threat to European interests. According to a lawyers’ site, UPC’s “new regime will sit alongside rather than replace the existing patent system and will therefore require businesses to make careful choices about how they intend to protect their inventions and enforce their patent rights.
“The decisions they take could affect their patent litigation strategy and exposure to risk for years afterwards.”
All one needs to know about it is that it is going to empower international/multinational companies and their patent lawyers. For everyone else it’s a slap on the face.
We have been writing a lot about India as of late, in relation to software patents. Dr. Glyn Moody has a good article on this subject, comparing what India is doing right now to what Europe has been doing in recent years (since the Alison Brimelow days). To quote Moody: “These are very similar to the exclusions listed in Article 52 of the European Patent Convention (EPC), which governs patent law in Europe. And where the EPC uses the phrase “as such” when it comes to computer programs, the India exclusions contain the equivalent phrase “computer programme per se”. As Techdirt readers know, the inclusion of “as such” as a qualifier to the exclusion of computer programs from patentability has opened up a huge loophole through which clever lawyers have driven many thousands of software patents. The fear — quite justified — is that exactly the same will happen in India because of the new guidelines’ interpretation of what that “per se” phrase means…”
Indians will hopefully stand up and fight this injustice. It’s a form of colonialism in the patents sense, akin to what large pharmaceutical companies are trying to do in this vast market (many potential ‘customers’).
A few days ago we learned about yet another defeat for software patents in the United States.”Five Blue Spike Patents Killed by Alice/101,” Patent Buddy wrote the other day, linking to this decision
[PDF]. Notice the defendant; it’s a common target of Microsoft.
The patent maximalists from IAM are meanwhile reporting that ZTE, an Android player which we mentioned here recently for patent assaults on it (from Microsoft and its trolls), wants to “develop high-quality patent assets” (complete nonsense expressed using the language of patent propagandists). To quote the maximalists: “The average US consumer might not be familiar with the ZTE brand, but the latest figures from global intelligence firm IDC show that it has moved into fourth place in the American smartphone market, behind Apple, Samsung and LG. The Chinese company grabbed an 8% share of sales in the second quarter, up from just 4.4% at the start of 2014. ZTE has not exactly consolidated its gains yet, but its impressive growth offers a tentative success story for other would-be market entrants from China.”
The last thing ZTE needs in the world, including the lucrative US market, is more patents. Let’s hope that the US system will be healed over time, obviating the perceived need for such wasteful strategies that artificially elevate the price of products (lawyers’ tax).
“Let’s hope that the US system will be healed over time, obviating the perceived need for such wasteful strategies that artificially elevate the price of products (lawyers’ tax).”Reporting from the AAMA webinar, AAMA Info wrote: “The patent troll itself admitted that less than 3 percent of such lawsuits ever make it to trial,” adding that “97% settlement rate suggests a very good return on investment for the patent troll!”
Matt Levy wrote that he “was on a panel the other day discussing patent reform, and a funny thing happened. While we disagreed about a number of aspects of patent reform, basically everyone on the panel agreed that it’s ridiculous for one district (i.e., the Eastern District of Texas) to host so much patent litigation.
“Even those on the panel who didn’t like the current venue provision in the Innovation Act felt that it just needed some small tweaks in the language. They agreed with the basic approach of venue reform.”
We are still hopeful and very much positive about the US patent system because it seems to be moving more in the direction of hostility towards software patents, whereas India and Europe go the other way. █
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Fueling patent lawyers’ propaganda mill, antagonising scientists
“Along with many other computer scientists, I would like to ask you to reconsider the current policy of giving patents for computational processes.
“There are far better ways to protect the intellectual property rights of software developers than to take away their right to use fundamental building blocks.
“I find a considerable anxiety throughout the community of practicing computer scientists that decisions by the patent courts and the Patent and Trademark Office are making life much more difficult for programmers. ”
–Professor Donald Knuth, world renowned algorithms researcher
Summary: The infamous attorney from IBM, who later worked for the ‘Intellectual Property’ [sic] establishment and became Director of the United States Patent and Trademark Office (USPTO), promotes the fiction that software patents are good for the US, despite them helping patent trolls and monopolies/oligopolies (like IBM)
THERE has been somewhat of a stir and a reaction to this paper in favour of software patents
[PDF]. It has, as expected, been promoted by pro-software patents sites (and suffice to say, that practically means patent lawyers’ media). There is pushback from people who actually deal with software, including software developers.
“Kappos apparently knows better than the courts what’s good for the country.”Calls to counter the author, who despite courts’ rulings still wants to guard software patents, could be found online, including in IP Watch. Hugo Roy (FSFE) reacts with: “Arguing that the US software market is thriving *because* software is patentable there.”
This makes no sense at all, but then again, consider who the author is. It’s the former head of the USPTO, who repeatedly pushed for software patents, defended them, arguably expanded their scope, and collectively belittled their critics, just like his former employer (IBM). He is not a scientist but a lawyer or “an attorney” (putting aside a bachelor’s degree from over three decades ago). He is current Partner at Cravath, Swaine and Moore, i.e. a law firm. David Kappos is a proponent of software patents, which are falling, failing, burning and crashing after the SCOTUS ruling on Alice. Kappos apparently knows better than the courts what’s good for the country. Here is what IP Watch wrote last week:
In a clarion call to policymakers, former United States Patent and Trademark Director David Kappos said recently that this year’s unprovoked drop in patent filings in the United States is unprecedented and signals a shift toward more secrecy by inventors trying to protect their ideas. Meanwhile, the US trend toward antitrust actions at home is having deleterious effects for US businesses overseas, he said.
The paper from Kappos is long, so we have not read it yet (only took a glance). It’s too long to rebut on a point-by-point basis, unless we spend a day or so embarking on the task (it’s a resources issue, not a feasibility issue). Based on the above, Kappos tried to excuse the fall of patents by blaming it on “secrecy by inventors” (no pursuit of monopolies with a negative connotation like secrecy, as if they’re doing something suspect or suspicious). To be fair, it’s not a direct quote from Kappos, but if that’s a point which he actually made, then his argument is extremely weak. Pretty much all arguments in favour of software patents (weighing the downsides too) are ludicrous at best, especially when viewed from the angle of software developers. Kappos’ message was only promoted by pro-software patents sites and patent lawyers’ media, as one might expect. We are talking about sites like ManagingIP, which are now organising “European Patent Reform Forum in Munich” (almost definitely stuffed with patent lawyers and no scientists on the panel/s).
IAM, another site of patent lawyers, has been repeatedly arguing with me over at Twitter (for 3 days in recent days) about its biases and views on patents. They are so easy to beat in a debate that they end up admitting that the “vast majority of patents” have no value and “do nothing”. Yes, they actually said that, contradicting their own marketing pitch. These people even tried to oppose the characterisation of patents as a monopoly, even though David Kappos was quoted as calling them a “20-year monopoly”.
Here is IAM showing us that the “worldwide head of IP strategy at IBM” is now moving on, just like Mr. Kappos. Here is where he is heading: “European licensing powerhouse Technicolor has made a major new appointment. Arvin Patel – previously senior VP of IP and licensing at Rovi, and before that worldwide head of IP strategy at IBM – has joined the French company as its chief IP officer.”
He is joining somewhat of a patent troll, or a patent aggressor at the very least.
Recall the time when IBM’s patent chief/strategist (Marshall Phelps) defected to Microsoft and established the company’s patent war against GNU/Linux and Free software, which IBM pretends to be ever so supportive of (despite IBM being a predominantly proprietary software company that lobbies for software patents all around the world and uses them aggressively for income).
TangibleIP (patents booster) said the other day to another patents booster that “companies such as IBM have a “Troll Division”..IP industry allowing anti-Troll agenda to propagate is not our finest hour” (well, the term “IP industry” is laughable because it cannot be an industry when it’s non-producing; it cannot be an industry at all. Imagine saying “copyright industry” or “trademark industry”).
“Recall the time when IBM’s patent chief/strategist (Marshall Phelps) defected to Microsoft and established the company’s patent war against GNU/Linux and Free software, which IBM pretends to be ever so supportive of…”Going back to the argument of Kappos (formerly IBM) in favour of software patents, he would have us believe that software patents — not military might and international lobbying power for example — give the US its advantage. Watch Japan enforcing a patent monopoly against China, as reported by IAM the other day. One thing that we noted the other day about China is that it allows people to patent software. It probably grants more patents on software than the US does. As Patent Buddy put it the other day: “It is now easier to obtain a software patent in China than in the United States.”
And yet, China does not dominate the field software, does it? Yes? No? Far from it! And Japan can still bully China using patents. There is basically nothing to be gained from such a strategy, unless patents are only to be treated as ‘trophies’ (assuming the perception that they’re analogous to innovation can be perpetuated for much longer).
Recall India’s policy on algorithm-related monopolies. India is making a terrible, suicidal move right now by deciding to allow software patents (this can still be stopped. Even without software patents Indian software developers have been doing pretty well, so why the sudden change? It’s probably designed to stop them (the ‘threat’ of commoditisation to multinationals). As one site of Indian patent lawyers put it a couple of weeks ago: “Last week was a busy week at our patent office!! The Controller General issued clarifications under the Designs Act / Rules, and these examination guidelines under the Patent Act / Rules. I will not do an analysis of the guidelines but simply extract out some relevant parts for our readers. For more our readers can refer to our previous posts on Section 3(k) here, here, here, here, and here, and others. These guidelines are extremely detailed and would definitely be helpful to practitioners, and patentees.”
Well, they are truly unhelpful to India itself, not just to its developers but also to local software companies. These patents would help multinational companies like Microsoft and IBM, not Indian companies, which makes one wonder who the Indian patent office actually works for. Software patents would help the likes of Microsoft and IBM crush low-cost competitors from India.
The US patent system, currently the ‘leader’ in software patents (and their birthplace), is an utter mess. “United 4 Patent Reform” demonstrates the extent of litigation by patent trolls and non-practising parasites. It says that “East Texas accounts for 44% of all patent case filings in 2015.” One even shows the following chart:
Is this what Kappos deems the success of the US system? Bear in mind that the large majority of these lawsuits involve software patents. Some estimate that as many as 70% of troll lawsuits would be eliminated if software patents were deemed invalid and no longer granted by the USPTO. Speaking of the USPTO, Kyle Bass, who was mentioned here as recently as last week (he had been manipulating stocks using patents), calls it a “Kangaroo Court”. To quote the Wikipedia definition of this term, “A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. Merriam-Webster defines it as a “mock court in which the principles of law and justice are disregarded or perverted”. The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court’s legal or ethical obligations.
“ARM sent patent threat letters trying to remove nnARM from the net”
–President of the FFII“A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun.”
In the above case we have Kappos, who used to head the USPTO, trying to overrule the rulings of many US courts, including (initially) the US Supreme Court. Who do these people think they are? Just like software patents themselves, Kappos makes a mockery of the US courts system and the US as whole.
Last but not least, let’s recall what IBM really is and where it stands on this subject. In reference to an ARM-IBM surveillance alliance (centred around ‘IoT’ hype), IAM wrote: “Absurdly, according to definitions used by many proponents of US patent reform, ARM should be regarded as a “troll”. ”
Well, ask no-one other than the President of the FFII (prominent opponent of software patents) what ARM has done to him. “ARM sent patent threat letters trying to remove nnARM from the net,” he wrote. ARM is not quite what it seems on the surface, It’s actually a British company, not a US company, but misuse of patents for (anti-)competitive purposes is something that Intel does too (it does even worse things).
Attributing the ‘success’ of US software companies to software patents is simply ignoring the facts and disregarding all software companies other than very few giants (except when they themselves were still small). █
“The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.” —Oracle Corporation, IBiblio: Oracle Corporation’s position paper on software patents (when Oracle was still small)
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“The genesis of this idea was when I was at Microsoft.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures
Summary: Intellectual Ventures suffers another major blow as Alice v. CLS Bank (Alice/§101) smashes software patents in the United States
WE finally have some more good news regarding Microsoft’s pet troll, Intellectual Ventures (IV), which has been funded by and works with Bill Gates.
Patent Buddy, which has been good at tracking the post-Alice aftermath, has found this followup to previous IV v. Capital One losses, “Second IV Patent Asserted Against Capital One Also Killed by Alice/101,” he claims, linking to this ruling
This is part of a broader trend because as Patent Buddy put it another day, “101 Patentability-USPTO Bypasses Substantive 103 Examination” (101 refers to Alice).
More software patents were being thrown down the drain by a judge last week. To quote Reuters: “A federal court in Delaware has invalidated a patent on multimedia messaging early in a lawsuit against some of the country’s largest cellphone providers, another example of a controversial trend that critics say wipes out patents before they are fully understood.”
“Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes.”“US business method patent applications down 52.4% since Alice,” moaned the patent lawyers in Twitter, pointing to their new analysis which states that: “Companies have pulled back drastically from filing business method patent applications in the US. Managing IP analysed figures for USPTO applications in patent class 705, the class covering “data processing” in which business method patents are placed.
“Patent applications in class 705 not only plummeted after the Alice decision on June 19 2014, but have kept tumbling.
“Some 8,620 class 705 patent applications were filed in the 12 months between July 1 2013 and June 30 2014. In the same period 12 months later, after Alice, the figure was 4,106 – a 52.4% drop.”
Patent maximalists that glorify the world’s biggest patent troll (IV) are now offering their ‘analysis’ (actually, offering by proxy), claiming that “Software Patents Are Resilient in the Wake of Alice Corp. vs. CLS Bank”.
Yeah, right. And the world is cooling down, too. According to News Corp. and other oil tycoons-connected ‘news’ networks. Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes. █
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Summary: Voices for patents are accepting the new order wherein software patents are hardly potent at all (and increasingly difficult to acquire)
TECHRIGHTS has chronicled the post-Alice aftermath and the demise of software patents in the United States for well over a year. We wrote about the subject dozens of times and gave examples of cases that demonstrate change, both at the courts (rulings against patents) and at the patent office (examination guidelines being tightened).
The USPTO‘s evolving guidelines for examiners are very much instructed by courts’ decisions. Each time a court invalidates a patent granted by the USPTO it serves to discredit the USPTO and decrease confidence in (or perceived worth of) USPTO patents. According to this interesting new post from a pro-patents blog, the “USPTO provides the following data on petitions challenging examiner decisions:
– the average decision time on petitions challenging a final Restriction Requirement is 91 days, with a 47% grant rate.
– the average decision time on petitions challenging the finality of a rejection is 46 days, with a 39% grant rate.
There are many more statistics there, based on petitioners’ data. Even more interesting, however, was this other pro-patents blog. Usually patent lawyers are denying the magnitude and weight of the Alice case, but this one admits the harsh reality (for patent lawyers):
Courts Everywhere are Finding Software Patents Invalid, So What Next?
The Supreme Court’s June 2014 ruling in Alice v. CLS Bank calls into question the eligibility for patent protection of these issued utility patents on computer software, and is a barrier to future applications on computer software. Alice and its progeny compel software developers to look beyond patents to protect their intellectual property. What are these alternatives? When and how can they be used?
In Alice, the Supreme Court found that an issued patent protecting high frequency trading software was invalid because it was directed to patent ineligible subject matter. Unfortunately, the Court provided little or no direction as to how to determine patent ineligibility. The Court said that a “patent-ineligible concept” is “an abstract idea.” So the natural next question must be: What is an abstract idea? The Court defined “an abstract idea” as “[a]n idea of itself,” or one that is “a fundamental truth.”
With the issued patent challenged in Alice, the Court used this definition to deem them directed to an “abstract idea” and therefore patent ineligible. But the Court did not explain how the patented claims were “drawn to the abstract idea of intermediated settlement” in the high frequency trading software realm. The Court did not pinpoint what fundamental truth the patents purported to protect such that they were ineligible.
We are gratified to see that people no other than the pro-patents crowd are coming to grips with the demise of software patents, even in the United States.
The threat of software patents in Europe persists, however, due to gross abuse by EPO management and other autocrats. “Software [is] not patentable in France,” wrote the President of the FFII today, “but French courts will be replaced by biased Unitary patent courts” (as covered here before). █
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Summary: Patent trolls throw stones in glass houses, contributing to their own unpopularity, but some influential “Conservatives” continue to defend (conserve) them
THE MANY loud calls and very persistent lobbying for a so-called patent reform in the US, notably the PATENT ACT [1, 2, 3, 4, 5, 6, 7, 8], won’t improve things, except perhaps for large corporations. They will, however, help put some additional burden on patent trolls, which is arguably better than what the US has got in place these days (trolls also target small businesses and startups with no legal budget). While fighting for big corporations’ protectionism, the lobbyists can help destroy some of the ‘little guys’ who are actually trolls, or ‘little trolls’ (not the big trolls with glorified brands and very high levels of revenue).
Mytheos Holt, who described himself as an Associate Policy Analyst with the R Street Institute (RSI is an entity which calls itself “Free-market think tank advancing real solutions to complex public policy problems”), wrote in the “Conservative” (GOP) media the other day. It’s yet another article in this site which challenges the “Conservative” stance on patent reform. Holt asks: “What do you call someone who supports Federal bureaucrats granting rights out of thin air, judges legislating from the bench about how those rights work, and spreads terror about technological progress (along with derogatory comparisons to Uber)?
“Sadly, some people seem to think you should call them “conservatives.”
“At least, that’s the only thing I can get out of looking at the so-called conservative opposition to patent reform, which just this week added yet more confusion to the debate when a group calling itself the Conservative Action Project put out a letter slamming the two major patent reform bills making their way through the House and Senate currently.
“It’s truly sad that this document could garner the signatures of the likes of Ed Meese and Club for Growth President David McIntosh, because as written, its concerns over patent reform are utterly contentless. It’s hard to talk of refuting arguments, when the arguments as presented mean nothing, but I will try for the sake of clarity.”
In conclusion, writes Holt: “Patent Reform will do something that conservatives have done since the days of William F. Buckley, Jr: It will stop people from pleading the case for bad ideas. It is a terrible shame that so many so-called “conservatives” are pleading that exact case.”
Sadly, a lot of self-acclaimed “Conservatives” (and GOP-leaning media) will continue to oppose patent reform and defend even large trolls such as Intellectual Ventures. IP Troll Tracker noted the other day that “there’s the option that Intellectual Ventures takes, which is to patent stuff so they can go sue people.”
Well, actually, Intellectual Ventures often just buys patents in bulk and then uses them aggressively, against a maximal number of weak (or affluent) targets. If this is the practice which “Conservative” are willing to not only tolerate but actively defend, what are they conserving? it’s a form of blackmail and racketeering in many cases. █
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Software patents demolition in the United States
Summary: The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls
WE RECENTLY gave many examples where Alice demolished software patents [1, 2, 3, 4, 5, 6]. The Alice v. CLS Bank case (at SCOTUS) led even the CAFC (overzealously in favour of software patents and their original endorser decades ago) to — believe it or not — overturning decisions/biases. They must all simply obey the new rules/laws and examiners at the USPTO cannot grant patents on software like they used to. It’s huge news, even if many news sites continue to overlook these developments (patent lawyers’ sites try to counter these worrisome — to them of course — developments and precedents using propaganda and cherry-picking of facts).
“Business method patent app[lications] get no respect,” says Patently-O‘s article, according to Richard Beem (patent lawyer). He just says (or whines) that it harms his parasitic business. “The chart above shows the USPTO patent grant rate across a variety of major technology areas,” says Patently-O, but notice the reluctance to distinguish software patents from the rest. The survey does not list “software” separately from other things. Therein lies a potentially strong bias, like that of the originator of software patents, Martin Goetz. He recently wrote no less than two articles dismissing altogether the existence of a “software patents” category/classification.
“If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court.”The EFF, taking note of some recent developments, writes about the quick demise of software patents in the US, owing to courts’ decisions (each reinforcing predecessors). “With Kafkaesque Flourish,” says the title, “the Eastern District of Texas Penalizes Parties for Following the Rules” (we have already written some articles about corruption in Eastern District of Texas courts).
The Eastern District of Texas is the worst court when it comes to patents (favourable to software patents and patent trolls who wield these). To quote the EFF: “In the wake of the Supreme Court’s June 2014 decision in Alice v. CLS Bank, most courts have been quickly and efficiently getting rid of patents that improperly claim “abstract ideas.” In Alice, the Supreme Court held that “abstract ideas,” without more, were unpatentable under 35 U.S.C. § 101. According to one source, at least 150 patents have had claims invalidated as “abstract” since Alice. Those accused of infringing these invalid patents have regularly filed motions to dismiss at the outset of a case, having the issue heard before too much time and energy is spent. Courts have, for the large part, embraced these “Alice motions” and invalidated abstract patents as soon as practicable.”
Here comes the new part: “Following the Eastern District of Texas’s unconventional rules, the defendants filed a letter asking permission to file their Alice motion. Given the potential for wasted time, effort, and money, the defendants very shortly thereafter filed a motion for a stay of the case while the court decided the issue of whether the asserted patent claims are invalid under Alice. The patent owner did not oppose the motion to stay. Presumably the patent owner also recognized that it was more efficient to hear the issue at the outset, without incurring costs that may prove to be wasted if the Alice motion is granted.”
It is nice to see Alice being brought up even in Eastern District of Texas courts. If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court. Even corrupt courts must sooner or later follow the law to avoid being throughly discredited and potentially abolished. █
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One important case has put potentially hundreds of thousands of software patents in a mass grave
Summary: Patent scope in the United States continues to be narrowed down as more software patents get their wings clipped
“US Pat 6,326,978, Display for selectively rotating windows,” wrote Patent Buddy was “Killed by CAFC” (using Alice as precedent).
This is consistent with the outcome of Alice (Alice v. CLS Bank at SCOTUS level) as we have covered it in the past few months [1, 2, 3, 4, 5].
Despite all this, patent lawyers say that “US software patent suits being filed at higher rate than in 2013″. To quote their sources: “An analysis of patent litigation by Managing IP using the Docket Navigator database has revealed that software patent lawsuit filing is not only up on 2014, but has rebounded to exceed the levels in 2013.
“When Managing IP last carried out this analysis in December 2014, the figures revealed a plunge in software lawsuit filing. This was attributed to the Supreme Court’s Alice v CLS Bank ruling on June 19, which held that merely claiming an abstract idea is insufficient to establish patent eligibility.”
Irrespective of the number of lawsuits, many of them are lost (legal toll becoming a burden to the plaintiff) because of Alice; that is very important. Patent lawyers are trying to convince their existing and prospective clients to keep patenting software, so they only tell part of the whole story.
“Patent scope is clearly a key problem.”It is clear that swpats (software patents’ shorthand) continue to collapse in the United States and this month is no exception. Examples continue to be covered, just not by media of patent lawyers (they lie by omission, as we have explained before).
“CAFC Refused to Re-Hear Case,” wrote Patent Buddy, “First Patent Kill by Alice” (the latest such example).
Here is some analysis which says: “In its first substantive application of Alice v. CLS Bank in 2015, the Federal Circuit has once again shot down claims for not meeting the patent-eligibility requirements of 35 U.S.C. § 101.”
When it comes to the USPTO, which adapts to these developments slowly but surely, a patent lawyer in London says that the judicial exceptions are now very broad.
Patent scope is clearly a key problem. It’s not about patent trolls, however they’re defined. Some sites continue to focus on “Companies Sued The Most Over Patents In 2015″ (without scaling for the size of companies, hence serving as propaganda that frames large corporations as the biggest victims), but we all know that the patents themselves, not the users thereof or the target of lawsuits, open the door to misuse, abuse, and anti-competitive behaviour, as our previous post demonstrated (Apple versus Android). █
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The UK silently adopts a worse patent system without even consulting the public
Summary: A collection of news stories about patents, accumulated over the past week or so
LAST week we observed quite a few ongoing patent cases, as well as new developments in Europe and the United States. This post summarises all the important ones.
The Economist Started a Massive Debate
In at least two articles, both of which published earlier this month, The Economist slammed the current patent system, alluding not specifically to the notorious US patent system. It’s a global problem, that’s for sure, as many systems are interconnected (more so over time, especially with so-called ‘trade’ deals afloat). It is very nice to see a respected British newspaper like The Economist (notable as the UK’s patent regime and copyright regime have historically been most overzealous) joining the opposition to it all, after all…
“In at least two articles, both of which published earlier this month, The Economist slammed the current patent system, alluding not specifically to the notorious US patent system.”Days later, citing The Economist, David Perry of Red Hat said that “more recently, it seems that the problem of patent trolls has captured the attention of a broader audience. Four years ago, NPR produced an episode of This American Life called “When Patents Attack!” And, four months ago, John Oliver devoted the bulk of his time on Last Week Tonight, to raising awareness about patent trolls. “Most of these companies don’t produce anything—they just shake down anyone who does, so calling them trolls is a little misleading—at least trolls actually do something, they control bridge access for goats and ask fun riddles,” he explained.”
Red Hat focuses on patent trolls again. “The patent troll problem is not a new one” is the headline. The Economist, however, did not focus on trolls at all. It’s regretful to see Red Hat distracting the debate again, moving us away from the core issues.
Another article, composed by Mike Masnick, offered a better response. “Once Again The Economist Thinks Patents Are Hindering Innovation And Need Reform” was the headline and citing The Economist, Jeff John Roberts of Fortune, a man who recently wrote some good articles about patents, published an article titled “Hey lawmakers, patents and innovation aren’t the same – here’s a reminder”. This too was motivated by the debate above. To quote Jeff John Roberts: “Patents mean more innovation, right? Sadly, that’s not the case as The Economist makes clear. In a terrific piece of writing in the August 8th issue, the UK magazine explains in clear language what has gone so wrong:
“Red Hat focuses on patent trolls again.”“Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils […]
“Innovation fuels the abundance of modern life. From Google’s algorithms to a new treatment for cystic fibrosis, it underpins the knowledge in the “knowledge economy”. The cost of the innovation that never takes place because of the flawed patent system is incalculable.”
“The Economist editorial comes at a time when patent reform is getting bogged down yet again in the U.S. Congress. If you’re keeping score, this is the third time in five years that lawmakers have tried to fix the system but, as before, the patent lobby is swooping down with money and dire slogans to grind the process to a halt.”
It has been nice to see the public debate changing somewhat (diverted away from “trolls”), owing to articles that question the system as a whole, not just parasitic elements in it.
Sadly, discussions about patent scope are almost inexistent. That’s a due to a failure of scientists to ‘butt in’ and become involved in the debate. Maybe it’s also the fault of journalists for not approaching scientists for their views.
Lobbying for and Against Patent Reform
Reform debate has been locked down. When the political system in the US speaks of patent ‘reform’ (especially these days but also historically) it basically speaks about “trolls”. Classic “patent troll”, as per definition, is a firm looking to make financial gain not from products (they do not exist) but from extortion. Patent trolls encourage and promote a non-producing economy for parasites to thrive in, nobody can deny that. Is it any better if products exist though? Companies like Microsoft have some products, but in many areas they act like parasites, preying on companies that actually have the lion’s share of the market (Android for instance). It should be clear by now that eliminating “trolls” alone would not end the problem. It’s therefore a misguided debate, driven for the most part by corporations, their lobbyists, and patent lawyers to whom they are top clients.
“It is important that the people who actually produce (actual products, not paperwork) provide their input regarding patent law, or else they will be misrepresented and the law steered against them.”Last week we saw an occupied media lobbying on patent ‘reform’ [1, 2, 3, 4, 5]. As expected, much of this comes from corporate media for corporate agenda [1,2],  (posted in other sites) is a “Case for Patent Reform” by Lee Cheng, the chief legal officer at Newegg, which is exceptionally proud of its fight against 'trolls', having done so for years. It receives recognition in this new piece titled “Don’t Be a Victim: Protecting Your Small Business from Patent Trolls”.  is a piece from the lobbyists’ media, composed by member of the “Independent Inventors of America”, who basically lobbies against the favoured reforms currently on the table. We sure wonder if this is just another lobbying piece from a front group pretending to be “inventor”. Lastly, in  we have greedy patent lawyers who openly call for expansion of patent scope. Where are the scientists in all this? It’s mostly lawyers again. It is important that the people who actually produce (actual products, not paperwork) provide their input regarding patent law, or else they will be misrepresented and the law steered against them.
We were rather amused to see greedy patent lawyers who openly call for expansion of patent scope trying a gross reversal of today’s reality and attempting distortion of facts, pretending that large corporations pass patents to startups (the ‘trickle-down’ nonsense), as opposed to troll-feeding by large corporations, so as to get their rivals attacked by trolls like MOSAID (renamed Conversant). Well, to be fair to patent lawyers, that’s just what they do for a living. They present a gross, biased, and often inaccurate picture of reality in order to get their way and win cases.
Patent Lawyers/Maximalists Against Patent Reform
Yet another lawyers’ firm, McCarthy Tétrault LLP, writes about what it labels “Google’s “FFF” patent plan”, noting: “These two initiatives build on Google’s effort to impact patent reform in the United States and beyond. Prior to these announcements, Google’s efforts included the launch of the Patent Purchase Promotion in April (which we discussed here). Google has not officially released any information on the outcome of the Patent Purchase Promotion but Kurt Brasch, a lawyer at Google, reported that the program was a big success. In a phone interview with Fortune.com Mr. Brasch stated that the company bought numerous patents at purchase prices ranging from $3000 to $250,000.”
“Google cannot fend off patent trolls, so its claims to be helping startups with its patents are just marketing.”Google claims that it helps startups, but this won't work. Google’s IBM-like strategy was talked about by other sites of patent lawyers (covered in brief along with expected protests against the aforementioned reports from The Economist).
Here is what IP Troll Tracker wrote about Google’s strategy when it comes to a startup it supports: “Google would rather shutter the venture than try and fend off the lawsuit, unless the Ordrx software were already pulling in mountains of money.”
Google cannot fend off patent trolls, so its claims to be helping startups with its patents are just marketing. Fortune‘s Jeff John Roberts said so too. That was just a couple of weeks ago in the corporate press.
“JDate is not a classic patent troll, but it sure acts like one.”Tackling the JDate case, which we wrote about repeatedly for weeks, TechDirt says that “The whole lawsuit is absurd, and it starts with the trademark claims that come before the patent ones.”
JDate is not a classic patent troll, but it sure acts like one. JDate will hopefully get sued in a move of retaliation, preferably to the point of bankruptcy. What the company has done here sets a very bad example to any others that are watching. Software patents on very vague concepts are the weapon.
Jawbone and Fitbit
Citing this patent maximalists’ site (which even grooms notorious patent trolls), IP Kat says that “Jawbone holds 78 utility patents and 78 design patents compared to Fitbit’s 89 utility patents and 11 design patents. Jawbone’s patents lean towards hardware and design, whereas Fitbit’s patents are more focused on hardware and software.”
Yes, Fitbit is patenting software, as we noted here several times before. Its Orwellian surveillance tendencies aside, it ought to convince people to avoid these products. A good friend of mine had purchased a Fitbit device and saw it lasting for only one week. It’s a fragile toy and a fashion accessory that tracks the owner even when the owner is asleep. Nobody needs that.
We recently wrote about Cisco's attempt to portray itself as a trolls buster, having acted like a troll itself. Some GNU/Linux-centric sites help the former narrative. This is a good example where a massive corporation, Cisco, not some small startup, uses patents for anti-competitive purposes while claiming to be fighting trolls.
Large corporations want the population to only be obsessed with patent trolls. It helps those large corporations protect themselves and does nothing to tackle the broader issues.
EPO and UPC in the UK
The EPO is coming to the UK. It’s entering from the back door. It gets more of a presence in the UK in ways that we first covered last week, noting that no public consent was even sought! The lawyers who work for (or with) the UK-IPO must think they are above the law, as it increasindly looks a bit like government-sanctioned collusion.
“The UPC is almost guaranteed to bring patent trolls to Europe, enabling them to expand their scope of litigation (or threatening letters, demanding payments).”A maximalist of patents (including software patents), AmeriKat of IP Kat, wrote about the UPC courtroom being established before it’s even authorised. AmeriKat “interprets this as meaning that if the UPC doesn’t happen (pending a UK referendum on membership of the EU) or is somehow delayed than the IPO or, indeed another governmental body, can make use of the space.”
Another piece from the same blog speaks of a “[b]ill that is drafted by civil servants – his servants – and that is supposed to protect the interests of businesses” rather than those of citizens. The UPC is almost guaranteed to bring patent trolls to Europe, enabling them to expand their scope of litigation (or threatening letters, demanding payments).
When people return from their summer holiday we are guaranteed to hear a lot more about the EPO and the UPC. It’s truly undemocratic and often secretive, too. █
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