Summary: Electronic Frontier Foundation lawyers start targeting large companies that exploit patents for intimidation and extortion, not just patent trolling
WE are gratified to learn that, based on numerous reports such as this or that, “EFF Questions Whether Software Patents Should Exist” and the “Electronic Frontier Foundation group claims that the US patent system undermines innovation by allowing big companies to intimidate and punish small start-up firms.”
They are not talking about patent trolls (as some do) but instead they are now talking about the big bullies that want to divert the debate so as to focus on the wrong culprit and merely pass a reform that helps megacorporations. Microsoft is basically a target of EFF activism, Apple too to a degree. We commend the Electronic Frontier Foundation for this change in strategy.
Here is a recent action from EFF’s Nazer: “Nazer and his fellow EFF lawyer Vera Ranieri filed court papers seeking to invalidate a patent on photo competitions. US Patent No. 8,209,618, owned by a little-known video website called Garfum.com, was used to sue four small photo websites last September that dared to ask people about their favorite photos.”
Another new piece by Sid Venkatesan from AOL uses a copyright sign as the leading image for an article about patents, showing a common misunderstanding of the vast disparity between copyrights and patents (they have almost nothing at all to do with each other). Putting aside this nitpicking, the article is titled “Software Patents Are Increasingly Coming Under Fire In Court” and it says: “Last summer, the United States Supreme Court issued a decision in Alice Corporation v. CLS Bank International in which it directed lower courts to scrutinize computer-implemented abstract methods very closely. Alice’s impact was unclear at the time the decision was issued, but lower courts have since relied on the Supreme Court’s opinion to invalidate a number of software patents in the eight months since the decision.
“This legal trend has altered the cost benefit analysis for companies that are seeking software patent protection, enforcing their existing patents, or defending themselves in litigation.”
Further down Venkatesan says: “Federal trial courts and the Federal Circuit (the court that handles patent appeals) decisions since Alice have invalidated many patents using the two-part Section 101 test applied in Alice. For example, the Federal Circuit invalidated a patent dealing with the storage of device-specific profiles, a patent on a system that provided online purchase guarantees, and a patent involving an online system of delivering content with embedded ads in quick succession.”
This is the kind of stuff that patent lawyers have been trying to hide from the public, choosing to pretend that nothing at all has changed.
In a publication called “Entrepreneur” we saw the other day more of that propaganda which equates patents to innovation — a subject we last covered some weeks ago. “They say imitation is the highest form of flattery,” says the propaganda. “That may be true in fashion, but if you are an inventor, imitation can be bad for business.”
Well, how about collaboration? “As of Dec. 1,” continues the article, “Big Blue had been issued almost 7,000 patents in 2014. After IBM, the company with the second highest number of patents issued was Korean-headquartered technology giant Samsung, with more than 5,000 patents filed. Canon, Sony and Microsoft round out the top five, according to the infographic generated with United States Patent Office data by SmartUp, a legal startup that is building an online platform connecting attorneys and clients.”
“It is abundantly clear who software patents are good for.”So what? This basically shows which companies spend the most time doing paperwork. It doesn’t necessarily mean they are innovative.
Several years ago (if not decades ago) Adobe complained about software patents but now that it is a bigger company it patents software any single day, as Steve Brachmann serves to remind us. Microsoft did the same thing when it was a small company. As Bill Gates famously said: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”
It is abundantly clear who software patents are good for. Just watch who is hoarding software patents and creating cartels with them. Here is some nice propaganda which glorifies patents and even makes these cartels and armament with patents seem like a wonderful thing:
Whether they’re coming up with a bright idea themselves, or purchasing smaller companies that have had those bright ideas, all the big guns are active in these two key areas. Apple, Google, Microsoft, Samsung – they’re all at it.
What do these companies have in common? Scale. But Google and Samsung (the two biggest Android players), unlike Apple and Microsoft, are not patent aggressors. They never sue rivals using software patents, they only react to lawsuits, the highest profile of which are from Apple, Microsoft, and their smaller proxies. The EFF will hopefully work to combat this. █
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No Constitutional rights to patent
Summary: Court cases which serve to highlight the end of an era of software patents to all
Software patents are a terrifying concept. One can become an infringer and very quickly get sued (in bulk even) for merely typing one’s own ideas on a keyboard. When it comes to the United States, things are at least improving. This lawyers’ site has just shared the outcome of another case involving software patents where the patents lost in a big way. Moreover, it’s the most zealous pro-software patents court that ruled against software patents. As the site puts it, “The Federal Circuit on Monday rejected software company E-Lynxx Corp.’s bid to revive claims in a $50 million lawsuit accusing InnerWorkings Inc., Cirqit.com Inc. and others of infringing patents for products that help choose the lowest bidder from a variety of vendors.”
In other uplifting news: “As patent reform moved into the political spotlight during the last Congress, one patent that kept coming up was the “online shopping cart.” It seemed to resonate as a technology that clearly shouldn’t have been patented.
“By the time it started being brought up in Congressional hearings, though, the shopping cart patent was dead. Its owner, Soverain Software, was beaten when computer retailer Newegg won an appellate ruling invalidating its patents and throwing out the $2.5 million jury verdict against it.”
Excellent! It’s a step in the right direction and by precedence it will pave the way for similar rulings to come. This isn’t about patent trolls; rather, it is about patent scope.
TechDirt just covered a study which claims to have busted the myth about hoarding ideas. Remember that patents were (way back in the days) a very different animal. There was a different rationale well before computers even existed. Patents were in some sense about increase in sharing and collaboration. That’s what patents were about all at first, at the very beginning. It was about dissemination of knowledge (publication) in exchange for a temporary monopoly, ensuring knowledge is not completely lost in the interest of profit/protectionism by secrecy. Another myth is being addressed at Patent Progress these days, tackling the misconception about Constitutional rights to patents:
Congress was granted the power to promote progress of “science and useful arts” in a particular way. While Congress has the power to grant patents, it has no obligation to do so, which means that there is no constitutional right to a patent.
Patents should be granted (if ever at all) when there is empirical evidence that doing so would be collectively beneficial. All that software patents seem to have brought about is a circus of patent trolls, patent blackmail, removal of key features from programs, and retardation of startups. Many studies have been showing that the net outcome of software patents is overwhelmingly negative and US policy will hopefully be evidence-based as opposed to lawyers-driven and monopolies-steered. █
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Only Texas might worry…
Summary: Prominent politicians in the United States say they are pursuing a patent reform, but whose? FRAND in the meantime suffers a setback owing to the US Department of Justice
IN THIS increasingly negative climate and depressing/chilling (to developers) atmosphere of patent lawsuits we are often told that a ‘reform’ is right around the corner and politicians will soon stop the “bad actors”, who usually are those that harm corporations which bankroll politicians. It’s protectionism driven by lobbying. Follow the money. Some groups which claim to seek a patent ‘reform’ are doing the same as politicians as in tackling patent propaganda comics they too perpetuate the idea that the core problem is patent trolls (not patent scope). Suffice to say, it’s the large corporations which fund these groups. This one example we have given is supported by big businesses including Microsoft, which claims it wants so-called patent reform, as long as it’s the corporations’ reform. To quote Microsoft’s lobbying blog: “House Judiciary Committee Chairman Bob Goodlatte and a bipartisan group of cosponsors introduced H.R. 9, the “Innovation Act of 2015.” This action marks an important first step toward enactment of a patent litigation reform measure aimed at curbing patent litigation abuses. Microsoft is pleased to support the Innovation Act, as we did in the previous Congress; we will continue to work with Chairman Goodlatte and leaders in both the House and Senate to move expeditiously to pass a meaningful patent reform bill.”
“It’s protectionism driven by lobbying.”If Microsoft, a strong proponent of patent bullying (its own) and software patents, seeks to pass the so-called “Innovation Act of 2015”, then we immediately know what kind of ‘reform’ it really is. Here is some press coverage about it [1, 2, 3], focusing on patent trolls excepting huge trolls like Microsoft.
“I am optimistic that this bill will get overwhelming bipartisan support again in Congress,” Ali Sternburg wrote in a Microsoft-sponsored (indirectly) post.
Michael Risch, an apologist of software patents, said that “Intellectual Ventures wins $17m jury mixed verdict against Symantec,” whereupon he asked: “Would patent reform change anything?”
No, Intellectual Ventures too is quite likely exempted from the changes. Only the small (not corporations-funded) trolls are likely deterred by the so-called ‘solution’. The same bullies that attack FOSS will continue doing so and nothing will be done to tackle software patents, except perhaps for the SCOTUS ruling we’ll write about in our next post.
Steven J. Vaughan-Nichols, a FOSS proponent, explained some days ago that “some patents [had] become less troll friendly”. He cites Andy Updegrove and says: “In one small step for patent law interpretation, one giant leap forward for patent sanity, the Department of Justice (DoJ) has agreed to let the Institute of Electrical and Electronics Engineer (IEEE) new Standard Association (SA) patent policy stand. This new policy, in turn, will reduce the cost of fair, reasonable, and non-discriminatory (FRAND) patents and make it far harder for patent holders to sue others using these patents.
In Updegrove’s own words: “in the case of a product that implements a standard, an injunction is even more powerful, since the vendor cannot make a design changes to avoid infringement – by definition, the patent claim in question is “essential.” Moreover, in the case of an essential claim owned by someone subject to a RAND obligation, the owner has already agreed to extend a license, subject to reaching agreement on the terms of license on RAND terms. If the vendor is willing to pay a fee, but not one that is as high as the owner of the essential claim has demanded, providing injunctive relief feels wrong until a court can determine which one is right.”
RAND (or FRAND) has commonly been a weapon used by Microsoft against FOSS, even in Europe. FRAND is inherently incompatible with FOSS, so anything that weakens FRAND is in some sense helping the adoption of FOSS by reducing perceived risk and sometimes cost as well. █
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False alarm about “trolls”
Summary: The debate about scope of patents in the United States still misguided if at all existent as both Michelle Lee and the GOP obsess over “trolls”
OUR morning articles regarding the latest EPO propaganda and regarding EPC 2000 violations by the EPO focus heavily on violations and ethical issues in Europe, but what about north America? We have not taken our eyes off the ball, only accumulated information over the past week and a half. Today we would like to highlight some news and share a summary thereof.
As our readers may recall from last year, the GOP made noise about patent reform, which of course was inherently flawed (GOP exists to serve large corporations, not public interests). “GOP prepares assault on ‘patent trolls’,” said this headline from The Hill several days ago, but it’s quite an ambitious claim with little substance. Well, in the interests of big corporations GOP wants to crush small trolls, but not big trolls such as Microsoft. Here is what The Hill wrote: “Congressional Republicans see legislation advancing “early this year” to address the problem of “patent trolls,” and advocates are gearing up for the fight.
“Republicans are bullish on their chances of passing changes to the legal system to combat so-called “patent trolls” who are accused of extracting settlements with threats of frivolous litigation.
“Legislative action has support from both parties and President Obama, raising the prospect that a bill could become an early bipartisan achievement of the new Congress.
“At a time where there are a lot of differences between the political parties here in Washington, it seems to be one area certainly among others, where the White House, where Republicans and Democrats all agree that we need to pass legislation,” Senate Majority Whip John Cornyn (R-Texas) said last week, during the nomination hearing for President Obama’s pick to lead the U.S. Patent Office.”
What is the GOP’s plan for very wealthy and large trolls like Microsoft or its trolling proxy Intellectual Ventures? Passage of costs won’t stop them. It’s another political charade; both political parties (the US really has only two that ‘count’) claim they want patent reform, but both offer more words than actions and even the words — let aside actions — don’t echo the public’s best interest and will.
Michelle Lee, in the mean time, is receiving attention because she speaks about patent trolls. She is showing sympathy towards trolls, saying that the term “troll” is not helpful. Either way, it’s the wrong thing to focus on. The issue much greater than trolls is patent scope; the USPTO is boosting its ‘sale’ of patents, with 92% of patent applications ending up as 'success' and the number of granted patents growing rapidly (not a good sign as patent lawyers would like us to believe by conflation with innovation).
“Outlining her vision for the U.S. Patent and Trademark Office,” says the lawyers-centred site, “Deputy Director Michelle Lee—whose nomination to head the agency is pending before the Senate—on Thursday stressed quality and innovation in an hourlong talk before a Washington think tank.”
If she gets installed (promoted) as the USPTO’s Director, then we can expect little or nothing to change for the better. Like Obama, she would be just the “Hope” Director, of the fake “Change” Director. Look what a disaster David Kappos turned out to be.
While some sites continue trying to solve the troll issue rather than the scope issue (trying to pool together resources for fighting back, not reforming the system itself), we are left disappointed as the debate that used to exist (and thrive) over software patents is now marginalised. “Tracking demand letters is not the only defense,” wrote Steph, “I get that. But if those who have been hit by trolls would expose the details then maybe, just maybe, we could build out own Troll Field Researchers Organization, graph the information, hunt them all down, and rid the business landscape of this plague.”
How about just targeting their patents and those who issue the patents in the first place? It would tackle the problem at the root.
Last year SCOTUS undid what CAFC had done for decades (authorising the patenting of software patents). TechDirt says that SCOTUS “Smacks Down CAFC Yet Again: But This Time It May Help The Patent Trolls”. To quote TechDirt: “Another Supreme Court ruling… and another smackdown of CAFC, the Appeals Court for the Federal Circuit that handles all patent appeals. This regular smackdown of CAFC by the Supreme Court has become such a recurring story that it would almost be surprising if the Supreme Court took a patent case to do anything but smackdown CAFC. The key issue here is that the Supreme Court basically has taken away CAFC’s powers to review a patent directly to determine if the patent itself is valid or not. Instead, it can only review the district court’s findings, to determine if there was an obvious error by those district courts in handling claim construction. While this takes away power from CAFC, it actually is seen as beneficial to patent trolls, since (especially lately), the now-chastened CAFC has suddenly been rejecting patents left and right. But that might stop now as the CAFC’s ability to do that is now greatly limited.”
In other news, while Apple propaganda sites keep bragging about Apple patents on software [1, 2], including in my field of expertise (computer vision), the British media says that fear of Apple patents is decreased. “At the start of 2015,” says The Register, “various developments suggest that the playground bullies of the past will lose a lot of their power. Qualcomm is on the defensive in China, while the holders of fundamental mobile patents are hitting back against Apple.”
It is reported elsewhere that Namco’s patent on loading screens (yes, loading screens!) is now expired. “In 1995,” says GameSpot, “Namco secured a patent for loading screen mini-games, but 20 years later it’s about to run out. Danny investigates it’s effect on the industry, and what this might mean for the future of loading screens.”
Such patents should never have been granted in the first place. Just because you do something “on a computer” or “over the Internet” does not make it innovative. Watch this other news about yet more software patents dying in the US, this time affecting so-called ‘social media’ (surveillance) platforms. As Lexology put it: “The process of creating “link relationships” between documents and personal profiles used by Facebook®, LinkedIn®, and other social media platforms came under fire in October 2012 via a patent infringement suit filed by technology company Bascom Research, LLC. Facebook®, LinkedIn®, and three other network software companies were named as defendants in that suit. More than two years later, and in the wake of the seismic ruling issued by the U.S. Supreme Court in Alice Corp. v. CLS Bank Int’l, Bascom’s challenge came to an unsuccessful end when the U.S. District Court for the Northern District of California determined that Bascom’s patents for the linking technology were invalid as being drawn to abstract ideas.”
Here again we see an example where software patents are crushed by Alice. Don’t expect patent lawyers to cover a case such as this. They prefer to mislead or lie by omission, giving coverage only to cases where patents on software endure a Court’s assessment.
According to this new article from David Kravets, not only software patents are being crushed, narrowing the scope of patenting. “The Supreme Court in 2013 struck down Myriad Genetics’ patents of the human genes BRCA1 and BRCA2,” he writes. “Mutations of those genes have been linked to a higher risk of breast and ovarian cancer. The patents had given Myriad a monopoly over medical testing of those genes in a bid to detect early signs of cancer, often charging women $3,000 per test or more.”
“Patent litigation over human gene breast cancer testing is ending,” says Kravets, perhaps ending a sad chapter in the history of patent expansion. █
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Summary: The press of the rich and the powerful continues its attempt to preserve software patents, despite the US Supreme Court’s decision to abolish a lot of them on the basis of abstraction
LAST WEEK we wrote about corporate media lionising IBM for a hoard of patents. IBM is now preparing to lay off over 100,000 workers, demonstrating that its patent strategy does very little for staff; it’s about protectionism and potentially bullying of rivals (something that IBM isn’t foreign to). Forbes relays Cringely’s remarks that over 100,000 people are to be laid off (Cringely warned about this in his blog and foresaw it for years, based on unnamed sources), but watch this new propaganda piece from the plutocrats’ media, USA Today (owned and run by very rich people). It conflates patents with innovation. It is rather telling as it shows gross distortion of the truth. We have become accustomed to this. Whether the authors are willingly or unwillingly dumb (i.e. pushing agenda and misleading readers) is the only unknown. It is well known that patents are not a measure of innovation but mostly a function of paperwork.
Techrights has spent over 8 years and wrote thousands of posts debunking patent myths, but nonetheless, the myths live on and propagate. Earlier this week we saw the ‘patent industry’ shoving press releases into various sites to rewrite Alice history (watch as others are shamelessly exploiting a dead black man for patent PR) and we continue to see lawyers’ Web sites teaching patent lawyers tricks for bypassing patent law, essentially ignoring even Court rulings (from the highest court) to continue doing whatever it wants, all in the name of profit. It is not a sole example. Over the past week we found many other examples that dominate news about software patents [1, 2, 3, 4, 5] and do little more than discredit the Court’s decision, acting as though all software patents are still fine and dandy. The patent lawyers who engage in this propaganda/marketing campaign are basically misleading potential clients. The truth of the matter is, courts in the US invalidate and throw out patent lawsuits where the patents are shallow and merely relate to abstract ideas. Patent lawyers prefer to only cover cases where software patents somehow survive a court’s scrutiny, as we have demonstrated in recent months. Lies by omission? You bet.
Days ago we found this article titled “Software, the Supreme Court, and 3D Printing: Why You Should Care About Alice v. CLS Bank”. Here is a key part: “Software—some mundane, some truly ingenious—runs the printers, scanners, and files that power 3D printing. In the past, inventors and technology owners could comfortably look to patent law to protect the proprietary advantage software inventions gave. But with its June 2014 decision in Alice v. CLS Bank, some say that the U.S. Supreme Court fundamentally changed the rules for software patentability. Since Alice, some believe that courts around the country have been on a software patent killing spree. Because of the large role software plays in 3D printing, those with a stake in the technology need to understand Alice—and the strategies that exist to get around it.”
While it is acknowledged that things have changed, it serves to legitimise those who want to “get around” the rules (i.e. cheat). Watch vocal boosters of software patents providing tips on how to cheat (or fool) the system. They also try to give a false impression that software patents are thriving. One statement being made therein: “Software and method patents may appear to have fallen out of favor because of recent court decisions and legislation. However, recent trends indicate that they comprise surprisingly high portions of four US companies’ recent grants.” Well, that’s not the point. The point is, the USPTO has become more strict and more importantly the courts (where real tests of validity are put forth) do not honour software patents much of the time. The author is of course being selective (two companies only, Microsoft and Google) to support a bogus hypothesis, putting aside the fact that he chose two companies that increasingly turn to patents as their business strategy. One uses them offensively (Microsoft), whereas the other turns to them mostly for defensively purposes (because Microsoft is attacking it with patents).
Companies like Microsoft, which resort to patent abuse and aggression because the monopoly is quickly crumbling, are bound to lose a lot because of the Alice ruling. Patent lawyers too are bound to lose from a sobering society that knows the limits of patenting. █
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Summary: The patent systems and their peripheral enforcers continue to put so-called ‘rights’ of corporations before interests of citizens
Political corruption and unlimited scope of patents seem to have a correlation. When large businesses want infinite protectionism they tend to massage copyright and/or patent laws, completely oblivious to the interests of the residents who supposedly elect politicians to serve them. Such is the case not only in the US (see USPTO) but also in Europe, especially in recent years because new governance bodies are forming and some unite or harmonise laws. We end up being captives of multinationals such as Philips and Siemens. The EPO goes as far as hiring very corrupt individuals and the current Presidency of the EU Council, Latvia, is sponsored by BMW, Microsoft, etc. It is basically a corporate Presidency, just like the political parties in the United States (funded and controlled by large corporations). One doesn’t need to be a cynic to talk about what’s wrong about the Presidency of nearly a whole continent being sponsored by Microsoft. The EU has basically inherited ‘Russian oligarchs’ standards and is no longer trying to even hide it (not so well anyway). It helps explain how we get all these ‘trade’ collusions and other nonsense-based legislation in Europe. The FFII actively works in this area and so are other groups from Europe. There is activism all the time, but will the population win?
“There is activism all the time, but will the population win?”Florian Müller (Microsoft Florian) appears to have joined our cause in reforming the EPO or ousting its management. He says that “pressure mounts on EPO president and administrative council over suspension of patent judge”. Linking to Techrights he notes: “Having watched various political scandals over the years, I consider it a rule of thumb that an affair that results in statements and actions even during the Holiday Season, and that continues with undiminished force after the Holiday Season, tends to result in someone’s resignation or ousting. Smaller issues go away and are not carried over into the new year. But the really big issues do survive the Holiday Season.”
We have a real problem in Europe right now because the legal ‘industry’ has basically taken over much of the political system. Gérald Sédrati-Dinet, who is close to the FFII and April (France), says that “during Unitary Patent procedure, Wikström was the representative of the patent microcosm” (meaning the patent lawyers and other pro-patents maximalists).
Across the Atlantic in the US (and across the Pacific for Asia) there remains a xenophobic embargo agency (for US companies only) called the ITC. It is still active and this report explains how. To quote the new article:
When making their case against alleged infringers, patent-holders have two options in the US legal system: filing a case in federal court, or petitioning for an investigation at the International Trade Commission (ITC).
We live in an unfair world where unfair competition is standard. People who head large corporations, i.e. managers, acquire monopolies through lawyers-dominated systems (where scientists are dominated and intimidated by corrupt managers) and these monopolies are in turn used against science and technology, all in the name of profit (for the few). It’s like a kind of coup against hard-working people. Whether it’s the EPO, USPTO, ITC or some other state-run or state-sanctioned entities (not private companies or patent trolls), we are surrounded by many who are trying to harm us while throwing around words like “innovation”, “protection”, etc. In many cases, private firms exploit these supposedly public bodies for private profit (externally/peripherally). It’s a massive swindle enabling transfer of wealth and control.
Toyota deserves some credit this week for following the path of Tesla and throwing patents out of its arsenal (it's misleading to call this "open source", it is merely disarmament). If only more companies did that… █
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Summary: No US patent reform last year, but there are improvements nonetheless, especially in the area of patents on algorithms
THE USPTO has amended its examination guidelines following an important ruling from SCOTUS, which at the very least limited the scope of software patents. Change came not from politics (driven dominantly and excessively by corporate money, especially in the US) but from a courtroom and The Hill continues the corporate media’s obsession with patent trolls, who are not the same as software patents (despite some correlations).
“Heading into the year,” writes The Hill, “few issues seemed to be as well-supported as reforming the nation’s patent laws to prevent “trolls” from harassing companies with scores of lawsuits.
“A patent reform bill cruised through the House last December, and President Obama highlighted the issue in his State of the Union address as one of his 2014 priorities for Capitol Hill.
“Yet despite months of work from some of the Senate’s most senior lawmakers in both parties, the reform push was killed just before completion, at the request of Majority Leader Harry Reid (D-Nev.).”
The problem with this approach is that it doesn’t stop large aggressors like Microsoft and Apple from suing small companies using software patents. This approach is basically what large corporations are lobbying for. They have done it for years. This elusive pursuit of so-called ‘reforms’ that only affect small trolls isn’t the thing to root for. Scope itself is the issue (scope of patents, not scale of the litigant).
Incidentally, there is a decent new article about patents on genetics in the US. “Last month in Silicon Valley,” writes Technology Review, “biologists Jennifer Doudna and Emmanuelle Charpentier showed up in black gowns to receive the $3 million Breakthrough Prize, a glitzy award put on by Internet billionaires including Mark Zuckerberg. They’d won for developing CRISPR-Cas9, a “powerful and general technology” for editing genomes that’s been hailed as a biotechnology breakthrough.” (further interpreted by Glyn Moody)
This is about patents. As Moody put it, “Whether obvious or not, it looks like the patent granted may complicate turning the undoubtedly important CRISPR technique into products. That, in its turn, will mean delays for life-changing and even life-saving therapies: for example, CRISPR could potentially allow the defective gene that causes serious problems for those with cystic fibrosis to be edited to produce normal proteins, thus eliminating those problems. ”
Speaking of patents on genes, IP Troll Tracker correctly stresses that Monsanto deserves to be hated for its (ab)use of patents for monopoly. The post is titled “People Hate Monsanto For Reasons Other Than Their Patent Litigation Policies?” One clear issue with this post is that it conveniently overlooks many other issues with Monsanto, including genocide in Vietnam (Agent Orange), the impact of toxins in pesticides, and the unknown impact of genetically-modified foods on one’s health (several studies show a correlation to cancer, among other detriments).
Patents are inherently a monopoly and if monopolies are allowed to enter the field of software, where many people code with simple tools like a keyboard, then we limit expression. Code can be like prose and patenting prose (not the same as copyright) would be disastrous. █
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Summary: Signs that the US is turning against software patents, not just against patent trolls which so-called patent reforms strive to tackle
THE UNITED STATES is improving when it comes to patents sanity because scope is being narrowed, especially when it comes to software patents. We wrote over a dozen articles about it, but the media is still full with so-called ‘reports’ (shameless self-promotion and self service) from patent lawyers, who would deliberately have the public believe that not much has changed. Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.
“Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.”The EFF recently made this good move against software patents, specifically naming software patents as the issue (not “trolls” or “stupid” patents as the EFF habitually addresses the issue).
To quote the EFF: “There are many reasons software patents cause so much trouble. The Patent Office does not do a good job reviewing software patent applications to see if they are claiming something new. And these patents often describe the purported invention with highly vague and ambiguous language. Software patents also tend to claim every way to solve a problem, rather than the particular solution developed by the applicant. This is known as functional claiming. While it may seem like an arcane legal dispute, functional claiming is a key feature of overbroad software patents.”
The EFF recently improved its activism in this area, having wasted nearly a decade tackling one patent at a time (so-called ‘busting’), talking about patent trolls, or alluding to patents that are “stupid” rather than ones whose class/type/scope makes them illegitimate. Alas, the “Stupid Patent of the Month” series from the EFF continues. It usually names software patents, but does not refer to them as such. Here is the example from a few days ago:
In the Spirit of the Holidays: It’s Not Too Late for Uber to Avoid Stupid Patent of the Month
Because Uber did just that, Uber is being forewarned of its risk of receiving the Stupid Patent of the Month award. Specifically, Uber has applied for a patent on a form of dynamic pricing, a practice that (even if it didn’t exist before the study of economics) has been heavily in use by various industries, including most famously by airlines, for over 20 years.
Stallman recently published a good list of reasons not to use Uber (the car ride brokering company), but that is a subject for another day. The EFF has provided yet another reason to avoid Uber.
Make no mistake however. The EFF’s lawyers are outnumbered by patents-loving lawyers who flood the media with pro-software patents articles (we are reviewing this on a daily basis). The only exception we have found in the past fortnight was Timothy B. Lee, who published the article titled “Software patents are a disaster. The courts finally did something about it in 2014.” Here are some opening paragraphs:
For two decades, people in Silicon Valley have been complaining about software patents. People would get patents on broad concepts like checking email wirelessly or scanning documents to an email account, and then sue anyone who happened to stumble across the same concept. Thanks to this kind of frivolous litigation, patents in the software industry may actually be discouraging innovation instead of encouraging it.
But until recently, complaints about excessive patenting of software mostly fell on deaf ears. The patent office issued tens of thousands of new software patents every year, and the courts upheld most of them. Congress showed little interest in addressing the issue.
The fiercest pro-software patents sites refuse to talk about the demise of software patents or even call patent trolls “trolls” (they use other words). What they do care about is the patent reform in the US; yes, even patent lawyers’ sites speak about it and some worry about the (rather likely) imminent appointment of Michelle Lee, who is one of them (a lawyer, albeit with a scientific background as a computer scientist). Louis J. Foreman says: “I’m concerned independent inventors, small businesses and the property protections we all depend on are about to become collateral damage as Congress once again tries to crack down on “patent trolls.” The popular definition of a patent troll as used in the congressional debate is a company that doesn’t make any products itself, but that owns patents and tries to make money by accusing other companies of infringement.”
We have seen more of that argument elsewhere, basically complaining that patent trolls are not a problem. As one person put it, “obviously, these guys have never been sued by a patent troll…the Wright Brothers…really?”
It was said in reference to this odd article. “Take a look at the website of the ‘tech’ company 1 of the authors works for,” said one person. It sure looks like those who defend trolls are either trolls themselves or those who work with trolls.
In relation to a patent reform this puff piece from The Hill gave a platform the the BSA (Microsoft front group). One relevant part says:
“I think the change in the Senate is a good thing for patent reform,” said Craig Albright, a top lobbyist with BSA | The Software Alliance. “And that change is important for the prospects of getting patent reform done and it’s one of the reasons why we’re optimistic.”
As we have shown before, when Microsoft and its partners speak about patent reform they don’t speak about eliminating or limiting software patents, which they love dearly. Here is another new article titled “Patent Reform Likely to Succeed in Next Congress” and further commentary from TechDirt:
As we’ve noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?
That is pretty much where favourable coverage ends. The biased media of patent lawyers still dominates the news feeds, aided by large corporations’ press.
Bloomberg, i.e. Wall Street, gives them a platform with which to defend software patents in the wake of Alice v. CLS Bank and blogs of patent maximalists write about it in a self-serving fashion. “Look at those patent guys scared to death about loosing their jobs with the removal of software patents,” wrote the FFII’s President. There is more where it came from (bypassing limitations), glorification of patents and revisionism (disguised as ‘history’) about software patents, as noted in an article we published 2 weeks ago. When Gene Quinn talks about history he speaks of a highly modified version that helps patent lawyers fool judges or lawmakers.
A lot of other legal sites, such as Mondaq, Lexology and Law 360 showed their clear bias. Only patent lawyers write there on this topic and it’s unsurprisingly biased. Some are willing to acknowledge the fact that software patents are in trouble, but they selective pick cases where software patents endure. To quote an example from today: “In discussing computer software patentability, the court stated outright that “software must be eligible under § 101″ and that the Supreme Court has implicitly endorsed the patentability of software, including in Alice. Specifically, the court reasoned that patent law must balance between encouraging creation of new computing solutions and protecting against applying established ideas through a computer environment. Caltech, 156 C.D. Cal. at 9095. The court also interpreted Alice as acknowledging the patent eligibility of software if it improves “the functioning of the computer itself” or “any other technology.””
“No, Mr Crouch,” insists the FFII’s Present, “loading software on a PC does not make it a new machine” (Crouch is one of the most prominent boosters of patents).
Joe Mullin recently showed that not only software patents are dying in the US but patents on genetics too. As Susan Decker from Bloomberg put it: “Myriad Genetics Inc. (MYGN) can’t block competitors’ DNA tests to determine risk for breast and ovarian cancer after a U.S. appeals court said three patents on the tests never should have been issued.
“The patents cover products of nature and ideas that aren’t eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted today on the court’s docket. The court upheld a trial judge’s decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market.”
It sure looks like the US improves a lot on the patent front, but reading the lawyers-dominated press won’t quite reinforce this impression.
“Comments will be accepted until March 16, 2015,” says the USPTO regarding the “Interim Guidance on Subject Matter Eligibility”. Three weeks from now we shall receive some new sregarding patent scope in the US and perhaps also find out who is going to head the USPTO,
A public forum will be hosted at the Alexandria campus of the USPTO on Jan. 21, 2015, to receive public feedback from any interested member of the public. The Eligibility Forum will be an opportunity for the Office to provide an overview of the Interim Eligibility Guidance and for participants to present their interpretation of the impact of Supreme Court precedent on the complex legal and technical issues involved in subject matter eligibility analysis during examination by providing oral feedback on the Interim Eligibility Guidance and claim example sets. Individuals will be provided an opportunity to make a presentation, to the extent that time permits.
It is very likely that law firms and large corporations will submit the lion’s share of comments and those who are unaffiliated will be ignored or mostly unaccounted for. Software patents will lose when the wealthy interests against them outweigh the likes of Microsoft. In a world where Free software increasingly dominates (sharing and collaboration among software companies) the vision of a software patents-free world is no fantasy. █
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