Summary: Looking at some of the latest propaganda for and against a bill which is already too watered-down to actually fix the US patent system
TECHRIGHTS has spent a lot of time explaining why the US patent system is dysfunctional beyond repair (Europe’s system, by contrast, can still be salvaged) and why so-called ‘reform’ in a political atmosphere that is dominated by large corporations is just a mirage [1, 2, 3, 4, 5, 6, 7, 8, 9]. The so-called Innovation Act or PATENT Act have already been derailed by lobbyists, employed by large corporations and very rich people who want protectionism in the form of patents (monopoly or “market exclusivity”, to use a euphemism).
All that ‘reforms’ speak about these days are “trolls”, even though patent trolls are far from the only issue. They are arguably just a symptom of a broken system and fixing a problem by redefining that problem won’t help solve the real problem. Joe Mullin, who has been focusing on patent trolls for nearly a decade, continues to focus on patent trolls and says that a “patent was invented [patents are being invented?] by Warren Sandvick, president of a Texas company called HasSex, which has an extremely trollish website and licensed the patent several times. Filed in 1998, and granted in 2002, the patent lays broad claim to a remotely controlled sexual “stimulation system,” one version of which involved a “second user interface” located remotely from the first.”
“This is clearly lobbying that exploits women to mask corporations and billionaires, but then again, we we noted many times before, that’s what The Hill is for.”The article focuses on sex (sex sells!) and trolls rather than matters pertaining to patent scope. Another site which obsesses over patent trolls because it is funded by large corporations including Microsoft weighs in, calling for the bogus ‘reform’ (dealing only with trolls) to go ahead. In it, Matt Levy responds to a nonsensical piece we mentioned the other day, from lobbyists’ favourite media (The Hill). Bill Watson took note of the propaganda from The Hill, paraphrasing as: “Patent reform will enable sneaky “foreign entities” to harm “the American family unit”” [the exact headline is “New patent bill would undermine economic growth, hurt families” and it does refer to “foreign entities” at the end].
Who wrote the article? By the description of oneself, “Nance is CEO and president of Concerned Women for America (CWA), the nation’s largest public policy women’s organization.”
Wait, we already know this. Like several other such groups, it is a front for lobbyists, exploiting women’s rights for corporate agenda. We covered such examples almost a decade ago. It’s not a new trick.
CMD wrote about this front group last year. Quoting the relevant parts: “This includes right-wing religious groups that oppose gay marriage and abortion rights, like Concerned Women for America, which has received at least $11.4 million from the Koch network since 2010, and Focus on the Family spinoff Citizen Link, which has received at least $10 million, including at least $885,000 this election cycle.”
There is also “Concerned Women for American Legislative Action Committee,” with a budget of $8,150,000, according to this “New List of the Dark Money Shell Game Groups Connected to the Kochs”.
So who opposes patent reform in this case? CMD’s SourceWatch has some good, well-organised background about “Concerned Women for America” and “Concerned Women for America Legislative Action Committee”. This is clearly lobbying that exploits women to mask corporations and billionaires, but then again, we we noted many times before, that’s what The Hill is for. That’s coming from the same billionaires who use sockpuppets to airbrush Wikipedia. █
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Summary: The latest instances of assault on changes to the US patent system, demonstrated through an elaborative survey of the media (two days’ worth)
THE futility of a so-called ‘reform’ in the US patent system and our dismissive attitude towards it is due to corporations-led watering down of bills. What’s typically left in bills is nothing of substance, or too little of substance, just enough for the corporate media to state that the system has been changed and is thus ‘fixed’.
“Corporations and the millionaires (or billionaires) who own them are totally dominating political platforms.”Blake A. Ilstrup, who describes himself as “general counsel and senior vice president of business development at Kineta,” does not want the current patent regime to change. “Congress must keep trolls away from medical patents,” heralds another headline from someone working in Kineta’s field (or very similar). It sure looks like there’s a battle between lawyers and everyone else. Remember that many lobbyists are themselves lawyers. AmeriKat, a strong proponent of more patents in the US (and a proud proponent of software patents, so we assume that it’s a patent lawyer from the US), happily speaks of “US patent litigation boom” (more business for lawyers), not to our surprise at all. Sen. Gerald Ortiz Y Pino’s piece about “frivolous patent suits” continues to circulate while former Rep. Ron Klink (D-Pa.) pretends that this out-of-control patent system is good for workers (he published this in a site where lobbyists are abundant). This former Representative sure seems to be fronting for corporations here, not workers. There is also a lot of pro-patents propaganda (more lawsuits wanted) from patent lawyers who celebrate this horrible patents-maximising system, hoping that it stays in tact [1, 2, 3, 4]. With an arrogant grin in the latter two examples, patent lawyers actively work to derail patent reform. They are succeeding so far because, as the first of these highlights right in the headline, “House vote on Innovation Act could be delayed until after August recess” (delay works well for them).
Where is opposition to software patents in the media? We’re massively outnumbered now by patent lawyers. The corporate media is currently reposting a biased article from Bloomberg (booster of patents and so-called ‘IP’ for a number of years), showing us all that no chance of a ‘reform’ — however small — is being tolerated by corporations. Corporations and the millionaires (or billionaires) who own them are totally dominating political platforms. █
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Summary: US Congress is unable to pass even a bill that makes minor (insufficient) changes to patent law, demonstrating that patent policy is still steered by conglomerate interests, just like in the copyrights domain
FOR a number of months we have been writing about the so-called Innovation Act or PATENT Act [1, 2, 3, 4, 5, 6, 7, 8]. We last wrote about that four days ago. Not much has changed since then, except more lobbying and derailment. Eventually, people in power almost always get their way, maybe accepting some compromise and a rebrand that can appease (or fool) the vast majority of people. The overwhelming number of cases serve to cement this trend, showing that democracy is still rather elusive in the West.
Kevin O’Sullivan says that “Innovation Act Threatens Massachusetts Innovators” and patent maximalists at IAM say that “The Innovation Act is pulled, but uncertainty lingers and that’s bad for business”. There is a lot of press coverage about this [1, 2, 3, 4, 5, 6, 7, 8] and it serves to suggest that politicians in the US usually fight against patent reform, especially so-called ‘Conservatives’. As one article put it: “This week, the American Conservative Union blasted out an email warning against the Innovation Act” (because corporations do not like it enough).
“Eventually, people in power almost always get their way, maybe accepting some compromise and a rebrand that can appease (or fool) the vast majority of people.”As Watchdog.org put it the other day: “As the patent battle reheats on Capitol Hill before the August recess, several members of Congress are looking to stop a bill they believe will do more harm than good for the nation’s economy.”
IPWatchdog, a booster of patents (including software patents), claims “bipartisan bicameral disapproval” and the EFF blames this on “misinformation”. See its post titled “Busting Myths and Countering Misinformation From the Campaign Against Patent Reform” and another post titled “Patent Reform Under Attack, But Needed More Than Ever”. Reform is needed in another form, as this bill got subverted already (just like the PATENT Act). The EFF is meanwhile mixing patent trolls with software patents, focusing on one instead of the other even though there is a strong correlation. Here is what the EFF wrote earlier this month as part of its recruitment effort: “You’ll be obsessed with software patents before you know it. The specific position we’re hiring will work closely with the patent reform team, pushing for strong legislation in Washington and showcasing horrible trolls. Patents are a hot topic with huge implications on speech, innovation, education, and businesses big and small. We realize that many people applying to the job won’t have a background in patent reform. So don’t stress about that. If you care about civil liberties online and you’re excited about technology policy, then we can teach you about software patents.”
A bill we can really stand behind would have to deal with patent scope, but no such bill exists yet, so the above bills (“PATENT” or “Innovation”) are of more interest to corporate media (corporations) than to citizens who are directly harmed by patents.
In the next couple of posts we shall try to address the real issues that affect most people (the ‘reforms’ spoken about in the media these days are largely a diversion). █
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In Lieu of Decades of Bad Practice
Credit: Bilski Blog
Summary: The so-called ‘AliceStorm’ is eliminating software patents (and other abstract patents) at an alarming (to patent lawyers) rate
LAST WEEK we wrote about Michelle Lee's remarks on patent law, conjoined with the report about the Alice case beating Microsoft's patent troll, Intellectual Ventures. Lee’s remarks were important because she is now the leading face of the USPTO (no matter her job title) and Alice is killing software patents very fast, impeding Microsoft’s attacks on Free software in the process. It was only four days ago that we last cited a new example where Alice slaughtered software patents, paving the way (by citation or argument/strategy) for future legal cases where software patents are at stake. This is one of the most fantastic developments that Techrights has seen in nearly a decade and if Groklaw was still active, it too would be jubilant (it partly celebrated the Alice ruling in News Picks, coming back to life after less than a year of total silence).
“Lee is finally recognising that everything has changed and therefore the USPTO needs somewhat of an examination overhaul, for courts almost always disagree on software patents granted by the USPTO.”Michelle Lee now claims that the USPTO needs more Section 101 guidance, based on this patent lawyers’ site. Lee is finally recognising that everything has changed and therefore the USPTO needs somewhat of an examination overhaul, for courts almost always disagree on software patents granted by the USPTO. Just look at the statistics.
According to Patent Buddy, this new ruling
[PDF] is yet another victory. “Another case where application of Alice/101 to kill patents has jumped the fence from business methods to software,” to quote Patent Buddy, who added: “We are seeing 101/Alice rejections for everything from MRI devices to adhesives!” According to another new find from Patent Buddy, “US Pat. 6728877 and 7346766 Killed with 101/Alice in Summary Judgment in Lawsuit Against Lenovo by Tranxition in Oregon Dist. Ct.”
This isn’t being overlooked, except by patent lawyers who probably hope that nobody will pay attention. They cherry-pick the few cases where software patents somehow survive. Here is a software patents’ booster whining about this. He wrote: “Deals are still being done in the software patent world, but patent valuation is significantly less than even just a few years ago.”
It’s hardly shocking.
“The Alice/101 Kill Rate Is Accelerating,” Patent Buddy added, linking to a “MUST READ From Bilski Blog” where Robert R. Sachs coins (or advertises) the word/hashtag “AliceStorm”. To quote Sachs: “In just the first ten days of July, there have been ten decisions on patent eligibility—more decisions in first ten days of any month since Alice was decided last year. At this pace, we could see some twenty to thirty decisions this month. #AliceStorm is accelerating.”
It sure looks like even some of the most respected legal blogs (like Bilski Blog in this case) recognise that software patents are weakened by Alice orders of magnitude more often then they were weakened (or invalidated) by the famous Bilski case (it did happen albeit very infrequently). █
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Summary: The Affinity v. Direct TV case is the latest case to show how software patents can be invalidated, citing the US Supreme Court (SCOTUS)
UPLOADED just now is this decision
[PDF] which shows how, yet again, Alice kills software patents. [hat tip: Patent Buddy]
This case involved the capital of patent trolls, Texas, and it it a case between Affinity and Direct TV. Alice is cited in page 5. “These categories are not patent-eligible,” says the document, then citing the Mayo case as well. SCOTUS is quoted as saying that “all inventions… embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Let’s see how many Web sites run by patents lawyers even bother to mention this outcome… █
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Summary: Latest developments surrounding software patents and patent trolls in the United States
For somewhat of a change, today we have some good news. Amid complaints about the patent system (see for example “Patent abuse hurts in Lansing, nation”) the USPTO‘s Michelle Lee, whom we wrote about before [1, 2, 3, 4, 5], remarks on patent reform at The Center for Strategic and International Studies (CSIS) Patent Reform Forum. She said that “there are certain changes that only Congress can make via legislation. Which is why I’m pleased that patent litigation reform legislation is currently moving forward.”
“Legacy of software patents may be short-lived if this carries on.”But with or without a reform (Congress involvement), there are changes that are made at the courts. According to patent lawyers and the pro-patents circles (even lawyers’ sites), “the Federal Circuit has affirmed that Intellectual Ventures’ asserted patent claims are invalid for lacking eligible subject matter. Intellectual Ventures v. Capital One (Fed. Cir. 2015) (Patent Nos. 8,083,137, 7,603,382, and 7,260,587).”
This is Microsoft’s patent troll, which also attacks Android/Linux these days. “The Federal Circuit on Monday rejected patent licensing giant Intellectual Ventures Management LLC’s bid to overturn the invalidation of several online banking patents it asserted against Capital One Financial Corp., saying they cover abstract ideas under the standard set by the U.S. Supreme Court’s landmark Alice ruling.”
What we have here is Alice vs. Microsoft’s main troll and the ruler, surprisingly enough, is the court most friendly towards software patents (and their originator). This is pretty big news. Those who celebrate it are on a roll. “Matthew Moore argued three Federal Circuit appeals in a single week in May,” says The Recorder. “He won all three cases.” See page two of the original decision
[PDF] to see Moore’s involvement in this case. These people now know how to kill software patents even in the most hostile environment (CAFC). Legacy of software patents may be short-lived if this carries on.
On the other hand, Newegg, which was hit with millions in ‘damages’ due to software patents, finds out that it is unable to appeal. As a trolls expert put it: “Online retailer Newegg has developed a reputation for taking on so-called “patent trolls,” even when that means going through lengthy litigation and unpredictable jury trials.
“The company’s last patent trial concluded in November 2013, when Newegg faced off against a patent troll called TQP Development. TQP used US Patent No. 5,412,730 to make a vast claim to basic Internet encryption technologies, saying that anyone using the common combination of SSL and the RC5 encryption algorithm was infringing. By the time of the trial with Newegg, TQP had sued more than 120 companies and earned $45 million in settlement payments.”
This comes after a 20-month delay, so it basically predates the SCOTUS ruling regarding Alice — a ruling that would have possibly helped Newegg win this case. █
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Taking away from people’s rights to empower corporations
Summary: An overview of recent coverage about patents, demonstrative of inherent bias in the world of patent practitioners and the journalists whom they misinform
Patent propaganda is rampant and increasingly widespread in the corporate media because patents these days mostly serve large corporations. It’s means of protectionism, not for the ‘small guy’ (as the saying goes) but for any large corporation that loathes fair competition (it’s against shareholders’ interests to have competition).
Like in the Germany-Greece standoff, Japan treats people’s rights as inferior to corporations’ (as if corporations are entitled to rights), based on the Japanese corporate/globalist media (Japan Times). It may be considered extremely shocking a piece of news if it weren’t for how highly Japanese society regards corporate power. One site in Japan said that “The House of Councillors on Friday passed into law a bill to revise the patent law to allow companies to obtain patents on inventions by their employees.”
Remember that most people capable of coming up with a patent are employed by one company or another. So this is further centralisation of patent power, almost abolishing the notion of so-called ‘independent inventors’.
Isn’t that great? More corporate power. We now have ‘trade’ deals whose veiled purpose is deregulation, allowing corporations to even sue governments (ISDS) while perpetually expanding the scope of patents. The war is being waged by oligarchs, who apparently feel as though they deserve more power and money and they use law (lobbying to change it) as their weapon. Everything that stands in their way is, over time, being painted an illegal obstacle, not a safeguard.
“The war is being waged by oligarchs, who apparently feel as though they deserve more power and money and they use law (lobbying to change it) as their weapon.”Watch the jingoism and self glory (or myth) from Robert Kuykendal, who says he “has over 15 patents to his name”. “Protect American innovation” is the title of his new article in the corporate media. It’s of course nothing to do with innovation. It’s about patents. The corporate media likes to conflate the two. Kuykendal says “America (he means the US, not American] has been a global leader in innovation since its founding. One thing that protects and fosters that innovation is the U.S. patent system. Without a strong patent system, these advances may never have happened. From the cotton gin to the light bulb and from the telephone to the smartphone, this remarkable progress must be protected, and a patent system that fosters life-changing innovation does just that.”
This is complete nonsense and revisionism. The light bulb, for instance, was created despite patents, not because of them. It’s well documented a fact (hint: Edison did not invent the light bulb). As for smartphones, they are made and improved in the far East, never in America (the US, Canada, Latin America and so on). Kuykendal is so blinded for his love/lust of patents that he just waves a flag and repeats nonsensical myths.
Patents proponent (for a living) Dennis Crouch now remarks on new patent cases that erode patents (not just Alice). “Constitutional Challenges to IPR Continue” was the titled he chose because the Constitution itself serves to protect people’s interests, partly by design. “IPR” is a propaganda term of patent lawyers and this is where Crouch shows his real agenda. “Respect for property rights has always been a core American principle,” he writes.
There is no doubt about it. The American (US) principle of slave ownership is well documented. There is also ownership of houses and the country (by north European feudalists), but the former assumes ownership of people (a gross concept by today’s standards) and the latter ownership of constructs put together by people (sometimes slaves or wave slavery). What Crouch is trying to insinuate here is that ideas are also ownership (patents) and that therefore “America” (meaning US) should defend people’s claims to ownership of ideas. Clever lie.
“That respect generally means that a government grant of a property rights cannot be cancelled or annulled outside of judicial action,” Crouch continues.
Why does Crouch obsesses over the need to compare patents to “property” or “ownership”? These are nonsensical comparisons. It’s like that infamous “corporations are people” statement (echoed by more than just one oligarch over the years).
Anyway, patent lawyers live in another kind of world, where ideas are to be treated the same way as objects, the US is a continent, and innovation depends on patent monopolies rather than bright immigrants from all around the world (people who immigrated to the US after it had gained independence).
The theme of “trolls” is still dominating patent news (see “New Mexico businesses need patent reform | by Sen. Jerry Ortiz y Pino” and “Patent Trolls and CBM“) meaning that the perceived problem with the patent system is that small actors, not just large corporations, manage to derive money out of it. The latter example says: “For anyone that is interested in becoming a lawyer, or at least thinking about becoming one, may I suggest that you get into patent law…because even in the rough Obama-economy, patent trolls are busy at work and busy is booming.”
Patent lawyers in general would be out of business of this whole concept of monopolising ideas was thrown out the window. “Beware of the patent trolls…the current law doesn’t protect you from them,” wrote David Schachter in the corporate media. What about large patent aggressors such as Apple and Microsoft? Does the law protect from them? Of course not, but we’re supposed to think that it’s fine for large corporations to bully and chase people around because they’re ever so… “innovative”, or “respectable”, or whatever. This status quo is clearly rigged, but not for the reason the corporate media says it is.
More proof that the USPTO is out of touch is this firewall patent example which we cited the other day. The system is surely is out of touch if many years after firewalls were conceived and also implemented, deployed etc. the USPTO hands out a patent on the concept, facilitating litigation by a late-coming opportunist. There is some more coverage of this from a trolls expert right now:
Last month, the EFF faced down a lawsuit claiming that one of its “Stupid Patent of the Month” blog posts illegally defamed the inventor, a patent lawyer named Scott Horstemeyer. Days after the lawsuit became public, it was dropped.
The series hasn’t skipped a beat, though, and the newest edition highlights another serial litigator with a ridiculous patent. Wetro Lan LLC believes that its US Patent No. 6,795,918 covers Internet firewalls, or as it says, a system of “filtering data packets” by “extracting the source, destination, and protocol information” and “dropping the received data packet if the extracted information indicates a request for access to an unauthorized service.”
“This month’s winner is a terrible patent,” writes EFF patent lawyer Daniel Nazer. “But it earns a special place in the Pantheon of stupid patents because it is being wielded in one of most outrageous trolling campaigns we have ever seen.”
There are many problems with the patent system, the least of which is “trolls” or “stupid patents”. The problem is much broader because “trolls” basically means small patent aggressors (leaving aside the bigger aggressors) and “stupid patents” evades the issue of patent scope. The US patent system, more so than other patent systems around the world. permits patents on various domains where patents are demonstrably harming innovation. █
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“It may well be that between press and officials there is an inherent built in conflict of interest.” — General C. Westmoreland in Defence and the Media in Time of Limited War, Routledge, 13 September 2013, p. 64.
Summary: Patent lawyers are besieged by gradual tightening of patent scope and recklessly fight back (e.g. by saturating the media) to secure their revenue sources, derived from (and at the expense of) actual scientists and true market producers
THE USPTO‘s assignment/assessment guidelines (examination instructions for the process by which to rank patent applications for novelty), as well as court rulings, citing SCOTUS regarding Alice, have both diminished and almost eliminated the perceived value of software patents. This reduces the number of patents obtained and number of patents that are brought before a judge in a courtroom, especially where these patents pertain to software. Patent lawyers are ‘politely’ furious and they try to dominate the media with their ‘damage control’, which means misleading statements, misdirection, cherry-picking (bias/lies by omission), and so forth. We gave a lot of examples before. It’s getting rather crass.
“Either Quinn has poor reading comprehension skills or he simply does not want to understand (because he is essentially paid not to understand).”The other day we saw Colleen Chien calling for an “open” patent system. “One year ago,” wrote Chien about Tesla's openwashing (like Panasonic's), “Elon Musk announced that Tesla would dismantle barriers to the use of its technology by “open sourcing” its patents and making them available for all acting in good faith to use. Because patents are usually used to close, not open, doors to competitors, the move created confusion and criticism.”
There is criticism indeed, but from who? Here is the patents maximalist Gene Quinn (loud proponent of software patents) slamming Chien’s analysis, lumping it together with what he calls “a lot of disingenuous articles about the U.S. patent system” and calling it “misleading”.
“The premise of the article,” he says, “is that it is time to open the patent system. Specifically what that means, and to what end that would be useful, is unclear and frankly unexplained.”
Either Quinn has poor reading comprehension skills or he simply does not want to understand (because he is essentially paid not to understand). What Chien suggests is a sort of retreat to the the original raison d’être of patents — where publication (e.g. attribution) rather than litigation is the core goal. Quinn, a supporter of all sorts of crazy patents and even parasitical elements like trolls, surely won’t like that. Another post from Quinn’s site (but not composed by Quinn himself) dares to acknowledge what he very much feared right after Alice had been ruled at SCOTUS one year ago:
…Alice issued a year ago which opened the door to invalidating software patents on the basis that they simply implement “abstract ideas”…
Yes, that’s great news. Sadly, however, the media hardly covers that. The corporate/financial media keeps glorifying patents as though they’re national trophies whose raw count is proportional to innovation and so-called ‘articles’ from Fox Rothschild LLP, Baker Botts LLP, Bradley Arant Boult Cummings LLP, and spokespeople for conservative lobbyists/think tanks like Cato and Heritage try hard to crush real patent reforms. They want to preserve the status quo. The grossest headline came from Bradley Arant Boult Cummings LLP (all of these LLPs are patent lawyers in case that’s not obvious), which says “Innovators Beware! Patent Reform Creates The New “Anti-Patent” Troll” (not calling “trolls” those who antagonise patent trolls but rather referring to those who extort companies using invalidation of patents, i.e. not really trolls at all!). Here is the core of the nonsense, which essentially redefines patent trolls: “Unlike other species of patent troll, the Wall Street troll seeks to destroy the target company. Many companies, especially small drug companies, could potentially lose 100 percent of their value if they lose the patents for their core technologies. This creates a situation that is very lucrative for the Wall Street troll, because if the company’s stock loses all of its value the troll makes a windfall.” Well, any company whose entire value depends on a patent probably does not deserve to be in business. Patents as a tool of artificial price hikes don’t serve society, especially where medicine is concerned. This is where patents become tools of artificial scarcity. It is unethical and we wrote many articles to explain why. There are still valid business models that don’t depend on patents, in the same way that software which is free to distribute still brings income (Red Hat, for instance, has billions in revenue each year).
“Patents and patent lawyers are needed for innovation to the same degree that billionaires are “job creators” who create a “trickle-down effect” (they typically just loot and hoard).”The media these days is absolutely stuffed with patent lawyers, appearing everywhere the subject is discussed, parroting — completely unchallenged — claims about “innovation”, “inventors” and scaring us about China (the same excuse/straw man used by TPP proponents). Patents and patent lawyers are needed for innovation to the same degree that billionaires are “job creators” who create a “trickle-down effect” (they typically just loot and hoard). █
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