Chuck Grassley’s 1979 congressional photo
Summary: Big corporations, including some of the biggest patent aggressors out there, successfully lobbied for what has essentially become a bipartisan bill to eliminate the thorn in their side
“TROLLS” has become the dominant term in today’s news about patents. It has been like this for at least a couple of years. It’s all about trolls, trolls, trolls. The EFF, which sometimes speaks about software patents (especially this year), is still obsessing over “patent trolls”. In one of its recent articles it said: “Suppose you get sued by a patent troll. You then learn that the troll has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the troll.”
To rephrase the above text, suppose you get sued by a large corporation. You then learn that the corporation has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the corporation.
“Busting one patent at a time is not a practical approach to solving the overall issue.”The point here is simple; it makes no difference if the plaintiff is some corporation or a troll, but large corporations want to only eliminate the trolls, not themselves. Watch the ongoing AP obsession with trolls, this time too courtesy of Anne Flaherty. The Associated Press has almost literally flooded news houses and newspapers with articles that only focus on trolls, as we showed last week (dozens if not hundreds of large papers reposted/reprinted AP). This looks like propaganda. It’s a form of lobbying through media. AP’s obsession with trolls is exceptional mostly in the sense of impact, it’s not necessarily unique. AP is embedded or put in hundreds of Web sites around the world, shifting all focus to one misdirected ‘reform’ effort [1, 2, 3, 4, 5, 6]. The headlines vary a little, but the storyline is always the same.
Here is a better article from the EFF, focusing on a patent it squashed quite recently. The site says “EFF recently won our challenge to invalidate claims of the “podcasting patent” using a procedure at the Patent Office called inter partes review. This procedure allowed us to challenge a patent that was being used to demand licenses from individual podcasters, even though EFF itself had never been threatened by the patent owner. EFF’s ability to file this petition was important because many of those targeted by the patent owner—small podcasters—would be unable to afford the $22,000 filing fees to challenge the patent, let alone the attorneys’ fees that would come along with it. Also, if an individual podcaster had filed an inter partes review it would have faced a risk of retaliation in the form of a district court lawsuit from Personal Audio. Instead, EFF was able to defend the public interest on behalf of the community as a whole.”
The word “troll” is not even mentioned. Compare that to related coverage from “IP Troll Tracker”, which wrote: “Let’s just come right out with my point…the “podcasting patent” is no more. I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here). Why? Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process. You know, like Intellectual Ventures does. Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.”
Busting one patent at a time is not a practical approach to solving the overall issue. It is impractical and expensive to do this a million times. The only proper solution is to eliminate software patents, which obviously would invalidate this “podcasting patent” (along with hundreds of thousands — if not over a million — other US patents).
So, now there’s this relatively new talk about some ‘reform’ with a new name. It’s not really reform for the people but reform for the nation’s largest corporations (to better suit large corporations’ interests). The New York Times used a misleading headline: “With Patent Litigation Surging, Creators Turn to Washington for Help” (by “Creators” they don’t mean individuals). We quickly found a lot more coverage of this (usually following trend-setting media) and it kept mentioning this thing called “PATENT Act”, which is fairly new. Lawyers’ sites covered it [1, 2, 3] and so did a lot of corporate news sites [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]. Mike Masnick wrote about this thing called “PATENT Act” a few days ago, highlighting early signs that this is just another “act” with gimmicks and branding rather than substance, just like “Freedom” Act and “Patriot” Act. He said that the “Patent Reform Bill [is] A Good Step, But Still Falls Way Short Of Fixing A Broken System”, explaining that: “As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It’s backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid’s leadership position as Reid prepares to retire, has declared that this time the bill is getting done.”
It looks like it will really become law (based on dozens of articles we saw), but what will this achieve? “2015 could be the year Congress takes action on patent trolls,” wrote Timothy B. Lee, noting that it’s all about trolls.
“There’s a growing problem with patent trolls,” he wrote, “the companies that create no products of their own but earn money threatening other companies with patent lawsuits. The problem has become so widespread that even low-tech companies like restaurants and grocery stores have begun lobbying Congress to do something about it.
“It’s not really reform for the people but reform for corporations (to better suit large corporations’ interests).”“Now Congress could be on the verge of taking action. On Friday, a Senate aide close to the negotiations told me that a bipartisan group of senators is “very close” to introducing legislation with broad support in the Senate.
“Supporters of the legislation have good reason to be optimistic, as the coalition supporting the legislation is broader and more unified than in the past. But given Congress’s penchant for gridlock, it’s far from a sure thing.”
We wrote about Grassley before (in relation to Microsoft) and mentioned some of the other supporters of this bill. They are not necessarily corrupt, they are probably just misled by the lobbying. Our conjecture is that to make the bill passable they don’t really want a proper and complete reform, they just amend it based on input from corporations (lobbying). A slightly later (and very good compared to the rest) article from Timothy B. Lee explains “how big companies are stopping Congress from fixing the patent system”. He hits the nail on the head when he says that “the problem of large companies exploiting the patent system hasn’t gone away. If anything, it’s gotten worse as the courts made it easier to get broad, vague patents in the 1990s and early 2000s.
“A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That’s not because Google was caught copying Microsoft’s Windows Phone software (which has never been very popular with consumers). Rather, it’s because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft’s patent arsenal has become so huge that it’s effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.
“The proliferation of software patents has triggered an arms race. Google, for example, spent $12.5 billion for Motorola, largely for access to its large patent portfolio. A consortium of technology companies including Microsoft and Apple spent another $4.5 billion on patents from the defunct technology company Nortel. Their vast patent libraries help protect them from each other — but they could also help them crush potential future competitors.”
Grassley, we venture to guess, is not trying to tackle abuse by large corporations, he is just listening to some abusive large corporations (and the corporate media). As The Hill put it not so long ago: “Bipartisan senators on the Judiciary Committee are close to unveiling legislation to fight so-called patent trolls.
“Judiciary Chairman Chuck Grassley (R-Iowa) told reporters at the National Press Club that negotiators are “close to getting a final agreement,” with his office later saying it could come as soon as this week. Another aide familiar with the talks said senators are close to a bill.
“The proposal is not expected to look like the House’s Innovation Act but will include some of the same provisions. It will have provisions on discovery and pleading requirements that are less strict than the House version, according to Grassley.”
Call it “PATENT Act” or “Innovation Act”, these are just labels. What it’s really about is tackling trolls, but not promoting innovation or even improving patents. The bill targets the plaintiff type, not the patent type. These are just an opportunist’s methods for promoting oneself without really serving the public. Recall the patent 'reform' from the GOP and watch this latest publicity stunt for Rick Santorum (disgraced GOP candidate who never gained traction).
As with many giant corporations that support Linux (IBM or Google), there's no chance of them tackling software patents as a whole. They are not Free software communities. Their problems are different. “Google collects patents while lobbying against them,” wrote one vocal proponent of software patents. It is a correct observation actually, exploited by proponents of overly broad patents in this case. Here are the British lawyers from IP Kat taunting Google as well in their article “Google says ‘We want your patent. Maybe.’”
Never expect large corporations to do the right thing unless their interests somehow coincide with the interests of people (which is rare). Patent reform will require popular action and pressure from the public, not from the likes of IBM and Google, not even Red Hat. This is why the effort to stop software patents must regain some momentum (lost several years ago). █
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USPTO: when quality does not matter, only the payment does
Summary: The USPTO, much like FISA (notorious court for surveillance/espionage authorisation), has become a rubber-stamping operation rather than a patents examination centre, as new evidence and old evidence serve to show
EARLIER this evening we wrote about the OIN’s response to the growing patent problem, HBO’s (corporate media) misdirection, and now we turn our attention to the USPTO, which has been busy hiding or perfuming its systematic abuse.
The EPO, which is now working towards the Unitary Patent Package (see the latest in IP Kat [1, 2]) is becoming increasingly assimilated to the USPTO, where software patents are still, at least in principle, allowed.
“It has actually become a lot more difficult to acquire software patents in the US, let alone win with software patents in court.”“A look at the USPTO’s examples for patent eligibility” is the title of a recent article from lawyers’ media. As we have demonstrated hundreds of times before, patent lawyers work hard to deny the post-Alice reality, which disqualifies many software patents. This kind of bias helps distort people’s perception of the status quo. It has actually become a lot more difficult to acquire software patents in the US, let alone win with software patents in court. That is of course good news and a step in the right direction. This is what can possibly salvage some of the USPTO’s past reputation and perhaps make US patents worth more than the paper they’re printed on.
The lawyers’ site says: “This article is the second installment of a three-part series examining the USPTO’s Interim Guidance on Patent Subject Matter Eligibility. The first installment describes the Interim Guidelines’ implementation of the Supreme Court’s two-part test for determining patent eligibility. Now, we will review examples published by the USPTO of patent-eligible and patent-ineligible claims.”
As we have noted here before, after the Supreme Court’s ruling the guidelines for patent examiners were modified. Surely this can reduce the overall number of patents granted, which in turn makes the USPTO look “less successful” (meaning less profitable, as quality clearly does not count when 92% of applications are "successful"). According to this lawyers’ site, “USPTO Can’t Be Sued For Not Axing Re-Exam, Fed. Circ. Says” and one patent lawyer’s site (vocal proponent of software patents) talks about USPTO fees. There are surely changes underway (less software patents) and many patent lawyers must be nervous.
“Surely this can reduce the overall number of patents granted, which in turn makes the USPTO look “less successful” (meaning less profitable, as quality clearly does not count when 92% of applications are “successful”.”As we mentioned the other day, the USPTO uses some dirty tricks to make itself look better. “US Patent Office Gamed The System To Make Sure Patent 9 Million Wasn’t A Crazy Troll Patent,” said the title composed by Mike Masnick. “As I’m sure you were carefully anticipating,” he wrote, “on Tuesday, April 7th, the US Patent and Trademark Office issued patent 9,000,000. As you of course are already aware, over the past few decades, the USPTO has been rapidly ramping up the number of patents it approves. That’s why, even though patents only have a lifetime of 20 years from the date of application, 1/3 of all issued patents are still in force today. Think about that.”
Watch the press release and self-congratulatory Smithsonian spin. If a country has 9 million patents and 92% of patent applications are eventually accepted, it does not mean the country is innovative, it just means it is too lenient when it comes to patent granting. It means it is unable to recognise real innovation. This is why the EPO (especially its examiners) must guard against the greed of businesspeople like Benoît Battistelli. As it stands, the EPO is not (yet) a laughing stock, only its management is. █
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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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