“Distrust any enterprise that requires new clothes.”
–Henry David Thoreau
Summary: Analysis of recent articles from patent lawyers, highlighting their bias and disregard for facts in this system which has become increasingly intolerant toward software patents
TECHRIGHTS has very serious concerns about media coverage of patent matters. The corporate media is still stuffed with lawyers, acting as experts despite a conflict of interests or vested interests (informing versus profiting). Asking patent lawyers about patent law is like asking oil and coal executives about global warming and preferable energy sources.
We have closely watched patent lawyer’s Web sites, blogs, and news sites ever since the Alice case was concluded (one year ago at SCOTUS level). It wasn’t quite over because then, almost immediately, there was a trial in the media, whereupon opinions on the outcome were publicly distributed and consensus was being shaped, mostly by biased lawyers. The comical thing about it is that lawyers twist the truth or distort the truth in order to defend their business, which involves bending the system or finding loopholes for getting around the rules (that is what people often pay lawyers for).
We were hardly astounded to learn that yet more software patents have died because of the Alice case. As Akin Gump Strauss Hauer & Feld LLP put it: “To determine whether the asserted patent fails to claim patentable subject matter under § 101, the court applied the Federal Circuit’s two-step Alice test.”
This is an example of coverage which is rare because patent lawyers rarely cover legal cases where software patents get eliminated. As we have demonstrated many times before, they would rather emphasise cases where software patents withstand a court’s scrutiny. It’s lie by omission. It’s worse than half-truths.
“Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists.”Another site, a lawyers’ site called Law 360, says that “co-founder of an online diamond sale facilitator wants the startup’s lawyers tossed from a case accusing him of stealing its proprietary software, arguing in New York federal court Wednesday that one lawyer represented him for 16 years and the other is bound to be a witness.” The phrase “stealing its proprietary software” serves to remind us that lawyers view software as a property that can be stolen, not merely copied. Another article from Law 360 focuses on Alice , turning to the software patents-friendly Court of Appeals for the Federal Circuit (CAFC). Titled “A Look At Everything The Fed. Circ. Has Said About Alice”, the article serves to echo the pro-software patents arguments rather than remind us of the findings of the Court it got escalated/elevated to (the highest court in the US), by means of an overruling appeal.
The National Law Review says that “Another Sequenom Patent Appeal Heads To The Federal Circuit” and we are assuming that everything will be done by this court, as always, to legitimise the patent and by extension many like it. If only more lawyers’ sites were sincere enough and objective enough to cover the many known cases where software patents are dropping like flies…
McDonnell Boehnen Hulbert & Berghoff LLP, another law firm, has just published “Software Patents Are Still Very Useful Despite Alice, But Are Business Method Patents?” What a loaded headline. Actually, software patents lost in a very big way, much more so than after the Bilski case.
Gene Quinn, a vocal proponent of software patents, went the furthest (among the patent lawyers). In no effort to come across as professional or polite (or even moderately diplomatic for the courts’ sake), he starts a long series of personal attacks on the intelligence of SCOTUS Justices as if he, a patent lawyer, is all that technical himself. “Naked Emperors” he calls them, stating:
Given that we live in an age of software innovation, where 50% or more of all innovation is in one way, shape or form related to software, why are many Article III and Administrative Judges declaring that software is not patent eligible? Perhaps a more important question is why is Congress letting these Judges get away with what they are doing? There is no legislative support for the existence of any so-called judicial exceptions to patent eligibility, yet Article III and Administrative Judges are striking down patent after patent in this economically vital area.
His arguments are clearly flawed and are easy to debunk (for instance the poor assumption that expansion of scope must follow digitisation of existing processes), but what we wish to highlight is the rudeness, arrogance, and poor attitude from some patent lawyers who view themselves as flag-bearers.
Another lawyer, a good lawyer (fighting for ethical software and against patents on software), expresses concern about a new ruling regarding willful or unwilling infringement of patents, noting: “Most engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”
“As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers…”
As a lawyer for the Linux Foundation, Andy Updegrove analyses the threat this poses to Free/Open Source software and he reminds of the injustices in current patent law, be it because of patent scope or the definition of infringement. Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists. A reset of this who system is well overdue, but large corporations won’t permit it. Nor will patent lawyers who make a career out of this sordid mess… █
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Summary: In an unforeseen kind of ruling, the same court which slapped down a lot of software patents last year is now legitimising the actions of a patent troll
Joe Mullin wrote about Patent Troll Tracker quite some time before he became a widely-recognised journalist focusing on patent trolls and some other patent-related matters. Patent Troll Tracker was later ousted with a bounty on his head (coming from a patent troll). Patent Troll Tracker was a patent lawyer from Cisco, which had attracted many trolls to it. Based on this new report from Mullin, Cisco has just lost to a troll at SCOTUS level (the highest possible level, which is also expensive). As Mullin put it: “The Supreme Court issued a ruling (PDF) today in Commil USA v. Cisco Systems, one of two patent cases it heard this term. On one key issue, the opinion favors Commil, a “patent troll” that won a $64 million jury verdict against Cisco. But other findings mean that the non-practicing entity won’t be getting a payday any time soon—and a final section of the opinion is wholly dedicated to reminding judges to sanction misbehaving patent plaintiffs, something that didn’t even come up in this case.
“In the Commil USA v. Cisco Systems case, a 6-2 majority of justices held that defendants in patent cases can’t evade claims of “induced infringement” by arguing they had a “good faith belief” the patent was invalid. That overturns an appeals court decision favoring Cisco. Justice Stephen Breyer was recused from the case.”
This is very bad because only one year after the Alice case we are now seeing SCOTUS leaning in favour of patent trolls, not just rubbish patents. SCOTUS is, in some sense, feeding the trolls here.
“Stop Feeding the Patent Trolls,” says the headline of a new article, explaining: “At AngelList, we’ve spent the last several years creating a platform for startups and founders to connect with their peers, secure seed investments and recruit employees. We’re passionate about what we do, which is why it’s all the more upsetting to see fledgling businesses continue to take unnecessary and costly hits from greedy patent trolls.
“What SCOTUS has just done is only going to further legitimise trolls.”“For years, patent litigation has drained small businesses of resources that would otherwise be used for research, investment and job creation. Specifically, flaws and loopholes in the current law allow patent assertion entities (PAEs), also known as patent trolls, to exploit the system and claim rights to patents without ever having made a product or provided a service to any customers. Congress’ inaction has led to billions of dollars spent on frivolous patent suits, needlessly costing the economy and consumers.”
There is then a reference to the PATENT Act, which only tackles small trolls but not big trolls. “The Protecting American Talent and Entrepreneurship Act of 2015,” says the author, “is sponsored by both sides of the aisle, including Senators Grassley, Leahy, Cornyn, Schumer, Lee, Hatch and Klobuchar.” It is also sponsored by the large corporations that are funding these politicians.
Let it be clear that patent trolls truly are an issue, but they are not the only issue and they benefit from the vast extent of patents on software. Various sites that focus on patent trolls (and patent trolls only) amplify the claims of those famed academics who focus only on trolls, for example Michael Meurer and Bessen. As Matt Levy put the situation, it was “Bessen that estimated that NPEs cost U.S. businesses at least $29 billion dollars in 2011.” Levy previously related a SCOTUS approval of Form 18 abandonment to patent trolls. 9 days ago he wrote: “In a blog post last year, I wrote about about the prolific patent troll eDekka, which filed well over 100 complaints in 2014. Not one of them gave any useful information to the defendants. Most of the complaints were filed in the Eastern District of Texas.”
Eastern District of Texas is where a lot of patent trolls operate from and the environment sure became fertile for their racketeering. What SCOTUS has just done is only going to further legitimise trolls.
IP Troll Tracker (not to be confused with Patent Troll Tracker) recalls one of the most notorious trolls out there, Erich Spangenberg, saying that there is alarming embellishment of what trolls like him are doing. “In another alarming chapter of the “saved from a troll by a troll” play book,” she writes, “Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg. Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.”
Here is Mike Masnick at TechDirt put it: “The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.”
One might expect patent trolls to be vilified or cracked down on by now, but even the SCOTUS helps them these days. Some of the media paints them as innovators and some as saviors. Actions are now judged by the actor’s size, not the action. █
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“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”
–IP Watch on Professor Joseph Stiglitz
Summary: A review of recent writings about software patents and patents on business methods in the United States, demonstrating that patent lawyers have gotten very vocal and sneaky (trying to evade the rules)
THE patent landscape in the US is getting a lot better, not because of any reform but because of a SCOTUS ruling in a case widely referred to as Alice. Brian Fung from the trend-setting media says “new patent lawsuits are down for the first time in five years.”
“Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones.”Over the past year (since the Alice precedence was set) we have written a great deal about patent lawyers’ fears and their endless attempts to rewrite the rules or cheat the system (which is basically what their job is often about–finding and exploiting loopholes, sometimes misleading judges).
Corporate Counsel, a site of patent lawyers (as its name reveals if not gently indicates), is trying to tell us that “Software Patents Are Still Valuable”. Written by R. Flynt Strean, Michele M. Glessner and Zachary A. Higbee from Corporate Counsel, the article basically tells patent lawyers what they want to hear. Surely it’s music to their ears.
Another lawyers’ site, Law 360, says that the Court of Appeals for the Federal Circuit‘s “Eon Ruling Offers Map For Clear Software Patents”. To quote: “A recent Federal Circuit decision invalidating an interactive TV patent owned by Eon Corp. IP Holdings LLC is the latest ruling by the appeals court stressing the need to make software patents clear by including an algorithm and provides guidance for writing software claims that can withstand scrutiny, attorneys say.”
This is basically the giving of tips on how to patent software, despite many of prospective patents being ineligible.
Watch sites composed by lawyers (National Law Review in this case) ridiculing critics even of patent trolls as if patent lawyers support patent trolls, not just software patents. This one site wrote this about Alice: “Alice did provide, however, that if the subject matter “improves the functioning of the computer itself” or “any other technology”, such subject matter may be patent-eligible. In this way, one can see this as leaving open the possibility of finding computer software patent-eligible.”
They are reversing the actual outcome as positive. Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones. The way lawyers like to frame it is a way that generally supports software patents, i.e. the opposite of what SCOTUS actually ruled on. These articles are full of lawyers’ tricks for patenting software despite the highest court’s ruling which serves to bar/limit them.
Watch this other lawyers’ site stating about CBM (covered business method): “As a § 101 analysis under Alice Corp. does not require the time and expense necessary to analyze prior art, swiftly launching a CBM petition that relies either solely or primarily on § 101 challenges presents a cost-effective approach with good potential for success. This is especially true in view of the limited estoppel particular to CBM post-grant reviews, which would allow for subsequent challenges under §§ 102, 103 and 112, at the district court. In addition, a CBM, unlike an inter partes review is not required to be filed within one year after a district court patent infringement suit is initiated. Note, however, that upon a final written decision, § 325(e)(1) estoppel will still bar grounds that the petitioner “raised or reasonably could have been raised” in pending or future PTO proceedings, this is true even if the parties settle.”
“To lawyers, everything that reduces the number of permissible patents is evil.”The pattern here is clear and we have omitted nothing that we’ve come across in our research (this month’s news). Lawyers who profit from patents are working very hard to get around the rules and continue to patent software, showing disregard not just for science but also for the highest court.
Here is one statement which we also found mystifying, under the headline “Patent Laws Are Getting Cloudy”: “While the cloud reduces the barrier to entry for innovation, moving from a hardware to a software model makes getting a technology patent more difficult, he added. He attributed this to biases in U.S. and European patent law.”
What biases? Ones that limit patenting of software? And for good reason? To lawyers, everything that reduces the number of permissible patents is evil. They view everything as a nail because they are hammers. All they care about is money and destruction (in courtrooms, where real products can be embargoed or castrated, companies can be driven to bankruptcy, and ideas come to be squashed). Don’t listen to patent lawyers if you want the facts; we know how they make their money. They create nothing but paperwork and court hearings. █
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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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