“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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…And IAM ‘magazine’ uses that to promote the notion/stigma of China bias (possibly to help the agenda of IAM’s funding sources)
Summary: The race to the bottom, or the flirt with gradual transition to filing/registration rather than examination (rubberstamping instead of scientific assessment), leads to systems which are rife with feuds, abuse, and unfair treatment (discriminatory towards foreign companies)
THE USPTO has famously lowered its patent quality bar (in a Battistellite EPO fashion) in order to create the illusion of improved production. SIPO, a friend of Battistelli, has done the same in order to ‘outpace’ the US (artificial elevation of the number of grants by various misleading and nefarious means).
According to Patently-O‘s new article “Patenting From China”:
The new China-Patenting article from Jay Kesan, Alan Marco, and Richard Miller offers some interesting insight on developments in how Chinese innovators are using the patent system. The “More than Bric-a-Brac” article particularly focuses on how the Chinese approach has changed over time. The article concludes that China’s approach is not exceptional but rather is following the same pattern exhibited by other nations such as South Korea and Japan in decades past.
Not only once (see our previous post about CAFC*) but twice today IAM spread or disseminated propaganda (like its infamous EPO propaganda). With propaganda masked as ‘studies’ it’s hard to tell what’s going on unless one already knows what IAM is and who its clients (or funding sources) are. Take for example this new ‘study’ which accuses China’s patent system of being too China-leaning. This totally neglects to mention identical bias in the West, notably ITC and definitely not limited to it, but then again, it serves the overall agenda of the site. What is this, a news site or a think tank? Funded by patent trolls, PR/lobbying firms and so on… █
* Patently-O‘s Dennis Crouch writes about the latest from CAFC today, noting: “In The Medicines Company v. Hospira, Inc., App. No. 14-1469 (Fed. Cir. 2016) (en banc), the Federal Circuit has ruled that an invention claimed as a “product-by-process” is only “on sale” if “the subject of a commercial sale or offer for sale…”
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Lobbyists are preying on public indifference
Summary: The policies over which Indians and Europeans have kept guard are being ‘stolen’ by vested interests
Typically, when patent lawyers say they offer an analysis on something it means they try to sell something. This applies to lawyers in many areas and patent lawyers are no exception. So-called (derogatory label) ‘grease monkey’ garage workers are a suitable analogy here, as there’s a reputation among them for leaving things poorly repaired at times, in order to have returning clients and more expensive products (or services) sold.
The patent lawyers in India still lobby on software patents in the country, as usual. Seeing their list of clients helps explain why. This new ‘analysis’ titled “Aspects of Patentability of Software Programmes in India” talks about software patents in India and it is basically more of the same.
“Software patents are not entirely dead in Europe.”“Alignment with the position in US,” notes the author, as if the two system are connected somehow (except perhaps for wishful thinkers).
People need to recognise that the interests of patent lawyers are rarely the same as people’s (at large) interests. This is especially true in India and to a lesser degree in Europe, where at least many of the applicants are in fact European. Pay attention to this EPO tweets from yesterday (one among several such tweets as of late). It is almost as though they allude to software by another name now, “ICT” (not just telecommunications), and they reach out to the USPTO (as if there are foreseeable unification plans, not mere technical collaborations). Battistelli’s EPO would love to expand patent scope and unless people work hard (tirelessly every year) to prevent this, it might actually happen at the end. Software patents are not entirely dead in Europe. There’s work to be done. █
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Time to bring the patent offices under control (to serve inventors, not billionaires)
Summary: In the patent microcosm — just like the Military–industrial complex — a conflict of interests has been created wherein demand is being artificially created for undesirable things, typically for the empowerment of those who are already very powerful
The previous post dealt with the role played by Shelston IP and AJ Park in the south east. They basically serve the agenda of what’s sometimes referred to as the “Empire of Corporations” (class, not geography, multinational imperialism by profit, not people). The EPO under Battistelli is pretty much the same and the EPO now relies on globalisation to drive the agenda of the super-rich (already enjoying special EPO treatment), like those whom Battistelli like to hang out with a lot (Sarkozy, Lagarde and billionaires).
“There are many legitimate reasons for staying in the EU, but UPC isn’t one of them, unless you’re IAM or a patent lawyer.”Right now there’s lots of talk here about Brexit (Britain exiting the EU), which I am personally against. IAM’s Joff Wild, who is obviously very close to the EPO, only cares about Brexit because it might jeopardise the UPC and a couple of hours ago he wrote: “For one, the opinion polls in the UK are now pointing ever-more firmly towards a win for the Leave side in the country’s upcoming referendum on its membership of the European Union. As discussed on here previously, should Brexit be the result on 23rd June that is likely to have major implications for the future of the Unified Patent Court. It will be interesting to hear what people have to say about this. My sense is that very few have registered that it could happen, but there is now a very real possibility it will. The consequences for the global patent market could be pretty negative – especially given the current uncertainties in the US, another issue that we will be focusing on over the next two days.”
Let is be clear that the UPC helps patent trolls, multinational giants, and software patents (i.e. all the things IAM loves so much). There are many legitimate reasons for staying in the EU, but UPC isn’t one of them, unless you’re IAM or a patent lawyer. The above serves to illustrate just to what degree forces associated with the EPO and with patent chaos push agenda here. It’s almost as though Europe’s patent policy totally ignores the interests of the European people and is steered directly (and usually behind closed doors) by a bunch of patent lawyers and profiteers. This is appalling, but it doesn’t just happen in Europe. It’s an international problem.
“This is appalling, but it doesn’t just happen in Europe. It’s an international problem.”Looking at the US, the patent system there is literally run by people from industry (e.g. IBM or Google, who have corrupted the very purpose of the patent system) — people who later turn into lobbyists. Is anybody surprised that US patent policy is now optimised for huge corporations (protectionism) rather than invention? Patents are now being criticised by The Scientist (US), as part of the article “Do Patents Promote or Stall Innovation?”
This does not suggest that all patents are bad, but some oughtn’t be granted and there are domains, such as the abstract or nature, which oughtn’t be covered by patents. The article, as an example, says that “a patent dispute between biotech companies Sequenom and Ariosa Diagnostics on a related theme—the analysis of naturally occurring fetal DNA” is not good. Almost everyone would agree, except perhaps the giants that are already worth billions and established a monopoly using patents on things which they did not even develop (maybe merely discovered or utilised).
“There are alternative routes of operation and even protection of one’s ‘secret sauce’ (or source code), for example copyright law for software.”Now, consider India’s policy on abstract patents like software that in no way promote the interests of India. In the case of drugs, secrecy is one option and sharing of knowledge across companies (collaboration) are suitable business models too, albeit today’s giants would resist these with passion, for obvious reasons, and they also have a massive lobbying budget that goes a long way in a country like India. A new article from MIP, titled “India’s first National IPR Policy maintains position on affordable drugs,” says that the “India government has unveiled the first National Intellectual Property Rights Policy that sets out seven objectives and relevant guidelines to promote the country’s IP regime, and has resisted pressure from the United States to amend the patent law regarding access to cheap drugs”
In the words of a pro-software patents Web site, “Bad Patents Can Harm A Startup Company” and to quote the opening paragraph: “One of the options for the inventor is to not to file a patent, but simply to keep their invention secret. The most common examples are the formula for Coca Cola or Colonel Sander’s secret herbs and spices. Both of these examples could have been patented, but were not. From a business standpoint, these were the right decisions.”
“The policies from India show a certain strength in the face of bullying from the likes of USTR.”It’s not always patenting that works best to promote innovation (if patents promote innovation in the first place). There are alternative routes of operation and even protection of one’s ‘secret sauce’ (or source code), for example copyright law for software.
The policies from India show a certain strength in the face of bullying from the likes of USTR. What about east asia? Will it surrender to Western demands? Well, the part of it that’s a former British colony, Hong Kong, seems to be heading in the wrong direction, just like Singapore (another former British colony). To quote MIP: “The Legislative Council (LegCo) has completed its Bills Committee stage scrutiny of the Patents (Amendment) Bill 2015. The Bill introduces several important changes, including an original grant patent system for standard patents in addition to the existing re-registration system as well as a substantive examination procedure in the short-term patent system.”
“It often boils down to one nation’s “rights” (as in “intellectual property rights”) to exercise control over many others.”China will hopefully not be fooled by these policies in Hong Kong which would hurt the Chinese economy, unless Beijing wishes to see more Chinese giants becoming victims of Microsoft blackmail (patent shakedown for NSA-leaning spyware).
A lot of the world’s patent policy and debates are imperialistic by nature. It often boils down to one nation’s “rights” (as in “intellectual property rights”) to exercise control over many others. Those many other nations have elements in them which can be viewed as “enemies within”, e.g. patent lawyers, whose goal aligns with the foreign occupier, and they are willing to lobby domestically to advance nationally-harmful policies for personal gain–a sort of loot shared by the occupier with the facilitator/collaborator. If only more people could see that… █
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Reputation laundering with sound bites like the ‘new Microsoft’
Summary: A look at the reality behind today’s Microsoft and what proponents of Microsoft (often connected to the company) want us to believe
THE aggressive company which is widely hated/loathed (and deserves this hatred, which is well earned based on its actions) just can’t help doing evil. Those who try hard to convince themselves that Microsoft has changed must not have noticed that the management is virtually the same and the company continues to operate like a death squad, attempting to prematurely destroy anything which resembles potent competition, based on suspicion alone.
“Those who try hard to convince themselves that Microsoft has changed must not have noticed that the management is virtually the same and the company continues to operate like a death squad, attempting to prematurely destroy anything which resembles potent competition, based on suspicion alone.”Several years ago we explained what Microsoft was hoping to achieve when it took over Skype (soon thereafter to enter NSA’s PRISM, right after Microsoft which was the first in the whole programme and had already provided back doors to the NSA for over a decade). Recently we saw Skype support for GNU/Linux (which was handed over to Microsoft) gradually being withdrawn and this new thread in Reddit says that “Microsoft is lobbying the Indian government to link peoples’ National IDs with their Skype calling” (no source to verify this with).
Microsoft has turned Windows into something as privacy-hostile as Skype itself, if not a lot worse. With Skype, for example, Microsoft spies on people’s private conversations and even follows links; in Vista 10 Microsoft has a keylogger, which spies on everything (even password typing) in real time. Vista 10 should be made illegal, as it is clearly malicious software and should be treated as such. Ironically enough, Microsoft is almost trying to make it impossible not to use Vista 10 and despite that, as Vista 10 infection rates are increasing, very few people actually use this ‘free’ (so-called ‘bargain’) piece of malware. As one report put it, “Windows 10: less than 15 per cent of those who can upgrade have bothered” and “The big question is whether Microsoft will hit the 20 per cent mark by the time the free offer is over.”
“Microsoft has turned Windows into something as privacy-hostile as Skype itself, if not a lot worse.”This is a disastrous result given the way Microsoft fooled and bamboozled people into installing it, even using malware tactics. According to some reports, Microsoft has just made it virtually impossible not to use this malware (one must supply an ‘upgrade’ date) and anyone who still thinks there’s a ‘new Microsoft’ must be either very gullible or bribed.
This new article, “Microsoft Meets Open Source,” is based on a Big Lie. It is not hard to see that Microsoft is attacking FOSS (Open Source), but this site is doing too many sponsored ‘articles’ (advertisements) these days, such as this one (see disclosure). We expect a lot of the usual Microsoft apologists to pretend Microsoft is fine and dandy and indeed, looking at the company’s boosters, we see exactly what’s expected. Microsoft Peter, for instance, continues to attack FOSS using Oracle’s lies. As iophk put it, “now Microsoft has spoken” (alluding to Peter, who very often relays the company’s positions) and given Microsoft’s propaganda sites’ effort to ‘Linuxwash’ SQL Server (also openwashing it, referring to Microsoft’s own employees/mouthpieces), we identify the old strategy which is to associate SQL Server (among other such pieces of proprietary software) with FOSS.
“We expect a lot of the usual Microsoft apologists to pretend Microsoft is fine and dandy and indeed, looking at the company’s boosters, we see exactly what’s expected.”Don’t fall for it. Some people do, but others have been falling for it for a number of years. Sam Dean, who works for a media company that has been receiving Microsoft money to embed propaganda within the articles (and got caught), is still promoting Microsoft proprietary software and repeats the Big Lie, starting with: “According to more and more people, Microsoft may have finally, truly warmed up to Linux and open source. CEO Satya Nadella (shown) has been much in the news for his comments on how he “loves Linux” and he has noted that much of the Azure cloud platform is Linux-based.”
That’s nonsense. It’s a media strategy which we explained before. What is the ‘real Microsoft’, which one might call the ‘new Microsoft’? It’s hardly any better than a patent troll. As Richi Jennings put it the other day in his IDG headline, “Xiaomi feeds Microsoft patent troll — pays patent toll” (Jennings quotes various comments about it).
“What is the ‘real Microsoft’, which one might call the ‘new Microsoft’? It’s hardly any better than a patent troll.”This article quotes Mary Jo Foley (a longtime Microsoft mouthpiece) as saying: “Microsoft is both continuing to collect patent royalties from Android [and defending] antitrust charges in China. … Some outlets are saying Xiaomi “bought” these patents [not] licensed them.”
We wrote about this the other day, noting that this came from Microsoft -- not Xiaomi -- and Xiaomi paid Microsoft for patents. Here is what the patent propagandists have said over at IAM: “Whichever way you look at it, the deal between Microsoft and Xiaomi which was announced earlier this week has to go down as one of the most significant of the year so far. There are the terms of the deal itself – Xiaomi gets 1,500 patents from the software giant’s global portfolio, Microsoft gets Office and Skype pre-installed on Xiaomi’s Android phones and tablets and the two sides put in place a cross-licence (which it’s probably safe to say is more valuable to the Chinese company).”
“What kind of drug does one have to take to believe Microsoft is a friend?”IAM, which is funded by patent trolls, has always been so Microsoft-friendly that it makes one wonder. Even its Web site, unusually enough, is Windows-powered (in 2016!) and another new article about Xiaomi says that “Xiaomi absorbs patent fund operator Zhigu as it re-shuffles IP team”. This too mentions the Microsoft extortion: “Yesterday, this blog covered a major deal between Xiaomi and Microsoft that saw the Chinese company acquire 1,500 patents along with a cross-licence. While the financial details are unknown, the fact that Xiaomi is now likely among the top 200 or so holders of US patents has to be seen as a coup for the smartphone startup. It also comes just three months after some big changes to its relatively young IP function.”
The bottom line is, Microsoft spreads malware, it spreads it forcibly, it lies about its proprietary software being “open” and it goes after the “open” rivals (such as Android) using software patents. What kind of drug does one have to take to believe Microsoft is a friend? █
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Summary: A look at the Singaporean, US, and Chinese patent systems, which are all becoming more aggressive and more disconnected from public interests, in favour of large multinational corporations
THE following article is an outline of various bits of patent news that are too short to merit an article of their own.
Singapore as Hub for Patent Trolls
We recently wrote about Creative (what’s left of it) staging a patent war against Android and by extension against Linux [1, 2]. What was interesting about it might be the role of Singapore, not Texas. Singapore is increasingly becoming a venue of patent trolls, not just notorious tyrants, tax evaders, and exploited labour from south Asia (I know about this having studied the country for about 4 years and visited the country as well). Based on IAM, a proponent of patent trolls, Singapore’s role as a litigation and/or trolling hub is on the rise. Here is the part about Creative:
There are, though, exceptions to this broad trend. Creative Technology is one clear example. The company was a pathfinder in the field of MP3 and audio products, and as its device business has declined, it has turned to its patent portfolio to shore up its balance sheet. In March it launched US patent litigation against Samsung, LG, Lenovo and others over an MP3 player patent that has previously yielded a $100 million settlement with Apple. Nevertheless, the amount of legal and transactional IP expertise in Singapore probably exceeds the ability of local companies to put it to use.
Putting aside various pieces that are less relevant to us, Lexology published “Pending Patent Trial and Appeal Board’s (PTAB) Final Written Decision Does Not Require Stay and Does Not Justify Rule 60 Relief: WesternGeco LLC v. ION Geophysical Corp.”
“This is basically about tilting the system against defendants/challengers and in favour of patenters (as usual), by giving them an opportunity to change their patent (or application) after it had been granted.”PTAB increasingly creeps in or enters the debate because it helps demolish software patents, albeit not at a pace high enough to undo the USPTO's terrible work (not doing quality assessment or prior art search, just granting almost everything that arrives as an application, sooner or later).
Writing about Inter Partes Reviews at PTAB, Patently-O recently noted that: “In a short opinion, the Federal Circuit has reaffirmed the USPTO’s tightly restrictive approach to amendment practice in Inter Partes Review (IPR) proceedings. Under the rules, a patentee has one opportunity to propose amendments or substitute claims. However, the motion to amend will only be granted if the patentee also demonstrates in the motion that the proposed amendments would make the claims patentable over the known prior art. See Idle Free Sys., Inc. v. Bergstrom, Inc., IPR2012–00027, 2013 WL 5947697 (PTAB June 11, 2013).”
This is basically about tilting the system against defendants/challengers and in favour of patenters (as usual), by giving them an opportunity to change their patent (or application) after it had been granted. Are any rules at all capable of passing which seek to restore sanity and fix this system, except when Congress or the Supreme Court get involved (the former gave us PTAB and the latter gave us Alice)? Shearman & Sterling LLP writes in favour of secrecy in “The Patent Agent Privilege” (more on secrecy later) and judging by some of the upcoming major patent cases, claim construction at the PTAB may be under attack already (as part of Cuozzo Speed v Lee, which we wrote about before).
“When will patent applications not be presumed eligible by default, even when challenged by PTAB (whereupon the patenter gets a rather bizarre right to alter the patent)?”Speaking of Congress, remember that PTAB only came after the America Invents Act (AIA) and some patent lawyers treat it as an obstacle which they want to get rid of rather than respect or honour (the same goes for Alice). A guest post in Patently-O, composed by a person who “received a (gratis) copy of this text” to write a review about it, isn’t particularly positive about it. Jason Rantanen says about this book, “Patents After the AIA,” that “the authors were under significant time pressure in getting this project out the door” and he points out many problems with the book. Well, this is what one ought to expect from political and self-serving ‘books’.
How far will this terrible system go? When will patent applications not be presumed eligible by default, even when challenged by PTAB (whereupon the patenter gets a rather bizarre right to alter the patent)?
First They Went After Your Software (Abstract), Now After Your Life
Any patents on life at the USPTO should be seriously considered the pinnacle of institutional failure. Some companies now claim to ‘own’ the food chain (usually through GMO monopolies) and some claim to ‘own’ health treatment, DNA/genome, etc. Such privatisation or looting of the Commons is turning what’s public (and abundant in nature) into private property of few who are extremely affluent.
“Such privatisation or looting of the Commons is turning what’s public (and abundant in nature) into private property of few who are extremely affluent.”Nevertheless, ethics thrown aside, patent lawyers love these; the more, the merrier (more income). “Elena S. Polovnikova is an attorney with Kilpatrick Townsend & Stockton LLP,” says her biography, and here she is promoting patents on life at the site which is most notorious for software patents advocacy. Patents on life now exist at EPO (most controversial such patents) and at the USPTO. Companies like Monsanto want to own everything in nature using patents, which they themselves ‘interject’ into fields by what many call GMO ‘contamination’. Watch IAM ( below) playing a role in pressuring India, a large victim of Monsanto (where many farmers commit suicide due to it), into this massive scam which is patents on life/biology. Watch IAM running sponsored ‘analyses’ (paid-for ads) [1, 2] to that effect. Shame on IAM. There’s an evil aspect to it and it is now a wholly parasitic business (associated with bureaucracy around this). No wonder groups march to the EPO sites to protest such patents. It’s just about as unethical as it can get, probably even worse than software patents.
Openwashing the USPTO
Speaking of IAM with its endless propaganda, watch it serving as the USPTO’s megaphone (de facto marketing) while the USPTO itself is openwashing (with “Open Data”) the whole operation (“Patent and Trademark Office Uses Open Data to Bring Patent Info to the Masses”).
“When will sanity be restored and when will the USPTO recognise that its role should be to promote innovation, not grant and promote monopolies?”Bringing monopolies to “the masses” is more like inducing willful patent infringement, thereby making “the masses” more legally liable and thus indebted. When will sanity be restored and when will the USPTO recognise that its role should be to promote innovation, not grant and promote monopolies?
China and SEPs
The USPTO, as we explained earlier this month, had amended its guidelines in lieu with a pro-software patents decision (involving Microsoft, which seems rather happy about it). The SIPO in China did something similar before that. The USITO woke up to it a long time later and wrote:
The guidelines for infringement have two major changes:
1) It deleted the clause about standard-essential patents (SEPs)
2) It deleted the clause about joint infringement
These “standard-essential patents” are basically a weapon against FOSS, very much like FRAND. These are patent thickets which deny entrance by FOSS contenders — the same sorts of thickets which IAM keeps promoting (it's all about patent conglomerates that use patents to perpetuate and guard their dominance).
Secrecy in the Eastern District of Texas
In other news of interest, the EFF recently managed, after a huge endevaour and some repeated failures, to unseal details of a patent case. Watch how Blue Spike, a parasite which we covered here before [1, 2] (it had won the EFF's Stupid Patent Of The Month award two years ago), sought to keep itself immune/safe from criticism:
In a victory for the First Amendment and public access to court proceedings, a magistrate judge ruled in favor of EFF’s motion to unseal documents in a patent case in the Eastern District of Texas. This means that the patent owner in that case, Blue Spike, will no longer be able to shield from the public its arguments about how the defendant infringes its patents. Also, the court has indicated that it will publish public versions of important rulings that, until now, had been completely hidden from the public.
In its response, Blue Spike did not dispute that the First Amendment applied. Instead, it argued that because EFF wanted to write more blog posts about Blue Spike—posts Blue Spike felt were disparaging—the public should not be allowed to examine Blue Spike’s claims of infringement. In other words, because Blue Spike does not agree with EFF’s commentary about its litigation, it contends that we (and the public at large) should not see the relevant court records at all.
We are not hoping to abolish the patent system but to see a system which actually promotes innovation, transparency, sharing of information and so on, not extortion, secrecy, protectionism, and deception. █
Related/contextual items from the news:
The battle over the Indian patent sought by Gilead Sciences for its Hepatitis C drug Sofosbuvir (branded Sovaldi) seemingly came to a conclusion last week when the country’s patent office reversed course to grant the US drug maker protection for the compound. It’s another reminder that while India is well-known to be a difficult jurisdiction for pharmaceutical innovators, things don’t always play out according to that script. But last week also saw the public airing of troubling accusations of political pressure brought to bear on patent examiners in this high profile case. As the country mulls reforms to its IP system, it’s important that these questions be addressed.
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And IAM ‘magazine’ (working for rich Westerners) is truly loving it
The ‘invention’ of ‘slide to unlock’ is the best rich Westerners have to offer?
Summary: New stories that demonstrate patent protectionism and show how Western industry, which barely makes anything anymore, relies on patents (software and design patents included) and this self-serving patent regime perpetuates itself even in Asia, where almost everything is actually being manufactured (and often/increasingly designed/developed too)
THE patent system in the US is a sordid mess or increasingly in a state of disarray because the benefit to ordinary people is elusive or inexistent. It’s a system that protects the powerful, helping them maintain power. This injustice extends beyond US borders. There is almost an imperialistic (as in “Empire of Corporations”) element to it. Lobbying bodies, the Chamber of Commerce, USTR, ITC etc. are the facilitators.
A report titled “Huawei sues Samsung over hardware and software patent infringement” came to our attention last week. Here is the earliest coverage of this [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]. It shows that not only the US patent system is rife with litigation. As litigation enthusiasts (IAM) put it, “Huawei’s Samsung litigation could end up revealing much about the Chinese company’s licensing activities” (“licensing” is somewhat of a euphemism). This a Chinese giant against a Korean giant, which is rather unusual. Both use Android (Linux) aplenty.
Over in the US, “Patent troll VirnetX demands shutdown of Apple’s FaceTime and iMessage”. We wrote quite a lot about VirnetX over the years. Unlike Huawei, VirnetX makes nothing whatsoever (neither software nor hardware). Apple does not make much either; it relies on companies that it is suing to actually make products and then slap an “Apple” logo on these. Where is the innovation and what ever happened to production? This isn’t going to bother the likes of IAM, who are being paid by patent trolls. “More evidence of a rapidly evolving NPE market,” (trolls market) IAM wrote, “came this week in the shape of two announcements from Spherix. The public IP company (PIPCO) which has a slew of Nortel patents in its arsenal, courtesy of two deals with the former Rockstar business, announced on Tuesday that it had reached an agreement with RPX that gives the defensive aggregator’s members a licence to the Spherix portfolio.”
Rockstar is an Android-hostile entity with Microsoft connections (and Sony). RPX was covered here before. What we’re seeing here is a growth of some parasitic kind of ‘market’ which produces nothing and taxes everything. Not exactly what it takes to accomplish ‘innovation’… but this is what the West is left promoting. See what IBM has turned into. It sued Groupon, which had taken over some Asian companies.
Professor Crouch, writing quite recently about injunctions (embargoes that harm customers), said: “In my recent update on Supreme Court patent cases I skipped over a new Samsung v. Apple petition since one Samsung v. Apple case has already been granted a writ of certiorari. Although both cases involve smartphone patents, they are entirely separate procedurally.”
This is a case wherein a US company that’s a branding/marketing company sues a Korean giant. It’s just one among several such high-profile cases.
Putting aside High Court cases, in relation to the Supreme Court we now see a variety of new articles like “Supreme Court Grants Patent-Related Petitions” or “Supreme Court to Weigh in on Damages for Design Patent Infringement” by Charlene Morrow and Sapna Mehta. One such article speaks about “Design Patents At The Supreme Court” (a case involving Samsung and Apple again) and in the mean time we learn that this whole design patents mania spreads to China, based on IAM. Design patents and embargoes are of no use to anyone (assuming a large corporation is not a “someone”) and after a raid and confiscation of so-called ‘hoverboards’ from China [1, 2, 3] the ITC comes into scrutiny/headlines again as there’s a lawsuit over legal bullying. IAM put it like this: “Chic – a personal transportation start-up based in the Chinese city of Hangzhou – has filed a US district court suit for design patent infringement against US rival Razor in an apparent reprisal for a US International Trade Commission (ITC) complaint by the latter company.”
“What we have seen a lot of at IAM as of late is patent boosting/advocacy/promotion in east Asia, using shame tactics, so-called ‘events’ (usually organised by and for Westerners) and other strategic lobbying dressed up as ‘reporting’.”Citing this report from Taiwan, IAM tries to lecture Taiwan about so-called ‘IP’ future. In another article, this one about Japan, IAM is making it seem like all there is to a company is “IP”.
What we have seen a lot of at IAM as of late is patent boosting/advocacy/promotion in east Asia, using shame tactics, so-called ‘events’ (usually organised by and for Westerners) and other strategic lobbying dressed up as ‘reporting’. Well, that's just what IAM exists for. Watch what it does for the EPO, even just days ago (the EPO was quick to cite this in Twitter thereafter). IAM is toxic. █
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Summary: Both an Indian activist-lawyer and a widely-recognised author from the US explain to Indians why over-reliance on patents — and acceptance of patents on software in particular — is a very bad idea
Software patents refuse to die for good in India. We have seen for nearly a decade now how companies including Microsoft and IBM try to impose software patents on India, either directly or indirectly.
It should be obvious to Indians who would really benefit from software patents on India. For those who are not sure yet, a very good article from Mishi Choudhary (as usual) has just been posted in the Indian media (in English) and here are some portions of her argument:
If mathematics were patentable, there would be less mathematical innovation. Only those who are rich enough to pay royalties, or those who benefited from government subsidies, or those few who were willing to sign over the value of their ideas to someone richer and more powerful than themselves, would be permitted access to the world of mathematical ideas.
Theorems build upon theorems, and so the contributions of those who could not pay rent – and all the further improvements based upon those contributions – would be lost.
For more than a quarter century, beginning with a few stalwart thinkers and exponentially increasing in size and influence, a movement to build computer software by sharing – for software to be studied, improved, and shared again – has revolutionised the production of software around the world.
Free software operating systems now power everything from cellphones to home appliances to supercomputer clusters. There is no major or minor computer hardware architecture, no class of consumer electronics, no form of network hardware connecting humanity’s telephone calls, video streams, or anything else transpiring in the network of networks we call “the internet” that doesn’t include free software.
If you believe in innovation and not monopoly of ideas, join us in our battle against software patents. SFLC.in has been leading the efforts in India to protect the software industry and the start-up ecosystem from the dangerous implications of patenting software. Despite the government of India’s extremely clear stand on the issue; we are facing pressure from incumbent old software giants, multinational corporations and lawyers.
Software patenting is not in the Indian national economic interest. “Software”, as Bill Gates used to say, “is an IQ business”. When non-Indian firms can get software patents in India, the effect is to hobble the Indian IQ advantage. All we will get is floodgates of litigation and money to be made in exchange of lawyers’ time; no wonder we are facing resistance from other lawyers in our community.
As research reports on the subject show more than 90 per cent of software patents awarded in India, before the rectification imposed by the new guidelines, were issued to foreign corporates. Patenting software makes no more sense than patenting mathematics, which is why the Patent Act Section 3(k) says what it does.
The government of India should stick to its Digital India and Make in India agendas, which do not need the crutches of a broken patent system.
The following very good article from Mike Masnick (also well explained/argued, as usual) was published last night to remark on India’s (or the government of India’s) false perception about patenting, noting:
As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that’s good.
But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it’s clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better — ignoring that restricting the rights of the public has a real cost.
This is unfortunate — and it’s also a reason why I’ve argued we need to move away from calling them “limitations and exceptions” and towards what they actually are: the public’s rights. The intellectual property laws, themselves, are “limitations and exceptions” on the public’s right to use these things.
Unfortunately, when you don’t have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public’s rights.
The other big myth is that “patents = innovation.” As we’ve noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately “measure innovation” fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we’ve covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it’s no longer a “pirate nation.” But, of course, in the process, it’s turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.
India now makes a lot of the world’s software, so if we can keep software patents out of India, developers everywhere would benefit. █
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