The patent gold rush may be reaching its end, except in China, the land of rare metal
Too much of anything devalues the whole
Summary: A roundup of news from three continents, where patent dynamics move in similar/parallel and sometimes opposite directions (EPO and SIPO getting worse, whereas Australia and North America recognise the need for reform)
WE TYPICALLY focus on the EPO and the USPTO because they are English-speaking and thus easier to follow, but in the far east we gradually learn about a trolling epidemic and a plague of low-quality patents.
Hugo Barra made some headlines a few years back (we wrote about it) when he went to China to (later on) focus on patents at Xiaomi. Well, he is now fleeing from China, which is rapidly becoming a patent cesspool full of patent trolls, boosted by low patent quality or armed by a wealth of patents that should never have been granted. IAM, a trolls’ apologist, spins this departure (“IP strategy set to play an even bigger role in Xiaomi’s global expansion plans”) instead of focusing on the news, which is Barra quiting his job. This was covered in various news sites a few days ago and IAM put it like this: “Xiaomi’s vice president of global operations, Hugo Barra, will leave the company after the Chinese New Year festival later this month. Wang Xiang – senior vice president for strategic cooperation and the man that oversees Xiaomi’s IP function – will step into his shoes.”
Barra was previously mentioned here in relation to his pursuit of patents. Well, with over a million patent applications in just one year (at SIPO) no doubt the value of pertinent patents has eroded; they’re colossally devalued and depreciated. Barra is wise enough to see that. Recall what Microsoft did to Xiaomi last year. Xiaomi needed to pay a patent troll like Microsoft, essentially paying Microsoft for devices that don’t have anything of Microsoft in them (Android).
In another piece of spin from IAM (also published today) we saw this promotion of patent maximalism in the US. The Trade Commission is not a fan of the patent microcosm; in fact, it slammed patent trolls only a few months ago, in a long-awaited report about PAEs. After trashing this FTC study about patent trolls (we mentioned this at the time) IAM is now latching onto one single person at the FTC to advance the trolls’ agenda. What on Earth would ever compel people to treat IAM as a news site? The site is literally being paid by patent trolls. It’s agenda wrapped up or dressed up as "news".
In the mean time, the Productivity Commission of Australia finishes and releases the final report, which was also long-awaited and it slams software patents, as is made evident by Lexology today (analysis by Ben Hayes of FB Rice). To quote the key parts:
The Productivity Commission published its final report on Australia’s Intellectual Property (IP) Arrangements in the week prior to Christmas.
The Commission was tasked with analysing the efficacy of Australia’s intellectual property arrangements. In particular, the Commission investigated whether current arrangements provide an appropriate balance between
– access to ideas and products, and
– encouraging innovation, investment and the production of creative works.
The Commission began looking at these issues in 2015, and this final report represents the culmination of 12 months’ work.
Scrutinise software patents going forward
Significantly, the Commission has retreated from its earlier anti-software patent stance. The Commission does not explicitly acknowledge that software patents have positive social value but accepts that software patents are in fact suitable for some types of innovation (with particular reference to Qualcomm’s submissions) and that software patents should be closely scrutinised going forward. We consider that there remains great value in software patents when used to protect quality inventions. We believe the existence of the patent system incentivises significant investment into research and development in information and communication technologies in Australia.
A particularly notable recommendation was for IP Australia to collect and publish information on patent applications that are accepted or rejected on the manner of manufacture test. This would include information on how the decisions in Research Affiliates and RPL Central have affected IP Australia’s consideration and patentability of software inventions. We consider that such information would be beneficial to both patent owners and practitioners who have been grappling with inconsistent applications of the law by examiners (as referred to earlier).
Being an analysis from the patent microcosm, it’s expected that a lot of attention will be placed on think tanks or front groups. IP Australia has become a major inconvenience for them.
The growing/strengthening bond between Battistelli and China (not just on human rights but also patent quality) is truly a cause for concern here. Australia and North America are moving ahead, whereas Europe imitates the imitators. █
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Summary: Software patents armament from a British company, charted concentration of the patent microcosm in the United States, and US-leaning patent trolls that prey on China
“CloudTrade Awarded US Patent for Its Proprietary Document Data Extraction Software,” says a press release that was widely circulated yesterday [1, 2, 3]. CloudTrade is British and is not a patent troll, but it sounds as though it has nothing to brag about except crappy (and creepy) software patents — those that PTAB and patent courts would likely trash immediately (if a petition or lawsuit gets filed).
Why is a British company pursuing software patents in the US? Has it not heard yet about the futility of such as exercise? Did it receive bad advice from patent practitioners? Previously, the firm bragged about “patented e-invoicing technology” and “patent-pending technology”. They went as far as Australia for software patents. Unless they intend to start suing competitors (sometimes threaten to sue unless competitive products are removed from the market or settlement money is paid out of court), we fail to see what CloudTrade is thinking here. Maybe too much Kool-Aid from the patent microcosm…
Published hours ago was also this analysis by Jason Rantanen, who put together some data to find out which places in the US have a disproportionate number of patent practitioners (lawyers, attorneys etc.) and it was preceded by the following text. It emphasises that it’s about utility patents, not software patents:
A question from two economist friends, Nicholas Ziebarth and Michael Andrews, got me interested in the geographic distribution of patent practitioners in the U.S. and any correlations with issued utility patents and populations. Using the January 8, 2017 list of patent practitioners from the USPTO, the PTO’s data on utility patents issued to inventors by state, and population estimations for 2016 (wikipedia), I put together the following figures. They show what one might expect: patents, population and patent attorneys exhibit high degrees of correlation, although there is some interesting variation. All the linear regressions are highly significant (p<0.001).
It would be interesting to see these methods applied to software patents. It is widely known by now that patent trolls are highly dependent on such patents and it would be interesting to see where Texas fits in an analogous chart (or set of charts).
It is also widely known and recognised that many patent trolls work at the behest of some large, practicing companies. By using a troll for litigation they don’t risk the defendant following suit with a reactionary lawsuit. IAM has a new example of this. It speaks of some entity called Via Licensing (Web site indicates it’s just a troll) and reveals who it’s working for, much like MPEG-LA. To quote:
Dolby-backed patent pool operator Via Licensing has announced some high profile new licensing agreements in Greater China over the past month, with Lenovo and Xiaomi having joined the pool covering AAC technology. A big factor in this apparent momentum is the fact that the pool has introduced a new alternative rate structure which codifies a discount for devices sold in developing markets. This effort to accommodate local market realities in countries like China also adds a welcome dose of transparency to the licensing market.
Terms like “licensing market” are misleading. Intermediaries or satellites or proxies are hardly a “market”. They are a parasite which mostly serves to exclude small players and emergent technologies (competition). █
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Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)
Summary: In defiance of common sense and everything that public officials or academics keep saying (European, Australian, American), China’s SIPO and Europe’s EPO want us to believe that when it comes to patents it’s “the more, the merrier”
RECENTLY, Australia’s Productivity Commission reiterated its opposition to software patents (as before), only to face protests from the patent microcosm (also as before). The report came out so close to Christmas that not many people covered it. During the holiday TechDirt wrote that:
Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed — with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems — the kinds of things we discuss all the time around here.
TechDirt focused on copyright aspects of the output from Australia’s Productivity Commission. We already wrote about half a dozen posts about the patent aspects of the Productivity Commission’s report (May and December). The bottom line is, the Productivity Commission basically bemoans both copyright maximalism* and patent maximalism; it specifically chastises software patents. These are seen as detrimental to Australia (rightly so!).
“The bottom line is, the Productivity Commission basically bemoans both copyright maximalism and patent maximalism; it specifically chastises software patents”Look at China for a cautionary tale. It’s quickly becoming a terrible place for inventors and producers to be in. “Patent inventorship has been disputed in several recent cases in China. Wenhui Zhang reviews four court decisions that provide lessons for inventors,” MIP writes. China’s patent office, SIPO, has become the dumpster of rejected patents — the place where one is guaranteed little scrutiny and lots of cheap patents (expensive in a court where the lawyers can make a killing). The EPO is going down the same route under Battistelli, although this transition is a gradual one.
“Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement.”In a later post we are going to show just how quickly patent trolls are emerging in China as a result of SIPO’s policies. It’s quite incredible, especially in light of the death of patent trolls in the US (due to patent scope restrictions, among other restrictions).
Remember how the patent system was originally, as per the history books, conceived as a way to reward inventors and for publication of inventions? Not anymore. Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement. And watch what MIP is currently saying about PCT. “For many patent applicants,” it says, “the primary value of the PCT is as a delaying tactic.”
Great for productivity, eh? Not.
“As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods.”“With prosecution costs being a significant contributor to the total price of obtaining patent protection,” MIP says, “applicants are well advised to make strategic decisions early on in the application process to limit costs further down the line. International (PCT) applications are known by many applicants and IP professionals as a convenient delaying tactic when considering jurisdictions in which to file applications following a first filing.”
More than half a decade ago we wrote many articles about the dangerous vision of a global (or globalised) patent system and what it would entail. Now, imagine those million plus patent applications in China (obviously low quality patents) being pointed at every single country/company in the world. As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods. █
* The misguided idea that copyright scope, rigidness, lifetime etc. should be maximal if not infinite. This tends to promote centralisation of power/ownership, monopolisation, and harm to culture, curation, preservation, free expression, etc.
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Summary: Now is the time for Australian software developers to explain to their government that they don’t want any software patents, otherwise their voices will be hijacked by a bunch of law firms that totally misrepresent them
POLLS consistently show that Australian software developers — like developers everywhere in the world — oppose software patents. We covered this before. Earlier this year Australia’s Productivity Commission expressed opposition to software patents. This too is a subject we covered [1, 2, 3].
It didn’t take long for firms like Shelston IP Pty Ltd, a bunch of software patents profiteers (who make nothing at all), to lash out [1, 2, 3] and call for the lobbying against the Productivity Commission, attempting to discredit the Commission. Well, these parasites are at it again and they say (in the headline even) that “[f]ortunately it’s all talk and no action,” but how long for? As we noted earlier this year, this may soon result in a ban on software patents, just like in India. “The Productivity Commission publicly released their Inquiry Report on Intellectual Property Arrangements on 20 December 2016,” wrote the patent microcosm. “The Report examines Australia’s Intellectual Property (IP) system in detail, and makes recommendations to improve its operation.”
The Productivity Commission’s fundings were more properly summarised by another law firm, which said the “final report pulls no punches on patents” (including software patents in particular). To quote:
Yesterday the Productivity Commission published its final report on Australia’s IP system. Our high level summary of the Commission’s recommendations across all aspects of the IP system can be found here.
The Commission sees the patent system as tipped in favour of patent owners and its recommendations are designed to restore balance.
This post provides an outline of the key changes proposed to the patent system.
The Federal Government (Department of Industry, Innovation and Science) is conducting a further consultation process before responding to the Commission’s report and submissions may be made until 14 February 2017.
3. No blanket exclusion for software patents (for the moment!)
The Commission has not pursued its recommendation in the draft report that software patents be excluded as patentable subject matter. It has, instead, preferred a “wait and see” approach following the decision of the Full Federal Court in the RPL Central which held that the mere computer-implementation of a business method is not patentable.
The Commission considers that the recommendations to raise inventive step (discussed above) and introduce an objects clause (discussed below), are likely to assist in ensuring that software patents are only granted in limited circumstances.
That last sentence is key. No doubt the patent microcosm in Australia, i.e. those who profit from software patents, will aggressively oppose any changes to the law. We therefore need to keep abreast of developments there and urge software developers in Australia to get actively involve, as we shall soon do. █
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The demise of software patents everywhere, in slow motion…
Summary: The industry formed around the patenting of algorithms is suffering a rapid decline, as people everywhere realise that software patents in the US are worthless, even if they are somehow granted in the first place
THE TRANSITION into a software patents-free US is costing a lot of money to patent law firms all the around the world. They have become accustomed to telling clients to pursue US patents on software, but this doesn’t work anymore. These clients know a little better, in spite of misleading and selective ‘analyses’ from patent law firms.
Following the lines of pro-software patents blogs like “Bilski Blog”, the “Section 101 Blog” attempts to perpetuate the illusion of software patents potency in the US, soon to be cited by Bastian Best, who promotes software patents in Europe. Almost 3 weeks later these people are still obsessing about McRO — or about one single patent — obviously while ignoring the latest CAFC decisions because these weaken their case. We wrote about it yesterday (almost nobody else wrote about, much as we predicted because of cherry-picking, or lies by omission). Professor Dennis Crouch wrote about it yesterday as well. To quote:
The big news from Intellectual Ventures v. Symantec (Fed. Cir. 2016) is not that the court found IV’s content identification system patents invalid as claiming ineligible subject matter. (Although that did happen). Rather, the big event is Judge Mayer’s concurring opinion that makes “make two points: (1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.”
Declaring that software implemented on a generic computer falls outside of section 101 would provide much-needed clarity and consistency in our approach to patent eligibility.
This decision cites even Microsoft. It’s one of the large majority of decisions which show that CAFC is still very hostile towards software patents (more so than district courts), thanks to SCOTUS (notably the Alice decision).
Alice is causing layoffs and shutdowns of patent law firms that depend on software patents or the perception that they’re worth something, as covered here a month ago (high profile examples). Here we have a new example of this (often a blog that promotes software patents). One attorney moves from software patents to actual development of software and Benjamin Henrion told him last night “welcome back to software development.”
The explanation for this move is as follows:
The US Supreme Court issued a decision, in Alice, that has (perhaps unintentionally) granted US patent examiners and the lower courts effective carte blanche to reject claims to any computer-implemented invention they do not like the look or smell of. In around 2010, IP Australia decided that it was time to crack down on claims directed to certain computer-implemented business methods, and created a monster that ultimately resulted in the decision of a Full Bench of the Federal Court of Australia in the RPL Central case and similarly rendered a broader range of subject matter effectively unpatentable. More recently, the Australian Government’s Productivity Commission published a draft report in its enquiry into Intellectual Property Arrangements which contained a recommendation ‘to explicitly exclude business methods and software from being patentable subject matter’ in Australia.
Do I think that all computer-implemented innovations should be patentable? No. Are there still many software-based inventions that remain patentable despite the recent developments? Yes, of course there are. Do I think that the pendulum has swung too far against patent-eligibility in the US and Australia? Well, yes, I do. But what I think about all this is not really the issue right now.
The fact is that, rightly or wrongly, the law has shifted, and as a result the nature and value of advice that I provide to clients in the software space has changed as a result. I simply cannot add value to businesses in this area that I could when the boundaries of patent-eligibility were clearer and more stable. Whether I think it should be this way or not, the end result is still that my skills, knowledge and experience are now under-utilised as a patent attorney. Aside from anything else, this is highly demotivating, and I have come to believe that my talents might be put to better use elsewhere.
Or, to put it more bluntly, what is the point of me if the things I do best are of limited value to clients?
“Based on EPO insiders, they now allow patenting of software as long as it’s combined with something (like a car in this case).”Well, maybe they just realise that they lie to the public and to clients, and they have a guilty conscience over it. That’s what we have been saying for years. The world needs more software development, not more software patents. It needs more development and innovation, not more protectionism and lawsuits.
The above alludes to the situation in Australia, where patents are not worth that much because of the small population size and hence US patents are often pursued. This morning in the Indian press we have some articles [1, 2] that speaks of a company called Rivigo, which is pursing software patents in the US. To quote: “Rivigo has developed algorithms that deal with managing fuel efficiency and pilferage, availability of drivers in the relay system, and loading plans to help reduce damages to products carried by its trucks.”
“It often feels like the only way to get something out of software patents is to go to Texas — something which even BlackBerry (Canadian) has begun doing.”Well, the company went to the US to patent software because these patents are not permitted in India, but such patent would be invalided by courts or boards in the US as well, especially because of Alice. Just because the USPTO (or Battistelli’s EPO for that matter) accept some application doesn’t mean the claimed invention is novel and innovative. Based on EPO insiders, they now allow patenting of software as long as it's combined with something (like a car in this case). The courts wouldn’t quite fall for it and therefore it seems safe to say that software patents everywhere are just a slowly-imploding bubble.
Also mentioned yesterday was this case against Apple down in Texas (we last wrote about the corrupt Texas courts yesterday). It often feels like the only way to get something out of software patents is to go to Texas — something which even BlackBerry (Canadian) has begun doing. █
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Writing their nonsense only when it helps them attract ‘sales’ (where desired ‘products’ are typically lawsuits)
Summary: Increasingly desperate to convince people to pursue software patents and/or use their software patents to initiate growingly risky lawsuits (high risk of losing), the patent microcosm hugs McRO v Namco while distorting the complete record of the Court of Appeals for the Federal Circuit (CAFC) on this subject
WITH patent quality still a huge problem at the USPTO, as we last noted in our previous post, it’s only expected that many invalid software patents remain inside the system, probably hundreds of thousands of them (some have expired by now and will thus never be invalidated).
After Alice (2014 decision by the Supremes) a lot of software patents essentially became invalid, but only upon reassessment/assertion/challenge/appeal. The Court of Appeals for the Federal Circuit (CAFC), quite notably, finds them invalid about 80%-90% of the time. CAFC is where software patents typically come to die (the question has not returned to the Supreme Court since 2014). There’s rarely a chance for appeal after that, maybe just a referral or some other extraordinary circumstances.
“They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).”Patent lawyers are rightly upset (from their point of view that is hinged on profits from legal fees) at the Supremes for ‘interfering’ with the patenting of software. They are also upset at CAFC for invaliding so many software patents. They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).
How do patent law firms respond to the current situation? Simple! They lie. They cherry-pick, they spread half-truths, they insult judges, they shame or block other people (yours truly included), and they generally show their true selfish selves. I have spent years writing about this and I saw how bad this can get. These people are not friends of investors and inventors. They’re leeches. They just try to come across as professional, objective, and law-abiding.
Last week we wrote several articles about McRO v Namco noting (quite correctly as it turned out) that patent law firms would start another Enfish-like extravaganza in the press. They latch onto this decision in an effort to market themselves and mislead the public (potential clients). Here, in one of their blogs, the predators are trying to take down the Supreme Court’s decision on Alice. Section 101 is named as though it’s a nuisance that needs to be removed. Here is one of the predators saying that he is “not sure CAFC using “preemption” in same way envisioned by SCOTUS in Alice-MCRO seems more like “passes step 2″ case” (refers to steps in the law).
“They just try to come across as professional, objective, and law-abiding.”An ‘article’ or ‘analysis’ (really marketing/self promotion) by Joel Bock, David Metzger, andEric Sophir of Dentons says “McRo decision gives software/computer-based patents a big boost,” but that’s pure sensationalism. This headline is wishful thinking nonsense as it ignores ~90% of CAFC’s decisions on the subject. How convenient…
Where were sites like these each time CAFC ruled AGAINST software patents? Don’t believe patent lawyers who say software patents in the US are suddenly fine. For those who think it’s just an isolated article or few articles, see also [1, 2, 3, 4, 5, 6, 6, 7, 8, 9, 10, 11, 12]. We don’t have time to rebut each of these individually, but what we have here is rigged “media” of lawyers. Over 20 articles have been produced about a CAFC decision in favour of software patents and usually there are zero or very few about decisions against software patents. “Liars” might not be the right word to describe the authors by; they’re just opportunistic and they are selectively covering things so as to promote software patents under the guise of ‘analysis’. We saw this many times before and provided evidence of it.
“Don’t believe patent lawyers who say software patents in the US are suddenly fine.”Noteworthy is the fact that the legal firm which fought for software patents here is the same firm that works for Microsoft (on patents) and the EPO hired to bully me (Mishcon de Reya). Here is their press release about it. They are clearly hostile towards people like me, for at least 3 reasons (EPO pays them to send me threatening legal letters, Microsoft pays them to fight on the patent front, and they are working to defend software patents). Speaking of Microsoft, the company still says it “loves Linux” but it also loves software patents which are inherently not compatible with Linux. Here is yet another ‘article’ (from a Microsoft advocacy site) showing that Microsoft celebrates the above decision. We gave another example of this several days ago. The intersection of interests here is uncanny.
What did Watchtroll say about all this? We mentioned some of his responses before (widely-cited by others in the patent microcosm on the face of it), but now there’s more on other subjects [1, 2], still advancing a patent maximalism agenda (as if limiting patent scope is a sin).
Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.
IAM’s writers, longtime propagandists of software patents and PTAB bashers, carry on passing off agenda as 'news', this time with the headline “After the CAFC’s Planet Blue decision early Alice motions may now fade away” (citing only the patent microcosm, e.g. a partner in New York-based firm Kroub Silbersher & Kolmykov).
“Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.”We are still waiting for IAM to give a platform not just to patent lawyers who profit from software patents but actual programmers. Not that it ever happens…
“In the following piece,” IAM wrote, “Silbersher argues that the true significance of the case is not what it says about software patentability, but in the way it may affect how and when courts handle motions to dismiss based on the Supreme Court’s Alice decision. Read with the earlier CAFC judgments in Enfish and Bascom, Silbersher states, Alice motions at the front end of a litigation are set to become significantly less attractive. For patent owners, that is very good news.”
That’s just another example of lawyers name-dropping Enfish and Bascom, hoping that readers will pay attention to none of the other decisions (all against software patents as of late). This isn’t reporting, it’s lobbying.
Speaking of lobbying, David Kappos rears his ugly head again. He was hired by large corporations including IBM (his former employer) to help demolish Section 101 and “IBM’s Chief Patent Counsel Manny Schecter welcomed the McRO decision,” according to the above. Indeed, based on his tweet, IBM is still against the Supreme Court and for software patents. Benjamin Henrion told him that “freedom of programming is a one liner.”
“How far will the patent lawyers go in their attempt to save software patents?”The software patents proponents of IBM, a huge patent bully, are at it again. They just don’t seem to care what the Supremes say. Here comes IAM trying to shoot down Section 101 at a legislative level. To quote: “Of course, the likes of former Chief Judge Michel would argue that the fundamental test that the court is trying to apply to determine whether something is patent eligible remains inherently flawed. But as the case law on 101 as it applies to software begins to mount from the Federal Circuit, members of the tech community can at least rest a little easier that question marks no longer hang over large parts of their patent portfolios. If nothing else, that is to be welcomed.”
IAM says that “members of the tech community can at least rest a little easier” with software patents, but that’s a lie because technical people dislike these. Reading IAM about patents is like watching Fox ‘news’ coverage of all things Obama. It’s just agenda disguised/dressed up as news. It’s agenda presented in the form of ‘news’, and truly a great service to Battistelli when he needs to support some lies of his.
Watch the patent microcosm trying to resurrect software patents by trashing the Supreme Court [1, 2] in light of the above. It’s like that pack of hyenas we wrote about a week ago. How far will the patent lawyers go in their attempt to save software patents?
“Is the Technology for Self-Driving Cars Patent-Eligible?”
“Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared.”That’s the headline of this new ‘analysis’ from the patent microcosm, writing about software patents that are disguised as 'device' (cars), prior art being the driver. The answer is probably no; no for the courts but yes for the USPTO, which continues to grant almost everything that comes in, irrespective of quality, scope, prior art, etc. The examiners cheat on their timesheets (defrauding taxpayers), so shoddy work seems to be the norm. Here we have an article about Goldman Sachs filing for software patents on electronic payments — the one area where the invalidation rate of software patents is extremely high (around 90% of patents invalidated). Blockstream says it is pursuing patents in this area/domain, but it has not got any. Patent examiners oughtn’t grant any, either (citing the CLS Bank case).
Elsewhere in the news we find this short docker report about a case in the court of choice of patent trolls, one of several in the Eastern District of Texas. It upholds software patents, as usual, probably because it’s a farce of a court and it likes to brag about being friendly to the plaintiffs, especially trolls. Upon appeal, and if it reaches CAFC (expensive), the patent would probably be invalidated. This can be a rather traumatic experience to people who thought they had earned valid patents from the USPTO. Take the case of Keith Raniere; he used several software patents for frivolous litigation and got penalised very badly for it, as we noted earlier this month. Another new report about it says: “The plaintiff, Keith Raniere, filed the suit in February 2015 against AT&T and Microsoft, alleging the companies were using a number of his patents for intelligent switching systems for voice and data. In his lawsuit, Raniere claimed that AT&T used the software patents in its AT&T Connect service and Microsoft used the patents in its Lync 2010 products. [...] Following dismissal, both AT&T and Microsoft filed a motion to have their attorney fees covered by Raniere. AT&T requested that $935,300 be paid by the plaintiff and Microsoft presented $202,000 in costs and fees to be covered. Lynn requested both parties present proof of the costs and fees incurred from the case and denied Raniere any chance to correct or modify his lawsuit.”
Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared. But therein lies the key point. The greater the mess, the more profit the patent microcosm makes. This isn’t only a US problem but a European one too (see all the UPC lobbying).
“The greater the mess, the more profit the patent microcosm makes.”We previously wrote about software patents in Australia (they sort of exist). This new post from the patent microcosm says: “The expansive approach of NRDC was subsequently relied upon by the Federal Court in 1991 to establish that computer programs were not excluded from patent eligibility under Australian law, a decision that effectively opened the gates for software patents in Australia.”
As we wrote about this before, we can safely say that Australian software developers are upset by that. They never wanted such patents; it’s the patent microcosm that did (while trying to convince developers that they too need software patents). █
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Speaking for their wallets (profit motive), misleading the public
Like the military-industrial complex and surveillance/enforcement in the age of drug wars, patent lawyers profit from endless feuds
Summary: How patent law firms are distorting the debate about software patents in hope of attracting business from gullible people who misunderstand the harsh (and worsening) reality of software patenting
Software patents should not exist in the EPO and the USPTO too is gradually cracking down on these, especially because of the US Supreme Court. It does not mean that patent law firms will take this defeat without a fightback.
Elaine Bergenthuin, “owner and managing partner of De Beer Attorneys” by her own description, has just got published this self-promotional puff piece in the South African media. It appeared there this morning and it’s not a good article, it’s more like marketing. “You cannot generally obtain patents for software in South Africa,” the article correctly states (see our Wiki page “Software Patents in South Africa”), but Bergenthuin is then finding some loopholes and promoting these, as if to say, “come to me, I’ll help you get software patents by working around the law.”
“Software developers don’t bother trying to get software patents in India, but patent law firms mislead them.”This is very typical. The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.
Here is an example from India which is only days old. Software developers don’t bother trying to get software patents in India, but patent law firms mislead them. They have nothing to lose; the lawyers always get paid (irrespective of success rate), and it’s clear at whose expense.
Watch another new example that we found in the Indian press a couple of days ago. It speaks of some who “hold only a handful of patents and that too on software related to audio and keyboards.” So these are software patents. Why bother?
A site that’s preoccupied with promotion of software patents published one week ago an article titled “Hop on the Patent Prosecution Highway (PPH) via Australia”. One can guess who wrote it and it says: “While Australia isn’t usually considered a very important market since its population is so small and its manufacturing base is limited, it is our experience that there are a few US companies realising that prosecuting in Australia to use the PPH back into the US makes sense. There is always the option of filing in Australia first and using an Australian patent application as the priority application. However, one would need a foreign filing license from the US before doing so. A strategy could be to file a provisional in the US, receive the foreign filing license, and then file a standard (utility) application in Australia to take advantage of the expedited examination process at IP Australia to hop onto the Patent Prosecution Highway via Australia.”
“The press is full of this marketing spam. The local press all over the world has been reduced to advertisements in ‘article’ form.”Well, “prosecuting in Australia to use the PPH back into the US makes sense” only if software patents were actually potent there. They’re not. So once again we can see bad advice being given by the patent microcosm. What happened to journalism? Well, this isn’t journalism, it’s marketing. We recently wrote about the Patent Prosecution Highway (PPH) in relation to Australia, noting that the EPO — not just the USPTO — embraces these under Battistelli (even in rather dubious places with hardly any patents). The EPO is totally out of control when it comes to patent scope and it probably breaks the rules of the EPC when it comes to that. There is still a discussion about how this has been made possible in the first place. One person asks: “Has anything in the PPI, which must be done by the EPOff or the EPOrg, ever been done? I am thinking of the relations with the work-rules regulating organs of the host countries (Arbeitsinspectie, Gewerbeaufsicht,…)”
Well, Battistelli is “instructing the staff to sidestep part of the EPC,” one person responded. Here is the comment in full: “Yes, but what would the dispute be? According to 23(1) above, doesn’t it only arise if immunity has been claimed? Not sure that BB instructing the staff to sidestep part of the EPC would fall within that. He wouldn’t claim immunity (from what?) – he’s just doing his job.”
We worry that the EPO, especially under Battistelli, is now cooperating with the patent microcosm and just abandoning patent quality control (improving the “success” rate of patent law firms). See this new ‘article’ titled “Patents in Denmark”. “In general,” it says, “software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect which goes beyond the normal physical interactions between the program and the computer.”
“There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States.”Actually, these are dubious claims that rely on Brimelow sidestepping the EPC. Things have become even worse in German courts and the German patent office. Here is a new example of software patents for German company in the United States. These patents have been weaponised and “[a]ccording to the complaint, the asserted patents generally relate to industrial control systems that employ advanced software to program, run, and visualize industrial control processes. In particular, the ‘226 patent relates to interfaces for connecting a computer to devices on multiple industrial control networks so that data may be communicated across the different industrial control networks to and from an application program running on the computer.”
These are software patents from the US. There are only (formally) software patents in the US (maybe in Japan as well), but they’re being used by foreign entities outside the United States. We sure hope that people will come to grips with the corrupting influence of patent law firms in this debate and also acknowledge that software patents bring nothing but negatives to society; they’re good only to patent lawyers and patent offices where the goal is to increase so-called ‘production’ as measured in terms of the number of granted patents. █
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This kind of rebranding strategy is nothing new
Summary: How the term CII, or computer-implemented invention, is used to bypass/avoid a meaningful debate about patents on abstract ideas and algorithms (software patents) even in 2016
TECHRIGHTS was created with software patents in mind. The activism was all along focused on the subject. But some pundits are still dodging the term “software patents” and instead saying “computer-implemented” (like CII). The EPO used to do this a lot. It misleads, sometimes intentionally. This happens a lot in the United States, where the USPTO now receives instructions which are increasingly hostile towards software patents because they are abstract..
“Just ascribing a “machine” (sometimes “device”) to some piece of code or combining code with a general-purpose computer oughtn’t make the algorithms suddenly patentable.”In Australia, in the mean time, efforts continue to achieve the unthinkable and make all software patentable. Mark Summerfield says that the “Australian Patent Office has recently issued two decisions resulting from applicants requesting to be heard following examination objections that their respective inventions did not constitute patent-eligible subject matter, i.e. a ‘manner of manufacture’ under the Australian patent law. Both decisions relate to electronic gaming machines (commonly known as ‘poker machines’ or ‘slot machines’), and both involve the question of whether particular computer-implemented features of such machines are patentable. They differ, however, in the outcome.”
The above says the word “software” not even once (and it’s a long article). It says “implemented” or “implementation” 15 times however.
Just ascribing a “machine” (sometimes “device”) to some piece of code or combining code with a general-purpose computer oughtn’t make the algorithms suddenly patentable. This is the kind of loophole embraced by the EPO and IPONZ, arguably in India as well.
Watch out for these dirty tricks. █
“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway” —Marshall Phelps, Microsoft
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