Summary: Australian advice against software patents, which can hopefully influence Australian politicians and put an end, once and for all, to all software patents in Australia
Australia’s long fight over the issue of software patenting was covered here in the not-so-recent past. It was about half a decade ago. See the following articles for instance, as well as this Wiki section (Australia):
We also mentioned Australia’s stance more recently in articles such as:
In a nutshell, while Australia does not officially boast tolerating patents on software, it does in fact allow many of them, unlike New Zealand.
There was some good news in this morning’s press coverage as according to this article, titled “Dump software patents, allow geoblocking bypass: Productivity Commission,” things may be about to change:
Australia should remove the ability to patent software and allow consumers to circumvent geoblocking of services like Netflix, the Productivity Commission recommended today.
The commission today published a set of far-reaching draft recommendations to the government to redress the balance of intellectual rights away from rights holders and in favour of users.
Among its recommendations, the commission said Australians should be able to access online content in a timely and affordable manner.
Echoing the findings of both the Harper competition review and the parliamentary inquiry into IT pricing, the Productivity Commission said restrictions by rights holders were having the opposite effect and actually encouraging internet piracy.
Australia’s patent system similarly needs an overhaul, according to the commission.
It believes the system is poorly targeted, with some “inventions” bordering on trivial and being protected for too long.
This creates low quality patents, stymies competition, and frustrates efforts of follow-on innovators while raising costs for the entire nation, the commission argued.
Business methods and software should not be able to be patented, the commission said, as it discourages software innovation and provides strong incentives to block competitors and hinder software development.
Australia currently affords “excessive” patent protection to business methods and software, with terms longer than development cycles, it said.
The commission pointed to the open source movement as providing incentives to innovate and disseminate new software without the need for patent protections.
As copyright also covers software, the commission said this raises the question about whether multiple forms of intellectual property protection is needed for computer code.
It said excluding business methods and software from the patent system would bring Australia in line with other nations.
Here is what CBS (US) wrote about it:
Business methods and software (BM&S) should be completely excluded from being patentable, the commission recommended, because the patent term is “far longer than the development cycle of BM&S”. It pointed to open-source software as proof of a more beneficial alternative for the community.
“[BM&S] patents have rarely spurred software innovation, but provided strong incentives for strategic behaviour to block competitors and hinder software development,” the draft report argues.
“In some cases, the BM&S is obsolete by the time a patent for it is granted … The open-source movement demonstrates that incentives to innovate and disseminate new software can occur in the absence of patent protections.”
Australia is evidently close to officially banning such patents, but only if it follows the Commission’s findings. This would be well overdue. Here is another article which speaks about patent scope a little more broadly:
Other recommendations include not extending the period of protection for registered designs, fine-tuning the trade marks and plant breeders statutes, belatedly including an Objects clause in the Patents Act, rethinking the controversial ‘innovation’ patents arrangements and bringing intellectual property transactions under Australian competition law. Efforts to streamline the regime will involve substantial investment in the Patents Office and dysfunctional Therapeutic Goods Agency. We can expect patent practitioners to savage the Commission’s stance on what it regards as trivial patents, alongside its call to deny business patents and software patents. ‘Big Pharma’ will again damn calls to wind back practices such as evergreening, extended periods of protection for pharmaceuticals and undue protection for test data.
Many other articles alluded to this but focused on pharmaceutical patents and/or geo-blocking for more attention to be placed on these other contentious issues [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19].
Is Australia going to do the right thing, which software developers actually want, and ban software patents? Contacting one’s representatives might help bring rise to bills to that effect in the Australian authorities. █
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Article as ODF
Publicado en America, Patentes at 6:30 am by Dr. Roy Schestowitz
Sumario: Los medios de comunicación continúan siendo dominados por los abogados de patentes en vez de desarrolladores de software quienes hablan acerca (y promueven en el caso de los abogados) patentes de software
Los abogados de patentes quienes carecen de experiéncia práctica con el software parecen no entender los fundamentos de la ciencias de computación. Lo mismo va por los jueces de patentes. ¿Así que porqué perpetuamente tratán de venir con políticas de patentes de software, e.g. in India? Vean lo que IAM acaba de hacer. Esta semana todavía encontramos abogados de patentes dando “Esperanza” por las patentes de sofware en Australia (Jack Redfern and Matthew Ward from Shelston IP Pty Ltd). Estos artículos están compuestas y publicadas por abogados de patentes, a diferencia de los desarrolladores de software – los que realmente están afectados por este tipo de patentes. ¿Quiénes está tomando las decisiones aquí? A los desarrolladores australianos ya se les preguntó acerca de esto hace unos años y que votaron abrumadoramente contra las patentes de software (lo que es el mismo que en otros países).
“Estos artículos están escritos y compuestos por abogados de patentes, a diferencia de desarrolladores de software — aquellos que son afectados por tales patentes.”
Anoche encontramos nueva propaganda de patentes de sofware proveniente de Marks & Clerk (ellos son algunos de los peóres) y de Steve Lundberg (Schwegman Lundberg & Woessner, P.A.), a quien mencionamos aquí hace unos dias a causa de su última intervención. Él es un propagandista de patentes (por muchos años) y se apoya en IBM ahora para su cabildeo (que tiene un sitio dedicado a la promoción de patentes de software).
“¿Cuándo va a la USPTO rendirá cuentas por ello y cuando los desarrolladores de software se levantarán para hacer frente a los abogados de patentes sobre sus actividades en materia de patentes de software?”
¿Qué pasa con los abogados de patentes ejerciéndo presión por las patentes de software, a diferencia de los desarrolladores de software, son sanguijuelas que sólo imponen impuestos sobre el software. Lundberg usa (o usa mal) palabras como “regalar” a pesar del hecho de que nunca dió nada y ni siquiera es un desarrollador de software en absoluto. Si él realmente hubiera solicitado su opinión a los desarrolladores de software, sabría que trabaja en contra de sus intereses.
Las Cortes han (una vez más) rechazado las patentes de softwareen las cuales los examinadores de la USPTOotorgaron erróneamente. Nadie gana aquí excepto los abogados de patentes, como es usual. Ambos lados perdiéron (casuálidades financieras significan empleados despedidos) y los equivalente a traficantes de armas, los abogados de patentes, hicierón un montón de dinero en todo un año de litigación. ¿Cuándo va a la USPTO rendirá cuentas por ello y cuando los desarrolladores de software se levantarán para hacer frente a los abogados de patentes sobre sus actividades en materia de patentes de software?Miren lo queel cabildero David Kapposestáhaciéndo ahora mismo en los Estados Unidos. Es despreciáble. Recuérden quienes pagan por todo esto.
“Si los desarrolladores de software no hacen uso de su libertad de expresión y su derecho a ponerse en contacto con sus políticos electos, las patentes de software en Europa seguirán siendo un problema creciente.”
No es un problema sólo en los EE.UU., pero cada vez más en Europa (donde Marks & Clerk, por ejemplo, provienen, al igual que IAM). Un lector de Finlandia nos ha dicho hoy. “Uno de los ministros del Estado fue en la radio ayer habló acerca de las patentes y la” innovación “. No soy capaz de encontrar una transcripción en cualquier idioma. Si usted tiene otros contactos en Finlandia, que podría ser capaz de proporcionar alguna información más. A partir de los comunicados de prensa, supongo que supuestamente van a decir que están promoviendo las pequeñas empresas y que va a tener algo que ver con las patentes, pero me preocupa que la intención es difundir las patentes de software. Pero, de nuevo, les digo no tengo ninguna transcripción “.
Probablemente tales ministros son también abogados y están siendo cabildeados/presiónados por los abogados de patentes y sus grandes clientes (grandes multinacionales como Nokia o Microsoft). Si los desarrolladores de software no hacen uso de su libertad de expresión y su derecho a ponerse en contacto con sus políticos electos, las patentes de software en Europa seguirán siendo un problema creciente.
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Summary: The media continues to be dominated by patent lawyers rather than software developers who speak about (and promote in the case of lawyers) software patents
PATENT lawyers who lack any practical experience with software don't seem to grasp the fundamentals of computer science. The same goes for patent judges. So why is it them who are perpetually trying to come up with policy on software patents, e.g. in India? See what IAM has just done. This week we still find patent lawyers giving “Hope” for software patents in Australia (Jack Redfern and Matthew Ward from Shelston IP Pty Ltd). These articles are composed and published by patent lawyers, unlike software developers — those who are actually affected by such patents. Who’s calling the shots here? Australian developers were already asked about this a few years ago and they overwhelmingly voted against software patents (it’s the same as in other countries).
“These articles are composed and published by patent lawyers, unlike software developers — those who are actually affected by such patents.”Last night we also found new patent propaganda from Marks & Clerk (they're some of the worst) and from Steve Lundberg (Schwegman Lundberg & Woessner, P.A.), whom we mentioned here some days ago because of his latest intervention. He is a patent propagandist (for many years now) and he leans on IBM now for his lobbying (he has a site dedicated to software patents advocacy).
“When will the USPTO be held accountable for it and when will software developers rise up to confront patent lawyers over their lobbying for software patents?”What’s wrong with patent lawyers lobbying on software patents is that they, unlike software developers, are leeches that only ever tax software. Lundberg uses (or misuses) words like “giveaway” despite the fact that he never gave anything and he is not even a software developer at all. If he actually asked developers, he would know that he works against their interests.
Courts have just (once again) shot down software patents which the examiners employed by USPTO granted erroneously. Nobody won here except patent lawyers, as usual. Both sides lost (financial casualties can be laid off staff) and the equivalent of weapons traders, patent lawyers, got a lot of money throughout an entire year of litigation. When will the USPTO be held accountable for it and when will software developers rise up to confront patent lawyers over their lobbying for software patents? Watch what lobbyist David Kappos is doing right now in the United States. It’s despicable. Remember who pays him for this.
“If software developers fail to exercise their freedom of speech and right to contact elected politicians, software patents in Europe will continue to be a growing problem.”It’s not a problem only in the US but increasingly in Europe (where Marks & Clerk, for example, comes from, just like IAM). One reader from Finland told us today. “One of the state’s ministers was on the radio yesterday going on about patents and “innovation”. I’m not able to find a transcript in any language. If you have other contacts in Finland, they might be able to provide some more information. From the press releases, I gather that they are going to say that they are promoting small businesses and that it will have something to do with patents, but I worry that the intent is to spread software patents. But again, I have no transcript.”
It is likely that such ministers are themselves lawyers and are lobbied by patent lawyers and their largest clients (large companies like Nokia or Microsoft). If software developers fail to exercise their freedom of speech and right to contact elected politicians, software patents in Europe will continue to be a growing problem. █
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Software patents are still an issue not just in East Asia but also in Australia, though not in New Zealand
Summary: An outline of recent news regarding software patents, patent trolls, and other such aspects which have considerable impact on Free software development
“The Supreme Court should review an appeals court decision,” attorneys told Bloomberg BNA, “to clear up uncertainty about patenting natural discoveries that is chilling innovation.”
One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.
“One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.”A lawyers’ site, at around the very same time, wrote that “Sequenom Throws Diagnostic Method Patents At Mercy Of Supreme Court” (this isn’t about software patents but also rather abstract patents).
“It comes as no surprise,” says this site, “that Sequenom has filed a petition for certiorari to the Supreme Court, asking the Court to review the Federal Circuit decision that upheld the district court decision that held its diagnostic method claims invalid for failing to satisfy the patent eligibility requirements of 35 USC § 101. With no relief from Congress on the horizon, this filing puts at least the near-term future of diagnostic method patents at the mercy of the Supreme Court. Will the Court agree that its § 101 jurisprudence has been taken too far, or will it decide that diagnostic methods really cannot be patented?”
“Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice.”Patently-O wrote: “The discovery here was that fetal DNA can be found floating around the blood of the pregnant mother and that the fetal DNA can be selectively amplified by focusing on the paternally inherited portion of its DNA (rather than the maternally inherited). Sequenom’s patent claims two simple steps: (1) amplifying paternally inherited DNA from a plasma sample taken from a pregnant female and then (2) detecting the presence of the DNA.”
“This week,” wrote one patent lawyer. “Patents Asserted in 4 US Dist. Cts. Survived Alice/101 Challenges; DE High Ct. Rejected Mayo/Prometheus Test.”
“It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.”Any patent lawyer would be delighted about such news. Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice. They are incapable of patenting software after Alice and they still try to find new tricks around the new rules.
It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.
Alluding to the Federal Circuit (Court of Appeals for the Federal Circuit), the home and origin of software patents, people from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP wrote about a case we covered here before. The recent Lexmark case was also touched upon again by Patently-O; that was just a few days ago. Patently-O actually covers a lot of CAFC-related matters these days [1, 2] (the latter being Mag Aerospace Industries, Inc. v. B/E Aerospace, Inc.) and this article by Dennis Crouch says that “Shaw Industries v Automated Creel Systems involves several interesting issues involving inter partes review proceedings.”
“Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO.”Another newer CAFC article by Dennis Crouch says: “All three patents (all claims) were challenged in covered business method reviews and found by the PTAB to be ineligible under Section 101 (abstract ideas). In addition, two of the same patents (a subset of claims) were challenged in inter partes review proceedings, but in those cases the PTAB sided with the patentee and found the ISE had failed to prove invalidity (either obvious or anticipated).”
Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO. Let’s look at some new examples.
As we noted here before, the relatively new PTAB is crushing many software patents. Patently-O did cover the following example several days ago, noting: “In a straightforward decision, the Federal Circuit has affirmed the PTAB’s decision that Cree’s claimed down-shifted LED invention would have been obvious in light of a combination of three prior art patents. The basic problem with LED lighting is that it is easy and cheap (these days) to get blue light, but harder to produce light across the spectrum – especially reds. Cree’s patented approach used a blue LED that is wrapped in a “down-converting luminophoric medium.” The basic idea is that the blue light energy is absorbed by the medium and then released as white light. These Fluorescent and phosphorescent materials were already known and commercially available.”
Perhaps the biggest news regarding PTAB right now concerns Uniloc, which is a notorious patent troll; IAM still calls patent trolling “licensing market” (gotta love their euphemisms, as they make trolling sound so legitimate). As a trolls expert put it:
Patent that cost Microsoft millions gets invalidated
One of the oldest and most profitable patent trolls, Uniloc, has been shot down. Its US Patent No. 5,490,216, which claims to own the concept of “product activation” in software, had all claims ruled invalid by the Patent Trademark and Appeals Board (PTAB).
The process through which PTAB eliminated the patent is called an “inter partes review,” or IPR. The IPR process, created by the America Invents Act, is an increasingly popular and effective way for defendants to challenge patents outside federal courts.
The PTAB case against Uniloc’s patent was filed by Sega of America, Ubisoft, Cambium Learning Group, and Perfect World Entertainment. The board found that every claim in Uniloc’s patent was anticipated or rendered obvious by an earlier patent.
“The PTAB decision is inconsistent with two prior rulings by the Federal Circuit and with the opinions of seven patent examiners who previously upheld the validity of the ’216 patent in multiple reexaminations,” Uniloc president Sean Burdick told the Kansas City Business Journal, which reported the decision earlier this week. “Ultimately the PTAB gave undue credibility to a lone expert opinion that was authored by petitioners’ counsel. Congratulations to [opposing law firm] Erise IP for pulling wool over the eyes of the Patent Office.”
What’s noteworthy here isn’t the name of the troll or even Microsoft; it’s about PTAB killing software patents, just like a lot of courts after Alice. That’s great news. Inherently, the core issue is patent scope and software patents in particular.
A small step towards countering patent trolls by limiting venue shifts (a la Venue Act/VENUE Act [1, 2]) was mentioned the other day at MIP but in reference to CAFC. “The Federal Circuit ruling in Acorda v Mylan and AstraZeneca v Mylan,” MIP explained, “gives branded pharmaceutical companies more flexibility in their choice of where to file suit against generics” (as if that’s a good thing). CAFC was also mentioned by more vocal patent maximalists, who constantly bemoan the difficulty now associated with getting software patents (or successfully suing with them).
“Inherently, the core issue is patent scope and software patents in particular.”More noteworthy, however, was the mentioning of the Venue Act in corporate media (GOP-leaning). This attracted some strong reaction from Twitter [1, 2, 3]. Basically, unsurprisingly, right-wing news sites don’t like the Venue Act. “It is time to confront the bias against patent owners in patent ‘reform’ legislation,” wrote the author, later noting: “The absence of any acknowledgment that reform of the PTAB is just as pressingly important as venue reform by those pushing for the VENUE Act is a massive elephant in the room. Unfortunately, it is unsurprising. But this is only because it is the latest example of a strikingly one-sided, biased narrative of the past several years about patent “reform.””
It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform. We wrote about the GOP stance on patent reform many times before.
Software Patents in Australia
“It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform.”A country heavily influenced by the US (see trade agreements for recent evidence) apparently still allows software to be patented (we wrote a great deal about it in past years). As patent lawyers put it the other day (in International Law Office): “In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The US Supreme Court has confirmed that, at least for the moment, none of these is eligible for patent protection.(1) In Australia, the High Court recently considered methods of treatment (which are generally patentable)(2) and isolated naturally occurring genes (which are not).(3) Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection in Australia.”
There is a software patents story coming out today. It’s coming from Patentology. It is titled “Upaid v Telstra – Here’s How We Deal With NPEs in Australia!”
To quote the article: “Upaid Systems Ltd is a ‘non-practising entity’ (NPE) – sometimes referred to as a ‘patent troll’ – which sued Australia’s largest telecommunications carrier, Telstra Corporation Ltd, back in August 2013 for the alleged infringement of two Australian patents relating to making online purchases of goods and/or services from mobile devices. More specifically, Upaid alleges that various subscription operations performed in relation to Telstra’s MOG online music streaming service (formerly Bigpond Music) infringe its patents when conducted using a mobile device. [...] As Upaid has discovered to its detriment, the Australian Federal Court Rules require substantial detail to be provided in relation to the activities said to constitute infringement. In short, in this country it is nowhere near enough to run around pointing fingers at alleged infringements on the basis that they might look, walk and quack a little bit like a claimed duck. You need to provide sufficient information, at the outset, to inform the accused infringer fairly precisely of the case they will be required to answer.”
“Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).”What we have here is a patent troll in Australia using software patents. Sounds familiar? Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).
Software Patents in China
International Law Office has this analysis from Taiwan about patent assignment and other such matters. China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.
Take note of this new article from Lexology whose headline says “China Again Fastest-growing Origin for EPO Applications”. This is based on EPO lies (Mandarin-only patents), as we noted here before [1, 2]. As this new comment from the same day put it, “I can rely on EPO Examiners. But can I rely on EPO management? I’m not sure.” They have different goals; one group wishes to do proper examination and the latter — inflation, ‘growth’ (however it gets measured), and so on. One group is scientific (like climate change scientists), whereas the latter is recklessly capitalistic (like oil companies) without boundaries, without long-term thinking.
“China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.”Well, patent lawyers just want patents in China (more money for them because it’s a big country), so in Lexology on Saturday we found this article titled “Patenting Software in China: What Do You Need to Know”. This also covers the EPO, despite software patents not being allowed in Europe. To quote: “This article provides practical tips of protecting software inventions in China, as well as discussions with trends in practice and comparisons among different patent offices, the State Intellectual Property Office (SIPO), European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO).”
Software Patents in Korea
Patent troll MPEG-LA, according to this article from IAM (very softly-worded when it comes to trolls), gets patent tax money in Korea (indirectly). Again, this is all about software patents. Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone. It’s detrimental to whole economies and the tax is overlooked by almost everyone.
“Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone.”Isn’t it sad that the US, which made software patenting possible in the first place (CAFC), is still influencing other countries on that matter, having them blindly accept software patents simply because the US does, as if US law is now universal law? █
“America is much more than a geographical fact. It is a political and moral fact – the first community in which men set out in principle to institutionalize freedom, responsible government, and human equality.”
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Patent Pools, Patent Thickets, Patent Stockpiling, Patent Trolling, Patent Royalties, Patent Agreements, Patent Lawsuits etc. are the lifeline of patent lawyers
Summary: Patent lawyers are pooling together their collective influence in an effort to rescue or salvage software patents, which software professionals neither want nor need
“Software shouldn’t be patentable,” Christine Hall of FOSS Force wrote last night. “It’s already covered under copyright law, where it belongs.” That’s just how a lot of software professionals feel, not just FOSS proponents. So who benefits from (and lobbies for) software patents? Monopolists like Microsoft, their lobbyists, and their patent lawyers for the most part.
“Yes, even some large companies have gotten fed up (but not Microsoft).”According to this latest news (covered here a couple of days ago), “APPLE AND ERICSSON have agreed to a global patent deal that will end legal hostilities between the two companies.”
Yes, even some large companies have gotten fed up (but not Microsoft). “The specifics of the deal remain confidential,” says this report, “but it looks like Ericsson has come out on top of the negotiations after confirming that Apple will make an initial payment to Ericsson and then ongoing royalties.”
The Microsoft-controlled Nokia is said to have gotten something similar out of Apple. A lot of these mobile patents pertain to wireless communication, design, and user interfaces/software. These threaten what we have come to know and appreciate as mobile Linux, or FOSS platforms (such as Android) as zero-cost operating systems that commoditise phones and other gadgets, like portable small devices.
We are rather disturbed to see the degree to which patent lawyers dominate the debate in the media. Where are representatives of the software industry (meaning independent developers, not software behemoths with monopolies in their respective field/s)? Spokespeople for the interests of software developers are typically absent, whereas the giants have dedicated front groups like the Business Software Alliance (BSA).
“Where are representatives of the software industry (meaning independent developers, not software behemoths with monopolies in their respective field/s)?”In two recent posts of ours [1, 2], Australia’s patent lawyers were shown with their biased opinions. They currently freak out a bit because software patents are losing their teeth in Australia, at a fairly high level. Truthfully, it can go to an even higher (the highest) level. As George McCubbin from Minter Ellison put it in his conclusion/concluding remarks: “RPL Central can of course still seek special leave to appeal the decision to the High Court, which, if leave was granted and the appeal proceeded, would likely resolve this issue in the short term at least.”
Minter Ellison is just the latest legal firm to write about this. Here is some background or context: “In its long awaited decision Commissioner of Patents v RPL Central, the Full Federal Court has rejected another computer-implemented invention for failing to constitute patentable subject matter. In doing so, Justices Kenny, Bennett and Nicholas overturned the decision of the trial judge, Justice Middleton, delivered in August 2013.
“Patent law needs to take into consideration whether patents in one domain or another actually offer a benefit to society and encourage development.”“The decision has implications for any software developers.”
Yes, well, since they provably hate these patents. There were online petitions in Australia about it (covered repeatedly in Techrights at the time), indicating that it’s good news for developers, maybe bad news for patent lawyers.
Patent lawyers from Manatt Phelps & Phillips LLP (US) are doing ‘damage control’ right now, a year and a half after Alice. This other new article says: “There may be a glimmer of hope for owners of software patents as it is possible that the Federal Circuit is rethinking, or at least grappling with, the larger implications of Alice” (the software patents slayer).
They note that “may be a glimmer of hope for owners of software patents” as if it’s a disaster that software are dying (a disaster for patent lawyers for sure, but take note of the biased tone).
Another US-based legal firm has just published something related to this. “As background,” it says, “the patent relates to computer memory modules that comprise a printed circuit with upwards of a dozen “random access memory” (RAM) chips (sometime on both sides of the circuit board) for short-term storage.”
This, unlike what was covered above, actually involves some hardware. It is not something which a sole programmer can produce in a basement.
Patent law needs to take into consideration whether patents in one domain or another actually offer a benefit to society and encourage development. When it comes to software patents, evidence strongly suggests that they mustn’t exist and the US Supreme Court seems to agree. █
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Those seeking to perpetually maximise the scope of patents are now on the retreat
Limits exist for a reason
Summary: Patent news from India, Australia, and the United States (the Eastern Texas district in particular), where parasites insist that when it comes to patents more is necessarily better
LEAVING the EPO aside for a moment, we now have time to cover the latest news about software patents in India, in Australia, and in the US. There is a worrisome growing movement, led to a large degree by large US multinationals (monopolistic corporations). It’s a distinguishable lobbying movement which is trying not just to preserve software patents in the US but also expand these to every country on this planet. It’s very clear to see what they are hoping to achieve and this has nothing to do with innovation, just protectionism and power.
“This is great for Indian software companies.”As mentioned here in recent days [1, 2], opponents of software patents now celebrate somewhat of a temporary/conditional win because, to quote the corporate media in India (Economic Times), “India’s patent office has put on hold guidelines that would have allowed patenting of software, a move being hailed as a big win for domestic startups.
“Indian law on granting patents for software is a gray area. In August, the Indian Patent Office interpreted the law to mean that if a software had industrial applications it could be granted a patent.”
“The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.”The war is not over, but opponents of software patents bought some time and it seems apparent that their arguments are gaining traction among Indian politicians. This is great for Indian software companies. The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.
Speaking of patent lawyers (parasites in the area of patents and often the couriers of large corporations with monopolies to protect), watch what patent lawyers based in Australia write about patent scope today [1, 2]. They are clearly upset that it’s not easy to patent software and “computer-implemented business methods” — whatever this may actually be (a combination of two controversial patent domains a la Bilski case). They’re whining about this down under in Australia. Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.
“Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.”In other patent news, two patent aggressors, Apple and Ericsson [1, 2], decided to stop fighting. As WIPR put it (based on this original statement):
Technology companies Ericsson and Apple have agreed to settle all outstanding patent litigation.
In an announcement today, December 21, both parties said they have inked a global cross-licensing agreement that covers standard-essential patents (SEP) owned by Ericsson and Apple and “certain other patent rights”.
Further details of the agreement were not disclosed, but both parties confirmed the deal will last for seven years.
Ericsson has been using patent trolls as satellites or proxies — a fact that we have supported/backed with extensive evidence in many of our previous articles (even years ago). Speaking of patent trolls, they too have a lot worry about right now. Over in Texas, the breeding ground of patent trolls, not only was the troll known as eDekka [1, 2, 3] stopped but it was also forced to pay. As Boing Boing put it: “The plaintiff-friendly East Texas district has long been patent trolls’ favorite place to file lawsuits, but one was so egregious that even their favorite judge has not only shut it down, but awarded costs against them.”
“It shouldn’t be overlooked that the large majority of patent trolls are using software patents.”WIPR wrote that the “US District Court for the Eastern District of Texas has dealt a new blow to licensing company eDekka, ruling that a claim for a patent covering a computer storage system, which it asserted against more than 200 companies, was “objectively unreasonable”.”
The EFF has meanwhile asked the court to extend such judgments, saying in its announcement: “Getting a patent demand letter from a troll can be a scary experience. The letters often include a lot of legal jargon, not to mention a patent that is often impenetrable (at least, not without hiring an expensive lawyer to translate it for you).
“But suppose you are concerned that the patent may impact your business. After trying to reach an agreement with the patent owner and failing, you may be told by your lawyer that the next step is to go to court.”
It shouldn’t be overlooked that the large majority of patent trolls are using software patents. By eliminating software patents we can actually help stop a lot of the trolls. Obsessing over trolls alone sometimes misses the point. We’ve repeatedly stressed this key point for at least half a decade now. █
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Sometimes money is to be made by killing people, not helping people
Summary: A roundup of recent articles and even paid-for press releases from proponents of software patents (and patents on just about everything) because they have nothing to worry about and patent wars (or patent stockpiling) is how they make money, regardless of the destructive outcome
THE patent maximalists, or those wishing to patent everything under the Sun (because they profit from it), are still occupying the media because everyone else is busy or apathetic.
An article in AOL, based on this press release, can be seen accompanying another press release titled “Stepes Files Patents for Its Chat-Based Translation Software”. These are software patents. They’re quite an epidemic in the United States and they should serve as a lesson for Benoît Battistelli’s EPO. This is why the US has so many patent trolls.
“This is why the US has so many patent trolls.”Remember AJ Park? It’s a firm that lobbied New Zealand for software patents at behest of rich multinational clients [1, 2, 3, 4, 5]. Here they go again promoting patents on business methods (closely related to software patents as per Bilski). AJ Park is based in New Zealand and Australia, where patent lawyers still bemoan the difficulty of getting software patents (Jack Redfern and Matthew Ward from Shelston IP Pty Ltd in this case) because the Australian government isn’t as easy for monopolists to corrupt. It’s not just an Australian thing; patent lawyers keep working hard to make shallow software patents possible to have granted in the US after Alice. They even issue new paid-for press releases and lobby for continued existence of software patents in the US (this one is from Mark Williams of Snell & Wilmer).
“It’s not just an Australian thing; patent lawyers keep working hard to make shallow software patents possible to have granted in the US after Alice.”As we noted here earlier this month, software patents have a lot to do with patent trolls. Texas, which we have been writing a lot about lately [1, 2, 3, 4], is proof of it. According to this new article: “U.S. courts are seeing a rash of lawsuits involving old and sometimes expired patents as companies try to squeeze the last bit of profits from their 20-year-old inventions.
“The patents sometimes end up in the hands of speculators who may go to court with infringement claims against other companies in the hopes of a big pay off — either by forcing settlements or going to trial.
“Xerox Corp., the office-copier pioneer now a target of activist investor Carl Icahn, has been transferring old patents for electronic documents and communications to outside firms this year. Those entities have since filed about 290 lawsuits against retailers, airlines, insurance firms and gaming companies — even though the patents had expired or will in a few years.”
Notice the role played by Carl Icahn, who helped Microsoft essentially kill Yahoo (he is still doing so). Also remember that Acacia used Xerox patents against Linux.
“Much like debt collectors,” said this EPO person, the above people are “buying old (often expired) debt claims to extort money to the unaware. Vultures. Parasites. Leeches.”
“It’s gratifying to see more complaints about patent trolls, but one way to tackle them would be to ban software patents, as a large majority of parasites and patent trolls rely on these.”Some of these types of leeches already come to Europe.
This patent maximalists’ site refers to trolls as NPEs and writes: “US tech companies have for years battled lawsuits against non-practising entities (NPEs), but now they are fighting back.
“A group of 24 amici curiae, including Adobe, eBay and Google, want to end patent law suit forum shopping – a tactic favoured by so called ‘patent trolls’.
“The group submitted a brief to the Court of Appeals for the Federal Circuit urging that a domestic corporation’s “residence” for patent-suit venue purposes, is limited to its state of incorporation.”
It’s gratifying to see more complaints about patent trolls, but one way to tackle them would be to ban software patents, as a large majority of parasites and patent trolls rely on these. █
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The United Kingdom — and by extension Europe — now a platform of choice for some major patent trolls
Summary: Worst-case scenarios are becoming a reality as Android backers officially attacked by patent trolls using standard-essential patents in London, England
SOFTWARE DEVELOPERS across Europe hate software patents. Ask them. Seriously, just ask them. Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software). It helps protect them and assert that their own work cannot be exploited/ripped off. That’s just the nature of software, which is a lot like poetry or musical compositions.
The Danish creator of Ruby on Rails (RoR), David Heinemeier Hansson, wrote the other day: “Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”
“Programmers in general (with rare exceptions) don’t want software patents; they already have copyright law (or copyleft for Free software).”As we have shown here before, no software patents are “good”, hence there is no such thing as “bad patents” or “bad software patents” (a term often used by apologists of them, such as IBM). Patents in the hands of “good” companies are not secure either; they can be sold and fall into hostile hands. See Sun and Oracle for example (Sun patents are now being used against Linux/Android). See Novell’s patents, which fell into Microsoft’s hands through CPTN. There are many more examples like that.
“Software patents are a racket used by trolls/BigCos to shake down/stifle competition. If you file for patents, you’re arming the racketeers.”
–David Heinemeier HanssonRoR’s creator, a hugely popular developer (not just in Europe), said a couple of days ago: “Shame on Ericsson for arming a patent troll with a large stockpile of outdated yet weaponized patents for a cut” (he spoke about Unwired Planet).
For those who are not familiar with Ericsson and Unwired Planet, here is an article from 3 days ago. It makes everything quite easy to follow: “Unwired Planet Inc. has 16 employees and no products. What it does have is a portfolio of more than 2,000 patents, mostly acquired from Ericsson AB, which it says on its website are “considered foundational to mobile communications.” The Nevada-based firm wants more than just recognition.”
So a European company, Ericsson, is now the motor of patent trolls, much like Nokia after Microsoft took over. How did this happen? Well, we covered this over the past few years and we warned that this was going to happen, despite software not (officially) being patentable in Europe.
London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas. Huge damages are at stake and the target is Free software, not some proprietary software, hence free distribution itself is being threatened. Believe it or not, this may have the same impact on Free software on phones in Europe as the FCC on Free software on routers/hubs in the US. The Ericsson-backed troll is now attacking Android (Free software and Linux-powered). Making it impossible to dodge the lawsuit, we are dealing with standard-essential patents (SEP) here, meaning that in order to conform with standards one must infringe. The patents boosters say that Huawei, Google and Samsung are the target of the lawsuit. To quote: “Tomorrow Unwired Planet is scheduled to begin a series of face-offs against Huawei, Samsung and Google at the Patents Court in London. At issue are alleged infringements of five standard essential patents (SEPs) owned by the NPE that were transferred to it as the result of a deal done with Ericsson back in 2013.
“London is now serving as the venue for patent trolls, attracting the litigation ‘business’ just like Eastern Texas.”“Over on the ARS Technica website, Joe Mullin talks about coming to a UK court being “a high-cost, high-risk scenario that’s unappealing to trolls”. He’s right. And that’s why trolls – whose business model is based on asserting poor-quality patents to leverage the high cost of US patent litigation to extract relatively low-cost, pre-trial, licensing-based settlements from alleged infringers – would never take a case as far as a courtroom in the UK (or anywhere else for that matter).
“Unwired Planet, though, is not a troll. It is a patent licensing business looking to secure a global agreement from entities it believes are infringing high-quality SEPs. It may not like trials (who does?), but it is not afraid of them because it feels it has a good chance of winning and is willing to pay to find out if it is right, especially as the ultimate prize is potentially a collection of eight or even nine figure global licensing deals. Seen in such a light, its choice of the Patents Court in London makes a fair bit of sense.”
The proponents of software patents, people such as IAM's biased (for their own financial gain) writers, helped patent trolls come to Europe. IAM said that “Unwired Planet patent suit in London against Huawei, Google & Samsung again shows Europe is now NPE venue of choice”. Patent Buddy, a more moderate voice, noted the importance of this: “Unwired Planet Will Fight SEP Suit Against Huawei, Google and Samsung in London, Not a US Court” (where this typically takes place).
It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins). Now that there are some software patents in Europe, authorised by the corrupt EPO, large companies are using loopholes and cheats to get more of them and then sue. As Patently German clarified the other day, “the German court essentially follows the EPO, the language even being a bit more generous” (but it’s the EPO that led to it, even back in Brimelow’s days).
“It’s easy to see what patent lawyers find desirable here. They can make money from the legal aftermath and the proceedings themselves, irrespective of the outcome (who wins).”Germany’s exceptional lenience on software patents granting was mentioned here this morning and it is likely to be a topic we will revisit in the near future. Jonas Bosson (FFII Sweden) wrote that “#TPPA is “all fields of technology” a trick force patents on abstract matters, such as math and data processing? http://en.swpat.org/wiki/Trans-Pacific_Partnership_Agreement …”
These terrible ‘treaties’ play a growing role in corporate takeover of Europe and based on this latest update, “The UK has joined the Unified Patent Court (UPC) protocol agreement, representing a ‘milestone’ for the country.”
Yes, a ‘milestone’ for corporations taking over the country and most of the continent it’s technically a part of.
The FFII’s President expressed his concerns earlier today by stating: “FSF, despite its 30 years, still spending too few of its resources on fighting software patents and the unitary patent court #FSF30″
Australia Dubs It “Innovation Patent System”
This whole software patents and ‘treaties’ chaos (laws rewritten in bulk) is becoming a growing problem not just in Europe but also in Australia, where activists like Sturmfels (mentioned before in [1, 2, 3]) oppose a push for software patents. The patent maximalists ridicule the likes of him with insulting weasel phrases and belittling words. To quote a new blog post titled “‘Free Software’ Advocates Aside, Submissions to IP Australia Overwhelmingly Support Innovation Patent System”:
Needless to say, such comments lack anything resembling either evidence or detailed reasoning. They also fail to address the fact that abolition of innovation patents would affect all industries, and not just the ‘software industry’ (whatever that may be), including those represented by other submissions in support of innovation patents. In any event, these near-identical submissions are so clearly the result of an orchestrated campaign that they can hardly be regarded as constituting independent contributions to the consultation process. Furthermore, they are at odds with the submission made by BSA | The Software Alliance as noted above.
Other parties making submissions in favour of abolition of the innovation system include Melbourne-based free-software advocate Ben Sturmfels, on behalf of a group of nine like-minded individuals, and Open Source Industry Australia Ltd, which argues that ‘abolition of the innovation patent system will be an important first step towards delivering a more efficient, effective and equitable patent regime for Australia’.
Even Microsoft front groups like the Business Software Alliance (BSA) play a role in the lobbying. To quote:
“BSA | The Software Alliance, which represents the global commercial software industry (counting among its members Adobe, Altium, ANSYS, Apple, ARM, Autodesk, AVEVA, Bentley Systems, CA Technologies, Cisco, CNC/Mastercam, DataStax, Dell, Intel, Intuit, Minitab, Oracle, PTC, salesforce.com, Siemens PLM Software, Symantec, Tekla, The MathWorks, and Trend Micro), and which argues that the innovation patent system should be retained, and improved in line with a number of the recommendations in ACIP’s original report”
The above are all proprietary software giants, hardly small businesses. It’s clear whose interests are served by monopolies on algorithms.
IAM Not Speaking for India
IAM is meanwhile returning to the situation in India, claiming that India’s small businesses want software patents (citing this article which doesn’t really focus on patents) and saying in Twitter: “Limited scope of patent protection, rather than cost, is what is driving high-tech Indian SMEs out of the country” (total nonsense).
“Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe.”The patent lawyers (like the people who operate IAM) want patent trolls and large corporations that hire them to just carry on with patent chaos because patent lawyers profit from it. This is true not only in Europe but also in the US. Watch how IBM is lobbying for software patents in just about every country, India included. The same goes for Microsoft and other patent aggressors. Microsoft reportedly lobbies regarding the UPC in Europe, despite being a foreign company with no personal affection for Europe. Microsoft is not a person. It is also treated like a V.I.P. by the increasingly corruptible (up for sale to corporations) EPO. █
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