When competition is becoming lawyers’ business, generally unhinged from science and technology
Summary: A roundup of news of interest with a special focus on software patents, which severely affect one’s ability to liberally develop software and are potentially being expanded to countries outside the United States, where the Supreme Court may have already, in effect, put an end to them anyway
RETUNING to our main focus again, this post brings together all the news we were able to find about software patents towards the end of the week. It’s sub-divided into four parts.
Software Patents in India
As readers probably know by now, as we wrote half a dozen articles about this subject alone, India’s political system, which has a lot of power in the world, is surrendering to the lobbies of multinationals and offers them patents on software, effectively stomping on India’s massive population, software developers in particular. Here is a new “[t]ime-line of Software Patent Law in India” which explains the latest development as follows:
August 21, 2015: Guidelines for Examination of Computer Related Inventions released by IPO. Provide that:
– Mere use of mathematical formula in a claim to clearly specify the scope of protection being sought would not render the claim a mathematical method. Eg. Method of encoding, decoding, encryption
– While business methods are non-patentable, if the claimed matter specifies an apparatus or technical process for carrying out invention even in part, the claims to be examined as whole
– So long as a computer programme is not claimed in itself, but in a manner so as to establish industrial applicability and fulfils all other criteria of patentability, the patent should not be denied.
These loopholes are even worse than what we have in Europe (similar to New Zealand’s loopholes). If Narendra Modi and his colleagues fail to stop this, India will suffer from inflated pricing and many software houses (local) will shut down. Nothing has actually changed in India which justifies this latest change to guidelines. It probably boils down to lobbying and corruption. We know which companies want software patents in India; they’re not Indian companies but companies that exploit Indian labour for cost-savings, ensuring that India stays dependent on foreign-made systems with imperialistic back doors.
Software Patents in the US
SCOTUS, the US Supreme Court, has emerged as somewhat of a hero in the fight against software patents. We are grateful for Alice as it’s a huge game-changer. Patent lawyers are plotting to patent software nonetheless, even after the Supreme Court banned many of them. How typical. Expect a major war of words between people who actually produce software and patent lawyers whose role is parasitic at best (as well as their very rich clients and patent aggressors, i.e. companies like Microsoft).
Microsoft’s Dubious Software Patents
PatentVue, a patents glorification site which even celebrates Microsoft’s patent troll Intellectual Ventures, has just published the article “Microsoft Has a Diverse Software Focused Patent Portfolio”.
“If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed.”Microsoft needs such patents so that it can attack, extort, and blackmail Android/Linux. Microsoft has been pressuring in favour software patents in Europe (often via lobbyists and proxies, e.g. Association for Competitive Technology, which keeps changing its name in order to dodge negative publicity). This year alone Microsoft attacked Samsung, Kyocera, Dell, and ASUS using software patents, forcing them — by means of patent blackmail — to put Microsoft spyware inside Android. If Ballmer was the extortion racket CEO (like the Mafia), then Nadella is the blackmail CEO. Nothing has changed.
Quoting the patent maximalists from PatentVue: “Earlier this month, Microsoft and Google announced a settlement to end nearly 20 patent-related lawsuits in the U.S. and Germany. The deal brought to close years of patent litigation surrounding various technologies, including gaming systems, mobile devices, and multimedia streaming.
“Envision IP analyzed Microsoft’s US patent portfolio to understand where the company has focused its patenting efforts, as well as to determine emerging technologies which Microsoft may be developing. At a high level, we identified 31,209 in-force, unexpired US patents owned by Microsoft and its subsidiaries. According to the company’s annual 10-K filed in July, Microsoft owns “over 57,000 US and international patents”. Also, according to Microsoft’s Patent Tracker Tool, the company owned 29,235 patents as of December 11, 2014.”
“It’s Microsoft’s utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place.”Rather than produce software Microsoft has been busy bullying the EPO into granting it patents as soon as possible (many of these are on software), even without proper prior art search, checks for inventive step/s, suitability based on European patent scope and so on (there is a fast track now, so an even sloppier examination process is clearly inevitable). Speaking to patent maximalists with a Microsoft Windows Web site several years ago, Microsoft’s Marshall Phelps said that Microsoft would have 50,000 patents within two years. The EPO, as he explained it, “can’t distinguish between hardware and software so the patents get issued anyway” (more so if Microsoft pressures the examiners to do their job at a rush).
For those inside the EPO who don’t understand Microsoft’s insidious (uniquely so!) role in the EPO, including the pressure for a V.I.P. lane, we can humbly suggest a quick read though the TomTom case. It’s Microsoft’s utterly shameful patent assault on a Dutch company (and by extension on Linux) using discredited patents which probably never ought to have been granted in the first place.
Shooting the Mark Cuban (Messenger)
Mark Cuban, an influential person in the US, has expressed his opposition to software patents on many occasions and even put money where his mouth was (investment in Vringo notwithstanding).
“This isn’t what the patent system was supposed to be about.”Patent lawyers and nasty (at times exceptionally rude) proponents of software patents resort to an ad hominem attacks on Mark Cuban, still (ongoing smear campaign). Here is the latest such attack. Patent examiners (technical people) and software developers alike ought to know that their enemies are often patent lawyers and lobbyists, not just their main clients (cash cows), i.e. companies like Microsoft. These people have made a mockery of the patent systems with all sorts of loopholes and corporate/V.I.P. queues. This isn’t what the patent system was supposed to be about. At the beginning it was advocated to the public as the mechanism by which a lone inventor can protect himself or herself from a corporate raid on ideas. Now it’s all reversed. It’s protectionism for the world’s billionaires. Fix it or abolish it. █
“People that use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us.”
–Steve Ballmer, Microsoft
Send this to a friend
Suddenly software patents don’t suit even Apple’s agenda all that much…
Summary: Another blow for software patents in the United States (US) as even a company that notoriously exploited them to impose embargoes on Linux (Android) devices is finally finding these patents unsuitable
THE USPTO has been thoroughly impacted by the US Supreme Court (SCOTUS), for a ruling from last summer meant that a lot of patent applications, especially ones that pertain to software, are no longer eligible and should thus be rejected/discarded. Techrights believes that Alice v. CLS Bank can gradually pave the way to a world free from software patents and that without this case, software patents would only gradually expand and become universally acceptable.
“Techrights believes that Alice v. CLS Bank can gradually pave the way to a world free from software patents and that without this case, software patents would only gradually expand and become universally acceptable.”The Alice case, which continues to squash a lot of software patents (those that are being tested in a court of law), changed the game and even Apple, a leading foe of Linux and Free/libre Open Source software, is now using Alice in order to squash software patents (those which are asserted against Apple). According to this article from Florian Müller: “The Apple v. Ericsson docket in the Northern District of California was worth taking another look (after quite a while): two weeks ago, Apple brought a motion for summary judgment of invalidity of two patents asserted by Ericsson in its counterclaims to Apple’s declaratory judgment complaint, and the motion is entirely based on 35. U.S.C. § 101 in light of last year’s famous (or infamous in the eyes of patent attorneys) Alice ruling by the Supreme Court on patent-ineligible subject matter…”
Patent Buddy took note of these patents [1, 2] and we wish to remind readers of our recent post about patent trolls in Europe and Ericsson's troll, Unwired Planet.
“Maybe the folks at the ITC think they’re above the law, even above the Supreme Court.”The fascinating thing here is that even Apple, which is attacking users with software patents (embargoes, feature removal, price hikes) and maliciously spying on users, is making use of the Alice case. But perhaps the most interesting article today concerns the United States ‘International’ Trade Commission (it’s not really international, it’s nationalistic and biased; it’s often used by Microsoft and Apple to ban Android devices), which according to patent lawyers remains reluctant to take account of the Alice case. Maybe the folks at the ITC think they’re above the law, even above the Supreme Court.
“Outside of the ITC,” wrote the author, “defendants have been increasingly successful in challenging the patentability of asserted claims under Section 101. Recent decisions by the Supreme Court and the Federal Circuit have clarified, and arguably narrowed, the scope of patentable subject matter, and have repeatedly urged district courts to resolve any Section 101 defenses as soon as possible. At the ITC, however, this defense has rarely been asserted, and has only once been successful since Bilski. Nevertheless, ITC practitioners should expect to see more of these defenses in the near future, and there are interesting, open questions surrounding how the ITC will interpret and implement the Supreme Court’s decisions on this issue.”
“The injunctions are so biased that it’s just too hard to ignore.”We have been vocal critics of the ITC and its dubious practices since the Bilski days, so this one is yet another example for our list. It often seems like all that the can ITC offer is protectionism for US (mega)corporations, not justice. The injunctions are so biased that it’s just too hard to ignore. █
“Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke.” —Kelledin, PLI: State Street Overruled… PERIOD
Send this to a friend
Characterising societal issues as a ‘Linux problem’ because of transparency
Summary: A look at the broader scale of discrimination against women and how widespread a phenomenon it is inside Microsoft, the arch rival of Linux
REMEMBER how Microsoft pushed “boobs” into Linux [1, 2, 3] (much to the detriment of Linux) and later “apologised” because it got caught? Many people don’t remember that (or simply didn’t pay attention at the time). This helped remind us that Microsoft is very hard to beat when it comes to chauvinism. Over the years we have covered many examples of sexism at Microsoft [1, 2, 3, 4, 5, 6]. This kind of sexism goes all the way up to the CEO himself and let’s not even mention Microsoft homophobia [1, 2, 3] because that is a separate (albeit related) topic.
Several weeks ago “Microsoft [got] Hit With Gender Discrimination Lawsuit”. To quote a progressive site: “Microsoft is staring at a potential class-action gender discrimination lawsuit filed by a former technician alleging the company denied her promotions and raises.
“Katherine Moussouris filed a complaint against the Seattle-based company claiming her supervisors didn’t like her “manner of style” and gave the promotions she was up for to her less-qualified male counterparts, Reuters reported. She also reportedly received lower bonuses as retaliation for making sexual harassment complaints. According to the complaint, Microsoft’s female employees in Redmond, Washington frequently received lower performance ratings and were often based on subjective observations.
“Microsoft has been criticized in the past for being cavalier towards gender discrimination in its ranks. Last October, CEO Satya Nadella apologized after telling a roomful of women technicians at the Grace Hopper Conference that they shouldn’t ask for a raise, but instead have “faith that the system will give you the right raise.” Nadella backtracked his comments soon thereafter via a mass email to employees: “If you think you deserve a raise, you should just ask.”
“Moussouris is encouraging women who worked for Microsoft in the past six years to come forward, which could help the case gain class action certification. Wednesday’s lawsuit is the first gender discrimination allegation against a major tech company in the wake of the conclusion of former Reddit interim CEO Ellen Pao’s infamous suit against her former law firm Kleiner, Perkins, Caufield & Byers. Pao lost her case, in which her claims were similar in tone to Moussouris, and recently dropped her appeal.”
Will Hill at the Join Diaspora Web site wrote (he personally brought it to my attention while I was away on vacation):
Sexism Lawsuit Against Microsoft
A class action lawsuit has been filed by a former Microsoft employee over rampant sexual discrimination at Microsoft. Katherine Moussouris claims that women are underpaid, passed over for promotions, and face retaliation if they complain. She worked for the company for seven years.
This does not surprise us because we saw and covered similar reports in the past. Microsoft tries to suppress publication of such matters and it is easier because of the culture of secrecy.
By contrast, in Free software communities everything is visible to the public, including to the already-hostile press. One might expect the observer to take this transparency into account and therefore use some judgment. Some people care more about Linux gossip than about Linux news, however, so when something similar happens in the Linux world it can hijack the news feeds for about a week if not longer than that. A lot has been said about Linux in relation to women’s rights, especially this past week (because of Sharp). There are still some new articles about it [1-16], with plenty of discussion in each (it has become quite an Internet storm).
At Microsoft, based on evidence that does not receive much media coverage, females sue the company for millions over discrimination; in Linux one can just make a mess, start flamewars. We can quite safely guess that many Linux developers (especially in top positions) have been wasting time checking what people say about them online rather than write code. A week-long saga, never-ending and self-feeding, is still raging. Even on Friday we still saw at least 3 articles about this drama against Linux culture. Coders are distracted by these flamewars, hence productivity is significantly down.
One of the curious comments I have come across talks about socially-engineering the community. Remember that Intel helped create OSDL and later played a key role in the Linux Foundation, so it cannot be treated as an outsider to Linux development.
To quote one comment, “Conspiracy theory: Would one of those multi-billion-dollar corporations (with NSA connections) spend a few million bucks to social engineer the Linux community?” It’s not as though Intel itself respects women’s rights (not inside the company anyway).
“I’ve asked Sarah Sharp some questions about how she reconciles her attitude towards the free software community and her work with Intel,” Hill wrote. “I have not seen any serious answers to those questions yet.”
Will Hill said, “I have asked Sarah Sharp on Google Plus some questions about working for Intel.” Here is the text of the questions: “Thanks for all the interesting ideas, and prior usb and graphics work, but how do you square these thoughts with working for Intel (1)? Intel is known for nasty things like killing the OLPC project through dumping (2), and partnership with Microsoft, a company that’s everything you complain about and more. Even when Intel is cooperating, the seem to hold back and treat the free software world as second class (2) Intel’s Management Engine and other firmware are direct threats to people’s software freedom, privacy, and ownership of their machines. Is Intel somehow getting internal culture right while doing so many bad things to everyone outside the company? Was your kernel work an official part of your job? How have they responded to your decision to quit that work?”
There are more articles about all this below (we shared almost 20 more in the previous reply), but we don’t really want to feed the cycle of endless discussions.
The lack of women in Computer Science or S.T.E.M. disciplines in general (there are explanations of causes for that, but it’s beyond the scope of this post) is not the fault of FOSS, however it’s fashionable to blame it all on FOSS when one looks for a good, effective smear. This is also done a lot in the political sphere, where it’s fashionable to mistreat or invade one’s neighbours (or very distant nations) using concern for women’s rights. █
Related/contextual items from the news:
Matthew Garrett, noted developers and self-proclaimed social justice warrior, today announced solidarity with Sarah Sharp’s resignation in protest of rude behavior and the “way [Linus Torvalds] behaves” by providing a Linux kernel with changes rejected by Torvalds. Elsewhere, Jack M. Germain said Slackel offers advantages over Slackware but it’s still not for new users and DarkDuck found most Linux users still use Windows or Mac as well.
A Game of Thrones style war has broken out amongst the weirdie beardies of Open Source Land which has now split the Linux kingdom just as “Winter is a Coming.”
Everyone is free to have his own opinion (sorry, his/her), and I am free to form my own opinion on Sarah Sharp by just simply reading the facts. I am more than happy that one more SJW has left Linux development, as the proliferation of cleaning of speech from any personality has taken too far a grip.
On the other hand, it’s little mystery at all: Sarah was the first female kernel contributor I’d ever heard of, and the only one I can readily name now. It’s an uncomfortable answer, because when someone breaks into a space that doesn’t often include their gender or background, we feel we avoid culpability by being nonchalant. No exclusion here, nosiree. Didn’t even notice you were a woman. It’s comforting and dishonest; when someone breaks a boundary of cultural exclusion, regardless of how your reaction may later be judged, the fact is you notice.
Although apparently nobody noticed when Sarah quietly disappeared over the past year, finally coming out to cite now-familiar complaints about the toxic and hostile atmosphere on LKML and in the kernel community in general.
Once again, he’s complaining about how the fun from Debian has been lost because making sexist jokes, or treating other people like shit is not allowed any more. He seems to think the LKML is the ideal environment and that Debian should be more like it.
Another Linux kernel developer has left, citing a toxic environment. Jack Wallen proposes the type of motivation used by the kernel devs could unmake a very precious commodity.
Well, here’s the third, though it’s completely unrelated to Sharp and Garrett: The call went out in September for nominations for the Ubuntu Community Council elections, and they were returned with a glaring omission: Elizabeth Krumbach Joseph, who will not be running for re-election. She explains in her blog her motivations for moving on, and it’s well worth a read. Perhaps this is understatement, but her absence leaves a notable void in the “adult-in-the-room” department, since Elizabeth was often the voice of reason and sanity — and of course a voice for doing the right thing even when it was unpleasant or difficult for Canonical/Ubuntu — in a UCC group too full of yes-boys and Ubuntu Apocalypse zombies. Her leadership will definitely be missed.
Bottomley, maintainer of the kernel’s SCSI subsystem and other code, argues that things on the Linux kernel mailing list aren’t all that it’s talked up to be.
When Matthew Garrett, well-known Linux kernel developer and CoreOS principal security engineer, announced he was releasing a [Linux] kernel tree with patches that implement a BSD-style securelevel interface, I predicted people would say Garrett was forking Linux. I was right. They have. But, that’s not what Garrett is doing.
The definition of “thick-skinned” in different dictionaries ranges from “not easily offended” to “largely unaffected by the needs and feelings of other people; insensitive”, going through “able to ignore personal criticism”, “ability to withstand criticism and show no signs of any criticism you may receive getting to you”, “an insensitive nature” or “impervious to criticism”. It essentially describes an emotionally detached attitude regarding one’s social environment, the capacity or ignoring or minimizing the effects of others’ criticism and the priorization of the protection of one’s current state over the capacity of empathizing and taking into account what others may say that don’t conform to one’s current way of thinking. It is essentially setting up barriers against whatever others may do that might provoke any kind of crisis or change in you.
Folks are still discussing the resignation of Sarah Sharp and Matthew Garrett from Linux kernel development. Jack Wallen said Sharp (and Garrett) are cases of more developers being “turned away, simply because developers had no patience for personal respect.” He said Linux rules with a “sharp and iron tongue” with “foul and abusive language.” He agreed with Dr. Roy Schestowitz in that all this is a “PR nightmare” threatening the “flagship of the open-source movement.” He placed part of the blame on what he calls the “Internet of hate” and said if Linux is to compete with Microsoft and Apple its developers need to “start treating the legions of programmers, who are working tirelessly to deliver, as well as they treat the code itself. Open source is about community. A community with a toxic foundation will eventually crumble.”
Send this to a friend
Summary: A snapshot of recent developments and upcoming developments in Europe, regarding software patents in particular
EARLIER this week we chastised IBM for implicitly promoting software patents in India, just as it had done to promote software patents in Europe. Multinationals generally want to have these patents everywhere, especially if these multinationals are vast monopolies that deal with software. They want to crush competition using patents.
The Free Software Foundation Europe (FSFE) and a front group of IBM et al want to make software patents and Linux co-exist using so-called “non-aggression” pacts, which in practice barely work at all, not just because they cannot retaliate against patent trolls (see how Oracle sued Google over Android, despite their role in OIN). To quote their statement: “The Free Software Foundation Europe and Open Invention Network, with the participation of the Legal Network and the Asian Legal Network, are presenting two round table events with presentations and panel discussion of industry and community speakers, titled “Open Source and Software Patent Non-Aggression, European Context”. The events will be held in Berlin, Germany on October 21 and in Warsaw, Poland on October 22.”
This was also mentioned here and the FFII’s President reacted much like we did, stating: “Probably those 2 associations are doing nothing to prevent swpatv3, or the unitary patent” (more on that in our next post).
“Someone should tell Battistelli, who is a Frenchman, that the EPO must obey the laws of France and many other countries where software patents are not legal.”Some people seem to have grasped the important role which software patents play in the field of operating systems like Android. Free software is probably harmed the most because software patents are a stab at the heart of free distribution. See this new article titled “Apple, Samsung, Phones and Software Patents” for example. It is gratifying to see that more people now attribute the problem and lay the blame on software patents.
Recently, thankfully enough, April wrote about a decision that was widely overlooked in Europe. 6 days ago it stated that “[o]n June 18th, 2015, the Paris High Court (tribunal de grande instance — TGI) issued a ruling in the Orange versus Free case [fr] (both French ISPs); this ruling was published [fr] on September 1st, 2015. On this occasion, the court reaffirmed that software patents are illegal in Europe under the European Patent Convention (EPC). While this reaffirmation is good news, it nevertheless testifies to the possibility of filing software patent applications today in Europe.”
Someone should tell Battistelli, who is a Frenchman, that the EPO must obey the laws of France and many other countries where software patents are not legal. As we shall show in our next post, the EPO is helping member nations and corporations that operate in them bypass the law and patent software, using for the most part a secretive and undemocratic transition into the UPC. █
Send this to a friend
“The genesis of this idea was when I was at Microsoft.” —Nathan Myhrvold, WSJ: Transcript: Myhrvold of Intellectual Ventures
Summary: Intellectual Ventures suffers another major blow as Alice v. CLS Bank (Alice/§101) smashes software patents in the United States
WE finally have some more good news regarding Microsoft’s pet troll, Intellectual Ventures (IV), which has been funded by and works with Bill Gates.
Patent Buddy, which has been good at tracking the post-Alice aftermath, has found this followup to previous IV v. Capital One losses, “Second IV Patent Asserted Against Capital One Also Killed by Alice/101,” he claims, linking to this ruling
This is part of a broader trend because as Patent Buddy put it another day, “101 Patentability-USPTO Bypasses Substantive 103 Examination” (101 refers to Alice).
More software patents were being thrown down the drain by a judge last week. To quote Reuters: “A federal court in Delaware has invalidated a patent on multimedia messaging early in a lawsuit against some of the country’s largest cellphone providers, another example of a controversial trend that critics say wipes out patents before they are fully understood.”
“Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes.”“US business method patent applications down 52.4% since Alice,” moaned the patent lawyers in Twitter, pointing to their new analysis which states that: “Companies have pulled back drastically from filing business method patent applications in the US. Managing IP analysed figures for USPTO applications in patent class 705, the class covering “data processing” in which business method patents are placed.
“Patent applications in class 705 not only plummeted after the Alice decision on June 19 2014, but have kept tumbling.
“Some 8,620 class 705 patent applications were filed in the 12 months between July 1 2013 and June 30 2014. In the same period 12 months later, after Alice, the figure was 4,106 – a 52.4% drop.”
Patent maximalists that glorify the world’s biggest patent troll (IV) are now offering their ‘analysis’ (actually, offering by proxy), claiming that “Software Patents Are Resilient in the Wake of Alice Corp. vs. CLS Bank”.
Yeah, right. And the world is cooling down, too. According to News Corp. and other oil tycoons-connected ‘news’ networks. Anyone who is not intellectually dishonest because he or she does patent ‘business’ for a living would probably acknowledge by now that software patents are on their death throes. █
Send this to a friend
Software patents demolition in the United States
Summary: The crackdown on software patents is coming along nicely and the Alice case is now being utilised even in the capital of patent trolls
WE RECENTLY gave many examples where Alice demolished software patents [1, 2, 3, 4, 5, 6]. The Alice v. CLS Bank case (at SCOTUS) led even the CAFC (overzealously in favour of software patents and their original endorser decades ago) to — believe it or not — overturning decisions/biases. They must all simply obey the new rules/laws and examiners at the USPTO cannot grant patents on software like they used to. It’s huge news, even if many news sites continue to overlook these developments (patent lawyers’ sites try to counter these worrisome — to them of course — developments and precedents using propaganda and cherry-picking of facts).
“Business method patent app[lications] get no respect,” says Patently-O‘s article, according to Richard Beem (patent lawyer). He just says (or whines) that it harms his parasitic business. “The chart above shows the USPTO patent grant rate across a variety of major technology areas,” says Patently-O, but notice the reluctance to distinguish software patents from the rest. The survey does not list “software” separately from other things. Therein lies a potentially strong bias, like that of the originator of software patents, Martin Goetz. He recently wrote no less than two articles dismissing altogether the existence of a “software patents” category/classification.
“If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court.”The EFF, taking note of some recent developments, writes about the quick demise of software patents in the US, owing to courts’ decisions (each reinforcing predecessors). “With Kafkaesque Flourish,” says the title, “the Eastern District of Texas Penalizes Parties for Following the Rules” (we have already written some articles about corruption in Eastern District of Texas courts).
The Eastern District of Texas is the worst court when it comes to patents (favourable to software patents and patent trolls who wield these). To quote the EFF: “In the wake of the Supreme Court’s June 2014 decision in Alice v. CLS Bank, most courts have been quickly and efficiently getting rid of patents that improperly claim “abstract ideas.” In Alice, the Supreme Court held that “abstract ideas,” without more, were unpatentable under 35 U.S.C. § 101. According to one source, at least 150 patents have had claims invalidated as “abstract” since Alice. Those accused of infringing these invalid patents have regularly filed motions to dismiss at the outset of a case, having the issue heard before too much time and energy is spent. Courts have, for the large part, embraced these “Alice motions” and invalidated abstract patents as soon as practicable.”
Here comes the new part: “Following the Eastern District of Texas’s unconventional rules, the defendants filed a letter asking permission to file their Alice motion. Given the potential for wasted time, effort, and money, the defendants very shortly thereafter filed a motion for a stay of the case while the court decided the issue of whether the asserted patent claims are invalid under Alice. The patent owner did not oppose the motion to stay. Presumably the patent owner also recognized that it was more efficient to hear the issue at the outset, without incurring costs that may prove to be wasted if the Alice motion is granted.”
It is nice to see Alice being brought up even in Eastern District of Texas courts. If this trend continues, then perhaps the trolls epidemic too will stop, not because of some corporate lobbyists who ask for a bogus ‘reform’ but because of the US Supreme Court. Even corrupt courts must sooner or later follow the law to avoid being throughly discredited and potentially abolished. █
Send this to a friend
Patents not on engineering (or physical products) anymore
Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android
THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].
Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.
Open Invention Network
We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).
Earlier this morning FOSS Force published this very long interview with Deb Nicholson, who had worked for the FSF before she moved to OIN. This interview is very good and Nicholson’s views on patents are fine. We shared them here before.
“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”
Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.
“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”
She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).
The Finjan-led patent extortion crusade was mentioned here just weeks ago (they are Microsoft-connected) and now, just weeks later, this firm’s troll entity (Finjan Holdings) gets extortion money from a really nasty company, Blue Coat, which some say the EPO hired to spy on people like yours truly and EPO staff. “Finjan Holdings,” as a trolls expert explains, is “a patent-licensing company operating in the cybersecurity space” and it has just “won a hefty $39.5 million jury verdict (PDF) on Tuesday, when a San Jose jury found that Blue Coat Systems infringed five of its patents.”
Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.
Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.
“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”
“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”
The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”
Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.
A new article from Timothy B. Lee helps chastise the bully called JDate, which we wrote about very recently. “JDate,” he explains, “recently sued JSwipe, a mobile dating app for Jews that works like Tinder. Most media coverage has focused on mocking JDate for essentially claiming that it has a monopoly on certain uses of the letter J.
“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”
There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.
The Economist Versus Patents
The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).
“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”
Yes, patent scope is a huge part of the problem.
“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.
Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”
It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?
Patent Propaganda From Lawyers’ Sites
Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”
Yes, they even suggest software patents right there.
“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).
“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”
That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.
“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.
“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.
Design Patents and Linux Gadgets
Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”
The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”
This forever-legal-limbo scenario helps hurt Android, so we cannot just pretend that software patents are not a problem. More FOSS and GNU/Linux site must learn to address these issues as a matter of priority. Not enough are doing this at the moment and it definitely helps our foes. Many people seem to forget that Microsoft still attacks GNU/Linux using patents (albeit more discreetly than before). █
Send this to a friend
Phoro credit: Raysonho @ Open Grid Scheduler / Grid Engine
Summary: Comments on Newegg’s fight against patent trolls in court, setting an example for other companies
Newegg, founded by a Taiwanese man just 14 years ago, has been an important player in the fight against patent trolls that take companies to court because it has no tolerance towards such lawsuits and it is willing to lose money in the courtroom rather than pay up (it usually costs less to make the trolls go away with extortion money). “Newegg is famous for fighting patent trolls,” wrote a trolls expert the other day, “and the company is currently trying to win fees from several cases where it has won or the troll has given up.”
A week ago Newegg got some positive covers for winning an important battle. Newegg then used this fightback against patent trolls for PR [1, 2]. “Again,” wrote our reader iophk about this original blog post, “a distraction away from sw patents themselves.”
It is true that software patents are the real issue for us, but it doesn’t mean that Newegg tackling one patent at the time for defensive purposes is a bad thing. If only every company did that… █
Send this to a friend
« Previous entries Next Page » Next Page »