Justice gone backwards
Photo from Reuters
Summary: A patent case in the United States gets sent from SCOTUS to CACF, showing a rather odd hierarchy of justice (top-to-bottom, back to notorious patent boosters)
THE Rader corruption and the impact on CAFC was mentioned here just weeks ago, noting that the Court had been put under mortal danger (some people call for its abandonment/abolishment). This is the court which was responsible for software patents in the United States, home of software patents (universally). According to this update from the EFF, CAFC may actually have a go at overriding SCOTUS. As the EFF put it: “The Ultramercial case has been bouncing around the federal courts for years. In 2010, a trial court held the patent invalid on the grounds it claimed an abstract idea. On appeal, the Federal Circuit reversed, finding the patent non-abstract because it “clearly require[s] specific application to the Internet and a cyber-market environment.” The Supreme Court then sent the case back to the Federal Circuit for reconsideration. In a remarkable decision by former Chief Judge Randall Rader, the lower court thumbed its nose at Supreme Court authority and upheld the patent for a second time. The defendants returned to the Supreme Court. EFF filed an amicus brief urging the Court to take the case and find the patent abstract.”
The US patent system seem to favour those with money (for more motions and appeals), not those with original ideas. It is a real problem. Watch how the USPTO, led by corporate masters like IBM, stops beneficial products from reaching their full potential:
We’ve seen this many times before, how patents can hold back very useful developments. Notice how 3D printing is suddenly a big thing? It’s not because of any new miraculous breakthroughs, but because some key patents finally started expiring, allowing real innovation to move forward. We saw something similar in the field of infrared grills, which were put on the… uh… back burner (sorry) until key patents expired. Derek now points us to a similar example.
This article goes on to showing how microwaves got retarded by patents, and there’s no exception here. Patents just tend to harm innovation and those who promote them (usually lawyers) do a great disservice to society.
One day the patent system (if it still exists in its current form) might actually be reshaped by people representative of society, not patent lawyers. █
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The LLP echo chamber
Summary: Heaps of editorials and analyses from patent-centric firms pretend that nothing has changed after the Supreme Court abolished patents on “abstract ideas” (as opposed to working implementations)
POTENTIALLY substantial patent changes are afoot, especially owing to a decision from SCOTUS. A new article by Timothy B. Lee chastises this court for not understanding technology, which is a typical problem with judges. “The Supreme Court doesn’t understand software, and that’s a problem,” says Lee. “Patent litigation has become a huge problem for the software industry. And on Thursday, the Supreme Court could have solved that problem with the stroke of a pen. Precedents dating back to the 1970s place strict limits on software patents. The court could have clearly reiterated that those old precedents still apply, and that they rule out most patents on software.
“Instead, perhaps fearing the backlash from invalidating billions of dollars worth of patents, the court took an incremental approach. It ruled that the specific patent at issue in the case was invalid. But it didn’t articulate any clear rules for software patents more generally. In effect, the court kicked the can down the road, leaving a huge question mark floating over most software patents.”
SCOTUS can hardly distinguish between UML, pseudo code, and source code. The ambiguities left behind are already being exploited by patent lawyers and here is a new example from Akin Gump Strauss Hauer & Feld LLP, another from Sterne, Kessler, Goldstein & Fox P.L.L.C., and one from Choate Hall & Stewart LLP, to name just three (these flood the media these days, day after day). Well, at first came lots of media reports (written by journalists) declaring a lot of software patents dead and later came (and still comes) the flood of “analyses” by lawyers, rewriting the history to assure their clients that it is worth patenting software and that nothing has really changed.
In recent days we found more examples from Proskauer Rose LLP, saying that “Applying this rationale, the Court found that the claims at issue recited computer steps that are “purely conventional” and a “basic function of a computer.”15 The Supreme Court therefore affirmed the Federal Circuit and held the claims were ineligible under § 101.”
The SCOTUS decision was too weak in some sense and law firms are spinning it in their favour. Here is an example where the title says “Supreme Court silent on general eligibility of software patents” (not entirely true). Cooley LLP , Fenwick & West LLP, Seyfarth Shaw LLP and Lathrop & Gage LLP also try to assure their clients that patenting more algorithms is OK, as if nothing has changed. “Although the Court’s decision provides some clarity concerning the inventive effect of reciting computer implementation within patent claims,” says the last analysis, “there remains some ambiguity concerning how courts will define “abstract ideas” moving forward (indeed, the Court stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”).”
Code is already copyrighted, so one might argue that patenting anything but code would be patenting “abstract ideas”. Suffice to say, this is not what greedy patent lawyers are going to tell customers for whom they produce useless papers that the USPTO almost blindly stamps for approval.
Patent lawyers continue to rely on the ignorance or gullibility among judges (who are themselves lawyers and are rarely technical enough to grasp programming). Perhaps any court that deals with patents should have an imperative to be technical. CAFC, for example, needs to be abolished for being corrupt and also utterly dumb on technology. █
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Summary: The Court of Appeals for the Federal Circuit’s judgments on software historically based on dogma and misunderstanding/misrepresentation/misinterpretation of facts, not adherence to rules, logic, or even public interest
NOW THAT Ballnux giant Samsung hoards more patents we should take a moment to remember that not all companies that are using GNU/Linux are actually friends. Even Microsoft claims to be embracing Linux in Android (through Nokia), but its intents are malicious, as we have explained numerous times before. Then there is Oracle, which joined Apple and Microsoft in hoarding Novell patents for malicious purposes. It also sued Google over Android and did some damage to Red Hat with Unbreakable, never mind all the damage Oracle did to Sun projects.
Deb Nicholson (FSF), writing for an established Web site, explained “How The Changing Legal Landscape Impacts Free And Open Source Software Development”. She correctly pointed out the following: “A patent is a limited monopoly granted for certain amount of time (20 years in many places) in exchange for full disclosure. Based on the description in the patent application, a person who is knowledgeable in that field should be able to recreate the invention. Patents used to be reserved for physical processes, new devices and sometimes a limited monopoly on a particular business opportunity. The scope of patentability has expanded in the last few decades and can now include software, as well as business methods and even certain medical procedures. The intent of patents is purportedly to encourage inventors to make investments and create new inventions that might have otherwise been too financially risky to complete. As soon as a patent expires the idea can be freely implemented by anyone.”
Patents, however, are no longer the only risk factor. Consider what the Court of Appeals for the Federal Circuit (CAFC) recently did. The FSF has just come out with this formal statement:
FSF statement on Court of Appeals ruling in Oracle v Google
The situation then is substantially similar to the situation today. The key difference is that some of Google’s affirmative defenses to claim non-infringement have been eliminated by this new ruling. The FSF now sincerely hopes for the next best thing to Alsup’s original ruling: that Google is successful in its fair use defense.
Notwithstanding our support of Google’s fair use defense, the FSF urges caution to all prospective Android users. Even though the core of the Android system is free, every Android device sold comes pre-loaded with a variety of proprietary applications and proprietary hardware drivers. The FSF encourages users to support the development of Replicant, a distribution of Android that is 100% free software. The FSF also encourages users of any Android-based system to install F-Droid, a free replacement for the Google Play app that allows users to browse, install, and receive updates from a repository of free software Android apps. Replicant uses F-Droid as its default repository.
Generally speaking, CAFC has been a sham for many years as it was also responsible for making software patents legitimate in the United States, before this trend/precedent spread to other countries. In 2012 it was points out that the court stood in the way of stopping software patents and a week or so ago TechDirt cited this article, accusing the person who did this in the court. As TechDirt put it: “Tim Lee recently got to talk to Michel following a talk he gave, and what becomes clear is that Michel is completely out of touch with how much of a problem patents are in the tech world today. Lee knows this subject better than probably anyone else, and when he tried to dig in on key points, it was obvious that Michel’s knowledge of what actually is happening in the industry is based on myths and imagination, rather than reality. For example, when Michel pointed out that he’s “a facts and figures guy” rather than one who focuses on “anecdotes and assumptions,” Lee quickly points to James Bessen and Michael Meurer’s comprehensive book on why patents hurt the tech industry.”
Lawyers defy logic.
Here is the latest relevant article about this, an article from TechDirt about CAFC:
For many years we’ve written about the serious problems with CAFC, the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more “specialized” court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court’s existence.
It is not unusual for this disgraceful court to do this type of thing. TechDirt also gave this other new example one week ago:
A few weeks ago, the Supreme Court smacked down the Federal Circuit (CAFC) for its made up rules that made it almost impossible to enable victims of patent trolls to get the courts to order the trolls to pay legal fees. As the Supreme Court noted, CAFC seemed to set up arbitrary rules for no reasons at all. And this is important, because courts almost never award legal fees, and with the untimely death of patent reform, hopefully this small change will at least help in the meantime.
Notice the tend. CAFC is a not a legitimate court, it has become a pack of software patents (and more broadly patents) boosters. Its latest judgment, as before, should be appealed and brought to SCOTUS, but this is expensive and can take years. █
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Lawyers deciding on technical issues
Summary: The Court of Appeals for the Federal Circuit (CAFC) shows us yet again that it does not understand technology and its latest ruling is harmful to the technical community
YESTERDAY we wrote about the menacing CAFC ruling, which basically throws a lot of FOSS under the rug (by extension) for it alleges that APIs are copyrightable and that their reuse does not qualify as fair use. We have already criticised CAFC for being very pro-software patents and for being utterly clueless on technical matters on numerous occasions, so the latest decision from it oughtn’t be so shocking. As Ars Technica put it, “Google, which said it was exploring its legal options, decried Friday’s ruling. The Mountain View, CA-based media giant said the decision “sets a damaging precedent for computer science and software development.””
Google is correct and it will hopefully appeal this decision. What we have here is misuse of copyrights, SCO style, by Oracle.
TechDirt posted the best rebuttal to this decision, attracting hundreds of comments and revealing a lot of holes and mistakes in CAFC’s ruling (the text). Here’s a sample:
Appeals Court Doesn’t Understand The Difference Between Software And An API; Declares APIs Copyrightable
We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn’t actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.
As for the ruling itself… well… it’s bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup’s ruling, thinking that he’s mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup’s ruling. He very specifically noted that the “command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.” The CAFC panel doesn’t seem to understand this at all.
It seems fairly clear that the CAFC judges don’t understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it’s entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it’s just software.
Note that “[software]” thrown in before interfaces? Google is talking about whether APIs — “application programming interfaces” — are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn’t even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google’s argument about APIs. It honestly doesn’t realize that it’s comparing two totally different things. What lots of people agree on: software shouldn’t be patentable and APIs shouldn’t be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.
This will probably go to SCOTUS next (unless they decline to weigh in), but in the mean time it spreads uncertainty and doubt, harming not only Free software developers but developers in general. As TechDirt put it, “CAFC has mucked up another form of intellectual property law through a basic (and near total) misunderstanding of technology.” █
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Summary: A new lawsuit by a Microsoft shareholder shows everything that’s wrong with today’s model of accountability, where those who are responsible for crimes are accused of not avoiding fines rather than committing the crimes
THE MENTALITY OF greedy investors, and more so investors who put their money in a criminal enterprise, is worth noting. Microsoft has a long history of crime and the investors occasionally sue not because the act of committing crime is bad but because Microsoft fails to dodge the fines (i.e. there is conviction for the crimes).
Here we have a new example of an investor in a criminal company complaining about the wrong thing. To quote the Indian press: “The lawsuit, brought by shareholder Kim Barovic in federal court in Seattle on Friday, charges that directors and executives, including founder Bill Gates and former chief executive officer Steve Ballmer, failed to manage the company properly and that the board’s investigation was insufficient into how the miscue occurred.”
The problem is not that they “failed to manage the company properly”; as we saw in court documents, the crimes go all the way to the top and include instructions from Bill Gates, who chose to break competition laws. This “Supreme Villain” is now spending his wealth on PR (distracting from his crimes), in order to gain yet more wealth while paying virtually nothing in tax.
Here is a new article about protests against Bill Gates profiteering from private prisons.
Criminals rarely change their spots, they just change how the public perceives them. Gates was personally responsible for many of Microsoft’s crimes (and we have the documents to prove it), but nowadays he is busy bribing much of the press and even blogs in order to paint a different picture while he keeps hoarding a lot more money (at everyone else’s expense). Historically there were people like Gates who used the same tactics to alter public opinion. What’s truly shameful is that the biggest (more expensive) crimes still lead to no jail sentence, especially when the government is funded and run by corporations. █
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Summary: Highlighting the problem with software patents using the story of just one entity that uses them for coercion and extortion
AS we have pointed out before, many patent trolls are run by lawyers, who are sometimes hiding behind a mask of secrecy. The father of patent trolling, Ray Niro, is himself a patent lawyer. According to a good report from Joe Mullin (longtime trolls expert), Jay Mac Rust is the man behind one of today’s most notorious trolls , not to be confused with today’s biggest patent troll, which is closely tied to Microsoft. Watch the photo of that smug man dressed up as a cowboy.
Another new article from Joe Mullin  focuses on another patent troll, which was stopped only by SCOTUS, the same disappointing entity which ruled on the Bilski case, showing that it’s unwilling to address patent scope issue (Mullin too focuses on trolls, but rarely on patent scope).
It should be remember that the patents themselves are the problem; many patent trolls used them, as Joe Mullin once demonstrated (around 70% of cases use software patents). What the courts need to do is tackle patent scope (all in one fell swoop), not just trolls (one at a time). █
Related/contextual items from the news:
MPHJ Technology Investments quickly became one of the best-known “patent trolls” of all time by sending out thousands of letters to small businesses—16,465 of them, we now know—saying that if the business did not pay a licensing fee of $1,000 or more per worker, it would be sued for patent infringement. MPHJ claimed to have patents that cover any networked “scan-to-email” function.
The company that pushed an “online shopping cart” patent into the courts—and successfully made tens of millions of dollars off it—has finally been stopped.
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Summary: People who commit the act of journalism and inform the public (bringing new information to light) are being hunted down by the British government
IT IS very disappointing to see this new letter
[PDF] which suggests that the UK’s war on journalism is getting worse and worse [1, 2]. As a British resident who runs a Web site which challenges surveillance, I can’t say I’m pleased to see this. For a nation that prides itself in the freedom of the press, this is beyond bad; it’s horrible and it resembles what we are accustomed to seeing in nations like China or Russia, and increasingly the United States too.
“They want all the privacy in the world for themselves and none for the rest of us.”There are many important things to be learned from the NSA leaks , which reveal criminal activities and even espionage . How can the showing of crime (for scrutiny) itself be a crime? The US should consider disbanding the NSA, DHS, etc.  after all those scandals, which so-called ‘democratic’ politicians choose to defend under the false premise of “against terror” [4,5].
New reports help reveal that proprietary software is part of the problem  and that Tor, which is Free software, is really loathed by spies. No wonder liberal/freedom-leaning journalism too is despised so much by spies. They want all the privacy in the world for themselves and none for the rest of us. It should be noted that without Tor, these NSA leaks from Edward Snowden probably wouldn’t have happened. The war on privacy, as Richard Stallman stresses, is crushing journalism and defends injustice. For those whose journalistic work is actually about justice and is basically real journalism (not funded by corporations — directly or through the state — to serve an agenda) this is troubling news. Reportrrs in the West, including in the UK, is being given the chilling effect. In fact, there is a parallel strong effort to label anything which is real journalism not journalism and whatever distracts the public from real issues “professional” journalism (meaning that someone pays a salary in return for something). █
Related/contextual items from the news:
What we’ve learned:
American telcos are compelled to routinely hand over metadata to the government
Digital surveillance programs capture vast amounts of data: PRISM and XKeyscore
US companies have done little to resist government pressure
NSA’s sister organization, GCHQ, does what the NSA can’t
NSA analysts even used capabilities to spy on their exes
The NSA has been systematically eavesdropping on the Mexican government for years. It hacked into the president’s public email account and gained deep insight into policymaking and the political system. The news is likely to hurt ties between the US and Mexico.
As you may have heard, last week President Obama nominated Jeh Johnson, the former General Counsel of the Defense Department, to be the new head of the Department of Homeland Security. While he’s certainly better than some other proposed candidates, he’s not exactly known as a supporter for civil liberties. He’s been a point person defending the use of drone-strikes, even on US citizens. He also has defended the collection of metadata by the NSA. Oh, and in his remarks after President Obama announced the nomination, he talked all about 9/11 and how he’s spent his time since then trying to act in response to that.
When syncing your Address Book to Gmail, HTTPS encryption isn’t an option.
Top-secret presentation says ‘We will never be able to de-anonymize all Tor users all the time’ but ‘with manual analysis we can de-anonymize a very small fraction of Tor users’
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Taking into account systemic corruption in law and politics (Chris Dodd shown below)
Summary: When law is controlled and composed (by proxy) by corporations and their lobbyists, a new strategy for reform is needed
WHEN the highest court (SCOTUS) relies on a broken Internet (where material just vanishes ) and judges are political and/or tied to corporations, it is no surprise and there is no reason to wonder why there’s reluctance to end bribery/corruption (euphemisms include “campaign-finance”). The ‘legal’ system is so broken that even innocent people who were unjustly punished oughtn’t bother suing  and guilty cults that defraud thousands and run their own prison system walk away free, despite being recognised as organised fraud in other, more civilised nations . It seems like in the eyes of this ‘legal’ system, dissent against crime or the pursuit of justice are now the real enemy. This is the sign of a a legal system entering a state of calamitous collapse. To blindly assume its moral higher ground would be unwise.
It has been about 2 months since we last covered patents on a regular basis. This is not a coincidence. Having campaigned against software patents since my days as a student, I hardly see any progress. In Europe, debate focuses on unification with US patent law (the typical cross-Atlantic treaty loophole), in New Zealand the fight against software patents never ends (even when the arguments are all settled), and in the US the debate is totally dead; all they talk about right now are “patent trolls”.
Fighting against a system which is inherently broken and does not permit progress — just fake Change® — is a tiresome exercise. It feels like a waste of energy. Larry Lessig tried to reform copyright law for years. He hardly succeeded. Corrupt politicians like Chris Dodd — those who literally bribe Congress — always get their way. Lessig understood this after years of campaigning regarding copyright law. Instead, after years of wasted effort, he turned his attention to fighting corruption in US Congress. it’s no simple task, either. Perhaps we too, at least in the coming years, will need to dedicate some time to fighting the patent issue from a political angle, not just a technical and logical angle. From the technical point of view, the argument was resolved a long time ago. Developers reached a consensus. But the patent lawyers and their lawyer/politician friends stand in the way and they will never give way to change unless they are named and shamed. SCOTUS and CAFC are part of the problem because their decisions continue to legitimise software patents. █
Related/contextual items from the news:
“Hyperlinks are not forever. Link rot occurs when a source you’ve linked to no longer exists — or worse, exists in a different state than when the link was originally made. Even permalinks aren’t necessarily permanent if a domain goes silent or switches ownership. According to new research from Harvard Law, some 49% of hyperlinks in Supreme Court documents no longer point to the correct original content. A second study on link rot from Yale stresses that for the Court footnotes, citations, parenthetical asides, and historical context mean as much as the text of an opinion itself, which makes link rot a threat to future scholarship.”
If he had met a conservative Court on its own ground, the solicitor general could have notched a victory for liberalism—and helped safeguard campaign-finance protections.
Last Monday, on the same day as the opening of the new Supreme Court term, the federal appeals court in San Francisco threw out a damages suit by a former Guantánamo detainee who alleged that his detention and his treatment while detained had been unlawful. The decision by a unanimous three-judge panel in Hamad v. Gates did not hold that the plaintiff’s rights hadn’t been violated; rather, it held that it lacked the power to even address that question because of a 2006 statute that appears to take away the jurisdiction of the federal courts in such cases. Although there are reasons to quibble with the Ninth Circuit’s analysis, the result underscores a far broader point about which there can be no dispute: In case after case, on issues ranging from Guantánamo to surveillance to “extraordinary rendition” and torture, the federal courts have been categorically hostile to damages claims arising out of post-September 11 counterterrorism policies. And as in Hamad, this hostility has been reflected in the courts’ reliance upon a host of procedural doctrines to reject the plaintiffs’ claims without actually adjudicating—one way or the other—the underlying legality of the government’s conduct.
France’s top appeals court has upheld a fraud conviction and fines totalling hundreds of thousands of euros against the Church of Scientology, for taking advantage of vulnerable followers.
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