“It’s a system of protectionism, empowered by a government that’s heavily influenced by large corporations.”“The biggest impact on patent quality would be the USPTO injecting certainty into the eligibility debate,” IAM said a while ago. Well, actually, as we pointed out last night, the USPTO has already issued guidance on that (new examination rules), it’s just that patent boosters — like IAM — don’t wish to accept it.
As this other new post points out, the USPTO recently had its 9,000,000th “customer” (patent), for which it is being mocked. “So maybe we shouldn’t be so shocked,” said the author, “that USPTO plays the same game. There’s actual evidence backing it up. Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it’s for both.)”
That’s quite a bizarre way of numbering patents. But more to the point, there’s a lot of secrecy and anomalies in the USPTO. It’s hard to know how it’s working, which contradicts or conflicts with its function/status as government-run. Recently, the EFF pressured the USPTO and the USPTO then demanded that the EFF censors its comments on patent guidance, as if the rules must be kept secret. Not bad for a ‘public’ office, eh? To quote TechDirt: “As you know, last year the Supreme Court made a very important ruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn’t automatically make it patentable. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new “guidance” to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some “Preliminary Examination Instructions.” However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.”
“As you can see by the full filing,” TechDirt adds, “the EFF filing isn’t some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF’s comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn’t want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF’s complete dismantling of the USPTO’s guidelines will now get that much more attention…”
The EFF did a fine job showing how unreasonable the USPTO has become. Where does it derive consent from? Only large corporations? It’s now shrouded in secrecy. It’s rogue, a bit like the EPO, which is becoming more alike.
Not too long ago the EFF “Outline[d] [a] Plan to Fix the Broken Patent System,” to use its own words, but Will Hill, citing Jan Wildeboer (Red Hat), said that EFF was not serious about fixing the real issues. To quote Hill: “This is not an issue that deserves debate. Software patents are wrong philosophically and no good has come from them. In the last two years, the community told EFF as much and people have been saying the same things since the US first allowed a software patent 25 years ago. Who does the EFF think they are representing and why would they rather reduce a harm than eliminate it? Shame on them.”
The EFF seems to be having turf wars between opponents of software patents and sponsors who love them because the EFF sometimes speaks out against them (not always). Not too long ago (just earlier this month) we learned that the EFF helped bustan infamous software patent on podcasting, so well done to them. Daniel Nazer from the EFF also used the term “Abstract Software Patents” to describe the kind of patents the EFF wants the USPTO to stop issuing, citing Alice. Here is what Nazer wrote: “The Supreme Court took a major step in cutting back on abstract software patents last June when it issued its landmark ruling in Alice Corp. v. CLS Bank. In essence, the court said that abstract ideas implemented by conventional computer process are not eligible for patent protection. Since then, the PTO has attempted to write guidance applying the law to pending patent applications. Unfortunately, the PTO has floundered and continues to grant far too many invalid patents. This week EFF filed public comments asking the Office to do more to ensure its examiners apply the new law.”
Also see the article “EFF: If You Want to Fix Software Patents, Eliminate Software Patents”. It seems abundantly clear that some elements inside the EFF (not all of them) do wish to altogether eliminate software patents and that’s good, it’s definitely progress. As Wired put it: “That is by far the most incendiary proposal the Electronic Frontier Foundation offers in its comprehensive report on overhauling a painfully broken patent system. The report, two years in the making, suggests everything from strengthening the quality of patents to making patent litigation less costly. And there, on page 27 of the 29-page report, is “Abolish software patents.”
“The argument is that software patents may not just be flawed, but utterly unnecessary. This hasn’t always been EFF’s stance on patents, says Adi Kamdar, one of the report’s authors. But as the group compiled the report, it received 16,500 public comments from people in the business, academic, and policy communities. The idea that patents should be eliminated entirely was a common theme.”
Vera Ranieri from the EFF meanwhile (earlier on) suggested that SCOTUS “Shouldn’t Reward Ambiguity”, stating:
EFF submitted an amicus brief to the Supreme Court yesterday in Commil v. Cisco, a patent case that asks whether having a “good-faith belief” that a patent is invalid means that someone can’t induce infringement of a patent.
The issue of what it means to “induce infringement” is a complex, esoteric area of patent law. Generally, inducement liability is where the person accused of infringement didn’t actually carry out infringing acts herself, but instead encouraged other people to do them. For example, telling someone “hey, use this product to infringe this patent” might be inducement, whereas just making a product without any knowledge of a patent on its use would not be.
In conclusion, the USPTO is out of order as it tries to censor and hide its practices while the EFF, which is not perfect either, is at least pressuring the USPTO to stop issuing software patents. Given the EFF’s history of being soft on software patents (or ambiguous at best), overall this is definitely a step in right direction. █
Summary: Why the EFF should focus on eliminating software patents (like in Germany) and not just patent trolls or what it vaguely calls or alludes to as “stupid patents”
LEGAL SITE Groklaw shares this satirical video about patent trolls. It helps capture some of the patterns often observed when it comes to trolls’ attacks on practising companies, even if it’s a little Godwin Law-invoking.
The reality of the matter is, Germany is fighting to block all software patents. The EFF touches on “German Parliament Says No More Software Patents” — a subject we covered here before [1, 2, 3]. It says that the “German Parliament recently took a huge step that would eliminate software patents (PDF) when it issued a joint motion requiring the German government to ensure that computer programs are only covered by copyright. Put differently, in Germany, software cannot be patented.”
“The reality of the matter is, Germany is fighting to block all software patents.”There is a new article titled “EU banks face less threat of infringing software patents than those in US, says expert” and it helps show how the core problem is addressed. In Europe, patent trolls are barely existent. To quote the article, “EU banks are less likely to infringe software patents than their counterparts in the US but should still evaluate whether to undertake a freedom to operate (FTO) analysis before launching new products or services to the market, an expert has said.”
Everyone benefits from that.
At the same time, another part of the EFF is going after patents one at a time rather than work to eliminate software patents as a whole. Very ambivalent over there. It is Julie Samuels again (part of a long-observed pattern [1, 2, 3, 4, 5]) and she says:
Working together we can protect the mesh networking community from overbroad, illegitimate patents that threaten to stifle innovation and access to technologies that preserve personal freedoms.
How about just working to end all software patents? What is happening at the EFF? There is another person there, another lawyer (Mr. Nazer [1, 2, 3, 4, 5]), who seems to be leading the EFF off focus. Well, lawyers being lawyers, they approach this subject from a point of view where patents are taken for granted. Just watch this latest article from Colleen Chien, which is posted in Wired (almost all the articles on patents there are written by lawyers).
“That’s the difference between organisations such as the EFF and organisations like FFII. The latter is run and managed by technical people.”This is not the first time that we point out and gently chastise EFF action for not being strong enough. The EFF ran a Web site to call for the end of software patents, but ever since it grabbed all the attention we see EFF staff actually working along the lines of the OIN, more or less. Well, just take a look at what Samuels is said to be: “Mark Cuban Chair to Eliminate Stupid Patents” (like the term “bad” patents).
To quote the professional summary, “Julie Samuels, a Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents at EFF, focuses on intellectual property issues. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C. She was also an intern at the National Center for Supercomputing Applications. Julie earned her J.D. from Vanderbilt University and her B.S. in journalism from the University of Illinois at Urbana-Champaign.”
So she is a patent/copyright lawyer, not a technical professional to whom patents are potentially assigned, or to whom patents are a threat. That’s the difference between organisations such as the San Francisco-based Electronic Frontier Foundation and European organisations like FFII. The latter is run and managed by technical people.
As a big supporter of the EFF, yours truly worries that there there is an internal battle between those in the EFF who genuinely want to see software patents eliminated and those who get tugged along with contra-reformists, notably lawyers. Other European activists have spotted the same pattern and became outspoken about it. If we don’t name the culprits, nothing will be done to overcome this impasse. █
Source: Original from John S. and James L. Knight Foundation, modified by Techrights
Summary: Reality check required and some ‘house cleaning’ too amid serious reputation harm to the W3C
Tim Berners-Lee created the World Wide Web to help him, a CERN researcher, share his physics papers. I can relate to that personally. He and I were both inspired by Richard Stallman, who had led a movement a decade earlier, advocating free sharing (free of restrictions, not related to cost or business models). It was not about monetary gain and Berners-Lee antagonised patents all along [1, 2, 3]. Sadly, however, the W3C shares none of those same interests and principles. Recently, it got as bad as DRM advocacy (owing/due to Microsoft and a buddy), which is not shocking given who runs the W3C. I exchanged some words with Berners-Lee about patents. His views contradict those of the increasingly corporations-run W3C, e.g. on patents (the W3C CEO is a software patents proponent and the man behind the Microsoft/Novell patent deal).
The FSF and now the EFF are calling on the W3C to get its head together. So far, the subject has been mostly relegated to daily links, but it can no longer be treated as a low-priority issue. Tim Berners-Lee seems to be ignoring and dismissing the obvious calls from public interest groups. He discredits himself and does himself a disservice here.
A few decades ago Tim Berners-Lee followed the example of Richard Stallman and now it is Richard Stallman’s group which chastises Berners-Lee’s. There is something to be learned from all this. Berners-Lee should have power over the group (W3C) he created, it should not be the other way around. █
“Remember that i4i is a Canadian company best known for its lawsuit against Microsoft.”The essay comes from Mr. Nazer, whose positions we wrote about in [1, 2]. Earlier on he was targeting just trolls, not software patents. In his latest essay he says: “It is important to realize that software patents and the software industry are not the same thing. As Judge Moore’s own scholarship shows, patent issuance is “a poor measure of innovation value.” And there are straightforward economic reasons why patents and software are a bad fit. Far from being an incentive, software patents tend to operate as a barrier to entry and a tax on innovation.”
In other news cited by Moody, Neweggbeat what some call a “corporate troll”. One summary says that “Newegg’s policy of not backing down from patent trolls, even ones as large as Alcatel-Lucent, continues to result in victory. Earlier this year, Overstock and Newegg successfully defended themselves with a jury invalidating Alcatel-Lucent’s main patent used to force companies as large as Amazon to settle. ”
Lastly for this week, Moody points out that there are more pushbacks against software patents, this time in Canada. As a short summary puts it: “The Canadian Intellectual Property Office (CIPO) has recently published two notices for patent examiners relating to patent interpretation, and in particular computer-related/business method type patents saying: ‘for example, what appears on its face to be a claim for an “art” or a “process” may, on a proper construction, be a claim for a mathematical formula and therefore not patentable subject matter.’”
Unleashing the attack dogs on free Internet communication
Summary: Patent news involving communications tools which either promote surveillance (Microsoft) or impede surveillance (FOSS and standards); more Microsoft involvement in patent law is seen
Skype is said to be a patent violation (inevitably, all software is a patent violation in a country where software patents are abundant) and a Microsoft friendly site adds that “CopyTele CEO Robert Berman, whose company filed two claims last week against Microsoft’s Skype service, says his case is nuanced.”
Hopefully he can destroy Skype, but the government would never allow that. Skype has been incredibly valuable not just for domestic surveillance but foreign surveillance too. The US records everything and stores it in datacentres with colossal machines that boast high disk capacity. On a per-person basis, this is rather cheap. See our Skype overview page for more information. It’s not the main topic of this particular post, which is really about patent abuses.
After decades of proposals and debate, a new European-wide single patent, known as the Unitary Patent may well be a reality by the end of 2014.
From the “World IP Day” (notice globalisation nuance) we have this tidbit:
Luke Johnson – too many patents now issued and undermine the value of IP protection (those ‘patent trolls’)
We said this many times before. Anyway, this “IP Day” is just more propaganda opportunism. It’s for lobbying. Microsoft is lobbying too, eternally striving to prevent the patent system from being truly fixed while its lawyers are committing RICA Act violations (racketeering). Here is the latest propaganda from Brad Smith (top Microsoft lawyer), with a British lawyer giving a shoutout:
Brad Smith laments the absence of a well functioning secondary market for patents — and patent lawyers who love their patents
There will soon be a panel event involving a prominent opponent of software patent, Judge Posner. To quote this introduction: “A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.”
This panel does not look like it’s completely rigged, unlike the ridiculous "roundtable" (where all sides of the table held the same position/premise). █
Joe Mullin at ars technica has the welcome news that the FTC is thinking about using subpoena powers to investigate patent trolls, such as Intellectual Venture. He mentions that Google, Red Hat, Blackberry and Earthlink just sent some comments [PDF] to the FTC and the Department of Justice asking for an investigation into what they politely call patent assertion entities, or PAEs. So have the Computer and Communications Industry Association [Comments, PDF] and the National Restaurant Association [Comments, PDF] also asked for such scrutiny.
But the most important part of the Google et al. request, to me, hasn’t yet been highlighted in the media reports I’ve seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.
That is something I’ve wondered about for a while — why didn’t regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare — meaning the defendant’s business is at stake, but the outsourcing company’s business isn’t, and the troll has nothing to lose, because it has no business.
Daniel Nazer, writing about “patents for open innovation” (he is a Staff Attorney on the Electronic Frontier Foundation’s intellectual property team, focusing on patent reform) adds his support to Google, which in turn does not go far enough. To quote a new article:
Finally, Google has some other suggestions for improving patent quality. It thinks that prior art needs to be more easily searchable, which it thinks could make things easier for examiners and reduce the number of invalid patent claims from being issued. It also recommends better standardization of terminology, which it thinks will both make it easier to search for prior art and help reduce the amount of litigation by clarifying an invention’s scope. But while it stopped short of supporting the EFF’s position that software patents ought to include working code, it thinks it’s worth discussing a requirement to include pseudo-code, although it warns that the idea could be unwieldy without a standardized format.
Last month, Google made a pledge to refrain from suing developers, distributors, and users of open source software that infringe on its software patents unless it’s attacked first, decrying the roughly $25 billion that patent trolls are gleaning annually with software patent litigation. It’s clear that the Patent and Trademark Office really does want to be seen as a promoter of innovation — now that the deadline has passed for public comment submission, we’ll have to see which, if any, of the many suggestions it will implement.
Google should work to abolish software patents, not large trolls. We said this years ago. What Google is doing about patents could be vastly improved. We said the same about Red Hat, many times in fact. They all do what’s right for their shareholders, but not for society; they don’t deem it their responsibility.
Over the years I have urged Google (also via E-mail to its manager) to start fighting against software patents rather than reform them. Posts on the subject include the following dozen:
Gérald Sédrati-Dinet, the leading opponent of the Unitary Patent (threat of software patents in Europe), said this morning: “I’m very critical with EFF strategy wrt #swpats [software patents]: they should require their abolition, not bad half-solutions” [anything but abolition].
He is right. The EFF — like Google — has been pursuing the wrong solutions. We gave some examples and constructive criticism of their approach.
Never count on corporations to fix broken law for public interests. Remember CISPA? The law that has just been passed to allow the government to easily acquire private citizens’ data? Well, guess which side Google was on… █
Posted in EFF, Patents at 6:31 am by Dr. Roy Schestowitz
Passing money to the lawyers and white-collar multinationals (1%) at the expense of everyone else
Summary: Many agree that the USPTO fails to promote innovation in the United States, changes are expected to come
The United States has got a system which brings rise to patent trolls by the nature of patents it breeds and legal process which harbors these. Here is a new rant about this system:
We have an incentive system at work in the apps ecosystem. Angry Birds has been downloaded one billion times, Temple Run more than 150 million. Other developers see the potential for great financial reward with their work, which encourages further development, risk taking and invention. This benefits not only developers but also smartphone owners and our economy.
Ideally our patent system would be humming alongside this app freight train, rewarding original and unique ideas, conferring exclusivity on the truly novel. Unfortunately, it has been doing the opposite in many cases, creating undue burdens on this vibrant sector due to a few bad actors. Developers have grown fearful of receiving letters from patent trolls seeking nominal license fees for seemingly unrelated patents, written long ago in many cases.
Our system facilitates, even encourages, the two business models of patent trolls. Some trolls seek overly broad patents and pursue large tech companies for hefty paydays. Other trolls seek similarly weak patents, but choose thousands of small tech companies as their quarry, seeking seemingly small “license” payments. With both types the initial math is simple: convince the target company that fighting in court is hundreds of times more expensive than merely licensing the dubious patent, even if you win.
Beloved podcasts like the Adam Carolla Show and HowStuffWorks are under attack. They and other podcasts are getting sued for, well, podcasting. And they’re not the only victims—developers are being targeted for building mobile apps, and offices around the nation are being attacked for using ordinary networked scanners. These creators are only a few of the thousands of victims of one of the biggest threats to innovation: patent trolls.
Patent trolls are entities that don’t create products themselves, but instead buy patents and make money from lawsuits. Trolls often make broad claims of infringement based on patents of questionable validity, and most defendants choose to settle because of the outrageous nature of patent litigation. It is risky and expensive—and trolls offer settlement amounts that, although incredibly burdensome, are cheaper than a lawsuit, which can often cost well into the millions of dollars.
More recently the EFF talked about the SHIELD Act, which we wrote about before. It’s one of those suggestions that just don’t go far enough. There is a lot of pseudo-opposition to software patents out there. IBM lobbies for yet more software patenting while OIN, which it helped create, continues its latest PR offensive that helps not the removal of software patents but their perpetuation. “Patent Progress”, another attempt to address the patent issue (with Julie Samuels playing a role), is actually addressing software patents quality rather than existence. Gérald Sédrati-Dinet said, “a good question to Julie Samuels would have been “do you support abolition of #swpats ?” Don’t ya think?” There are other groups that do not go far enough in their campaigning, e.g. Peer 2 Patent, the Patent Busting project of the EFF, Red Hat’s advocacy by people like Tiller.
A lot of government propaganda is based on the fallacy that patents mean innovation, but the reality is that patents can actually reduce and slow down innovation. Here is an observation about China’s changing attitude towards patents:
Techdirt has been writing for a while about China’s policy of providing incentives to file patents — regardless of whether those patents have any worth. That’s led to a naïve celebration of the large numbers now being granted, as if more patents corresponded to more innovation.
Until now, this problem of junk patents has been confined to China, and the companies that operate there. But last year China went even further with its subsidy system, offering to pay the fees for filing overseas, presumably to encourage Chinese companies to build up patent portfolios in foreign markets that can be used for defensive or even offensive purposes. We’re now beginning to see the effects of this further distortion to the patent system, as Australian businesses struggle with the flood of new patents there.
Reform may be on the horizon for software patents in the United States as lobby groups seek to tighten up the criteria for successful applications.
Software patents are aimed at promoting research and development, but the process of registering and protecting patents have become embroiled in controversy over the last decade.
At the heart of the matter are so-called “patent trolls” that do not create products or services, but claim to own the right to the intellectual property behind them in order to sue companies for millions of dollars or force them to take up licensing and royalty deals.
This is what one gets when the front against software patents is made up of “legal” folks including notable law professors (i.e. glorified lawyers), whose plan is to tame software patents rather than just eliminate them all in one fell swoop. Richard Stallman suggested making existing patents as such un-weaponised, i.e. patents the holder simply cannot sue with, meaning that it’s about dissemination of ideas, credit, attribution, respect, etc.