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.
America’s broken patent system needs major reform to protect innovators and the public. Today, the Electronic Frontier Foundation (EFF) is announcing a major new boost to its patent work: a half-million dollars in funding from entrepreneur Mark Cuban and game developer Markus “Notch” Persson.
“The current state of patents and patent litigation in this country is shameful,” said Cuban, owner of the Dallas Mavericks. “Silly patent lawsuits force prices to go up while competition and innovation suffer. That’s bad for consumers and bad for business. It’s time to fix our broken system, and EFF can help. So that’s why part of my donation funds a new title for EFF Staff Attorney Julie Samuels: ‘The Mark Cuban Chair to Eliminate Stupid Patents’.”
The EFF’s patent busting scheme never got this much support. It is slow and expensive to kill one patent at a time as Samsung is still doing:
A key Apple patent used against Samsung in court is under close scrutiny by the U.S. Patent and Trademark Office after a re-examination.
Speaking of Apple, there is this update regarding its biggest case against Android:
Judge Koh has denied Apple’s motion for an injunction, ruling that Apple has not proven irreparable harm. She has also denied Samsung’s motion for a hearing or a new trial based on its claim of jury misconduct, essentially accepting Apple’s theory that Samsung could have discovered the Seagate litigation if it had acted more promptly in ordering the jury foreman’s bankruptcy file, hence waiving its claim. I’m sure that will be appealed. For that matter, Apple is likely to appeal as well. I think they’ll have to, in that her order rejects essentially their entire design patents theory. I asked our reporter at the hearing on all this what he thought her inclinations were, and he said he thought she was sick of both of the parties and wanted to kick them out and upstairs to the appeals court. And on these two motions, that is what she has done.
Nokia Corp. said Friday it has reached a new patent license agreement with Canada’s Research In Motion Ltd. that will end all the patent litigation between the two handset makers.
As part of the deal, Nokia said it would receive an undisclosed one-time payment, as well as continuing license payments, from RIM. RIM didn’t immediately respond to requests for comment.
The attacks on Android are already happening and Google filed formal complaints against Nokia’s (Microsoft’s) troll proxies. Nokia’s doomed strategy is imposed from above by Microsoft. And to put things in perspective:
And do you really want to cry? Nokia’ second best-selling smartphone in mid December online sales in China was.. the N9 running MeeGo.
Why again did Nokia not stay with Linux and instead chose to attack with patents, the antithesis of Linux? Microsoft entryism, or former Microsoft staff infiltrating rivals. █