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08.17.19

Electronic Frontier Foundation Makes a Mistake by Giving Award to Microsoft Surveillance Person

Posted in EFF, FSF, Google, Microsoft, Patents at 6:25 am by Dr. Roy Schestowitz

Like they don’t give a f*** about their reputation anymore

eff

Summary: At age 30 (almost) the Electronic Frontier Foundation still campaigns for privacy; so why does it grant awards to enemies of privacy?

In July 1990 the Electronic Frontier Foundation (EFF) was founded by John Gilmore, John Perry Barlow, and Mitch Kapor. Barlow died a couple of years ago, so the EFF is now run by its chief executive officer Cindy Cohn. Some of our longtime readers say they have lost confidence in the EFF; the old timers actually told us it had lost direction and nowadays caters for ‘hipsters’ with their ‘gadgets’ near its headquarters (main office in California). The EFF recently lost the person who fought software patents for the EFF (he moved to Mozilla) and they never cared about software patents in Europe or EPO scandals. Never. Not even once. They have some extremely valuable people, such as Cory Doctorow (who fought for the EFF on copyright issues in Europe), but we recently felt upset that they had taken money from Google. This harmed the EFF’s position on patents — and to a lesser degree on copyrights — and indirectly harmed all of us who fight software patents. Even the EFF’s own, namely Birgitta Jónsdóttir, openly expressed dissatisfaction over this. She cited Techrights at the time.

“It probably wouldn’t have happened under Barlow’s watch.”Nobody is perfect and the EFF certainly isn’t perfect. Similarly, several years ago we expressed our disagreement with the FSF after it had given an award to a provocateur who liaised with other provocateurs. 4 years ago there was another anti-Torvalds coup. Don’t forget who did it and how. It was attempted again not so long ago and for the first time in almost 30 years Torvalds took a break from Linux development.

We don’t want to link or name who the EFF has just granted an award to; but it’s someone hypocritical from Microsoft and someone who contributed a great deal to the company’s ‘surveillance capitalism’. Is the EFF totally drunk? Stoned maybe? It probably wouldn’t have happened under Barlow’s watch.

Come on, EFF. You can do better than this.

08.14.19

Being in Favour of Free/Libre Open Source Software Means Rejecting Software Patents

Posted in EFF, Free/Libre Software, Patents at 1:20 pm by Dr. Roy Schestowitz

A decade ago they spoke about this issue, but not anymore

Torvalds on Software Patents
Full interview [PDF]

Summary: Those who believe in Software Freedom cannot at the same time believe that software patents are desirable; we’ve sadly come to a point where many companies that dominate so-called ‘Open Source’ groups actively lobby for such patents, in effect betraying the community they claim to be a part of

“Open Source is nowadays a by-product of Proprietary Software,” Benjamin Henrion wrote or quoted, “permissive licenses, repositories with subscriptions, open client but not the server, “APIs”, cloud lock-in, software patents all over. And hipsters with their Macbooks…”

Like people who run the Linux Foundation and lie to everyone

“Open Source” is nowadays a whole different beast, different if not wholly distinguishable from what it was two decades ago. Back then it was supposed to just be a substitution of Free software, but today it is just proprietary software with some openwashing (for marketing purposes or bait); so we’ve ‘lost’ the cause and must revert back to Free software, this time insisting that openwash isn’t credible and cannot be tolerated (those who do this should state upfront it’s proprietary).

“On the patent front we got our way; openwashing is another, newer problem. We’re nowadays focusing more on the latter one.”Henrion went further; he mentioned software patents and linked to this new tweet from IAM (“In an exclusive interview with IAM, @danielnazer of @mozilla shares top tips for software IP protection, his evolving role as Senior IP & Product Counsel and why he’s looking forward to speaking at #SoftwareIP this October.”). Oddly enough a former EFF lawyer/attorney, who fought software patents, decided to participate/speak at an event of the patent trolls’ lobby to give false impression of ‘balance’. He represents Mozilla, which isn’t supposed to use terms like “software IP protection”. It’s typically the likes of OIN who are attending this event, but they're pro-software patents, unlike most Mozilla staff.

Observation worth making: most patent blogs went totally or almost totally silent this year; few remain active and they’re hardly covering Section 101 cases anymore. Coons et al have gone nowhere with their bill, either, so it’s just like in prior years and just what we predicted all along. We’re winning the patent policy battles and IAM became irrelevant. On the patent front we got our way; openwashing is another, newer problem. We’re nowadays focusing more on the latter one.

08.07.19

Guest Post: Enough is Enough!

Posted in EFF, Free/Libre Software, Microsoft at 11:16 pm by Dr. Roy Schestowitz

By figosdev

Enough

Not even two weeks ago, Techrights founder Roy Schestowitz said:

“I have been writing for many years about threats to Linux and more recently I focused on threats to Git (development processes, centralisation, censorship etc.) as well. I think we’re now at a critical point.”

And I agree. The FSF has settled into focusing too much on matters of licensing, even as they dabble with other important issues such as the “cloud” (clowncomputing) and hardware that respects your freedom. I’m concerned that long term — years from now — the FSF will shift its focus towards being a hardware standard almost exclusively; as the software ecosystem moves further and further from the GPL and the FSF needs a way to justify itself to sponsors and members alike.

“…as the software ecosystem moves further and further from the GPL and the FSF needs a way to justify itself to sponsors and members alike.”If software becomes almost completely controlled by monopolies again, the FSF won’t have any serious influence over software anymore and thus like Mozilla since Eich left, its real mission will be defunct. But their RYF campaign is both important and about something you can rarely get for free, so the FSF can focus on something meaningful and commercial; even while it backs away from its primary mission of fighting for software freedom.

For years, half a decade even — people have complained about the threat that systemd poses to freedom. It is designed to consolidate power into the hands of a single corporation. Microsoft outlined 20 years ago that to compete with Open source, they would need to target “a process, not a company.” With systemd hosted on Github, they can now do both.

The FSF recognised the threat of code being on Github even before Microsoft owned it — now that Microsoft hosts (controls) the code used in the FSF’s most popular fully-free operating systems, they continue to ignore the problems that systemd brings to the table:

- It reduces the security of every GNU/Linux distro that adopts it (it already won a Pwnie.)

- It divides the communities that adopt it (quite deliberately, but let’s blame every critic, and give a divisive project a limitless benefit of the doubt.)

- It reduces the modularity in every distro that adopts it, which reduces the user’s freedom.

“Microsoft outlined 20 years ago that to compete with Open source, they would need to target “a process, not a company.” With systemd hosted on Github, they can now do both.”The FSF in the past has talked about backdoors that Microsoft puts in their own products, but it won’t talk about how systemd is hosted on servers owned by Microsoft (and that this is one more reason people shouldn’t use systemd) and it doesn’t acknowledge that Microsoft can now add backdoors to systemd (and every distro that uses it) themselves. Do you trust Microsoft to run secure servers, when they deliberately compromise their own operating system?

And what people are waiting for is a concrete example of this grand f***-up in the making, and all we have are smaller examples for now, but those are ignored year after year. Meanwhile, various major problems that the FSF has acknowledged in the past continue to cluster around the software weapon formerly known as an init system, and the FSF doesn’t dare speak against it or advise people to even question it.

I’ve said for well over a year, that systemd is not the only problem — just the biggest so far. Google has its own anti-POSIX weapon, which it is a little more honest about being a way to crush POSIX itself, in the long-standing Microsoftian tradition of “de-commoditising protocols.”

POSIX more than anything, is what the free software ecosystem has in common. Sure, there are many exceptions. But POSIX is the biggest rule even if implementation is incomplete, and attacking it is a great way to win the war against free software.

Finally, these attacks are not just against the core of most operating systems. Thankfully, along with their aging flagships Trisquel and GnewSense, FSF is at least welcoming Hyperbola– the most free FSF distro of all time, and GuixSD — what will probably become the most customisable FSF distro of all time. In the long run these may help a lot, but for now, Trisquel continues to destroy itself.

There are additional problems of infiltration of non-profits, which the FSF will not talk about. There are additional problems of degradation of software quality and security, followed up with denial and inappropriate claims of “FUD.”

There are shills in the tech press, as many as ever before, misleading the public that the FSF will not talk about. And one of the best weapons these shills have, is the facts about what is happening to the quality and reliability of free software. systemd critics have warned about those for years, only for it to fall on deaf ears.

“Do you trust Microsoft to run secure servers, when they deliberately compromise their own operating system?”The facts matter — always. While some of the points raised by shills in the media are accurate, others actually deserve to be called “FUD.” The FUD about VLC is a great example — they tried to paint VLC as insecure, but left out that the vulnerability was actually in a 3rd-party library. That’s FUD if I ever heard it, and FUD is an age-old weapon used by Microsoft to fight competitors.

The problem with KDE however, is a fine example of the sort of design problems that we used to make fun of Windows for. It turns out, some designs are so terrible that they don’t just compromise the security of non-free software — quite a few bad security practices work on multiple platforms, including FLOSS platforms, and some designs count as bad security practices themselves.

As with systemd, Windows cared far more about new features than security or good design. Their constant design compromises and lack of care dragged security and privacy into crisis, with really awful technologies like ActiveX, Office macros, Hidden extensions that let people fake safe-to-open document types that were actually executables — you think you’re opening a file in notepad but it’s actually malware — users could improve security just by turning off “Hide known file extensions” but that one stupid feature alone caused how much damage?

When you bring these historically terrible designs from Windows to GNU/Linux, they don’t get better. Sure, they are more likely to get patched after the damage is done — and that’s an advantage over non-free software. So is freedom, of course! Ben Mako Hill wrote “When Free Software Isn’t Better” in 2010, and all of the points are valid — but so is the fact that people are making free software WORSE.

That’s a real threat to the free software ecosystem, and the FSF refuses to talk about it. They prefer denial and compartmentalisation.

The FSF ignores free software advocates when they talk about systemd making free software worse — they ignore other people working to make free software worse — they ignore the infiltration of Microsoft employees into highly relevant organisations like the Linux Foundation, who control a trademark that the FSF uses on a daily basis.

“Because we made fun of Windows for all of these things, many of us got into free software as a way to get away from all these terrible designs.”And the war against free software continues, with KDE adding the equivalent of autorun.inf behaviour (another of those terrible Windows designs) to its software.

As with macros, non-executable formats should never, ever execute code unless the user runs them and knows they’re running them. OFF is the only secure default for such features. Windows made all sorts of exceptions to good practices along these lines, while other problems like buffer overflow vulnerabilities are more about bugs in code than terrible design (perhaps there is some small overlap.)

But terrible designs are terrible designs, and at a minimum these features should be turned off. The motives of paid/bribed shills disclosing vulnerabilities is relevant, but do not change facts — when dangerously stupid designs are exposed, it’s alright — even a good idea — to note the motives of shills, but it’s also still relevant that the designs are stupid and dangerous.

Because we made fun of Windows for all of these things, many of us got into free software as a way to get away from all these terrible designs. The people working on free software were avoiding these pitfalls, because their priorities did not put really dumb features over general safety. Modern free software developers are increasingly of the wrong priority set, and we are already experiencing the results.

Every bad design idea brought in needs to be heavily mitigated, preferably avoided whenever reasonable, and above all not simply denied when pointed out.

Either “outsiders” are attacking the quality of well-established free software products, or “insiders” are attacking the projects themselves — which one it is doesn’t matter as much as the fact that software we rely in is being degraded and made less reliable, harder to control, harder to secure, and harder to get away from — in an awful trend lasting for at least half a decade now.

All of these things are problems for free software, and as with any bad war — the denial only extends the ability of the people responsible to do more damage.

By all means, if you want to suffer more, then say nothing! Or better yet, deny the facts. But don’t do so and expect people to be able to offer something better, or even good to people that want freedom.

“Questions are not dealt with honestly, goals are compromised and critics are abused.”I can’t think of a single distro to recommend right now, because too many of the people who cluster around the only distro I’ve loved to use in 5 years are COMPLETE dicks. I’m not going to subject innocent people trying free software for the first time to that. Questions are not dealt with honestly, goals are compromised and critics are abused.

Things are not just critical — we are actually losing now, more than we were a few years ago. GNU/Linux reached its height in 2014, and it’s been largely downhill ever since.

“GNU/Linux reached its height in 2014, and it’s been largely downhill ever since.”I’m VERY grateful to the people working hard to fix this, including the Hyperbola team. Everybody else, needs to figure out whether they prefer to march this thing forwards, or backwards. It’s gone backwards for half a decade — perhaps it’s time to re-consult the map?

Don’t wait another five years, we’ve already lost those to the people actively trying to destroy our ecosystem. Now is the best possible time to turn around and start winning again — but only if we stay honest. If we can’t be honest about it, any victory will be hollow, fake and pointless. The history of free software is so much better than this, and it should be again.

07.11.19

The EFF Responds to IBM’s Liars and Lobbyists for Software Patents Just a Day After Red Hat is Officially Absorbed

Posted in EFF, Europe, IBM, Patents, Red Hat at 9:50 am by Dr. Roy Schestowitz

David Kappos
Source: David Kappos 2013 interview

Kappos PAI

Summary: IBM’s unacceptable stance and abominable actions on the patent front continue to haunt it; IBM must quickly dissociate and reconsider its patent strategy so as to not alienate thousands of workers (the real asset of Red Hat) it has just spent a fortune on

IT hadn’t even been more than a day since IBM took over Red Hat, rendering its patent policy all moot. Already, as of last night, the EFF’s Alex Moss and Joe Mullin responded to lobbyist David Kappos using the European system as a talking point (EPO grants software patents in Europe). Remember that IBM is lobbying for software patents everywhere, even in India and Europe. We wrote about a dozen articles about this behaviour of IBM. It’s probably even worse than Microsoft in that regard.

“If IBM doesn’t get its patent extortion tendencies under control (and its lies for software patents don’t reach an end, i.e. both actions and words), maybe it’s time for a mass Red Hat walkout/resignation.”Kappos was there at the stacked 'debate' about 35 U.S.C. § 101; Kappos is a deplorable lobbyist for patent trolls and patent bullies. He profits from his connections. IBM is still paying him to lobby for software patents (he came from IBM). The new owner of Red Hat is in that regard highly incompatible with Red Hat, as we’ve been arguing for months. If IBM doesn’t get its patent extortion tendencies under control (and its lies for software patents reach an end, i.e. both actions and words), maybe it’s time for a mass Red Hat walkout/resignation. IBM continues to fund a malicious, FOSS-hostile lobby.

From the EFF’s blog post, which names software patents in the headline (in relation to Europe and China, but it’s all connected across IP5):

A Senate subcommittee recently concluded three days of testimony about a proposed patent bill that, we have explained, would be a terrible idea. Proponents of the bill keep saying that Section 101 of U.S. patent law, which bars patents on things like abstract ideas and laws of nature, needs to be changed. One recurring argument is that Section 101 is killing patents that are being granted in Europe and China and that somehow this hurts innovation in the U.S.

The argument is flawed for many reasons. Proponents of this bill have vastly overstated the number of Section 101 rejections. Patent applications are rejected for many different reasons. For instance, an examiner could find that an invention would have been obvious—that might lead to a Section 103 rejection. Or an examiner could find that the application simply isn’t clear at all, leading to a Section 112 rejection.

But proponents of the bill, such as former US Patent Office Director David Kappos, simply claim there’s an epidemic of Section 101 rejections by lumping all these different types of rejections together. When Joshua Landau, a patent attorney who works for a computer industry group, examined a selection of the data set that Kappos was using, he found that only 13 percent of the applications in the group were clearly Section 101 rejections.

[...]

In Europe, there is an explicit rule against patenting “mathematical methods” and “programs for computers.” That prohibition isn’t as broad as it sounds—it’s limited by guidelines allowing patents on computer programs that have a “technical character” and on artificial intelligence software that has a “technical purpose.” As a result, Europe has similar rules around patenting software—for better and for worse. The point here is, proponents are wrong that Europe grants lots of software patents that the U.S. rejects.

Second, bill proponents have said that China is granting lots of patents. That is true, but the vast majority of them are extremely low-value. Recent news reports suggest that only 23 percent of Chinese patents even cover “inventions”—the majority are for “utility models” which are often allowed to lapse after a few years. And virtually none of the applications originating in China are “triadic patents” (patents filed jointly in the patent offices of Japan, the United States, and European Union), which are widely considered “the gold standard” for patent protection.

We’ll deal with the EPO in our next post, but the above lies and distortions from Kappos are particularly noteworthy. He and IBM’s patent chief habitually write pieces for Watchtroll, thereby associating themselves with the worst of the worst. Gene Quinn, the Watchtroll in chief, is attacking the courts again this week/yesterday. He’s doing it again in “It May Be Time to Abolish the Federal Circuit” (see our Wiki).

“We should note, at the very least as a side note, the deterioration of patent blogs. Their collapse carries on; they hardly write anything anymore, not even microblogging.”How is this loony blog managing to get the EPO to work with it? Simple. Both hate judges and loathe justice. How does it get IBM to participate? Simple. IBM is a terrible company and a patent bully.

We should note, at the very least as a side note, the deterioration of patent blogs. Their collapse carries on; they hardly write anything anymore, not even microblogging. Watchtroll’s Quinn hardly even writes there anymore and he stepped down as editor after 2 decades. Will IBM continue to support and maybe fund Watchtroll?

06.16.19

Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

Posted in America, Deception, EFF, Law, Patents at 9:08 am by Dr. Roy Schestowitz

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. [...] Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
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Microsoft, internal document [PDF]

TripsSummary: Almost a week ago the ‘world tour’ of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)

THE NEW Director of the U.S. Patent and Trademark Office (USPTO) does not like 35 U.S.C. § 101, but there’s nothing he can do about it. He has already crafted some poor guidelines and it doesn’t change how judges decide cases. To make matters worse, the USPTO got bombarded with very negative comments, perhaps 90% of all the comments, based on some estimates we saw. The patent maximalists try to blame it on the EFF, which means that the EFF is doing something right (rallying supporters who actually support technology rather than litigation).

“The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators.”Sites of patent trolls (sponsored by them) tried hard to amplify this month’s Senate hearings, knowing these hearings were grossly biased, one-sided, and therefore misleading. The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators. It was so profoundly ridiculous that we couldn’t help but respond, repeatedly, even though we said that we’d try focusing on the European Patent Office (EPO) instead.

“Apple is a constant target of high-tech patent assertions, with 58 cases filed against it in the US last year (Lex Machina),” Battistelli‘s friends at IAM write at the moment. But actually, Apple itself is a patent aggressor and bully. Hardly the victim. Taking into account the Eastern District of Texas (EDTX), the EFF has just told this story of trolls whose targets include Apple. To quote:

For years, the Eastern District of Texas (EDTX) has been a magnet for lawsuits filed by patent trolls—companies who make money with patent threats, rather than selling products or services. Technology companies large and small were sued in EDTX every week. We’ve written about how that district’s unfair and irregular procedures made it a haven for patent trolls.

In 2017, the Supreme Court put limits on this venue abuse with its TC Heartland decision. The court ruled that companies can only be sued in a particular venue if they are incorporated there, or have a “regular and established” place of business.

That was great for tech companies that had no connection to EDTX, but it left brick-and-mortar retailers exposed. In February, Apple, a company that has been sued hundreds of times in EDTX, closed its only two stores that were in the district, located in Richardson and Plano. With no stores located in EDTX, Apple will be able to ask for a transfer in any future patent cases.

In the last few days those stores were open, Apple was sued for patent infringement four times, as patent trolls took what is likely their last chance to sue Apple in EDTX.

This month, as part of our Stupid Patent of the Month series, we’re taking a closer look at one of these last-minute lawsuits against Apple. On April 12, the last day the store was open, Apple was sued by LBS Innovations, LLC, a patent-licensing company owned by two New York patent lawyers, Daniel Mitry and Timothy Salmon. Since it was formed in 2011, LBS has sued more than 60 companies, all in the Eastern District of Texas. Those defendants include some companies that make their own technology, like Yahoo, Waze, and Microsoft, but they’re mostly retailers that use software made by others. LBS has sued tire stores, pizza shops, pet-food stores, and many others, all for using internet-based maps and “store location” features. LBS has sued retailers that use software made by Microsoft, others that use Mapquest, some that use Google, as well as those that use the open-source provider OpenStreetMaps.

So it has become a serious problem for Free/Open Source software, even directly. Thankfully, nowadays it’s easier to tackle the underlying patents these trolls leverage. Will any of that change? Not any time soon. We doubt it.

Regardless, the EFF’s Joe Mullin wrote the following some days ago:

xperts Warn Congress: Proposed Changes to Patent Law Would Thwart Innovation

It should be clear now that messing around with Section 101 of the Patent Act is a bad idea. A Senate subcommittee has just finished hearing testimony about a bill that would wreak havoc on the patent system. Dozens of witnesses have testified, including EFF Staff Attorney Alex Moss. Alex’s testimony [PDF] emphasized EFF’s success in protecting individuals and small businesses from threats of meritless patent litigation, thanks to Section 101.

Section 101 is one the most powerful tools patent law provides for defending against patents that never should have been issued in the first place. We’ve written many times about small businesses that were saved because the patents being used to sue them were thrown out under Section 101, especially following the Supreme Court’s Alice v. CLS Bank decision. Now, the Senate IP subcommittee is currently considering a proposal that will eviscerate Section 101, opening the door to more stupid patents, more aggressive patent licensing demands, and more litigation threats from patent trolls.

Three days of testimony has made it clear that we’re far from alone in seeing the problems in this bill. Patents that would fail today’s Section 101 aren’t necessary to promote innovation. We’ve written about how the proposal, by Senators Thom Tillis and Chris Coons, would create a field day for patent trolls with abstract software patents. Here, we’ll take a look at a few of the other potential effects of the proposal, none of them good.

This will hopefully be our last post in this subject (we have already published about half a dozen). Over the past week we’ve kept an eye on Twitter (sadly, a lot of input goes into those social control media sites instead of proper news sites) and here’s what we can report as concisely as possible.

“So it has become a serious problem for Free/Open Source software, even directly.”First of all, the hearings were full of buzzwords. They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software. It isn’t just done in Europe but also in the US and in Israel [1, 2] (we mentioned this the other day; that same article has been reposted everywhere they could fling it).

Benjamin Henrion (FFII) quoted and said: “the ILPO adopted the “technical effect” test used in the EU jurisprudence” while there is no European Union involved, only rogue EPO administrative tribunals…”

That’s based on a purely promotional piece, more or less marketing and lobbying by law firms, but it’s still worth entertaining again because we see the same buzzwords brought up in the hearings. As one person put it: “Senate Judiciary Committee on 101: Laurie Hill (Genentech); Genentech pioneers biologics; Under 101/Alice/Mayo, many of these inventions are unpatentable; AI/bioinformatics/biology is the future of medicine but is not patentable.”

“They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software.”There it is: “AI”. And again here: “The SCP (Standing Committee on the Law of Patents) at @WIPO has just published a revealing document on AI and Patentability under the title “Background document on patents and emerging technologies”.”

Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.

Henrion also said (having watched these dull hearings): “Till and Coons strongly motivated to restore software patents, citing buzzwords such as “AI”, “quantum computing”, or “5G”…”

He found this tweet: “The AI hype is pervasive and everybody wonders when the bubble will burst, but it is true this technology poses some challenges to patentability…”

It links to this blog post by Leopoldo Belda Soriano. He says “AI” many dozens of times.

“Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.”On the rogue composition of the panels, as expected, much has been said as well. Here’s the list of people. Stacked panels. Very stacked. Patent zealots were (at the time) linking to things like “Final Panelists at Senate 101 Hearing Stress Real-World Effects of Status Quo, Tillis Signals Changes to Draft Text” from Watchtroll’s Eileen McDermott and other blogs like Patently-O.

Henrion took note of IBM’s role in these hearings when he wrote: “Senate hearing: IBM has also used super low quality software patents such as a diff between 2 contact lists to extract money from Groupon [] Qualcomm says they want to patent encoding algos such as OFDM, you could infringe them with a pen and paper https://en.wikipedia.org/wiki/Orthogonal_frequency-division_multiplexing … [] At least americans are pretty clear about software patents, and not this CII mess…”

Henrion carried on speaking about IBM: “Nokia and IBM thanks Tillis and Coons for an “open legislative process”, while the interventions are all stacked by the patent community [] Not inviting small companies nor software developers “reminding those present that they had specifically invited Apple, Google, Microsoft, Oracle and Dell, who declined to come in favor of being represented by industry associations.”

Jan Wildeboer, who will soon be an IBM employee, expressed concerns about policies that are actually supported by IBM: “51 pages on so-called #FRAND licensing of Standard Essential Patents (SEP) by CEN/CENELEC. And they manage to completely avoid the simple question of how such schemes would work for #OpenSource implementations (Hint: it’s not possible IMHO). https://www.cencenelec.eu/news/workshops/Pages/WS-2019-014.aspx …”

“On the rogue composition of the panels, as expected, much has been said as well.”All these patents on maths are highly problematic. They oughtn’t be granted. On went Henrion: “Michael Blankstein of Scientific Games wants to restore software patents for games, and wants US to avoid copying the European Patent Convention, which explicitely bans computer programs, and rules for playing games [] Cyborg patents logic to compress data, wants to see Alice abolished https://cyborg.co/tech/intellectual-property [] John D. Vandenberg says Alice is not a mess, says the proposed bill will restore software patents…”

Alice actually restored order. How is elimination of fake patents not a positive thing? For patent trolls it certainly isn’t… but should they count?

The CCIA’s main patent person soon weighed in as well, followed by Henrion: “The “innovation” is using existing data mining techniques on data sets to determine a correlative relationship. Is that what we want to promote with patents? [] [Spot the disconnect: Tillis/Coons, op-ed: “We have no intention of overruling that central holding of the Myriad decision.” Tillis/Coons, bill: ‘No implicit exceptions to subject matter eligibility shall be used and all cases regarding those exceptions are abrogated.” [] Also, Tillis made it a point to complain that tech didn’t come. Given that the 4-1 stacked panels today on other issues, is it any wonder those companies didn’t want to show up?”

“That’s just political corruption (check who’s bribing Coons for this bill).”The funding of Coons (over a million bucks from lawyers and liars) means that lying is part of the show. As Henrion explained: “Lawyers always win when they own the “patent reform”, law firms sending donations to Senators @ChrisCoons , I guess “Small Businesses” don’t donate enough…”

That’s just political corruption (check who’s bribing Coons for this bill). It’s quite blatant and obvious.

“ACLU popping up a banner against genes patents at the senate hearing on the patent maximalist bill,” Henrion added, “where are the protesters against software patents?”

Here’s a photo of it.

ACLU banner

On the other hand we could also quote some patent maximalists, to whom these stacked hearings were a festival of joy; one of them said: “Senate Judiciary Committee on 101: Sean Reilly (Clearing House); Financial Services Industry has strong interest in strong patent system; 101/Alice has killed low quality patents; Clearing House opposes any changes to status quo.”

“The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets.”Another one quoted “George, Invitae (1:11:00): “As you consider legislative proposals, instead of abrogating 150 years of precedent case law [e.g. fixing 101], I believe the right approach is to start where the law is correctly working…” https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-iii …”

Working for who? Lawyers? Trolls? Science? Anyway, these hearings are now nearly a week behind us. As we’ve said right from the very start, we don’t expect these to change anything. The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets. So much for ‘public’ support…

06.09.19

Corporate Front Groups Like OIN and the Linux Foundation Need to Combat Software Patents If They Really Care About Linux

Posted in EFF, GNU/Linux, Kernel, OIN, Patents at 8:44 am by Dr. Roy Schestowitz

The EFF does more for Linux than groups that drape themselves in Tux logos and even put “Linux” in their name

Alex Moss, EFF

Summary: The absurdity of having groups that claim to defend Linux but in practice defend software patents, if not actively then passively (by refusing to comment on this matter)

A NEW week is about to commence. No more bogus ‘hearings’, which are stacked and stuffed with lobbyists and think tanks like IBM’s David Kappos (his handlers now include Microsoft as well because it’s funding his front group). We don’t expect the law to change, but they had their little show for a few days. The audience of patent extremists loved it! They had even paid for it [1, 2].

Where are the supposed “Linux” groups? They never even submit a single brief! Never! Even ACLU got involved in this patent debate (well outside the ACLU’s scope of operations), not to mention CCIA.

Any comments from the “Linux” groups? No, nothing. Absolutely nada.

OIN is probably in favour of software patents (same side as Microsoft and IBM), so it prefers to just keep its mouth shut. Its leadership now includes patent trolls. It’s just farcical considering their Linux- and Tux-themed initiatives, which in the past they claimed would help Linux (looking for ways to induce Linux coexistence with software patents).

“Any comments from the “Linux” groups? No, nothing.”People need to seriously ask themselves why the Linux Foundation and OIN never do even as much as issue a statement on this subject (takes a lot less effort than preparing briefs or preparing for hearings in Senate). Their silence merely enables if not empowers those who pose the greatest threat to Linux, GNU and Free software in general.

Suffice to say, last week’s hearings were all just a farce; our latest response to it mentioned Benjamin Henrion's (FFII) remarks as well as the EFF's (which posted the above photo in Twitter). Henrion is rightly upset. “EFF and others are just decoration,” he argued, “senators @ChrisCoons and @senthomtillis have no intention to seek for the right barriers to protect software developers from patents. Those hearings are just a joke! No software developer was even invited!”

They just try to give an appearance (or perception) of balance; or to shallowly lend legitimacy to these hearings. We saw similar hearings in past years and these had just about nobody (zero people) with ‘dissenting’ views; obviously nobody did anything technical, it was a consistent, monotonic parade of lawyers/attorneys.

“We saw similar hearings in past years and these had just about nobody (zero people) with ‘dissenting’ views; obviously nobody did anything technical, it was a consistent, monotonic parade of lawyers/attorneys.”As I told Henrion this morning: “Where was the Linux Foundation in these hearings? Did IBM (Manny) keep Zemlin in his little pocket? Software patents are a threat to Linux too.”

“I think that 99% people did not look past the organization’s name and got a rude shock last fall when LT [Linus Torvalds] was temporarily kicked out and then brought back in under reduced authority,” one reader told us about the “Linux” Foundation (another reader of ours calls it “the Linux-destroying Foundation” for about 5 years now).

Henrion is still the President of the FFII, but it’s underfunded and barely active. This means that operations like the “Linux” Foundation, which has an annual income of about $100,000,000, basically suck up all the capital (and voices) to do just about nothing for Linux (in this domain). Even the EFF doesn’t have anywhere near this kind of budget and yet it does something on the matter. Why?

“Why is the OSI quiet? What about OIN and the Linux Foundation? They’re worthless. Bloody worthless as we say here… and worse — they’ve morphed into organisations that arguable undermine people’s freedom.”The U.S. Patent and Trademark Office (USPTO) sent some nontechnical people to speak (obviously only in support of the bill), but the supposed ‘defenders’ of Linux, groups like OIN and the Linux Foundation, could not bother in any way whatsoever? Not even a short statement? Check out the Boards and the management, not to mention key members; they don’t actually oppose software patents, not even when momentum to squash these for good is already there. At the moment, software patents face unprecedented legal uncertainty in the United States’ courts, owing to 35 U.S.C. § 101/Alice (SCOTUS); by asserting such patents against a suspected (merely accused) party not only are you at risk of losing these patents; in some cases you’re forced to then pay all the legal expenses of the accused. So litigation is rarely a good option with these. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) made it easier to squash litigation and the Federal Circuit very rarely accepts software patents as valid (there were rare exceptions in recent years).

Why is the OSI quiet? What about OIN and the Linux Foundation? They’re worthless. Bloody worthless as we say here… and worse — they’ve morphed into organisations that arguable undermine people’s freedom.

05.30.19

Proposed Legislation From Senators Tom Tillis and Chris Coons Will Perish as Usual, Just Like UPC in Europe

Posted in America, EFF, Europe, Law, Patents at 8:36 am by Dr. Roy Schestowitz

The United States has its own ‘Team UPC’ and the likes of Battistelli at the EPO

Coons bribed

Summary: A great deal of attention is being paid to a bill that’s extremely unlikely to result in anything because it’s very unpopular, even among sponsors of Congress (not just the public at large)

AT THE START of the year the EFF warned that software patents would make a "comeback" because the Trump-appointed Director of the U.S. Patent and Trademark Office (USPTO) wanted to water down 35 U.S.C. § 101. As we explained at the time, this would have no bearing on actual courts. Since then the courts have indeed lashed out. So the threat was clearly overhyped, as we’ve explained many times since. Let’s look at the data. Have software patents made a comeback? Not really, not in courts anyway. SCOTUS isn’t revisiting the subject (even when asked), the Federal Circuit applies Alice routinely, and the Patent Trial and Appeal Board (PTAB) is still doing its job as shown by inter partes reviews (IPRs) figures, which are publicly accessible. Patent maximalists thus started focusing on ex parte reexaminations, also part of America Invents Act (AIA) but inherently different from IPRs (which are a lot more powerful). We’ve seen some misleading posts from Anticipat (and have not linked to them) and yesterday Janal Kalis wrote: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims in a Patent Application Owned by Stanford Univ. for Analyzing Digital Medical Records” (such patents still routinely perish, but the likes of Kalis typically ignore the evidence and focus on reversal of decisions when software patents are allowed, not rejected).

Alex Moss (EFF) has just published something titled “A Terrible Patent Bill is On the Way” and here’s what it said (déjà vu as it happened in prior years):

Recently, we reported on the problems with a proposal from Senators Coons and Tillis to rewrite Section 101 of the Patent Act. Now, those senators have released a draft bill of changes they want to make. It’s not any better.

Section 101 prevents monopolies on basic research tools that nobody could have invented. That protects developers, start-ups, and makers of all kinds, especially in software-based fields. The proposal by Tillis and Coons will seriously weaken Section 101, leaving makers vulnerable to patent trolls, and other abusers of the patent system.

The draft legislation does remove a few aspects of the earlier proposal, but it has the exact same effect: it will erase more than a century of Section 101 case law—including the recent decision in Alice v. CLS Bank—and take away courts’ power to restore them.

It’s yet another post from the EFF in which the threat is, in our assessment, overblown somewhat. They merely give more visibility to something which doesn’t deserve it (and wouldn’t have earned it otherwise). Well, we wrote about it last week (after the CCIA too had written about this); it is pushed by a few bribed politicians (paid by the litigation ‘industry’, ‘bought’ for these laws), not “Congress” as Mike Masnick (TechDirt founder) puts it in “Congress Now Pushing ‘Bring Back The Patent Trolls’ Bill”. They merely had a little meeting, whereupon patent maximalists pretended it was some major news or development. To quote Masnick:

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

There are some decent comments on there, e.g. from “That Anonymous Coward”:

Who wants to help me get a patent shoved through on running for an elected office & accepting money to pass laws favorable to those paying me??
Considering what other patent trolls have earned we could bankrupt congress.

At the start of the year we insisted that this idiocy would not pose a great threat because courts just carry on as usual, based on caselaw (not Congress), and these bills (as above) are nothing new. We don’t even want to give them attention/visibility anymore; they’re going to perish on their own.

03.31.19

Technology Groups Implore the Deplorable Patent Office of Iancu and Trump

Posted in America, EFF, Patents at 10:59 pm by Dr. Roy Schestowitz

Old: Andrei Iancu’s Firm Has a History Working With Trump, But Senate Says OK to Him Becoming USPTO Director

Trump and Iancu

Summary: The “New USPTO Patent Eligibility Guidelines,” as Stuart Meyer (Fenwick & West LLP and Bilski Blog) puts it, have been broadly condemned by technical people, unlike lawyers and attorneys who thrive in frivolous litigation

35 U.S.C. § 101/Alice (SCOTUS) has compelled the U.S. Patent and Trademark Office (USPTO) to either stop granting software patents or risk the perception that it is granting patents it knows courts would reject (if a lawsuit was filed).

Last year the USPTO received fewer quantities from its “customers” or “clients” (what it calls applicants) and the number of granted patents decreased (compared to what it had granted the prior year, under Michelle Lee).

Iancu is trying to turn things around by simply ignoring the courts and mistreating the law. Having asked for public feedback (in an open consultation), the vast majority of letters condemn him for it. So the patent maximalists keep pretending it’s all “EFF” (simply because the EFF wrote a blog post on the subject) and days ago Stuart Meyer (Fenwick & West LLP) wrote [1, 2] about it as follows:

Compared with the organizations discussed above, the Electronic Frontier Foundation had quite a different view. EFF, on behalf of “its more than 39,000 dues-paying members,” said that the Guidance “effectively instructs examiners on how to narrow the Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” EFF faulted the Guidance for defining ineligible abstract ideas to include only mental processes, mathematical formulas, and methods of organizing human activity; EFF asserted that cases have identified others “that do not neatly fit into those three narrow categories.” EFF also asserted that the Guidance creates “an entirely new and unprecedented step” for eligibility. EFF argued that even if the Federal Circuit can resolve patent-eligibility as a matter of law at the first step, “the same is not true for examiners,” who EFF argued should “conduct the full, two-step patent-eligibility analysis in the first instance” to fend off “a loophole that allows applicants to avoid the inventive concept requirement.” EFF noted that the Guidance sets up a situation in which “examiners will apply a substantially different test than district courts.”

More generally, EFF argued that “Alice has been a critical tool” in helping software developers and users “defend against meritless patent lawsuits and litigation threats.” EFF attributed a rise in R&D spending on “software & Internet” as attributable to Alice; it said the Guidance would “guarantee that patents on basic ideas continue to issue despite Alice, and thus continue to tax and impede research and innovation….”

EFF’s attempt to elicit input from opponents of the guidelines also experienced significant success. The organization’s “Save Alice” campaign provided model language for detractors to paste into their comments, and many individuals did just that. There were about 2,500 comments submitted to the USPTO by individuals, and a sampling suggests that the vast majority of these comments were cut-and-paste from the text EFF suggested for this campaign. By way of comparison, in the “pro-Guidance” camp, a far smaller but still significant number of comments were cut-and-paste from campaigns of one or more inventors’ associations. The number of bespoke comments from individuals paled in comparison to the cut-and-paste numbers.

Also somewhat critical of the Guidance was the Software & Information Industry Association. SIIA noted that its “members have benefitted greatly from the patents they own. Yet they also rely on the limits of patent protection, as those limits preserve and protect their ability to innovate. As such, SIIA’s collective membership sits at the crossroads of the countervailing interests….” SIIA asserted that synthesizing just a few categories from the judicial decisions resulted in pairings of cases and categories that “may or may not fit.” SIIA proposed “a fourth category to capture all precedent,” thereby allowing examiners to reject claims more directly based on a prior judicial opinion. SIIA said that with such a category, examiners would have more freedom to make initial rejections in appropriate circumstances without the need for higher level approval. In addition, SIIA worried that, “By specifying that the abstract idea must be ‘recited on [its] own per se,’ the 2019 Guidance may encourage clever drafting efforts to avoid explicitly reciting an exception in the claim.” SIIA saw this as a departure from prior guidance and the caselaw. Finally, SIIA said that the USPTO “should be clearer with respect to the specificity of the computer implementation necessary to amount to an integrated practical application.”

It is worth noting that technology companies oppose Iancu’s proposal. They also support Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — another thing that has come under attack from Iancu. In many ways he turned out to be an 'American Battistelli'.

Who likes Iancu? The people who come from the same profession as him. The patent litigation giants are still panicking over Alice and seeing that they are running out of ‘business’ (not many new patent lawsuits are being filed), they regroup and come up with ridiculous new headlines, such as “Who Will Win the Alice Race?”

A belated Happy New Year to all of you! As I reflect on this column, which has gone through various permutations over the past seven years, I am amazed how readership has grown organically via the Tangible IP website from a dozen (including several family members) to more than 15,000 professionals in the IP and business communities.

I must admit, this baby is a real time investment. But every time I think of retiring it, someone new tells me that he or she actually reads it and even enjoys it. Go figure!

A lot of these people will need to change jobs. Some already have. IPO is now training people on PTAB and there’s another new example about “[t]he “new” § 101 landscape in the PTO and District Courts…”

Maybe these people can make a living by invalidating ridiculous patents rather than flood the system with more and more of them (plus lawsuits).

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