Posted in EFF, Patents at 9:27 am por el Dr. Roy Schestowitz
Sumario: La Fundación Frontera Electrónica parece estar retornando a un directo criticísmo de las patentes de software en vez de criticar grupos particulares o personas que las explotan, ejemplo los trolles de patentes.
A través de los años (desde 2006 cuando Novell pago servicio de labios a la EFF con un dinero) hemos apoyado y criticado el punto de vista de la EFF sobre las patentes de software. Últimamente escribimos hace unos días. Otros articulos en tales materias incluyen:
Basado en Este nuevo artículo from de EFF (publicado reciéntemente), no sólo la EFF es capaz de nombrar a los Trolles de Patentes explícitamente (siempre era acerca de ¨estúpidas¨ patentes y ¨trolles¨), también esta preparada para golpearlas. Para citar algúnos paragrafos:
En Diciembre más de 3,000 de ustedes se reunierón a apoyar una propuesta del Departamento de Educacion (ED) que haría sus recursos Educacionales mucho más accesibles a educadores y estudiantes en todo el mundo.
Ustedes no fueron los únicos: La Fundación de Sofware Libre, Creative Commons, Public Knowledge, la Software Freedom Conservancy, y numerosos otros grupos a favor del usuario hablaron fuerte. Juntos, mandamos un mensaje a alto volumen: La red de equipo está en el lado de educación abierta.
Leyendo a través de todos los 147 comentarios, un modelo emerge. Proponentes de la Web abierta, grupos de educación abierta y muchos educadores profesionales todos apoyan la idea de recusos solventados por el Departamente de Educación sean COMPARTIDOS CON LICENCIAS ABIERTAS (aunque tengamos diferencias en ciertos detalles). Aunque un grupo nos seguía confundiendo: las universidades. ¿PORQUÉ HAY ALGUNAS UNIVERSIDADES OPONIÉNDOSE A UN MANDATO QUE BENEFICIARÍA DIRECTAMENTE A SUS ESTUDIANTES Y FACULTAD?
Cuando cavas un poquito más, parece que esta oposición a licensia abierta no tiene que ver con el acceso de los estudiantes a recursos educacionales. Lo que en realidad sale a la luz es una lucha larga acerca de como las universidades usan patentes, más específicamente patentes de software. La Educación Abierta y al alcance de las mayorías simplemente esta en medio del fuego.
Las Patentes de Software Arruinan Todo
La expresión de la AAU cuestiona ¨si el Departamento tiene la autoridad legal bajo la 35 USC 212 para emitir un requerimiento para licensiar abiertamente todo el código fuente de sofware financiado con fondos de grants.¨ Esto es una referencia a una ley de 1980, comúnmente conocida como la Bayh-Dole Act. Antes que ella las Universidades no podían aplicar por patentes creadas usando fondos federales; en vez de eso, el gobierno era el responsable de patentar invenciones fundadas federalmente [.pdf]; cuando lo hizo así sólo las dejaba usar a otros bajo licencias no exclusivas.
Despues de Bayh-Dole, toda una industria de transfer de tecnología de las universidades apareció. Cada programa de transfer tiene sus propias políticas, algunas son más flexibles y amicables a los deseos del inventor que otras pero todas existen para vender o licensiar invenciones de facultad a terceros. Algunas de ellas ejercen sus patentes directamentte, como la Universida de Wisconsin-Madiso hizo en su juicio contra Apple.
Es importante notar aqui que la propuesta de la ED no toca las patentes de ninguna manera. Ya que la propuesta cubre software, es posible que los recipientes quieran aplicar por algunas patentes cubiertas bajo esas policies. No hay nada en la propuesta que los impida hacer eso: no toda licencia de open source que obligaría a la política requeriría que sus creadores desistan de derechos de aserción de patentes.
Recuerden que las patentes de software están dando combustible a los trolles, así que cualquier discución acerca de trolles de patentes frecuentemente evade el núcleo central en vez de ello trata los simtomas (para la alegría de las grandes corporaciones). La OEP fundada Iam ´magazine´ que maquilla a lo trolles de patentes, acepta dinero de ellos y les organiza eventos, esta disfrazando las patentes de abiertas ahora mismo (¨innovación abierta¨) y muestra que pasa cuando los espéculadores de patentes habla o otros de su misma calaña. Iam se ha convertido en una clase de PROPONENTE DE TROLLS Y MAXIMALISTAS. Es suave y tierno con los trolles y los llamados entidades asertoras de patentes. En el otro extremo hay sitios como IP Troll Tracker, que ahora felicita a Florian Müller por criticar el sistema de patentes de los Estados Unidos. En todo es bueno ver que la EFF ahora habla un poco más acerca de las patentes de software no sólo de trolles de patentes. Los animamos a hacerlo más frequentemente. La Fundación De Frontera Electrónica parece estar retornando a un directo criticismo de las patentes de software en vez de grupos particulares que las explotan, ejemplo los trolles de patentes. █
Posted in EFF, Patents at 9:27 am by Dr. Roy Schestowitz
Summary: The Electronic Frontier Foundation looks like it may be returning to direct criticism of software patents rather than particular groups of actors that exploit them, e.g. patent trolls
OVER the years (since 2006 when Novell paid a lip service to the EFF with some money) we have been both supportive and critical of the EFF’s approach towards software patents. We last wrote about it a few days ago. Other articles on such matters include:
Based on this new article from the EFF (published very recently), not only is the EFF capable of naming software patents explicitly (it was always about “stupid” patents and “trolls” as of late); it’s also prepared to slam them. To quote some relevant paragraphs:
In December, over 3,000 of you rallied in support in support of a proposed Department of Education (ED) policy that would make ED-funded educational resources a lot more accessible to educators and students around the world.
You weren’t the only ones: the Free Software Foundation, Creative Commons, Public Knowledge, the Software Freedom Conservancy, and numerous other pro-user groups spoke up. Together, we all sent a loud message: Team Internet is on the side of open education.
Browsing through all 147 comments, a pattern quickly emerges. Open web advocates, open education groups, and many education professionals all support the idea of ED-funded resources being shared widely under open licenses (though we might quibble on a few specific details). One group kept confusing us, though: universities. Why were some universities opposing a rule that would directly benefit their students and faculty?
When you dig a bit deeper, it looks like universities’ opposition to open licensing has nothing to do with students’ access to educational resources. What’s really playing out is a longstanding fight over how universities use patents—more specifically, software patents. Open education just happens to be caught in the crossfire.
Software Patents Ruin Everything
The AAU statement questions “whether the Department has the legal authority under 35 USC 212 to issue a requirement to openly license all computer software source code developed with grant funds.” This is a reference to a law enacted in 1980, commonly known as the Bayh-Dole Act. Before Bayh-Dole, universities couldn’t apply for patents for inventions created using federal funding; instead, the government itself was responsible for patenting federally funded inventions [.pdf]; when it did so, it would only let others use them under nonexclusive licenses.
After Bayh-Dole, a whole industry of university tech transfer offices began to appear. Each tech transfer program has its own policies—some are more flexible and friendly to the inventors’ wishes than others—but they all ostensibly exist to sell or license faculty inventions to third parties. Some of them also assert their patents directly, as the University of Wisconsin-Madison did in its recent suit against Apple.
It’s important to note here that the ED proposal doesn’t touch patents at all. Since the proposal covers software, it’s possible that grantees might want to apply for patents for a few of the works covered under the policy. But there’s nothing in the proposal to stop them from doing that: not every open source license that would comply with the policy requires that creators give up patent assertion rights.
Remember that software patents are fueling trolls, so any discussion about patent trolls often evades the core issue and instead deals with symptoms (much to the chagrin of large corporations). The EPO-funded IAM 'magazine', which often grooms patent trolls, accepts payments from trolls, and even organises events for them, is openwashing patents right now (“open innovation”) and demonstrates what happens when patent profiteers speak to other patent profiteers. IAM has become like some sort of think tank for trolls and maximalists. Here it is going soft on trolls and so-called patent assertion entities. On the other hand there are sites like IP Troll Tracker, which is now congratulatingFlorian Müller for criticising the US patent system. All in all, it’s nice to see that the EFF now speaks a little more about software patents, not just trolls. We encourage the EFF to do more of that. █
Summary: Having been bankrolled by a billionaire, Mark Cuban (said to be worth US$3 billion, based on Forbes), the Electronic Frontier Foundation pursues a patent approach that would further empower large, rich corporations, not small companies
“A guide to alternative patent licensing,” wrote the EFF today, was “produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. Revised and expanded for 2016.”
For those who wonder who or what the producer actually is, see this page which says that “the clinic’s core mission is foster innovation by advancing a regulatory climate that is appropriately sensitive to the ways in which law—whether through litigation, legislation, or regulation—can serve to promote (or frustrate) the inventiveness, creativity, and entrepreneurship that provide the real engine for economic growth.” This is connected to Mark Lemley, who is widely known for his work in this area.
We’re pleased to announce the 2016 edition of Hacking the Patent System, a guide to alternative patent licensing produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. First published in 2014, the guide provides a high-level overview of several tools that inventors and innovators could use to avert unnecessary and costly patent litigation (or at least to avoid trollish behavior themselves).
The tools we cover fall roughly into three categories: defensive patent aggregators, defensive patent pledges, and insurance. Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. These include organizations such as Allied Security Trust, RPX, and Unified Patents.
This is basically similar to the approache taken by large corporations such as IBM. They have lots of software patents of their own. What are small companies supposed to do? This relates to useless (e.g. against patent trolls) things like OIN or RPX, which is effectively quite malicious in many ways.
We have, over the years, expressed both agreement and disagreement with the EFF’s approaches. Past articles include but are not limited to:
“What we see here is EFF policy being steered by and controlled by billionaires.”“The Apple patent that might become subject to the review is the so called “tap-to-zoom” patent,” said the patents maximalists earlier today, showing that there remains hope for elimination of software patents in the US. It is no longer an unattainable goal or some fantasy, not after Alice. No needs for aggregators or patent pledges, which are not binding contracts anyway (see how Oracle sued Google for instance, despite OIN membership). A lot of today’s chaos in the patent landscape helps act as a deterrence against small players, who simply cannot afford to pay legal fees (not for long). See today’s article from patents maximalists who say “Section 285 Does Not Support Deterrence Based Fee Enhancement” (this means proportional to what it takes to deter or discourage participation). As the patents maximalist put it: “In Octane Fitness, the Supreme Court noted the partial overlap between Section 285 fees and R. 11 sanctions. Section 285 does not particularly require sanctionable conduct but does require that the recipient be the ‘prevailing party.’”
Given where the money comes from to the EFF (for this particular initiative), it doesn’t shock us that the above approach is followed. Mark Cuban already invested in a patent troll and despite his rhetoric against software patents, he is no small player himself. What we see here is EFF policy being steered by and controlled by billionaires. Greenpeace has had similar issues. █
Satya Ballmer: different face, same strategy/policy
Summary: Microsoft continues its vicious patent war on anything resembling competition (however small), even the competition against which Microsoft previously committed competition abuses/crimes (subject of court cases) in order to attain total monopoly
MICROSOFT, which is connected to many patent trolls (including Intellectual Ventures, the world’s biggest), is still busy suing companies. Microsoft has a long history of patent aggression, including patent litigation against Linux (not just threats thereof). As longtime readers of this site may know, this and only this was the raison d’être of this Web site.
“…since winning a case for infringement of design patents can lead to a damage analysis based on “lost profits,” which can theoretically lead to a patent owner getting all of a defendant’s profits.” –Joe MullinAs we noted the other day, referring to the original from the EFF, Microsoft is now attacking a company that once dominated word processing. Microsoft allegedly engaged in competition crimes against this company, leading to decades of expensive litigation. This company also pioneered some important GNU/Linux efforts until Microsoft shut these down with a mysterious deal (which we wrote about on several occasions around 2007). Well, Microsoft is now trying to drive this company into bankruptcy, using patents.
Microsoft is now attacking Corel with what the EFF calls “Stupid Patent of the Month”. As noted by one good journalist (Joe Mullin), “it’s serious ammo, since winning a case for infringement of design patents can lead to a damage analysis based on “lost profits,” which can theoretically lead to a patent owner getting all of a defendant’s profits.”
“Remember the company called Novell? Yes, that company that pretty much vanished half a decade ago and whose patent/special deal with Microsoft (SUSE) will expire tomorrow (there are no signs of renewal or continuation).”In other words, expect layoffs, liquidation, bankruptcy, etc. Legal fees aren’t low, either. Remember the company called Novell? Yes, that company that pretty much vanished half a decade ago and whose patent/special deal with Microsoft (SUSE) will expire tomorrow (there are no signs of renewal or continuation). Other than the name being similar, Novell and Corel have a lot in common because both competed against Microsoft until signing some infamous deals with Microsoft, leading to their demise, as well as the demise of their ongoing court cases against Microsoft (for competition abuses/crimes). When Novell imploded Microsoft grabbed its patents. Sweet deal for Microsoft. Novell is virtually gone (devoured by another company) and its patents are in CPTN, which is a ‘conglomerate’ pool of Linux and Android foes such as Oracle and Apple.
As if Microsoft itself is not somewhat of a massive troll itself (we wrote a lot about this before). Just look what the company has been doing with patents this past decade. “The recent Techdirt article about Microsoft’s design patent on a slider,” Moody wrote, “understandably focused on the absurdity of companies being forced to hand over all of the profits that derive from a product if it is found to have infringed on someone else’s design patent even in just a tiny portion of that product. But there’s another angle worth mentioning here that picks up on something Techdirt has written about several times before: the rise and threat of patent thickets. Back in 2012, it was estimated that 250,000 active patents impacted smartphones. That makes it impossible to build devices without licensing large numbers of patents, and even then, it’s likely that claims of infringement will still be brought.”
Microsoft is now using patents primarily against Android, which the company is at war against (don’t believe the pretenses and the "loves Linux" baloney).
“The EPO’s lawyers who currently deal with my case were also recently seen working from the same side as Microsoft on the patent front, based on Reuters.”Here is another new article about Microsoft’s “Stupid Patent of the Month”. “The design patent,” says Softpedia, “numbered D554,140, basically states that Microsoft is the owner of the slider you can see in the photo attached to the article. This is the very same slider that the company uses in its Office productivity suite to allow users to zoom in or out of documents, but it has also been implemented in a wide variety of Microsoft and non-Microsoft products.”
Patents not on engineering (or physical products) anymore
Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android
THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].
Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.
Open Invention Network
We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).
“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”
Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.
“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”
She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).
Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.
Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.
“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”
“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”
The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”
Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.
“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”
There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.
The Economist Versus Patents
The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).
“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”
Yes, patent scope is a huge part of the problem.
“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.
Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”
It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?
Patent Propaganda From Lawyers’ Sites
Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”
Yes, they even suggest software patents right there.
“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).
“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”
That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.
“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.
“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.
Design Patents and Linux Gadgets
Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”
The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”
“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. █