Backed by IBM, Microsoft, and all the usual suspects…
Summary: An introduction to what the Center for Intellectual Property Understanding [sic] really is, what it is for, and who is behind it
YESTERDAY we wrote about OIN's role in the Center for Intellectual Property Understanding (CIPU), which is the opposite of what its name says (common practice among front groups). Watch the composition: this is a software patents lobby with David Kappos, a clear IBM role, and Microsoft role also.
IAM, the mouthpiece of patent maximalists, says this right now (shielded behind a paywall, so it’s easier for them to evade scrutiny):
As well as being headed by Berman, CIPU includes former IBM and Microsoft IP supremo Marshall Phelps as vice-chairman. A number of other high profile IP figures have helped with getting the Center off the ground. These include Philips CIPO Brian Hinman, former Chief Judge of the Court of Appeals for the Federal Circuit Paul Michel and former USPTO Director David Kappos. Microsoft, Philips and Duke University are among those providing support.
It is too easy to see whose interests are served by this front group. Now watch the sole comment on this blog post, published by Peter Harter of The Farrington Group (friend of IAM): “Glad to see that the FAKE NEWS of the infringer lobby can be countered. Perhaps all ethics reviews for IP professionals, journalists and bloggers should include a literacy evaluation built on the CIPU rubric?”
“They try to strike down Alice, bring back software patents, and extort a lot of companies for many billions of dollars.”We are probably going to hear a lot from this front group in the coming weeks/months. It will also lobby politicians behind closed doors, we are pretty sure about that…
It’s clear what they want as they repeatedly write about it. They try to strike down Alice, bring back software patents, and extort a lot of companies for many billions of dollars.
Christopher Hall, writing for the National Law Review right now, seems to be on that same bandwagon. He seems to have not gotten the memo about death of software patents, or maybe he just conveniently pretends that Alice does not exist. People like him, along with the CIPU backers, have been constructing a bunch of tricks for loopholes that often work in the EPO; they try to pass off algorithms as a “machine” (to quote, “could be a computing machine of some sort, for computer-based algorithms”).
These are technically meaningless terms (Deepak Chopra-style mumbo-jumbo) that may in fact suggest that Hall does not know how computer programs work (Watchtroll evidently has the same problem). Here is the full paragraph, which does cite §101:
Claims written with the above template capture initial values, iterative values and results in the context of an iterative algorithm tied to a machine (which could be a computing machine of some sort, for computer-based algorithms). Variations on this can be written for tangible media and for system claims. This approach should pass muster for arguments and subject matter patent eligibility under 35 USC §101, because the algorithm and presumably tangible result are inextricably tied to the machine that is executing the algorithm, so that a computer is not a mere field of use limitation.
We need to keep track of all these firms and front groups that are trying to spin things and even lie in major newspapers, basically telling people that the potency of software patents is just fine (when clearly that is not the case).
Apple, for example, based on its patent promotion sites (not affiliated with Apple but always pushing Apple agenda on patents), is still gambling its future on Steve Jobs’ “thermonuclear” patent wars against rivals. The same goes for IBM and Microsoft, both of which are attacking companies that use GNU/Linux. If software patents are taken away from them, then they are pretty hopeless. That’s why they lobby so hard against Alice (Apple, IBM and Microsoft pay Kappos through his front group for lobbying on this). █
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Companies that are using GNU/Linux in their datacentres have become the target of software patent lawsuits from a fake ‘friend’ of GNU/Linux
Summary: IBM’s poisonous policy on patents, which has long been incompatible with Free/Libre software, has gotten even worse and the company now takes the lead in lobbying for patenting of software
The “Open Invention Network,” Florian Müller told me a few hours ago in Twitter, “has co-founded a *pro-patent* advocacy thing,” called “The Center for Intellectual Property Understanding”. The press release reveals the involvement of the man who turned both IBM and Microsoft into massive patent bullies (Marshall Phelps, who is also quoted at the bottom):
“The IP knowledge gap is growing,” said Marshall Phelps, former head of IP at Microsoft and IBM and CIPU’s Vice Chairman. “Many people, including the general public and many in government, haven’t a clue what patents and other IP rights achieve. The incentive for taking IP seriously is at an all-time low. The Center for Intellectual Property Understanding will engage groups like schools, parents and the media about the benefits of respecting new ideas and the impact of failing to.”
It is worth noting that the Open Invention Network (OIN) was founded in part by IBM and was first headed by an IBM employee. The above serves to reinforce our growingly sceptical view of both OIN and IBM, which now engages in a lobbying campaign for software patents in the United States. Adding insult to injury, IBM is once again aligning itself with Watchtroll, which has been attacking people like Michelle Lee (USPTO Director) in an effort to engineer her dismissal [1, 2, 3, 4, 5, 6] and make way for a crooked person like Rader. Manny Schecter, IBM’s patent chief, actually contributed to Watchtroll — didn’t just link to it — and the headline was “Congress Needs to Act So Alice Doesn’t Live Here (in the Patent System) Anymore”.
“IBM’s willingness to do it so openly is a slap on the face of anyone who ever supported or praised IBM as some sort of guardian of GNU/Linux.”It doesn’t get any clearer than this. IBM is an enemy of software developers everywhere, and not just Free/Libre software developers. This was published yesterday, February 13th. Once upon a time IBM tried phoning me to control the narrative of my stories (I told them off immediately). They love shaping the media behind closed doors, but Schecter continues to make it abundantly clear that IBM is now just a business ally of Apple, not “Linux” (or GNU/Linux). IBM is actually rapidly becoming an enemy of GNU/Linux and everything that has helped IBM grow over the past 2 decades.
Others are also promoting software patents this week, for example Finnegan, Henderson, Farabow, Garrett & Dunner, LLP (as expected from patent profiteers). IBM’s willingness to do it so openly is a slap on the face of anyone who ever supported or praised IBM as some sort of guardian of GNU/Linux. IBM is now suing massively all sorts of companies with massive GNU/Linux deployment, using software patents. █
“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”
–Marshall Phelps, IBM and then Microsoft
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IBM also stands for International Bullying Machine, says Florian Müller
Summary: IBM’s patent zealots continue to make the company look really ugly and growingly hostile towards software developers, even if they are hiding behind front groups like IPO and David Kappos’ new shell when they lobby for software patenting in the United States
IBM and its former employee David Kappos (still works for them as a lobbyist) have done despicable enough things already — things that are purely and unequivocally detrimental to Free/Open Source software or even software developers in general. How much more foolish are they trying to look? Except when they sue smaller companies using software patents? What happened to Samuel Palmisano's IBM? That was the IBM we could actually support.
“What happened to Samuel Palmisano’s IBM?”“Innovation” is what IBM calls litigation, we must assume, based on tactless tweets like this one. “Innovation fuels economic growth and #patents promote #innovation,” it says.
The other day we showed how IBM is lobbying for software patents along with patent maximalists who conveniently (for their wallets) prop up IPO with its shameless lobbying. The so-called “task” for software patenting is led by IBM staff and attorneys who lobby for software patents are obviously supportive. IBM basically wants to restore software patents (their eligibility) by discrediting the examination process, as in this example that says: “That this question has been asked is itself evidence of how conflated #patent subject matter eligibility and obviousness have become – ugh!”
“IBM basically wants to restore software patents (their eligibility) by discrediting the examination process…”This is also what they pay Kappos to say. They’re pretending there’s some kind of confusion which prevents them from pursuing software patents, which is rather ironic coming from the company that files the lion’s share of application and every year tops the list of USPTO patentees. To IBM, at least as far as patents go, nothing is ever enough!
Here, for example, IBM applauds IBM-led lobbying for software patents, linking to this echo chamber (other sites that are pro-software patents). Manny Schecter (IBM’s patent chief) gives “More applause for IPO’s resolution to amend 35 USC 101 here, though I don’t understand the bit about a cocked hat…”
“To IBM, at least as far as patents go, nothing is ever enough!”He never bothered mentioning that it’s IBM embedded inside IPO doing this. They’re just using it as a front group. IPO, a front group for corporations, tries to write the rules that impact its funders (not the poor, the rich) and Patently-O too dives in with “IPO’s Next Legislative Proposal: 35 U.S.C. 103″. It says: “Following IPO’s recent proposal to effectively eliminate 35 U.S.C. 101, a Patently-O reader (“MM”) proposed the following amendment to 35 U.S.C. 103 for the organization’s consideration” (there’s no stopping IPO, is there?).
Days prior to this, an article by Dennis Crouch helped this lobbying campaign by IBM et al. To quote:
In a newly published whitepaper, the IPO explains its proposed legislative amendment. [PDF: 20170207_ipo-101-tf-proposed-amendments-and-report]
Following an explanation rejected by the Supreme Court in its eligibility doctrine, IPO explains that the traditional subject matter exceptions including abstract ideas and laws of nature were part of the pre-1952 “invention” requirement. That requirement was eliminated in the 1952 Act in a way that, according to the IPO, should have opened the door to broad subject matter jurisprudence. As the organization sees it, the Supreme Court began to go off track in the 1970s – a path revived in recent years.
With this avenue of legal argument rejected by the courts, the IPO sees itself forced to appeal to Congress for a more direct statement of broad subject matter eligibility.
“IPO proposes to rewrite US law in order to make software patents great again,” Benjamin Henrion wrote. Matt Levy wrote a detailed rebuttal to it:
Why IPO Is Wrong About Section 101
It certainly seems that the technology industry is producing better and more exciting products than ever. Virtual reality is becoming, well, a reality; we have drones, self-driving cars, better artificial intelligence, amazing new games, and smarter smartphones. These innovations are all driven by software, even though the landscape for software patents has changed over the last few years due in part to several decisions by the Supreme Court.
This changing landscape has escalated the debate over the role of patents in promoting software innovations. Should we have limits on software patents? Are some “inventions” too abstract to qualify for patent protection? The Supreme Court has answered “yes” to both of those questions.
Bilski v. Kappos, which set the current course for subject matter eligibility under 35 U.S.C. § 101, was decided six years ago. Since then, the Supreme Court has decided two more major cases on patent eligibility, Mayo v. Prometheus and Alice Corp. v. CLS Bank. The U.S. technology sector has, despite a general economic slowdown, done fairly well in that time.
Looking at the IPO’s proposal in more detail, it’s clear that the language is a smoke screen. This amendment would essentially do away with any limits to software patenting. The “exception” that IPO’s proposal leaves open is so narrow as to be non-existent, at least in the technology sector. It excludes from patent-eligibility only those inventions that “exist solely in the human mind.” With the possible exception of patent applications being transmitted telepathically, any invention that’s written down exists outside the human mind. With all seriousness, anything that involves a computer even minimally would fall outside the exception.
The bottom line is that there’s no evidence of an actual decline in innovation due to Mayo and subsequent cases. Creating chaos because a few patent lawyers are unhappy is hardly good policy. The reality is that the Federal Circuit is doing a generally good job of interpreting Alice, and we should let the court keep going.
“150+ years of case law have held that abstract ideas and laws of nature cannot be patented,” United for Patent Reform stressed a few days ago. But what would poor IBM sue over if not software? IBM has made cash cows out of practicing companies that are not IBM. In other words, it has become a patent bully and sometimes (in areas where it doesn’t operate, e.g. social media) patent troll. Litigation great again? Is that what they want? If so, then better make IBM bankrupt. The sooner, the better. They’re already heading in that direction, having outsourced many of the valuable jobs and sold large chunks of the business to China (notably Lenovo). █
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Because IBM is collapsing and has increasingly resorted to bullying small companies for their ‘lunch money’ (‘protection money’ or ruinous lawsuits over patents)
Photo source (modified slightly): The 10 Most Powerful Women in Technology Today
Summary: IBM reinforces its role as enemy of Free software (and even all small developers of software) by virtue of promoting software patents and attempting to change legislation so as to assist its patent bullying strategy
FANGS may be symbolic, but while IBM tries to frame itself a “friend” of Linux and an “innovator” (e.g. with “Watson”) there is a very ugly side to the company and one that Ginni Rometty’s predecessors would probably not approve of. IBM is not a friend (not anymore, it’s actually close to Apple now) and it’s a big part of the problem we now face in the Free software world. IBM seems to have become a software patents proponent so heavy and loud that it now rivals Microsoft to the ‘title’.
According to this new post, “IPO created a special 101 legislative task force headed by IBM’s Marian Underweiser with Vice-Support from Bob Sachs (Fenwick & the BilskiBlog) whose proposal has now been released and fully adopted by the IPO Board.”
Notice the words “legislative task force”. They mean lobbying — the same thing that David Kappos does for IBM right now. As for Fenwick & West, watch this latest post from them. This patent law firm is trying to bypass the rules in order to patent abstract stuff like software.
The patent microcosm (with people like Sachs and Watchtroll rearing their ugly head on a regular basis), in the form of its front group Intellectual Property Owners Association (IPO), is trying to destroy Alice and bring back software patents. IBM’s patent chief is even openly and publicly supporting/endorsing Watchtroll, which is currently attacking [1, 2, 3, 4] the reformer, Michelle Lee.
IPO being a front group that is detrimental isn’t news, but IBM playing a considerable role is noteworthy. Here is a portion of the post from Patently-O:
IPO Steps Up: Proposes Statute to Overturn Mayo and Alice
The Intellectual Property Owners Association (IPO) is run primarily by a group of 50 top intellectual property counsel (usually patent-focused) from many of the largest global innovative companies – all deeply involved in the patent system as patent holders and many as accused-infringers as well. Patent attorneys from various law firms serve in a support role for the organization. The IPO created a special 101 legislative task force headed by IBM’s Marian Underweiser with Vice-Support from Bob Sachs (Fenwick & the BilskiBlog) whose proposal has now been released and fully adopted by the IPO Board.
IPO’s proposed a particular statutory amendment that would limit the eligibility question to whether “the claimed invention as a whole, as understood by [PHOSITA], exists in nature independently of and prior to any human activity, or exists solely in the human mind.” The proposal would seemingly flip the outcomes Alice, Mayo, and Bilski, although it is unclear to me how the statute treats a situation where a covered embodiment could exist solely in the human mind, but the invention as a whole also contemplates out-of-mind activities. The proposal specifically states that eligibility “is not impacted by . . . the claimed invention’s inventive concept.” Rather, the focus is solely on whether the claim-as-a-whole (1) “already exists in nature independently of and prior to any human activity” or (2) “exists solely in the human mind.” The proposed amendment further spells out that the entitlement to a patent is subject “only” to the limitations found in the Patent Statute.
According to her LinkedIn page, Marian Underweiser is connected also to IAM (which she takes pride in) and she used to work for Kenyon & Kenyon LLP (last mentioned here a very long time ago). She is the one heading this lobbying effort, on behalf of her employer IBM, so those still disillusioned about IBM can treat this as a wake-up call. █
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Summary: In spite of the gradual death of software patents, those who profit from them maintain the illusion that everything is alright, IBM hoard them and attacks with them, law firms mislead small and vulnerable businesses to entice them into these worthless ‘assets’
A LOT of time has passed since we last covered the USPTO, but it doesn’t mean that it’s all good news. The other day, for example, we warned that a terrible person, Randall Rader, wants to become the Director of the USPTO (still a self-serving hopeful, in spite of the widely-covered scandals) and software patents, which have been stubbornly pushed forward by Mr. Rader, are now dying, more so — or a lot faster — since he got the boot (or resigned in disgrace from CAFC).
What’s Up is Down?
On a couple of occasions in recent days the article “Software Patents Get Struck Down After Alice” got bumped up. To quote one copy of this new article:
Many software-oriented patents are being struck down as a result of Alice and Section 101. Some people say this leaves legal departments with more budgets to sue competitors more than they have in the past.
This is bizarre ‘logic’ and facts do not support it. First of all, the demise of software patents has led to far fewer lawsuits, as has been repeatedly proven by several different data sources (we covered these). Secondly, if your existing patents (never mind new ones that are harder to be granted) are less potent, what is the point or motivation for suing?
One large firm that continues to be aggressive with software patents is IBM. It not only applies for a lot of patents but it also attacks with them (by “attack” we mean suing small rivals that can barely defend themselves, unlike the patent microcosm which describes invalidation of bogus patents as an “attack” — inverting the narrative).
As we noted here a month ago, IBM is now cloudwashing all sorts of dubious patents (trying to pass them off as novel using buzzwords like “cloud” — a word which in itself does not make them eligible). IBM is basically a thug company; it’s a company that collects these (hoarding) for the purpose of litigation and shakedown in bulk (Microsoft does the same thing and targets vulnerable companies like TomTom amid deep financial issues). IAM, which fancies litigation and bullying (proudly so), called it “Big Blue’s new groove” in its latest issue, but we just call it anything but “groove” or groovy. It’s despicable and it makes IBM look fiendish.
Citing the Gartner Group (a dubious firm), the following new article mentions patent trolls but calls them “NPEs”, just as it cloudwashes software patents. Have a look:
Cloud Computing: Software Patent Claims and the Risks to Service Availability
As the public cloud services market continues to mature and grow – up from $178bn in 2015 to $209bn in 2016 according to research company Gartner – the concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation. At a time when data security and privacy risks are front of mind for cloud service providers (CSPs) and their users, the intellectual property (IP) risks to cloud service availability posed by NPE patent claims are rising up the business agenda.
NPEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold. NPEs are uniquely well placed to monetise their patents at each stage of the litigation cycle. They have access to capital and all necessary forensic and legal resources; and an NPE doesn’t practise its patents so is immune to a counterclaim that a defendant might otherwise be able to bring against a competitor, or a cross-licence that the defendant could otherwise offer.
The term “cloud” is meaningless rubbish that alludes to particular server arrangements. It’s not a growing market; not necessarily; it’s just an exercise in rebranding and liars for hire (Gartner) exploit this kind of nonsense to make their false predictions a self-fulfilling prophecy (by merely redefining what “cloud” means as they go along). The second part alludes to “cross-licence”; this is what IBM is trying to accomplish, with a money flow going into IBM’s coffers without them lifting a finger. One might therefore start to describe IBM as somewhat of a large patent troll, akin in fact to Microsoft’s (more on that in a separate post, scheduled for later today).
Insulting the Intelligence of SMEs
It is troubling to see that IBM’s patent aggression is making a comeback (it’s not entirely new) and it’s saddening to see that using all sorts of buzzwords attorneys and their clients are hoping to receive new software patents. Marks & Clerk, a proponent of software patents (obviously, as they profit from it!), recently said that the EPO now makes it easier to get software patents (than at the USPTO). The other day the firm advised small companies to pursue patents and it alluded even to software patents. To quote the relevant part (with our remarks in square brackets]: “An invention doesn’t even need to be a product to be considered patentable [in other words, a troll too can pursue patents]. Many people think that software is unpatentable. That is incorrect [depends where]. If software achieves a technical effect and is new and inventive, it is patentable. The most famous example of a software patent is the patent that covers Google’s “Page Rank” algorithm (i.e. the algorithm which powers Google’s search engine and which transformed the company into a tech unicorn) [but that’s an old patent predating Alice]. You or your business might have developed exciting software which does something that no one else has thought of. A patent might be just what’s needed to convince investors that your concept is the “next big thing” or alternatively provide you with an asset that can be sold or licenced for additional revenue [or waste of money, paid to lawyers at Marks & Clerk who cannot even win a case over software patents].”
That’s putting aside the fact that a small (practicing) firm’s chances of successfully suing a giant like IBM are slim, unless getting sued by IBM (in retaliation) is something it thinks it can afford. █
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Source: “Patent Office head to keep spot in Trump administration” (report from yesterday)
Summary: Commentary on the status quo in the Michelle Lee era and some examples of bias from the patent microcosm, as well as news regarding the NFL getting sued by the Kudelski Group
THE PAST couple of years have been very encouraging for patent reformers. Reformist transitions are occurring (except in the EPO and SIPO) which limit patent scope in lieu with public interest and those who make a living purely out of patents aren’t liking any of it. It has gotten so bad that they now insult the USPTO's Director, insult examiners, and even insult judges. What next? Will racist attack too become prevalent?
“Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases.”National Law Review, a large publication which covers patents among many other things, has this new list of “Intellectual Property Cases to Watch in 2017″. Nothing in the list challenges Alice itself (a de facto ban on many is not most software patents) and number 2 in the list can be the end to most patent trolls. 2017 should be interesting, we believe, unless Trump makes a mess of it with SCOTUS nominations/appointments which go beyond filling Scalia’s empty seat (swapping one Republican bigot with another).
Watchtroll, still trying to recover from the ‘horrible’ news which is more of the same (patent reform), now complains about § 101 (related to Alice) broadening its scope to challenge yet more patents. Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases. They know it and they desperately cherry-pick cases to make it look as though they are gaining ground.
“We hope that Director Lee will add some more judges to the PTAB.”Computer vision is my professional field of research. I used to write a lot more about patents in this area and why they oughtn’t be granted (it's all reducible to mathematics and can be conceptualised with pen and paper). Vision patents are generally patents that oughtn’t be granted, yet the USPTO has just let another one slip in. Someone should petition PTAB for an IPR (inter partes review), but PTAB is already overworked and arguably understaffed. We hope that Director Lee will add some more judges to the PTAB. This would help improve the image and value of US patents.
Writing about SCOTUS, Minter Ellison, a law firm, recalls the Alice moment, not mesmorising but mourning. “Approximately two years ago,” it says, “the US Supreme court in the Alice decision considered the in principle patentability of software patents. Since then, gaining US software patents has been very difficult. In 2016, the United States Court of Appeals for the Federal Circuit (the ‘Court’) has considered numerous appeals from district courts relating to patentable subject matter. This blog post discusses the two-step test from the Alice decision and how the test was applied by the Court in 2016, the developing trends for patentable subject matter in the US as it relates to software patents and the take-away messages for 2017.”
As can be expected from a firm that profits from software patenting, tips are offered therein for dodging or side-stepping the rules, thus sneaking software patents past examiners (until or unless courts/PTAB throw these way). Here is a similar new guide for getting business method patents past examiners, based on the latest eligibility guidelines:
About a week before the holidays, the U.S. Patent and Trademark Office quietly published a trio of new subject matter eligibility examples directed to the abstract idea exception to patentability. These are the latest in a series of examples provided by the USPTO to its examining corps, the series including previous examples published in December 2014, January 2015, and July 2015 (other USPTO publications include example claims directed to the law of nature and natural phenomenon exceptions). While the focus of this guidance is to educate examiners about how to determine whether pending claims are valid under 35 U.S.C. § 101, practitioners and patentees will find the examples to be helpful when considering how to draft and amend claims.
A lawyers’ portal, one which is even more overt, does very little to hide its bias as it gives tips for promoting and defending software patents in an age when they’re dying. “There are key concepts,” it says, “but no bright line rules on software patents. The best approach is to follow the common law, comparing and contrasting prior patent cases.”
The problem is, they’re typically cherry-picking only the cases which suit their agenda. It leads to bad advice, e.g. to clients or to readers of their so-called ‘analyses’. Trying to improve one’s chance of success is not in itself a problem; that’s what lawyers do. Some new advice like “importance of a prior art search” is better because it’s not about misleading examiners (or judges) but about ensuring one’s idea is really innovative and thus eligible.
“Software patents are a pain in the behind to a lot of producing (or productive) companies out there.”Sadly, not only patent law firms encourage the ‘tricking’ of examiners. IBM is doing that too (the former Director of the USPTO in fact came from IBM and is still being paid by IBM) and the corporate media fails to critically assess IBM's aggressive behaviour, to the point where even weeks later IBM is celebrated as some kind of champion, simply because it paints software patents as “cloud” (buzzword) or AI (an older buzzword).
Software patents are a pain in the behind to a lot of producing (or productive) companies out there. IBM now attacks a lot of legitimate companies, including medium-sized ones. According to the latest news, even the NFL has found itself sued by such patents (plenty of press coverage this week, e.g. [1, 2, 3, 4, 5, 6, 7, 8]). Lawsuits are a symptom of disagreement over patents. They are far from the ideal outcome and they are desirable to nobody except patent lawyers. █
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While the corporate media celebrates IBM as though it’s some kind of ‘champion’ for hoarding patents that it then uses to attack companies which actually grow
Summary: Patent aggression and patent lobbying from IBM is a growing problem, especially now that patent lawsuits are on the decline and software patents are going away
Thomas F. Cotter, a Briggs and Morgan Professor of Law (from the University of Minnesota Law School) wrote about Mexico’s patent law, invoking some drool-dripping ‘IP’ academics (Mike Schuster in this case) who say that in “Mexico, patent damages must be 40% of public selling price of infringing products…”
“Under the new CEO, or so it would seem, IBM is back to the days of suing companies like Sun.”IBM’s patent chief, who keeps plotting and scheming to blackmail the whole industry using software patents, cited the above ‘IP’ academics and noted that: “Patent damages would seem to be (potentially) quite high…”
Remember that IBM is now suing various companies and shaking them down for patent payments. Under the new CEO, or so it would seem, IBM is back to the days of suing companies like Sun (Florian Müller once called them “International Bullying Machines”).
We remind readers that today’s IBM is nothing like the IBM of 5 or 10 years ago. The company is still manipulating the media and lobbying for software patents, much to the detriment of just about every software company. “A large % of US companies are software companies,” wrote this patent attorney the other day. “Their patent applications are being inordinately rejected at the USPTO.”
I told him that software patents are being used against the vast majority of software companies (small ones), basically destroying them. This is the kind of thing that IBM and other patent maximalists are promoting. They worry that their plot is coming to an end, especially due to Alice and PTAB. The number of patent cases in the US courts has gone down sharply (as of 2016′s end) and MIP puts it all in a table, explaining the numbers as follows:
A total of 4,580 district court cases were filed in 2016, down from 5,775 in 2015.
This is the lowest number of district court patent cases since 2011, when 3,899 cases were filed, according to Docket Navigator figures. That year was the last before the American Invents Act came into effect.
The average monthly number of cases in 2016 was 382, down from 481 in 2015, 418 in 2014, 508 in 2013 and 455 in 2012.
The fourth quarter of the year saw 1,170 cases filed, up from the 1,138 cases filed…
Looking at utility patents alone (not software patents), Patently-O gives an impression of growth, even charting the numbers along with faces of USPTO Directors. To quote Patently-O: “The chart below shows the number of utility patents granted each year for the past few decades. I have included images of PTO chiefs as well. Although only small view of PTO work-product, the dramatic shifts in the number of grants (all occurring while facing a large backlog of cases) helps highlight the importance of the role of PTO Director. You’ll note that more utility patents were issued in 2016 than any prior calendar year – 303,000. However, the rate-of-increase seen under Dir. Kappos is clearly gone.”
David Kappos, ‘formerly’ IBM (still paid by them, now paid to lobby for software patents), has been a terrible Director whose lobbying at the moment puts the patent office at the bottom of ethical standards and brings it into disrepute. The graph mentioned above (with animation) serves to show just how terrible Kappos was in the quality control sense. For IBM to still be paying him, especially for something as notorious as software patents and lobbying, is a terrible idea. █
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When so-called ‘cross-licensing’ with patent purchases (the latest Microsoft method) is actually a disguise/cover for patent settlement after extortion [1, 2, 3, 4]
Summary: The patent lust at IBM, which is suing if not just shaking down companies using software patents, earns plenty of puff pieces from the corporate media
THE notion that the greater the number of patents, the better — a notion so ludicrous that also fails to recognise the raison d’être of patents — is quite a disease. Some people would have us believe that because China created a patents production line in SIPO it's actually at a position of advantage. It’s false and it’s rather infantile to repeat such claims.
One new article, seemingly from an author who is not a fan of software patents (see the short part about it), says today that:
The best ratios I found (i.e., most patents per person) were in very rich Bedford, adjoining Manchester, and almost-as-rich Hollis, adjoining Nashua. Each town had slightly more than 2.7 patents per 1,000 people.
So keep that in mind when you hear people pointing to patent numbers as a reflection of the braininess of a community, state or country or a company or industry. Take it with a grain of salt.
It’s often just a reflection of which companies are based around that area. But some towns take it out of context and equate patents with innovation or wisdom. The above article came just shortly after a heap of IBM puff pieces. IBM, as our readers are probably aware of by now, bets its future and the whole farm — so to speak — on being more like a patent troll (patent enforcement and shakedown). It has already done that to Twitter, a much smaller company, and it keeps doing that to other Internet companies. “IBM scores a record 8,000 patents in 2016,” enthusiastically screams this headline from Dean Takahashi (or his editor), who just repeated the ‘official’ story as follows:
IBM has proven it is once again dominant in earning patents, as it closed the year with 8,088 U.S. patents granted to its investors in 2016. That’s the 24th consecutive year that the company has earned the most patents of any company.
The second-ranked company, Samsung, had 5,518 U.S. patents granted. About 2,700 of IBM’s 2016 patents covered inventions related to artificial intelligence, cognitive computing, and cloud computing. The patents covered a diverse range of technologies that also included cybersecurity and cognitive health.
We have compiled a list of nearly 20 ‘news’ articles [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17] about IBM claiming 8,000 so-called ‘inventions’ in a single year. Almost all these articles are from yesterday and they add no new information; they’re puff pieces void of any analysis. IBM got many of these patents probably by just calling old stuff “cloud” and “AI” (buzzwords). Is “AI” the new “on a machine”? And “cloud” the new “over the Internet”? When it comes to bamboozling patent examiners (so as to be granted software patents) there are all sorts of tricks, many of which boil down to semantics. IBM is nowadays firing a lot of employees, selling large portions of its physical products divisions to China (notably Lenovo). Is this the future of IBM then? Just ‘hiring’ patents, which it already uses to attack and extort far smaller companies? “Samsung Second & Google Fifth In 2016 Patent Race”, an Android news site said yesterday, so IBM isn’t alone among Linux-oriented firms when it comes to the patents gold rush. Samsung and Google, however, are not patent aggressors. Unlike the above IBM puff pieces, a writer in Fortune published “These Firms Won the Most Patents in 2016″ — a list that shows Microsoft falling down quite sharply. As a Microsoft propaganda site puts it, “Microsoft ranked 8th on the list of companies awarded with most patents in the US” (a lot lower than before).
Well, Microsoft is having issues. Software patents are getting more difficult to get, so it is not managing to keep up with patent filings. Financial issues are not helping either. In the coming years we expect IBM to become more and more like a patent troll whose actual products (if not jobs too) sailed away to China. █
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