Also see: The Former Chief Economist of the EPO Warns That Battistelli’s Implicit Policy of Lowering Patent Quality (for Quantity) Will Bring Patent Trolls to Europe
Summary: A roundup of news about patent trolls, in particular their growth in east Asia and growing interest from parasitic firms like IBM and Microsoft (which have not so much left but a pile of software patents amassed in past years)
CHINA’S SIPO, which the EPO‘s President got close to (and increasingly imitates both in terms of degrading labour standards and poor patent quality), is becoming the generator of the world’s biggest platform for patent trolls. We have been pointing this out for a number of months now. It’s a harrowing scene because it means that an epidemic that (thus far) was almost exclusive to the US has spread like a pandemic to the world’s largest population.
A new article from John Collins and Steve Lundberg (yes, that crude software patents booster from Schwegman Lundberg & Woessner) is titled “Barrier to Business Patents Softening in China” and it reveals that China — like today’s EPO — encourages more patents irrespective of their quality and it already attracts patent trolls that utilise software patents. Has China learned nothing from the mistakes of the United States — mistakes that even government departments now openly speak of?
According to IAM, a site exceptionally sympathetic towards patent trolls (some of them pay IAM), says that “Qihoo 360 was actually the first company to have a GUI design patent granted.” Now it’s a highly litigious company, IAM says. With software patents, as expected, come the patent trolls to Asia, where patent quality nearly got abandoned (same mistake which the US had made). Here is another new example from IAM, though it does not use the “T” word. These trolls operate not only in China and as we pointed out before, some of them now go abroad and sue Western companies in plaintiff-friendly courts like those in Texas. They will certainly come to Europe as well, in due course. At the EPO, as we have repeatedly demonstrated, patent examination is too lax/lenient — a recipe for disaster for existing EP holders, if not future ones too. According to this tweet from the EPO: “Luis Ignacio Vicente del Olmo of @Telefonica : “The number of patent applications is increasing” #EPOPIC pic.twitter.com/BcmVRxswtD”
Does that mean more innovation or aggressive patent thickets that lock the ‘small guy’ (or business) out of the market?
As another EPO tweet put it the other day: “Luis Ignacio Vicente del Olmo: ” A smartphone may include more than 5000 patent families” #EPOPIC”
Wonderful! “Luis Ignacio Vicente del Olmo speaks about new challenges for IP as a result of the new technological paradigm,” the EPO says, adding that: “Luis Ignacio Vicente del Olmo of @Telefonica talks about trends in #ICT sectors & transparency of patent data #EPOPIC pic.twitter.com/wApNe223C1″
Some of that data comes to and from Asia, as this tweet notes: “Luis Ignacio Vicente del Olmo: “The European market is very attractive to companies outside Europe like from Asia & the US” #EPOPIC”
So how long before Chinese patent trolls come to Europe, even without that UPC (which would greatly assist them if it ever became a reality)?
IBM, which is already suing small companies using software patents, seems to salivating and drooling over litigation in China. See this tweet from IBM’s Manny Schecter, boasting that “China’s patent-lawsuit profile grows. http://www.wsj.com/articles/chinas-patent-lawsuit-profile-grows-1478535586 … via @WSJ” (article here but with limited access to non-subscribers).
“When a Canadian patent-licensing firm wanted to sue Japanese electronics company Sony Corp., it chose an unlikely venue: China.” That’s what the report says. IBM already sold quite a few pieces of its business to China and we can envision IBM trying to impose patent licensing deals in China, if not lawsuits too (for those not sufficiently ‘obedient’).
According to this new article from Liu, Shen & Associates, the notion of obligatory patent tax has already spread to China. “Standard essential patents have long been a hot topic in China,” they argue. “Hou Guang and Jia Hongbo of Liu,Shen & Associates explain the history and analyse recent developments…”
Standard essential patents (SEPs) block the use of Free/Open Source software (FOSS) and much more. IBM used to lobby for this kind of mess in Europe and look where it led to; rather than stop SEPs/FRAND IBM told the European authorities that software patents promote FOSS innovation (which is of course a lie).
Design patents in Taiwan (arguably part of China, depending on who one asks) are discussed in another new article. Japan and China phased in this nonsense, as we noted the other day and sooner or later we expect China to overtake the United States in terms of patent trolling, including trolling in places/parts of the US where litigation is ubiquitous and low-quality patents are routinely tolerated (not just Texas, the trolls’ capital). See this article titled “As litigation increases, China follows Japan in exploring state-subsidised IP infringement insurance”. It says that “[p]atent authorities in both China and Japan have recently brought forth proposals for patent office-subsidised IP infringement insurance. SIPO says it will focus on offering protection to Chinese companies expanding outside the country, while the JPO anticipates local SMEs using its insurance product both offensively and defensively in China. As litigation increases in China, and more Chinese companies expand abroad, companies throughout the region need all the IP risk management tools they can get.”
What a total waste of resources and energy. They handicap their own economy.
Over in the United States, says this article from IAM, Rockstar (a patent troll connected to Microsoft) pursues more shakedown, even though the FTC deemed this damaging to the country. IAM, being the trolls’ apologist that it is (or denier of patent trolling), attacks the FTC’s study which bemoans patent trolls (for the second time in less than a month!) and says this:
One of the significant outcomes of the Federal Trade Commission’s recent report on patent assertion entities (PAE) is that it very clearly differentiated between two types of licensing business.
On the one hand there were the litigation PAEs, who use the threat of infringement litigation to drive a large volume of low-dollar settlements. They, it was strongly implied, largely engage in the kind of abusive practices that many in the patent community criticise and drive a high number of lawsuits.
We are increasingly convinced that IAM is very eager, with money from Microsoft-connected patent trolls on its table, to see patent trolls go global. IBM too seems to like the idea, as the company has little left other than a pile of patents (same as Microsoft). Some companies are simply transforming into megatrolls; see what Blackberry does in Texas because its products are failing to sell. █
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How shallow, spotted just hours after publication by Kappos
Manny Schecter works for IBM, the former employer of Kappos
Summary: Responses to the latest call against Alice (eliminator of many software patents), courtesy of the man from IBM (still paid by IBM) who was responsible for the policy that blindly approved a lot of software patents in the US
Our latest article about David Kappos (who has in essence been helping Microsoft's extortion of Linux using low-quality patents in large numbers) was well received by quite a few people. They know a lot better now what Kappos stands for and who pays him. Our many articles on the subject contributed to that. Interest groups and lobbyists are among the things we have been exposing for nearly a decade. Once exposed, they are a lot less capable of operating. Sometimes they need to rename.
As Henrion put it/told Manny Schecter (IBM), “he [Kappos] is a Microsoft/Apple spokesman.” He is also a former IBM employee who is now being paid by IBM for his lobbying.
This article from Kappos led to an article by Mike Masnick (via Professor James Bessen) shortly after we had mentioned it. Masnick said that “of course, if you’re former US Patent and Trademark Office boss David Kappos — who presided over a massive increase in patenting, which the Government Accountability Office recently noted was mainly due to basically no quality standards being used — this is a bad thing. Perhaps he takes it personally that the current patent situation really puts an exclamation point on the fact that he helped usher in hundreds of thousands of anti-innovation weapons that could be used to shake down actual innovators.”
Like the Battistelli-led EPO right now? AntiSoftwarePat highlights the part of the above article which says Kappos “presided over a massive increase in patenting… mainly due to basically no quality standards being used” (i.e. rubberstamping, with approval rates soaring). █
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Microsoft, IBM and few other large companies pay former USPTO officials to promote software patents
Summary: The latest lobbying from David Kappos, who blatantly exploits his connections in patent circles to promote software patents and work towards their resurgence after Alice v CLS Bank
LAST NIGHT we wrote about the demise of software patents in the US. The USPTO, which David Kappos had turned into more of a rubber-stamping operation (because of the growing backlog), finally had to accept that many patents were erroneously granted (if not fraudulently granted to increase measurable figures).
“The FTC PAE report should be the final nail in the coffin for Software Patents,” AntiSoftwarePat wrote last night in response to my article. He or she has been saying this for quite a while. PAE is a type of patent troll, for those who don’t know.
“He doesn’t want people to know what he does for a living in his capacity as a de facto lobbyist.”Kappos deserves at least some of the blame for the terrible status quo. So many patents at the USPTO are junk and patent trolls needn’t even go to court and face the burden of proof; they just target small businesses in secret (divide and rule) to shake these down using bogus patents. Kappos is absolutely fine with that and we wrote a lot about this nefarious activity of his quite a lot this year. He doesn’t want people to know what he does for a living in his capacity as a de facto lobbyist. Instead, says his own description of himself: “Dave Kappos is a partner at Cravath, Swaine and Moore LLP and previously served as under secretary of commerce and director of the United States Patent and Trade Office.”
He does not disclose he works for a front group funded by monopolists which support software patents. Yesterday, published in the Morning Consult Web site was this Kappos piece protesting Alice v CLS Bank. He took wonderful news, namely the gradual end of software patents in the US, and called it “the terrible” (not for software developers but for parasites like him and his ilk).
Once again he pretends it’s a loss to software innovation and other such malarkey. He does not disclose who pays him to utter this nonsense. Here is the ending paragraph:
Rather than celebrate or mourn the anniversary of Alice, we should recognize that its overly broad application stifles software innovation in fields that require major, sustained investments to address humanity’s truly daunting challenges—across industries from life sciences to information technology to transportation and beyond. There is some room for cautious optimism—recent decisions from the federal circuit in Enfish, Bascom and Rapid Litigation Management have upheld quality patents challenged on eligibility grounds—but unless the courts continue to provide clearer guidance, a long heritage of American innovation leadership will be at risk. We should seek balance by applying Alice narrowly, “lest [Section 101′s exclusionary principle] swallow all of patent law”— and let the other parts of the law do their work.
“When legislation and/or caselaw is up for sale we all lose.”It’s clear that he is asking for loopholes so that software patents can still be granted and asserted (successfully) in courts. It’s not about “clarity” (we explained this spin of his before and also showed the so-called whitepaper he published last year to reveal his bias on this topic). Quick to promote this article was IBM’s Manny Schecter, who is funding him through IBM (Kappos used to work at IBM, which now just pays him through a front group). Congratulating one’s own lobbyist again? Does he not see ethical breach amid all that patent aggression by IBM? Microsoft is paying Kappos as well and it too is attacking even Android/Linux using patents, as recently as a few days ago.
What will it take for these companies to stop bribing former officials and hide behind them while they lobby for the resurrection of software patents? Who are those people kidding? Can one file a formal complaint for “revolving doors” kind of abuse here? We might try soon, perhaps once we identify the best authority/institution to address regarding the unprofessional (and likely unethical if not in breach of contract) practice. When legislation and/or caselaw is up for sale we all lose. █
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Summary: A parade of misinformation as seen in Indian (but English-speaking) press this week as questions about patentability of software resurface
FOREIGN giants which operate in India (companies like IBM and Microsoft) just can’t help trying to repeatedly introduce software patents in India, aided by front groups and lawyers of theirs. Why on Earth is NASSCOM, which is connected to Bill Gates [1, 2, 3], participating in a debate in India regarding software patents or even just software? “NEW rules designed to boost India’s software industry will open for public consultation in a matter of days, say sources close to the matter,” said one new article among several this week (e.g. [1, 2). These mentioned software patents as well and some correctly noted that “this opens them [software companies] to patent trolls. Dealing with patent trolls here as India doesn’t have software patents.” The English here is problematic and then it says this: “So the conundrum for startups is whether to stay in India or not.”
“India is constantly being lobbied by big businesses that are not even Indian.”No, startups would be wasting their time pursuing patents on software. In practice, heavy-pocketed corporations from abroad want software patents. Indian startups do not. But don’t count on corporate media like the above to accurately represent the desires and needs of ordinary Indians. Neither should anyone trust NASSCOM, one among several Indian agencies that act like outposts and brought India nothing but EDGI.
India is constantly being lobbied by big businesses that are not even Indian. Watch what Microsoft has done to the Modi government earlier this year and last year. It shot down a Free/Open Source software policy. █
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Even East Texas, which advertises itself as plaintiff- and troll-friendly, might not tolerate software patents for much longer
Summary: Examining some of the latest software patents that make this week’s headlines and what we can learn from these
SOFTWARE patents are dying in the US, owing largely to § 101 (post-Alice). Patent lawyers, as expected, are in denial about it (misleading customers in order to maintain demand) and there is a new article today/this week about § 101 analysis. Mentioned therein is a “conclusion that the claims at issue fail to meet the standard for patent eligibility under § 101.”
“The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short.”The de facto ban on “abstract” software patents (that ought to cover all software patents) does not deter everyone, especially not deep-pocketed companies which simply hoard thousands (if not tens of thousands of patents) and then cross-license or shake down companies in bulk. According to dozens of news reports from yesterday (e.g. [1, 2, 3]), Amazon continues to patent software (this patent for audio surveillance) and today we learn that Disney tries patenting foot surveillance in parks. Talk about lack of ethics… Amazon has pushed software patents as far as Europe in spite of the clear exclusions.
As we mentioned here briefly at the start of this week, VirnetX's software patent attack on Apple is falling short, as does the stock of VirnetX [1, 2, 3, 4, 5, 6]. VirnetX is a patent troll whose existence (or worth) is little more than software patents, so the loss of the case (or at least a $625,000,000 award) was big news yesterday [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15], not just in Apple-centric sites.
The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short. Time to leave East Texas for a balanced venue? It’s probably a waste of time (and money) trying to assert these patents in a court of law, especially against large companies that can afford to withstand/endure lots of motions and appeals. That’s why the main victims of software patents (and patent trolls) are small businesses; they would often settle rather than risk the high cost of never-ending legal proceedings. The SCO case has gone on for 13 years because IBM can afford this and SCO, whose only remaining existence is this one case, goes to the grave (well past bankruptcy) in a desperate effort to extract some money (much like VirnetX).█
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Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101
WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”
Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.
“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.
Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf”
“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.
What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).
The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf”
Texas again. It figures.
“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”
Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO. █
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Read between the lines then…
Summary: Blockstream says that it comes in peace when it comes to software patents, which triggers speculations about coming Blockchain patent wars
THE PAST few years were baffling as companies equated promises not to sue with “Open Source” or “open-source” (with a dash, to help dodge the trademark perhaps). Examples we covered here included, notably, Tesla and Panasonic.
A couple of days ago we saw that Blockstream had claimed the following: “Today we are excited to announce some important steps we are taking on the patent front, why these defensive steps are necessary, and our hope that others will see merit in our approach and follow our lead.
“The system as it stands is inherently hostile towards GNU/Linux and Free/Open Source software, which is what Blockchain is all about.”“Core to the Bitcoin ethos is permissionless innovation. Without it and the level of contribution to which it gave rise Blockstream would not be on the exciting path we find ourselves today. It should not come as a surprise then that permissionless innovation is also core to Blockstream’s ethos. We firmly believe that in order for Bitcoin and related technologies’ potential to be fully realized they must be underpinned by a global platform that is free for any innovator to use without hesitation.”
As Benjamin Henrion rightly asked, “where do you have patents? which numbers?” Another person, a patent attorney who specialises in patent data/statistics, noted that “Blockstream Does Not Have Any Patents Assigned to It.” This is not entirely shocking. Having written about Blockstream in the past (we have very broad scope in our daily links), not once did we mention it in relation to patents. Patently German hypothesised: “Preparation for future #blockchain #patent wars? Blockstream announces defensive patent pledge and patent agreement…” (IBM, a patent bully with software patents, is also heavily involved in the same Linux-centric space)
IP Watch, a decent watchdog of patent matters, wrote the headline “Trust Us, We Won’t Sue You” (it sounds rather humourous or sarcastic). It said that “Blockstream, which developed the blockchain technology and bitcoin, has announced a defensive patent strategy. The crux of it: assurance that users of its technology won’t be sued.”
“It seems like shameless self-promotion or a publicity stunt with a “patents” angle.”The EFF wrote about this as follows: “We’ve written many times about the need for comprehensive patent reform to stop innovation-killing trolls. While we continue to push for reform in Congress, there are a number of steps that companies and inventors can take to keep from contributing to the patent troll problem. These steps include pledges and defensive patent licenses. In recent years, companies like Twitter and Tesla have promised not to use their patents offensively. This week, blockchain startup Blockstream joins them with a robust set of commitments over how it uses software patents.”
Bob Summerwill told me [1, 2]: “I see this as hugely positive. Looks directly analogous to what the GPL does for copyrights. Use system against itself.”
Right, but unless Blockstream actually has some patents (there is no evidence of it so far), what can they really use against the system? The system as it stands is inherently hostile towards GNU/Linux and Free/Open Source software, which is what Blockchain is all about.
Blockstream’s message is suggestive of unknown context (like something they know but are not telling us). It seems like shameless self-promotion or a publicity stunt with a “patents” angle. We have become accustomed to it. One company that should definitely do the same thing (but has not) is Red Hat. OIN membership does not guarantee this and if Red Hat got sold to some relatively hostile entity (like Sun to Oracle), there is no guarantee that Red Hat’s patents would not be used to wreak havoc (like a $10 billion lawsuit over a programming language alone, i.e. an order of magnitude worse than SCO versus IBM). █
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Hostile environment in which trolls thrive owing to software patents and cashless startups that must settle
Summary: With unconvincing excuses such as OIN, large corporations including IBM continue to promote software patents in the United States, even when public officials and USPTO officials (like Bahr on the left) work towards ending those
SOFTWARE patents remain a very major barrier not just to FOSS developers but to all software development. Such patents, unsurprisingly, are being promoted by monopolists and their facilitators, to whom they’re a major source of revenue. Those monopolists continually rig the whole system in their favour as they can definitely afford it; in fact, it might be considered part of the obligation to shareholders (protectionism through legislation).
The mainstream media or corporate media no longer talks about software patents. Instead it speaks about “patent trolls” and by patent trolls it means the small ones, not the media owners. Apple, for instance, is directly connected to some major media conglomerates, so bias in patent coverage is to be expected in some cases (we wrote about this in past years). Let’s be easily deluded and just ignore Apple demanding billions (not millions) from Android OEMs (patent aggression and sometimes trolling includes big vendors) and also forget Apple’s unique role in Intellectual Ventures (explained here several years ago), the world’s largest patent troll which goes after Android vendors. The article “Apple will pay $25M to patent troll to avoid East Texas trial” is eye-catching and so is “Newegg’s Three-Step Solution to Fighting Patent Trolls” by Gary Shapiro, President and CEO of Consumer Technology Association (CTA). This group likes to focus on patent trolls rather than patent scope. Here is some of the latest from Gary Shapiro:
Lee Cheng is a troll trapper. As chief legal officer for Newegg.com, the second-largest online only retailer in the United States, Cheng has successfully battled the almost three dozen trolls that have attacked his company in the last ten years. And not just fight them, but win.
Patent trolls — sometimes called “non-practicing entities,” or NPEs — don’t actually create any products or services. Instead, they scoop up patents for the express purpose of using them to extort money from real companies large and small that can’t or don’t want to pay high legal defense costs. NPEs focus on settlements and generally have no desire to test their generally poor-quality patents in trial and through appeal. Even bad patents can generate millions in settlement dollars.
A newly-updated Harvard Business School study finds patent trolls sue cash-rich firms “seemingly irrespective of actual patent-infringement” — because that’s where the money is. The Harvard researchers noted trolls are taking a toll on innovation at the firms they target: “After settling with NPEs (or losing to them in court), companies on average reduce their research-and-development (R&D) investment by more than 25 percent.” So instead of funding development of the Next Big Thing in consumer technology, these American small businesses are handing over legalized extortion payments to trolls.
Research estimates that patent trolls drain a prodigious $1.5 billion a week from the economy. I sat down with Lee Cheng to get a from-the-trenches account of the patent troll problem, and to let him share his lessons for taking down the trolls.
“They also rely a great deal on software patenting, as a look at their patent portfolio easily and instantly reveals.”What Gary Shapiro misses here is that patent trolls are often part of a broader shell game played by large corporations such as Microsoft. They also rely a great deal on software patenting, as a look at their patent portfolio easily and instantly reveals. All the focus is now being shifted towards trolls, both in the media and US Congress. Just see this new tweet (“VIDEO: Sen. Jeff Flake Targets Patent Trolls”).
Proskauer Rose LLP, which likes to cherry-pick cases in promotion of software patents, recently released this so-called ‘analysis’. They try to maintain a grip on software patents no matter what. Some large corporations are doing the same thing and it’s not limited to Microsoft. Consider IBM.
IBM’s commitment to Free software, especially now that it pays lobbyists like David Kappos for software patentability, should be seriously doubted. It just likes “Linux”. Manny Schecter, a patent chief at IBM, is an ardent proponent of software patents and he has just linked to “Latest very brief USPTO update to patent examiners on subject matter eligibility in view of recent cases…”
This is a PDF of a new Robert Bahr (Deputy Commissioner for Patent Examination Policy) letter regarding the Rapid Litigation case and Sequenom case (both covered here earlier this month). Herein he is alluding to Mayo and Alice as he might try to gently challenge these or begrudgingly adopt what the ‘pesky’ Supreme Court said. Here is a quote from the PDF: “In summary, the USPTO’s current subject matter eligibility guidance and training examples are consistent with the Federal Circuit’s panel decisions in Rapid Litigation Management and Sequenom. Life sciences method claims should continue to be treated in accordance with the USPTO’s subject matter eligibility guidance (most recently updated in May of 2016). Questions should be referred to Technology Center subject matter experts or your SPE.”
Where does IBM stand on the subject? It’s hardly even a mystery. IBM does not like Alice because IBM loves software patents and actively works to expand these to more countries/continents. At the same time IBM brags about OIN as though it magically makes IBM’s patent policies absolutely fine and compatible with FOSS. “I don’t think there is an alternative choice when you are small entity,” told me someone today. “When has OIN actually helped a small company? Even as a deterrent,” I replied. “When your entity is relatively small,” he said, “OIN represents a potential shield to provide you even a minimum of security.”
“Life sciences method claims should continue to be treated in accordance with the USPTO’s subject matter eligibility guidance (most recently updated in May of 2016).”
–Robert BahrBut how in practice can OIN protect one against a troll for example? It cannot. OIN is totally useless against patent trolls. Don’t ever forget that. I saw that firsthand when I was part of E-mail thread I had initiated. Small companies sometimes try taking rivals to court with their patents. If the rival is big enough, then countersuit is massive (IBM has a massive portfolio which virtually every software patents infringes on), defeating the very point of bothering with a lawsuit in the first place. Large companies may use trolls as satellites/proxies, so the lawsuits/countersuits can come from all sorts of mysterious directions.
“Intel and McAfee Sued for Patent Infringement,” writes Patent Buddy this week. Security Profiling LLC (LLCs are usually patent trolls) is suing in the Eastern District of Texas. What can Intel do about it? Nothing. Intel is now trying to sell/offload McAfee, based on last week’s news reports (see our daily links for half a dozen such reports). Has it become too much of a burden perhaps? The point about patent trolls and OIN sticks, no matter what. Steven J. Vaughan-Nichols has just fallen for the OIN public relations machine, joining the chorus which began with an 'exclusive' puff piece. OIN is not a “Linux” thing as some want it to be widely viewed; it’s mostly an IBM, Sony etc. thing. It helps legitimise software patents rather than acknowledge that they are not compatible with FOSS or Linux and thus need to be ended. █
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