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01.24.16

Several New Examples of Software Patents Being Crushed by Alice

Posted in America, Law, Patents at 10:54 am by Dr. Roy Schestowitz

Even the United Stated (US) Court of Appeals for the Federal Circuit (CAFC), the original creator of software patents, is required to obey the law

Book

Summary: Additional evidence of the consistent demise of software patents in the US, which had gradually become more lenient on the subject/domain and after the SCOTUS ruled against software patents any court which follows caselaw is now becoming strict, even reluctantly so

THE PAST fortnight brought us several new examples where software patents got invalidated — once brought before a court — thanks to the Alice case. This will be the subject of some imminent posts of ours. One example, as covered by Patent Hawk the other day, says: “First Choice Loan Services sued Mortgage Grader for infringing its financial transaction patents. In light of the Supreme Court’s Alice decision, the district court found the patent claims directed to unpatentable abstract ideas. The CAFC affirmed (2012-1042). “Computational methods which can be performed entirely in the human mind are the types of methods that embody the ‘basic tools of scientific and technological work’ that are free to all men and reserved exclusively to none.””

There is another report about it, composed by Andrew Chung and published by Reuters. It stated: “The owner of two patents on technology used for selecting mortgages online has learned the hard way just how much of a sea change the U.S. Supreme Court’s Alice v. CLS Bank decision was after a U.S. appeals court upheld the patents’ cancellation on Wednesday.

“A three-judge panel of the U.S. Court of Appeals for the Federal Circuit said a California federal judge did not abuse his discretion in allowing, and then granting, a late-filed Alice-based motion to invalidate Mortgage Grader Inc’s patent claims.”

“A lot of campaigners against software patents are now seeing what 5 years ago they considered impossible.”A similar report (behind paywall) was composed by/for lawyers and asked: “Remember when some experts said the 2014 Supreme Court ruling wasn’t likely to be a game changer?” (the title of this report is “Federal Circuit [CAFC] Strikes Two Software Patents Under ‘Alice’“)

So who was right, the patent lawyers or Techrights? To his credit, Gene Quinn too predicted it would become a game changer.

CAFC is probably the most software patents-friendly court, perhaps in the whole world. Here is an article about a recent decision of CAFC, courtesy of patent maximalists. Patent lawyers still try to understand why software patents are collapsing even in the US and they study cases such as this one where “Claims of US patents 6,398,646 and 6,656,045 in the name of Planet Bingo, LLC were found not to be patent eligible subject matter under 35 USC 101 because the claims are directed to the abstract idea of managing a game of bingo, which is merely implemented on a computer executing purely conventional functions.”

Time permitting, we shall strive to cover as many cases like this as we can. There is an unambiguous trend in the US and it involves the demise of software patents, thanks to SCOTUS. A lot of campaigners against software patents are now seeing what 5 years ago they considered impossible.

12.22.15

The Collapse of Patent Maximalism: Latest Major Setbacks for Software Patents and Patent Trolls

Posted in America, Asia, Australia, Law, Patents at 11:14 am by Dr. Roy Schestowitz

Those seeking to perpetually maximise the scope of patents are now on the retreat

Maximum
Limits exist for a reason

Summary: Patent news from India, Australia, and the United States (the Eastern Texas district in particular), where parasites insist that when it comes to patents more is necessarily better

LEAVING the EPO aside for a moment, we now have time to cover the latest news about software patents in India, in Australia, and in the US. There is a worrisome growing movement, led to a large degree by large US multinationals (monopolistic corporations). It’s a distinguishable lobbying movement which is trying not just to preserve software patents in the US but also expand these to every country on this planet. It’s very clear to see what they are hoping to achieve and this has nothing to do with innovation, just protectionism and power.

“This is great for Indian software companies.”As mentioned here in recent days [1, 2], opponents of software patents now celebrate somewhat of a temporary/conditional win because, to quote the corporate media in India (Economic Times), “India’s patent office has put on hold guidelines that would have allowed patenting of software, a move being hailed as a big win for domestic startups.

“Indian law on granting patents for software is a gray area. In August, the Indian Patent Office interpreted the law to mean that if a software had industrial applications it could be granted a patent.”

“The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.”The war is not over, but opponents of software patents bought some time and it seems apparent that their arguments are gaining traction among Indian politicians. This is great for Indian software companies. The lobbyists of the likes of IBM and Microsoft won’t be happy about it; neither will their patent lawyers.

Speaking of patent lawyers (parasites in the area of patents and often the couriers of large corporations with monopolies to protect), watch what patent lawyers based in Australia write about patent scope today [1, 2]. They are clearly upset that it’s not easy to patent software and “computer-implemented business methods” — whatever this may actually be (a combination of two controversial patent domains a la Bilski case). They’re whining about this down under in Australia. Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.

“Curiously enough, no software developers who are Australian seem to worry; that’s because they don’t want such patents.”In other patent news, two patent aggressors, Apple and Ericsson [1, 2], decided to stop fighting. As WIPR put it (based on this original statement):

Technology companies Ericsson and Apple have agreed to settle all outstanding patent litigation.

In an announcement today, December 21, both parties said they have inked a global cross-licensing agreement that covers standard-essential patents (SEP) owned by Ericsson and Apple and “certain other patent rights”.

Further details of the agreement were not disclosed, but both parties confirmed the deal will last for seven years.

Ericsson has been using patent trolls as satellites or proxies — a fact that we have supported/backed with extensive evidence in many of our previous articles (even years ago). Speaking of patent trolls, they too have a lot worry about right now. Over in Texas, the breeding ground of patent trolls, not only was the troll known as eDekka [1, 2, 3] stopped but it was also forced to pay. As Boing Boing put it: “The plaintiff-friendly East Texas district has long been patent trolls’ favorite place to file lawsuits, but one was so egregious that even their favorite judge has not only shut it down, but awarded costs against them.”

“It shouldn’t be overlooked that the large majority of patent trolls are using software patents.”WIPR wrote that the “US District Court for the Eastern District of Texas has dealt a new blow to licensing company eDekka, ruling that a claim for a patent covering a computer storage system, which it asserted against more than 200 companies, was “objectively unreasonable”.”

The EFF has meanwhile asked the court to extend such judgments, saying in its announcement: “Getting a patent demand letter from a troll can be a scary experience. The letters often include a lot of legal jargon, not to mention a patent that is often impenetrable (at least, not without hiring an expensive lawyer to translate it for you).

“But suppose you are concerned that the patent may impact your business. After trying to reach an agreement with the patent owner and failing, you may be told by your lawyer that the next step is to go to court.”

It shouldn’t be overlooked that the large majority of patent trolls are using software patents. By eliminating software patents we can actually help stop a lot of the trolls. Obsessing over trolls alone sometimes misses the point. We’ve repeatedly stressed this key point for at least half a decade now.

12.16.15

Great News: Software Patents Stopped in India, For Now…

Posted in Asia, Law, Patents at 5:06 pm by Dr. Roy Schestowitz

Indian building

Summary: Activism and advocacy by groups including the Software Freedom Law Center (SFLC) in India helped stop the software patents lobby in this world-leading software giant (with a population exceeding one billion people)

TECHRIGHTS has been writing about software patents in India for nearly a decade and wrote a lot about the subject this autumn, due to a creeping threat that software patents were rearing their ugly head again.

“This comes to show that no matter how desperate and helpless one feels, it’s never too late to take action and achieve something.”Thankfully, based on this new article in English (not Hindi/Tamil), the revised guidelines for software patents have been put on hold. This is excellent news and credit goes to “start-ups and software product lobbies like iSpirt and Software Freedom Law Center” (to quote the summary).

This comes to show that no matter how desperate and helpless one feels, it’s never too late to take action and achieve something. Let’s see if this effort as a whole is put the rest, leaving India with its current (and relatively sane) patent law. Those who lobby for software patents in India are multinationals like IBM and their patent lawyers. They want more for themselves and less for everybody else. They want an impoverished India.

“Everyone in India — not just software developers — should work hard to avoid and actively prevent patenting of software.”Over in the US, patent lawyers 'magically' only notice patent cases when software “may” actually be found valid, for a change. Here is the latest example of this. Who’s behind it? CAFC of course, the biggest booster of software patents. To quote The Recorder: “The Federal Circuit’s newest member, Judge Kara Stoll, sounded ready to side with the owner of a patent on lip-syncing technology used by animators, suggesting a break, if not a reversal, of the rout.”

India (and incidentally also Europe, which is being harmed by Benoît Battistelli’s EPO) should learn from the mistakes of the US patent system, e.g. patent trolls infestation. Everyone in India — not just software developers — should work hard to avoid and actively prevent patenting of software. India is a software powerhouse whose income and commonwealth depend on liberal development atmosphere; letting companies like Microsoft and IBM amass thousands of software patents in India helps make India digitally dependent on foreign monopolists that India does not need anyway.

12.15.15

Battistelli’s Vision of UPC is Closer Contract With Major Applicants (Abroad), Contrary to European Interests

Posted in Deception, Europe, Law, Patents at 3:38 pm by Dr. Roy Schestowitz

Who is this man kidding anyway?

Benoît Battistelli quote

Summary: Benoît Battistelli’s EPO is adopting an imperialistic approach that would allow foreign companies such as Microsoft and Apple to issue Europe-wide injunctions, claim more in ‘damages’, pressure for higher ‘royalties’, and so on (but it’s all for EU-based SMEs, honest!)

THE EPO does not surprise us when it openly lobbies for UPC. Just over an hour ago the EPO published this self-promotional (for management, not examiners or boards) nonsense. (warning: link to epo.org)

WIPR already has some coverage which says nothing special or new; it presents little except only one side’s views. Battistelli is parroted and views are also offered from “Graham Burnett-Hall, partner at Marks & Clerk, a firm of patent and trademark attorneys” (conspicuously absent is a public interest group or an outsider’s representative).

“What’s amazing here isn’t that the EPO lobbies for the UPC but that the public is kept totally in the dark and the EPO gets away with it.”As expected, patent maximalists and patent lawyers like IP Magazine are happy about the UPC (a tax on everything in Europe, including more lawsuits and injunctions). They call this “[a] ‘Hugely significant’ occasion for EU #patent system after preparations for the unitary patent completed” (UPC is a case of fast-tracking things before the public even gets the chance to vote).

UPC ties into ever broader things like TPP and TTIP. It’s a sort of globalism poorly implemented so as to punish the poor and benefit only those who are already rich and still getting richer, by redesign of laws to annul their tax, impede their competition, give their corporations sovereignty over government etc.

What’s truly amazing here isn’t that the EPO lobbies for the UPC (we have seen that for quite a while and reported it on occasions) but that the public is kept totally in the dark and the EPO gets away with it. It’s as though Europe is occupied and oppressed by a group of people. This isn’t a functioning democracy. ‘Patent’ offices that lobby aren’t really patent offices but an entirely different kind of monster. On social media I’ve joked earlier on: “What is this lobbying firm called EPO? Oh, wait, it’s not a lobbying firm per se. It’s the European Private Office. A 'public' service…”

We hope that even existing staff of the EPO can see why this is plainly unrest and morally wrong. The EPO isn’t supposed to decide how Europe is run; instead it should be the public deciding how Europe is run and how the EPO is run, under the control of European politicians; everything is in reverse right now, so the tail is effectively wagging the dog.

“Look what a mess has been left here. Battistelli fights everyone and everyone now fights back against him.”Earlier today we showed that even well-known European patent lawyers were getting fed up with Battistelli. Well, the European Patent Lawyers Association (EPLAW), which previously expressed concerns about Benoît Battistelli’s EPO [1, 2] and even cited Techrights for support, now speaks of the “Structural Reform of the Boards of Appeal”. Guess whose side EPLAW it taking. The following statement is self explanatory: “Before the meeting of the AC in which the President’s proposal will be discussed in the course of this week, the Association of the Members of the Boards of Appeal (AMBA) raises its voice and makes even more critical comments. According to AMBA, the new proposals manifestly take no account of AMBA’s submissions, despite assurances that they would be reflected in any proposal. Furthermore, they take no account of the comments of the AC members in the Council meeting of March, or of the user survey results; rather it misrepresents them. All the changes are said to be detrimental to both actual and perceived independence. Instead they place considerably more power in the hands of the President of the Office.”

Look what a mess has been left here. Battistelli fights everyone and everyone now fights back against him. This is very poor leadership and any remnant of reputation that the EPO gained for several decades is being lost in just a couple of years. Earlier this evening the FFII’s Benjamin Henrion wrote: “Well EPO is not responsible in front of a court, so there is no procedure if the EPO does not work. That’s why it needs to be dissolved, or reintegrated in other democratic structures.”

Looking at Henrion’s old site, Digital Majority, we find this old news pick saying that the “EPO staff blame Admin Council for EPO woes”. To quote what was there at the time:

Last week a dramatic EPO document fell into our hands. “Governance of the EPO: a Staff Perspective” documents internal conflicts in the EPO, staff versus management, in which the Administrative Council (AC) and President have almost totally lost the confidence of the EPO staff. In 2004, just 8% of staff expressed trust in the AC, and 28% in the President. In 2006 this figure had fallen to 4% and 7%.

The report – written by staff representatives – avoids criticism of the President, and focuses its ire on the Administrative Council, citing the conflict between national and personal interests, and those of the EPO.

Looking at a related site for a submission of the EPO representative on the Commission’s ICT Task Force report we have:

Raise awareness of the patent system among SMEs: The EPO may develop a project which aims at increasing the understanding and the use of IP by SMEs. The main concept entitled “train the trainers” is to provide trainings for specific target groups in the field of protection and exploitation of IP and IP management, with the main focus given on patenting. The relay done by the staff already working in direct contact with SMEs will ensure multiplier effects of the training given and SMEs will be expected as final recipients.

Well, we now know, thanks to a large degree to leaks (from several simultaneous sources), that the EPO does not give a damn about European SMEs. It cares neither about Europe nor SMEs as it now gives priority to foreign giants (hence the correction of Battistelli’s new statements at the top). This is what happens when the EPO is operated outside democratic controls. A serious overhaul is well overdue; the UPC isn’t it. The UPC is further escalation in the wrong direction. We fear that some people inside the EPO still believe what the EPO's management tells them about the UPC (or what patent lawyers tell them). Does anyone still believe the EPO’s management?

11.21.15

Washington Post Only Entertains Debate About Patent Trolls (But Not Patent Scope) Whilst US Lawyers Trick the System to Patent Software

Posted in America, Law, Patents at 9:59 am by Dr. Roy Schestowitz

Because Amazon, founded by Jeff Bezos, likes software patents

Washington Post-Amazon

Summary: The Bezos-owned Washington Post continues to help those who wish to eliminate patent trolls (which bother Amazon amongst other large conglomerates) but remains void of any coverage about patent scope, including software patents that patent lawyers work so hard to defend

Days after the Washington Post, a generally well-regarded journal of record (with government connections and ownership by the CIA’s ‘Webmaster’), had published Bessen's and Meurer's piece (potentially targeting US politicians) it also published an article by Julie Samuels, whose general thesis is similar to that of Bessen. The headline was composed of two sentences and said: “Patents are supposed to encourage innovation. Without reform, they’ll do the opposite.”

“Patents are supposed to encourage innovation. Without reform, they’ll do the opposite.”
      –Julie Samuels
“Patent reform,” explained Samuels, “isn’t the kind of topic you’d expect to get much attention. It’s really boring — and I mean deep in the weeds wonky and boring. But start-ups and small inventors are now so threatened by people exploiting loopholes in the patent system that Congress must now step in and take action.

“That’s why patent reform moved from the back halls of Congress to front and center of policy debates. It’s all thanks to the emergence of the “patent troll” — an entity that doesn’t produce things based on its patents but instead uses patents to sue (or threaten to sue) others for infringing them.”

As we noted the other day, the media and the politicians in the US hardly even mention patent reform anymore. Since returning from holidays/recess the subject has been largely buried. Patent lawyers in particular aren’t quite so interested in such change, which might only harm their parasitic business.

“Don’t think for a second that the corporate media is now favourable towards reformists.”Techrights has been generally supportive of Bessen, Meurer, and Samuels. They are well-meaning people and they aren’t necessarily going to gain (financially or otherwise) from the reform. They just want a functional patent system that rewards and encourages real innovation. A lot of patent systems, including today’s EPO and USPTO, view themselves as money-making machines. They don’t seem to care at all what their grants are causing both financially and technologically (embezzling the poor and retarding innovation). There are also ethical considerations, such as killing of the poor (because drugs are priced way out of reach, owing to patent monopolies and artificial price inflation by monopolists).

Don’t think for a second that the corporate media is now favourable towards reformists. As we have said here for years, patent lawyers are winning this battle by virtually flooding the media with their talking points, pressuring politicians with their lobbyists and so on. The owner of the Washington Post is himself a big part of this problem, so don’t expect the corporate media to speak for the people. It speaks for large corporations and the people who own these corporations. Some corporations want to stop trolls, and trolls only (usually the small ones, not themselves). They’re not interested in debates about patent scope, for instance (the owner of the Washington Post brings software patents even to Europe).

Speaking of software patents, Seyfarth Shaw LLP (i.e. patent lawyers) only ever covers Alice v. CLS Bank by cherry-picking cases where the case leaves software patents in tact. Here is the latest example of this pattern (article by Patrick T. Muffo).

“They are trying to work around the rules and maybe bamboozle/trick patent examiners, if not just offend their intelligence in order to get their way.”Jacek Wnuk from Lewis Roca Rothgerber (lawyers again) is again giving tips [1, 2] like “Strategies to Increase Probability of Obtaining a Software Patent”. They are trying to work around the rules and maybe bamboozle/trick patent examiners, if not just offend their intelligence in order to get their way. Joe Bird from Bradley Arant Boult Cummings LLP does the same thing and he has just reposted in another lawyers’ site some of his ‘tricks’.

To quote some examples of ‘tricks’: “First, any invention or patent claim that sounds like it might be interpreted as falling under one of the four categories of abstract ideas identified above should be approached by a patent practitioner with careful eye toward addition of inventive concepts to the claims.”

“…a patent practitioner can effectively boost his/her odds of obtaining and keeping an issued patent at the drafting, prosecution, and litigation stages.”
      –Patent lawyer
So what they are saying is that it’s merely the art of misleading with words, not actually changing what you wish to be covered by a patent. In conclusion it says: “Successfully patenting processes and systems with software elements can often be difficult due to the continuing vagueness surrounding the “abstract idea” patentability exception and the newer “something more” inquiry, but can be very rewarding if the patent ultimately issues, paving the way for paid licensing agreements, cross-licensing agreements, and infringement protection. By keeping a close eye on cases decided by the Supreme Court and Federal Circuit, and on examples and guidance provided by the USPTO, a patent practitioner can effectively boost his/her odds of obtaining and keeping an issued patent at the drafting, prosecution, and litigation stages.”

When will media like the Washington Post begin a serious debate about patent scope? When will it stop pushing the agenda of large tax-dodging corporations that not only patent software in the US but also in Europe? When will people realise that the corporate media isn’t actually interested in a real patent reform but just like Les Échos would rather protect those in power?

“Amazon Chief’s Deal [to buy Washington Post for $250 million] Doesn’t Involve Online Retailer but Shows Media Power Shift [to incredibly rich people]“

Wall Street Journal, owned by another billionaire, Rupert Murdoch

11.14.15

Firms of Patent Lawyers Continue Their Battle to Restore Software Patentability in the United States

Posted in Law, Patents at 10:36 am by Dr. Roy Schestowitz

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

Sitting lawyer

Summary: The biggest parasites in the software domain (not patent trolls but lawyers who help instantiate weapons for patent aggressors large and small) are looking for new and ‘creative’ ways to bypass the rules

THE USPTO and SCOTUS have both come to terms with the fact that software patents aren’t a defensible feeding frenzy. The EPO will need to realise this too, but that’s a story for another day. Is started with Bilski versus David Kappos (a software patents booster) and now we have Alice, which has vast implications for every company which still believes in software patenting as a business strategy (Trading Technologies for instance).

Jacek Wnuk has this new article in lawyers’ media. He explains the history of software patents and then offers “strategies” for getting them. Patent lawyers generally like giving tips to other patent lawyers on how to cheat the system and patent software even when there’s precedence against them. Here is Bradley Arant Boult Cummings LLP doing it. Watch them complain about the status quo: “One of the main functions of law should be to provide relatively predictable rules that allow people to order their affairs with as much certainty as possible. The development of patent law in the field of software, however, has not provided the relative predictability that minimizes unnecessary patent prosecution and litigation costs. The courts have not given much guidance on what constitutes an “abstract idea”2 but have made “abstract idea” one of the key criteria for subject matter eligibility under 35 U.S.C. § 101, and this situation has produced real-world detriments. Innovators waste money and time either seeking patents they should not seek or defending themselves from patents that should be invalid. This article proposes a new rule for software patent eligibility that could help b1ing more clarity to the field.”

What they mean to say is not “more clarity” but more business for themselves. It’s about money. Some companies ceased pursuing patents on software, so patent lawyers already feel the pinch.

Looking more closely at Wnuk’s long article, here is how he framed the situation: “The Supreme Court finally returned its attention to the “abstract idea” question by affirming its importance in a narrow 2010 ruling rejecting a patent application directed to hedging energy investment risks, Bilski v. Kappos, 561 U.S. 593 (2010). In 2014, the Supreme Court modified the “abstract idea” subject matter eligibility rule by asserting that an abstract idea could, in fact, be patentable, so long as the patent application in question claims “significantly more” than the abstract idea, which the Court decided was not present in several patent applications directed to formulation and trading of risk management contracts. Alice Corp. v. CLS Bank International, 573 U.S. ___ (2014).”

Fast-forwarding to 2015, Wnuk writes: “For patent practitioners, the Supreme Court’s Alice decision produced more questions than answers, as the Court expressly declined to define “something more” and stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category.”

“The USPTO stepped in by publishing two sets of “abstract idea” examples based alternately on caselaw and on hypothetical claims. The first set of examples was published in January 27, 2015 (“Abstract Idea Examples”, Examples 1-5) and the second on July 30, 2015 (“July 2015 PTO Update Appendix 1: Examples”, Examples 21-27).

“The table below identifies and categorizes the examples provided by the USPTO in January and July of 2015 based on their patentability or unpatentability, and based on the reasoning provided therefore. Some examples are categorized under multiple columns where the USPTO provided multiple claims with different conclusions.”

We wish to highlight the fact that patent lawyers are big enemies here. They are trying to find clever new ways to perpetuate software patentability, defying a high court’s decision and also ignoring what software developers actually want.

Patent lawyers are — bluntly speaking — parasites.

“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio”

Marshall Phelps, Microsoft

11.12.15

Stop Software Patents to Put an End (or a Near End) to Patent Trolls

Posted in Law, Patents at 9:17 am by Dr. Roy Schestowitz

It boils down to law, not lawyers whose principal client is themselves

Law library

Summary: Commentary about the software patents and patent trolls debates, which are inherently similar and very highly — not just intrinsically — correlated

ANOTHER day goes by and another law firm, Seyfarth Shaw LLP in this case, writes about Alice — or a high-level decision that led to mass invalidation of software patents in the United States.

“They might even have to change their career and do something practical, not parasitic.”The patent lawyers are rightly concerned about the fate of post-Alice lawsuits. To them, the patent lawyers, this is a potential disaster. They might even have to change their career and do something practical, not parasitic. As the lawyers put it: “The Supreme Court’s Alice decision clearly indicated a dramatic shift in the way software patents are treated by the courts and reduced software patent litigation in the process. One defendant took this a step further and moved for attorneys’ fees against a patent owner – simply for continuing to assert a software patent post-Alice.”

That would further contribute to reduction in litigation. To lawyers, business means lawsuits and armament for lawsuits.

Another law firm, and no ordinary law firm (but a very loud proponent of software patents), has become exceptionally sceptical of Mark Cuban’s position on software patents [1, 2, 3, 4] — a position in which he put money, with the aim of eliminating “bad” patents or software patents (or trolls, depending on what the people he has hires claim to be standing for on some given day at the EFF).

Mr. Cuban is nowadays being mocked for his views on software patents — views which patent lawyers could barely ever tolerate. They view Mr. Cuban as a threat. According to an E-mail interview, Mr. Cuban “wrote software for 10 years,” so he comes from a position of understanding of the underlying process and thus he can explain why patents are not suitable for this domain, namely software. To quote some of the parts about software patents:

QUINN: In the past you have said that software patents should not exist. I have no doubt that is your honest opinion, but I wonder why you single out software patents in particular? Whether a process is carried out in software versus being carried out in hardware is really a design choice. Why should processes carried out by hardware be treated differently than those directed by software?

CUBAN: Code is code. Where it runs doesn’t matter. So it’s not different. I wrote software for 10 years. Not much, if anything, is completely original in software. Like Jobs said, it’s all a remix.

[...]

QUINN: I assume if you could make one change to the patent system it would be to eliminate software patents. Aside from the elimination of software patents, if you could make one other change to the patent system or patent litigation system what would that change be and why?

CUBAN: Getting rid of software patents or at worse limiting them to 5 or 7 years is a huge step forward. After that, if you don’t utilize the patent in a product or service, somewhat similar to how a trademark works, you lose it. I would also disallow patents created without knowledge of the other. If multiple people INDEPENDENTLY come up with the same or comparable idea within a given time frame then to me, it can’t be original.

In other news, software patents are again being used by a patent troll (the trolls’ weapon of choice is software patents) and the number of defendants keeps growing, especially in the trolls' capital, the Eastern District of Texas. To quote the article: “Fresh from suing DraftKings, Inc. and FanDuel, Inc. in the Eastern District of Texas over purported patent infringement of its computer-based interactive gaming systems, Virtual Gaming Technologies, LLC has gone on a full-court press against several more entities, most notably the NFL.

“Virtual Gaming launched complaints accusing DraftPot, LLC; DraftDay Gaming Group, Inc.; ESPN Internet Ventures and NFL Enterprises, LLC on claims the defendants copied the technologies and inventions in connection with United States Patent Numbers 5,860,862 (“the ‘862 patent”) and 6,193,610 (“the ‘610 patent”) “in a relentless effort to expand its market share and profit from the use of infringing” the aforementioned gaming systems.”

How does this benefit innovation? If there were no software patents, this troll would not have existed.

Here is another new article on the subject:

Patent trolls: Extortion at the expense of innovation

An unforeseen burden has plagued Connecticut businesses over the last decade. Between 2005 and 2015, a practice known as “patent trolling” has increased fivefold.

Patent trolls use vaguely written patents to threaten or file frivolous lawsuits against their victims, mostly small and medium-sized business owners. Then they take advantage of the extremely high cost of patent litigation to force settlements, even when the victim knows they’ve done nothing wrong.

What a lot of these writers and groups fail to grasp is that without software patents a lot of these trolls wouldn’t even existed in the first place. The nature of software development is unique because of the ease and low cost (usually %0) associated with copying. It has been estimated that around 70% of troll lawsuits involve software patents.

The United States need to get its act together and axe software patents formally. That would, in due course, help drive patent trolls out of business.

11.06.15

So-Called ‘Trade’ Treaties Like TPP and TTIP Threaten to Legalise Software Patents in Europe and Even Effectively Ban Software Freedom/Copyleft

Posted in GPL, Law, Patents at 6:07 am by Dr. Roy Schestowitz

Trading the world for money and power

World trade

Summary: Revelations about the world’s largest secret collusions teach us about what rich and powerful people have in store for software patents, Free/libre software, and digital sharing economies

TECHRIGHTS does not and has not written much about so-called ‘trade’ agreements such as TPP and TTIP (there are several more, usually affecting other countries/continents). It’s not because the subject is not important but because we must focus on a narrower spectrum of topics, including the European UPC. News about ‘trade’ agreements usually just ends up in our daily links, under “Leftovers”, so it’s not being ignored.

We’re living in an age when if those in power commit crimes against millions of people (not just wars of conquest abroad but also domestic wars on the local population with its diminishing rights), they just simply rewrite the law to legalise these crimes after the act (e.g. CISA and Investigatory Powers Bill) and if there is something that bothers them (e.g. law-abiding citizens who are activists) or threatens their monopolies (anonymity-wielding protesters, software freedom etc.), they will simply try to demonise or altogether ban those things. It means we must always stay very vigilant and fight back, at the very least by informing peers.

It is becoming increasingly hard to overlook or ignore the impact of these aforementioned ‘trade’ agreements because the EPO‘s President meddles in them, as we showed less than a couple of days ago.

Benjamin Henrion, a longtime activist against software patents (especially in Europe), has noticed some rather disturbing things in the relevant TPP chapters, which Jamie Love has looked at and explained.

“This looks like it was composed by lobbyists of Free software foes, e.g. Microsoft.”“TPP chapter on software presumes software is patentable in the first place,” Henrion noted, pointing to this curious article titled “TPP has provision banning requirements to transfer or or access to source code of software”. In section 4 it says: “his Article shall not be construed to affect requirements that relate to patent applications or granted patents, including any orders made by a judicial authority in relation to patent disputes, subject to safeguards against unauthorised disclosure under the law or practice of a Party.”

This looks like it was composed by lobbyists of Free software foes, e.g. Microsoft.

“The TPP chaoter on software is basically trumping licences like the GPL with contract law,” Henrion later added. “Am I right?”

“Software patents boundaries will be challenged through ISDS courts and TPP,” Henrion added and Glyn Moody, who has become quite an expert in this area having covered it for years, responded with “same will be true under #TTIP: will be effectively impossible to remove *any* area from patentability – eg #swpats [software patents].”

The article in question is this one, which says: “Instead of combatting the ability to bring cases such as Eli Lilly’s, the TPP’s investment chapter invites them. Any time a national court – including in the U.S. – invalidates a wrongfully granted patent or other intellectual property right, the affected company could appeal that revocation to foreign arbitrators. The new language would also make clear that private companies are empowered by the treaty to challenge limitations and exceptions like the U.S. fair use doctrine, or individual applications of it. Adoption of this set of rules in the largest regional trade agreement of its kind would upset the international intellectual property legal system and should be subject to the most rigorous and open debate in every country where it is being considered.”

There is also this about TRIPS: “The investment chapter provisions on prohibited performance requirements includes a number of exemptions for intellectual property rights, compulsory licenses to patents under Article 31 of the TRIPS or for copyright, or remedies to anti-competitive practice, that protect U.S. state practice in those areas.”

It is imperative that people everywhere become familiar with these to-be-signed treaties before they are signed (if ever). It’s like ACTA from the back door and even if corporate media doesn’t write so much about it, this doesn’t make it any less important or urgent a matter. It’s often that case that the corporate media covers up (if it covers at all) and misleads the public about these treaties. At the end of the day we know who wants to see these treaties passed and at whose expense these can become a reality. It’s class warfare.

“There’s been class warfare for the last 20 years, and my class has won.”

Warren Buffett

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