Summary: The collection of opinions from notable figures and sources that analysed the CAFC decision regarding a software patent in the US
Excessive optimism in NZ will do not good for the cause of software patents elimination. Software patents have been weakened in NZ, but they are not dead. The same is true for EU. Loopholes remain, and they remain by design.
A couple of days ago we mentioned the CAFC (US) ruling/s, noting that it helps legitimise the status quo because mixed messages are sent, offering no decent clarity. It was a missed opportunity. CAFC was not only lobbied by multinational corporations but also front groups like the Business Software Alliance (BSA), which is funded by Microsoft for lobbying (for software patents of course). Here is the original ruling/s
[PDF] (text version here). Grant Gross wrote in IDG that the ruling/s could be the end of software patents. It could, but won’t. “The case generated briefs from Google, Facebook, Newegg and software trade group BSA, with some tech companies arguing the Alice patents should be invalid,” he writes. And based on this report, perhaps the headline in particular, Nicolas Charbonnier wrote: “Most Apple and Microsoft patents are hereby invalidated and worthless. Have a nice day.”
The article from Groklaw was more in-depth than most and it transcribed /extracted the content of the PDF, making it more accessible and searchable. Pamela Jones wrote: “I remember the first time we wrote on Groklaw that software and patents need to get a divorce. Remember? So long ago, and how everybody laughed at us. I remember that too. I am thinking about Apple and Microsoft and all the software patent bullies. Well, let’s not get ahead of ourselves.”
Restrained optimism is better than excessive optimism, but let’s survey some other optimists. Jones wrote by citation/blockquote, attributing Moore: “Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents” (that is why it’s such a big case).
Brian J. Love, a Law Professor at Santa Clara University, said: “Ultimate analysis of CLS Bank: Back where we started, in that panel draw still determines who wins 101 appeals in software cases.”
Poul-Henning Kamp, “Author of a lot of FreeBSD, most of Varnish and tons of other Open Source Software” (to use his own description of himself), said it “Looks a lot like the end of pure software patents to me” (source).
The Oregonian correctly pointed out that the court was split on the issue. To quote: “The nation’s top patent court issued a deeply divided opinion Friday on how to determine whether software is eligible for legal protection, reflecting the broader debate that has split the computer industry.
“The U.S. Court of Appeals for the Federal Circuit in Washington, which handles all patent appeals, issued a 135-page decision by 10 circuit judges that included five viewpoints and “additional reflections” from Chief Judge Randall Rader.”
AOL said that the “Federal Circuit Rules Software Invention Unpatentable” and this is inaccurate if applied to the whole, in generality. This gives false expectation that something will happen despite there being no major change.
The bottom line is, as the EFF points out, patentability of software needs to be addressed by the SCOTUS again. The decision there needs to be less than a two-way tie this time around. █
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When corporations are allegedly people and corporate lawyers — people whose professional agenda is to prop up ‘IP’ — are writing the laws
Summary: No signs of real change because hearings involve lawyers of large corporations rather than representatives of public interests
The USPTO remains a farce of a system which strives to assimilate patent offices all around the world to itself. It needs to be stopped or else we will all face the consequences, be those consequences visible or not. A lot of what we buy costs little to manufacture, but since we pay patent tolls prices can be inflated considerably.
Groklaw writes about the House hearing we were referring to the other day. It is a debate for lawyers only, based on this summary which states:
Thursday was the hearing on abusive patent litigation by the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet. By abusive patent litigation, they mean trolls — or as one calls them when one holds one’s pinky genteelly in the air, NPEs, nonpracticing entities. I put out a call for one of Groklaw’s own to attend and let us know what happened. Webster was able to attend, and he has provided an eyewitness account for us in his own inimitable style.
The chairman of the hearing, US Representative Bob Goodlatte, opened with a statement, as did several members of the subcommittee with a little speechifying of their own, and then the invited witnesses of the day each told about their company’s experiences with abusive litigation, except for one, a lawyer whose firm represents trolls and who opined that the patent system is working well overall. If you click each of the following names of the witnesses, you can download as a PDF the written testimony each provided in advance:
* Mr. Mark Chandler, Senior VP, General Counsel and Secretary, Cisco Systems, Inc.
* Ms. Janet L. Dhillon, Exec. VP, General Counsel and Secretary, J.C. Penney Company, Inc.
* Mr. John G. Boswell, Sr. VP, Chief Legal Officer and Corporate Secretary, SAS Institute, Inc.
* Mr. C. Graham Gerst, Partner, Global IP Law Group, LLC
* Mr. Philip S. Johnson, Sr. VP and Chief IP Counsel, Johnson & Johnson
* Mr. Dana Rao, VP and Assoc. General Counsel for Intellectual Property Litigation, Adobe Systems, Inc.
Mark Bohannon, Red hat’s Vice President of Corporate Affairs and Global Public Policy, wrote about this hearing as follows:
As President Obama pointed out in February, the patent reform legislation Congress passed several years ago hasn’t “captured all the problems” and the bill “only went about halfway to where we need to go.”
“[Patent trolls] are a classic example. They don’t actually produce anything themselves,” the President said. “They’re just trying to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.”
It is important to keep contacting policy makers on this important issue. If you haven’t done so, let the members of the Judiciary Committee in both the House and Senate hear from you. Your voice is important and can make a difference.
Your voice is important and but unfortunately you cannot make a difference. Why? Because unless you have the name of some giant corporation next to your name and you claim to have a degree in law, these people will treat you like dirt and will never give you a platform, let alone any influence.
The FSF is about to have a more suitable public event about patents — one where actual scientists participate. Here are the details which the FSF published this week:
Chicago, IL – Room 1040, 10th floor, Power Rogers & Smith Ceremonial Courtroom, Philip H. Corboy Law Center, 25 E. Pearson St., Water Tower Campus, Loyola University Chicago
Going back to Groklaw, Posner, a critic of the patent system and of software patents in particular [1, 2, 3, 4, 5], is mentioned in this article which alludes to the patent fight against Android:
Motorola has now filed its response to Apple’s appeal of Judge Richard Posner’s decision to toss out Apple’s claims against Motorola (and vice versa), and it adds its own cross appeal [PDF] on the vice versa part — especially challenging the implication of Judge Posner’s ruling that there can be no injunctive relief for FRAND patent owners ever, as a categorical rule.
A blanket denial of the right to seek injunctive relief, Motorola argues, violates patent law, contradicts eBay v. MercExchange [PDF], where the US Supreme Court held that it was error to come up with a categorical rule that “injunctive relief could not issue in a broad swath of cases”, and violates the original expectations of donors of technology to standards bodies. In fact, it says any such rule would violate the US Constitution, which provides that Congress shall have power to secure exclusive rights for inventors, and in the Patent Act Congress came up with, it says every grant to a patentee includes the right to exclude others. Motorola asserts that it has never waived its rights to injunctive relief and states that there is no language in its ETSI agreements requiring it to do so. Motorola argues that there should continue to be a case-by-case analysis under eBay, with judges having discretion to make such decisions based on the particular facts of each case.
Fair warning, though: the PDF is 737 pages. The actual brief is one-tenth that, 73 pages, so I’ve done that part of it for you as text. The rest is a collection of patents at issue, judge’s orders in this case, and one from a related Apple v. Motorola litigation in Wisconsin, which is where this case began, before being transferred to Illinois and Judge Posner.
Posner, a US judge, has so far been the exception when it comes too his views on these patent battles and software patents, which he opposes. The house hearing had nobody like Posner in it; it was just a bunch of lawyers bickering and gloating over patents.
Here is LG using patent FUD against its biggest national rival. It’s about software patents:
The Samsung Galaxy S4 possibly uses a new type of eye-tracking software that LG believes violates one of its own patents.
LG on Tuesday claimed that its South Korean competitor may have violated the company’s patent which pauses video clips when a user turns their head away from the video they are watching.
During the Samsung Galaxy S4 event last week the company announced the new feature as one of the smartphones best new options.
Samsung however was very clear in stating that it does not actually use eye-tracking technology but rather facial recognition software.
Apple too is reportedly being hit by patents relating to software:
The Wall Street Journal reports that patent holding company Intertrust Technologies Corp. has filed suit against Apple, accusing the Cupertino-based company of infringing on 15 of Intertrust’s patents related to “security and distributed trusted computing.”
Publications like the Wall Street Journal view the patent problem as trolls hurting large corporations such as Apple. But it’s not the real issue. It’s just a symptom of the real issue. The multinational corporations try to change the law to benefit corporations, not trolls and not anyone else. People should be outraged by this. █
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Summary: Australia and New Zealand are having software patents phased in by multinational corporations in the same way as in Europe
THE PRESIDENT of the FFII has resumed keeping track of the Unified Patent Court, which would affect us here in the UK, amongst other countries. This disturbing new post says that “Vince Cable signs Unified Patent Court agreement in Brussels: patent attorneys call for a proper economic impact survey before the agreement is ratified”.
Gérald Sédrati-Dinet, a longtime opponent of the Unified Patent Court, wrote that “Only Gandalf can protect Europe from the Unitary Patent”. He says that “with #UnitaryPatent EU has waived even more prowers to #EPO,” which is something that Glyn Moody finds “really depressing” and “fortunately,” he says, “I’m still convinced that #UnitaryPatent will never ever enter into force…”
Sédrati-Dinet worried when “@montebourg ha[d] signed agreement on a #patent court exposing French firms to the threats of #patentTrolls” and Mark Summerfield said that “Sir Robin calls claims that European #patent would save money ‘lies’, based on assumption that you would patent across all Europe.”
André Rebentisch, also from the FFII, wrote: “Berlin Airport everywhere: Business Europe says let’s adopt #Unipat Court in neglect of technical difficulties http://www.europolitics.info/business-competitiveness/patent-if-the-system-is-not-operational-it-won-t-be-used-art348322-45.html …”
Separately he wrote: “Yesterday speech of Commissioner Michel Barnier on unitary patent http://europa.eu/rapid/press-release_SPEECH-13-132_en.htm?locale=en …” (Barnier is one of the principal architects and boosters of this whole mess).
Here is part of Sédrati-Dinet’s detailed analysis of this subject:
Now that, despite all legal, political and economic issues, the European Parliament has approved the regulation on the unitary patent, just as anticipated, it is time to move away from the legislative battle. The unitary patent has still a long way to go before becoming applicable. It is likely that it will be nothing more than a stillborn child. Meanwhile, the threat is hovering over European innovation and growth. It is time now to see whether and how Gandalf’s magical powers can overcome dark forces of Mordor.
New Zealand has been following the same trajectory as the EU because the “forces of Mordor,” as Sédrati-Dinet calls them (referring perhaps to multinationals), sought to make the 'as such" trick a matter of law and then, through trade agreements (so-called uniformity and unification) they try to export/import primarily US-based software patents. It is the same in Australia, which has gone along a similar route (being somewhat of a US client state, as the Julian Assange story helped show).
Here is a noteworthy new article about what happens in New Zealand:
Recently I wrote about looming changes to New Zealand’s patent laws that could have a dramatic and lasting impact on the future shape of New Zealand’s tech sector.
The hope held out by many was that software would be excluded from being covered by patents, however it now appears that the government is likely to change patent legislation so that software can be patented.
Even though the Commerce Select Committee and numerous industry experts have all recommended that software be excluded from patentability, amendments made to the bill after pressure was placed on the government could be sufficiently vague that software could end up being patented.
Yes, just like here in Europe. Be prepared for NZ and Australia to sign some more ‘free’ ‘trade’ agreements to help pave the way to a global patent system where software is patentable (as covered here many times before). That is, unless we rise up and stop this global, as in worldwide, madness… █
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Summary: New lows for the USPTO as public opinion shifts against it and patent lawyers, the rising robber barons in technology, struggle to keep the status quo
The patent lawyers crowd finds that “Micron has just received its own patent covering a “system and method for controlling user access to an electronic device.” U.S. Patent No 8,352,745 issued in January 2013 but claims priority to an original application filed in February 2000 and lists Jim McKeeth as inventor.”
But Apple insists it has invented the concept.
Pamela Jones suggests: “This is why the solution to the software patent problem is to get rid of all software patents. We can’t just have the USPTO pick better ones to grant while denying the silly ones. Clearly, they have no clue which is which.”
The USPTO is under a lot of pressure these days and it does feel the heat based on its actions. Another lawyers’ site touches the subject by saying that “Fed. Circ. Aims For Clear Rules On Software Patents”. Mark Cuban’s views on the subject are quickly spreading to more outlets:
Outspoken billionaire Mark Cuban is not happy with the current state of the American patent system and he is speaking out against its current state.
In an interview with TechCrunch Cuban says the current patent system is full of “dumb*ss patents [that] are crushing small businesses.”
Mark Cuban feels so passionate about his patent fight that he has teamed up with the Electronic Frontier Foundation to “eliminate stupid patents” that leave company’s shelling out millions of dollars for the right to use basic technology advances.
According to Cuban he is simply trying to “get the message to politicians that patent trolls are costing taxpayers… and small businesses money that could otherwise be used for innovation and creating jobs.”
Cuban [1, 2, 3] gave money to the cause, which he deserves credit for. He did this out of self interest, but many share his pain, so his battle of self interest is the opposite of patent lawyers’.
Over in New Zealand, Matt Adams from pro-software patents firm AJ Park [1, 2, 3, 4] keeps promoting the other side’s ’cause’ (so-called “patent buff” is just a patent profiteer) because just some months ago when
Craig Foss stuck his nose in matters he does not seem to understand the lawyers thought they had gotten the upper hand. Let’s fight to ensure they never get their way. █
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Summary: Action against patent trolling seems imminent, but the behaviour of companies like Apple is largely overlooked for now
Parasitical elements in a government-backed scheme are being tackled by the government, which is still investigating the matter. Apple has been suing Android, which it views as a top rival. The aim is to tax (make more expensive) or castrate Android. As one report put it last week:
At the end of August, Apple Inc seemed on top of the world. Fresh off a resounding $1.05 billion U.S. legal victory over arch-foe Samsung Electronics Co Ltd, the company was gearing up to launch the fifth iteration of its iconic iPhone. Just a week prior, its market value had surpassed Microsoft Corp’s and it became the most valuable technology company in history.
Things have gotten worse for Apple since then. Samsung phones easily outsells Apple ones and Apple’s public identity, that of somewhat of a troll, did its reputation a lot of damage. Trial misconduct [1, 2] does not help, either. As Groklaw put it:
Yet in a later media event at Gizmodo where anyone could ask him questions, Hogan was asked a question about whether he had considered if the patents should have issues, which he answered by contradicting the above instructions:
Demon-Xanth: Did you have the opportunity to ask “Is this something that should be patentable?” during the trial?
Velvin Hogan: @Demon-Xanth No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.
Samsung said he was “deliberately dishonest”.
The Federal Trade Commission, which we wrote about in [1, 2], misses the point; it should know by now that the problem is not trolls, it’s the system. But addressing the problem by debating it would be a good start:
The Federal Trade Commission and Department of Justice will hold a joint public workshop on Dec. 10, 2012, to explore the impact of patent assertion entity (PAE) activities on innovation and competition and the implications for antitrust enforcement and policy.
“Professor Chien relates (at around 33:55) that in 2012, 61% of all new patent litigation was brought by trolls, that is by entities that don’t make anything,” remarks Pamela Jones. Here is a new article about the cost of patent trolls:
Patent trolls drain businesses of billions of dollars a year. And if you have a website–any website–you are a potential target. Here’s what you need to know if they come after your business.
Here is another article:
For the first time, individuals and companies that do not themselves make anything – commonly known as “patent trolls” – are bringing the majority of U.S. patent lawsuits, according to a study by a California law professor.
The Federal Circuit is said to have another chance to change course and do the right thing:
Federal Circuit Declines Chance to Eliminate Split Involving Standard of Review, Prompting Blistering Dissent
“Not surprisingly,” Judge Moore explained, “given the clear direction from the Supreme Court, the regional circuits are unanimous that the issue of objective reasonableness under Rule 11 is to be reviewed deferentially by the appellate courts.”
The software patents booster calls it a troll turning point:
On Friday, December 7, 2012, the United States Court of Appeals for the Federal Circuit issued a precedential opinion in Raylon v. Complus Data that gives hope to defendants everywhere who face objectively baseless patent infringement claims.
It seems like the FTC and some high courts still have an opportunity to change course. Let’s wait and see. The problem is, there are patent lawyers everywhere, at all levels. They try to guard the status quo and make things worse by assimilation, e.g. in Europe and New Zealand. █
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Summary: Action is finally being taken against patent abuse, even though it does not go far enough
TECHRIGHTS has gathered a lot of information on Intellectual Ventures and so did a paper from early in the year, which states accurately: [via Stefano Zacchiroli, the Debian Project Leader]
The new mass aggregator, however, is an entirely different beast. To begin with, funding sources for mass aggregators include some very successful and respectable organizations, including manufacturing companies such as Apple, eBay, Google, Intel, Microsoft, Nokia, and Sony, as well as academic institutions such as the University of Pennsylvania and Notre Dame, and other entities such as the World Bank and the William and Flora Hewlett Foundation. Nations such as China, France, South Korea, and Taiwan even have their own mass aggregators to varying degrees.
Moreover, the acquisition appetites and patent supply sources are quite interesting. Mass aggregators may have portfolios that range across vastly different areas of innovation from computers to telecommunications to biomedicine to nanotechnology. In some of the acquisition activity, mass aggregators purchase large chunks, and even the majority, of an operating company’s patents and patent applications. They typically pay cash up front, as well as a share of any future profits generated from asserting the patents against anyone other than the selling manufacturer. Mass aggregators have engaged in other unusual acquisition approaches as well, including purportedly purchasing the rights to all future inventions by researchers at universities in developing countries. Other acquisition approaches purportedly include targeted purchases of patents that are of particular interest to the mass aggregators’ investors.
The types of returns promised to investors and the types of benefits offered to participants are also quite different from garden-variety non-practicing entities, as are some of the tactics used in organizing the entities and in asserting the patents. Finally, the scale itself is simply mind-boggling. Mass aggregators operate on a scale and at a level of sophistication and complexity that would have been unimaginable a decade ago. They have taken the prototype strategies pioneered by a prior generation of non-practicing entities and changed them into some of the cleverest strategies yet seen in the intellectual property rights field.
The goal of this article is to shed some light on mass aggregators. We hope to provide some understanding of the nature of the change, to analyze its economics and implications, and to offer some normative considerations. In the descriptive section, we focus on the oldest and largest of the mass aggregators, Intellectual Ventures, which has gone to great lengths to maintain secrecy. Working from public sources and investing thousands of hours of research, we offer a detailed picture of the entity, tracing through approximately 1300 shell companies and thousands of patents. The section also describes in brief form several other mass aggregators, including ones that are public companies.
These are cartels and they should be made illegal. They inflate prices and deflate innovation. We dealt with the subject before.
There is an article in the BBC titled “Phone patents: An absurd battle“. iophk says it proposes patent trolls as a solution and adds: “I am surprised that Intellectual Ventures was not promoted. That’s one of the biggest if not the biggest” (it is).
I cannot read this article in the UK. Neither can Glyn Moody, who wrote: “wow, this is fun: the #BBC won’t let me access the bbc.com site ‘cos I’m in UK – http://bit.ly/Q5SK2Q ironic much?”
Good ol’ BBC is still serving plutocrats, not taxpayers who fund it obligatorily.
Here is what Groklaw quotes from this article: “One reason boils down to the nature of mobile devices like smartphones and tablets, according to Daniel O’Connor, a self-styled anti-trust and internet policy wonk as well as senior director of public policy at the Computer and Communications Industry Association. He says that software is a particularly active area for patents, especially anything to do with telecommunications, semiconductors and 4G data networks. Software patents are also particularly broad and vague, and that makes infringement difficult to avoid. “That creates the conditions for a kind of patent perfect storm,” O’Connor says….
“[M]ost of these patents don’t just make a single claim to a particular intellectual property right – on average each patent makes more like 20 such claims. That means that this collection of 250,000 patents actually describes about five million restrictions on what mobile device makers can do while they design a new model. Realistically an individual may be able to keep five, 10 or maybe 20 restrictions in mind when designing a new feature for a mobile device, but probably not 50 or 500. And five million? Not a chance.”
The solution should be to rethink patents, not create cartels with them. Innovative Automation (IA), a company named in a comical way like IV, shows that even cartel members are not safe. Apple got sued while still assembling a new part of the patent cartel:
Back on September tenth we posted a report revealing the fact that Apple had acquired 434 LTE centric patents. One of the original sources of our report stated that Rockstar Bidco, a company that Apple holds the majority stake in, acquired 116 LTE patents from Nortel, giving them a total of 434 LTE patents. It’s now been revealed that Apple had been acquiring even more patents over the summer and the list is extensive.
In a report filed yesterday, Business Insider listed a link to the US Patent Office which linked to a series of patent assignments between Nortel, Rockstar Bidco and Apple. The list totaled up to 1375 patents originating from Nortel, with the vast majority of them being assigned to Apple. Some of the listed patents have yet to be assigned to Apple as shown here and here.
Google’s talking points from the patents team focus on trolls rather than the cartel as their problem. They are focusing on trolls instead of the system as a whole because the want Google to become part of the cartel, hence part of the problem. That’s how patent lawyers think. Regulators are said to be taking a look at this problem:
U.S. antitrust authorities are examining whether specialized patent-holding firms—or “trolls” to their detractors—are disrupting competition in high-tech markets, opening a new front in a long-standing Silicon Valley battle.
“There’s a possibility of competitive harm here,” said Joseph Wayland, who served as the Justice Department’s acting antitrust chief until last week, when he stepped down to return to private practice. Mr. Wayland said officials are devoting “huge energy, particularly at a senior level” to this and other antitrust issues surrounding patents.
Other reports like this one from Reuters say that the US-leaning ITC is also taking a look:
The US International Trade Commission will review a judge’s decision which found that Apple did not violate patents owned by Samsung in making the iPod touch, iPhone and iPad.
An administrative law judge at the ITC had said in a preliminary ruling in September that Apple was innocent of violating the patents. The ITC, which could have opted to simply uphold the judge’s decision, said that it would take up the matter. A final decision is expected in January.
The FTC focuses on patent trolls and not cartels:
US antitrust enforcers are getting mighty interested in patent trolls. The Federal Trade Commission has even taken to calling these lawsuit-happy companies “patent assertion entities,” or PAEs.
“There’s a possibility of competitive harm here,” said Joseph Wayland, who was the head of antitrust enforcement at the Justice Department until last week. Wayland just left the government for private practice, and he told the Wall Street Journal there is “huge energy, particularly at a senior level” being spent on scrutinizing the intersection of patents and antitrust.
The FTC and the Department of Justice announced today they will host a public forum on December 10 to study the issue more closely. The speakers include IP lawyers, law professors specializing in these so-called PAEs, and even officers of high-profile patent trolls like Intellectual Ventures and Round Rock Research LLC. Executives from companies that have been critical of patent-holding companies, such as Cisco and Rackspace, will also be featured.
Here is more:
The US Department of Justice (DoJ) and US Federal Trade Commission (FTC) are opening informal hearings next month which will look into the question of whether specialised patent-holding firms, also known as “patent trolls” to many, are disrupting competition in technology markets. Concerns that non-practising entities (NPEs) – companies that hold patents but do not make use of them – cause problems in the market have existed for some time. The traditional “troll”, a small company holding a handful of patents, has in recent years been joined by the huge patent-holding corporations who buy up hundreds of patents. The aim of the NPEs is to get licence revenue from companies who they claim are infringing the patents they hold.
They ought to look at the cartels, not just trolls. We’ll make this point again at the end of the night (addressing the USPTO as a whole, not just the ITC). The patent system is as inherently corrupt as the political system, which corporations control at people’s expense and to people’s detriment. █
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Lawyers in government against citizens’ will
Summary: Urgent call to contact politicians regarding the Unitary Patent and its consequences; reminder of the reality of lawyers’ influence
NOW that it’s almost 3 PM (CET) it’s probably a good time to address a very important subject. Central Europe is currently not allowing software patents, but large corporations are trying to change that. This impacts me professionally and it impacts many others.
Richard Stallman, the father of Free (as in freedom) software, warned about allowing Europe to give a go-ahead to software patents, saying it would eliminate the current advantage European developers have over their counterparts across the Atlantic. He also suggested eliminating litigation over software patents in the US, as covered by a site he helped fund (through the FSF):
Another approach to ending the problems of software patents would be a law saying, as Richard Stallman puts it, “that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.”
Stallman’s piece in the Wired series had major impact, which we last showed when talking about forums on software patents getting stacked by lawyers and law professors. They’re everywhere in these debates because they’re prominent in politics and they hang around where they can make money at other people’s expense.
Speaking of events about software patents, here is one. On Friday there was this conference:
Preview of Our “Solutions to the Software Patent Problem” Conference
On Friday, we’re having our big academic conference of the semester, “Solutions to the Software Patent Problem.” At the conference, experts will propose their ideas of how to fix software patents. Ultimately, we hope there will be enough enthusiasm among the participants to coalesce around one or more proposals and see if we can actually make progress.
In preparation for the conference, we held a “preview” for the students so that they would understand the conference background better. Without previews like this, students often don’t get as much out of the conference because so much of the discussion goes over their heads. Colleen Chien was supposed to do the preview but she had a major conflict, so I stepped in. Below, I’ve included my talk notes. If you’re really interested, I’ve also posted the audio from the talk. I hope to see you on Friday!
This is a conference dealing with software patents, but it is stacked mostly by “law” people (i.e. lawyers). Groklaw wrote:
I’m so happy to tell you that tomorrow’s conference on what to do about software patents, Solutions to the Software Patents Problem, at the Santa Clara Law’s High Tech Law Institute will be live streamed for those of us who can’t make it in person.
I confess I begged for this, because I know a lot of you are seriously interested in this topic but can’t make it there. So thank you Santa Clara Law. Here’s where you go tomorrow, and it runs all day from 8:50 am to 5:30 pm Pacific time, minus one talk at 9 AM.
To be fair, it was not just a parade of lawyers. This one particular event had notable speakers who are against patents, so unlike some conferences, it was not just law people speaking among themselves. Here is TechDirt:
Patent Office, Perhaps Forgetting What Year It Is, Locks Down Mobile App Development Platforms
I’m spending today at a conference at Santa Clara University’s Law school on Solutions to the Software Patent Problem. It seems only fitting that as this is happening, I’ve been alerted to a completely ridiculous new patent: Appsbar has put out a press release gleefully announcing that it’s been granted a patent on offering a “create your own mobile app” development platform. Stunningly, the patent in question, 8,261,231, was just applied for in February of this year. I’m at a loss as to how a competent patent examiner could possibly think that a mobile app development platform is somehow new or non-obvious in this day and age.
There is more news about the expansion of the patent system to Silicon Valley — something that ought to be criticised. Rather than shrink the system that issues far too many patents, those in charge let it grow further.
One law professor with an actual background in some science is the latest author in the Wired series on patents. John Duffy describes himself as follows:
John Duffy is a professor at Virginia Law School; prior to that, he was a research professor at George Washington University Law School. Duffy was identified as one of the 25 most influential people in the field of intellectual property by The American Lawyer. He earned his undergraduate degree in physics.
The previous contributor, Andrew Chin, is also a law professor and he writes about his case for keeping abstract patents:
Much criticism of software patents is rightly aimed at the use of abstract claim language to cover a wider range of technology than the patentee invented and disclosed. Mark Lemley, for example, highlights “functional” language in claims as particularly problematic, and proposes in this opinion series that a claimed function be limited to the disclosed “program and ones like it.”
So the utilities of Bilski’s claimed methods are not amenable to one resource-specific causal account, but many. Bilski’s methods perform their hedging functions whether the market participants’ option values are calculated on my office desktop PC or on the London Science Museum’s Difference Engine, and whether their transactions are completed via telephone or website. A patent examiner could simply cite such an observation in rejecting Bilski’s claims as unpatentable subject matter.
A key advantage of my proposed “concrete causation” standard is its consistency with Supreme Court precedents, which allows the Federal Circuit to introduce it without need for legislation. The universal applicability of this approach conforms to our treaty obligations (to make patents available without discrimination as to the field of technology), suggesting it could become an international norm. The approach also upholds what I’ve identified elsewhere as the patent system’s metaphysical commitment to scientific realism.
By design, this proposal explicitly acknowledges that all of the “useful Arts” confront the common problem of having limited resources. This necessity is, after all, the mother of invention. The patent system exists for those working to do more with less, not for those seeking to corner the market on such efforts through abstract claim drafting.
In Europe too we are left to deal with “legal” folks, whose interests lie not in advancing knowledge but in making a lot of money from it, as if the latter somehow takes priority over the former. April asks people to fight back against the bureaucrats by informing them:
The European Parliament just announced an exceptional meeting of the legal affairs (JURI) committee on Monday November 19th, 2012 at 7pm for the only purpose of discussing the unitary patent package. This new unexpected event in the unitary patent saga is a concern. There is an urgent need to get in touch with the MEPs to let them know about the threats of the unitary patent.
We must really ensure that software patents are kept out of Europe, including the loopholes that let Finnish company Tuxera put a patent tax on Linux and Android. Carla Schroder wrote about it the other day:
Microsoft’s creaky old FAT filesystems, FAT16 and FAT32, have long been the de facto standard filesystems for Flash storage devices. They enable portability because FAT is supported on all major operating systems, and they don’t have access controls so there are no permissions hassles– just plug in your device and use it. But despite FAT’s age and ubiquity, Microsoft successfully enforced its FAT patents against TomTom in 2009. TomTom agreed to drop FAT32 support from their products, several of which were built on Linux. Microsoft has also gone after Android vendors, such as Motorola, who use FAT.
The legal landscape, as always, is bizarre. Linux can support FAT32 without paying royalties because of an inane technicality: long and short filenames. My fellow old codgers recall the 8.3 DOS filename convention: filenames could be no more than 8 characters long with a 3-character extension. This collided with grownup filesystems that supported longer filenames, which FAT truncated. And that is why something like nicelongfilename.txt would be shortened to nicelo~1.txt.
Linux users have options, sort of. Tuxera sells a good exFAT driver, but only to OEMs, such as Android vendors. There is a free exfat driver, fuse-exfat, and it is included in several distros. This is built on fuse, filesystem in userspace. I’ve tested it a bit without problems, but the developers do not have access to any specifications and it’s still young, so it has some rough edges. I would not rely on it for syncing a Linux PC with devices that use exFAT, like cameras and smartphones.
There is prior art there, as Linus Torvalds revealed some months ago. Those patents are essentially bunk. █
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Summary: Following the lead of the New York Times and some of the latest events, business press bloggers take aim at the US patent system; European politicians too take notes
THE business press, notably Forbes, hosts some blogs which openly oppose software patents. This does not mean that Forbes should be commended, as for the most part Forbes also does a lot of damage. Here is one blog which is on the fence:
The Big Fix #3: How To Untangle The Mess With Software Patents
The amount of energy that the big tech companies are expending to document and defend software patents makes no sense. A couple of weeks ago, The New York Times wrote that, “Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.” Nonsense, right?
But is it the tech companies’ fault that they are at war? Is Apple a “bully” for suing Samsung? Did Google ”steal” from Apple? Whose to blame here? Perhaps history and the Supreme court.
Well, SCOTUS serves big companies [1, 2], i.e. American protectionism, just like the lawyers who monetise patents and thus, expectedly, drip bias. Another blogger from the same site also blames CAFC; as more bloggers from Forbes
see the impact on Facebook we sure see public backlash ensuing. As we said earlier this month, it is when people see their phones and Web page under attack that they shout out in protest:
Hardly a month goes by without Facebook finding itself named in a patent-infringement lawsuit, and October’s plaintiff is Bascom Research, which describes itself as a “software-development company focused on applying computational and data structures to complex data sets in the medical field.”
Bascom Research is a wholly owned subsidiary of Lexington Technology Group, which announced its merger with Document Security Systems, a provider of anti-counterfeit, authentication, and mass-serialization technologies, in the same press release that contained the details about the patent-infringement suit.
This is an LLC, which almost always means that it’s a troll, just like other new examples:
The complaint, which was filed on October 10th in the Eastern District of Texas, alleges that BSP Software’s Integrated Control Suite (ICS) and Integrated Version Control (IVC) products infringe upon one of several patents held by Motio for technology found in its MotioCI product.
Lawsuit such as this are said to harm everyone:
Patent Trolling Is Draining the Blood from the Idea Economy, and It’s Just Getting Worse
What does it mean that money is draining out of the innovation economy to entities that don’t do anything for that economy?
Let us hope that all this backlash will yield change. Here in Europe it serves as a cautionary tale and politicians start turning against the unitary patent (trans-Atlantic bridge for troll) like they turned against ACTA towards the end:
Just more than a year ago FFII.se replied to the Swedish justice department on a query about the proposal for a EU patent court (in Swedish), but we where quite lonely on the issue we had with that the court was not in the EU and beyond governing. Sure we had help from our network, but we where just the crowd fighting those self serving software patents against a collective of lawyers thinking of patents as their income. Now it seems we have company – and good company too!
Here is a nice round up by two high profile politicians of Europe
Awareness among the public informs politicians, who can in turn prevent bad policies from coming through. Europe does not welcome patent trolls. █
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