Because Amazon, founded by Jeff Bezos, likes software patents
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 lawyerSo 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
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“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”
–Marshall Phelps, Microsoft
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
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It boils down to law, not lawyers whose principal client is themselves
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. █
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Trading the world for money and power
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.”
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Suddenly software patents don’t suit even Apple’s agenda all that much…
Summary: Another blow for software patents in the United States (US) as even a company that notoriously exploited them to impose embargoes on Linux (Android) devices is finally finding these patents unsuitable
THE USPTO has been thoroughly impacted by the US Supreme Court (SCOTUS), for a ruling from last summer meant that a lot of patent applications, especially ones that pertain to software, are no longer eligible and should thus be rejected/discarded. Techrights believes that Alice v. CLS Bank can gradually pave the way to a world free from software patents and that without this case, software patents would only gradually expand and become universally acceptable.
“Techrights believes that Alice v. CLS Bank can gradually pave the way to a world free from software patents and that without this case, software patents would only gradually expand and become universally acceptable.”The Alice case, which continues to squash a lot of software patents (those that are being tested in a court of law), changed the game and even Apple, a leading foe of Linux and Free/libre Open Source software, is now using Alice in order to squash software patents (those which are asserted against Apple). According to this article from Florian Müller: “The Apple v. Ericsson docket in the Northern District of California was worth taking another look (after quite a while): two weeks ago, Apple brought a motion for summary judgment of invalidity of two patents asserted by Ericsson in its counterclaims to Apple’s declaratory judgment complaint, and the motion is entirely based on 35. U.S.C. § 101 in light of last year’s famous (or infamous in the eyes of patent attorneys) Alice ruling by the Supreme Court on patent-ineligible subject matter…”
Patent Buddy took note of these patents [1, 2] and we wish to remind readers of our recent post about patent trolls in Europe and Ericsson's troll, Unwired Planet.
“Maybe the folks at the ITC think they’re above the law, even above the Supreme Court.”The fascinating thing here is that even Apple, which is attacking users with software patents (embargoes, feature removal, price hikes) and maliciously spying on users, is making use of the Alice case. But perhaps the most interesting article today concerns the United States ‘International’ Trade Commission (it’s not really international, it’s nationalistic and biased; it’s often used by Microsoft and Apple to ban Android devices), which according to patent lawyers remains reluctant to take account of the Alice case. Maybe the folks at the ITC think they’re above the law, even above the Supreme Court.
“Outside of the ITC,” wrote the author, “defendants have been increasingly successful in challenging the patentability of asserted claims under Section 101. Recent decisions by the Supreme Court and the Federal Circuit have clarified, and arguably narrowed, the scope of patentable subject matter, and have repeatedly urged district courts to resolve any Section 101 defenses as soon as possible. At the ITC, however, this defense has rarely been asserted, and has only once been successful since Bilski. Nevertheless, ITC practitioners should expect to see more of these defenses in the near future, and there are interesting, open questions surrounding how the ITC will interpret and implement the Supreme Court’s decisions on this issue.”
“The injunctions are so biased that it’s just too hard to ignore.”We have been vocal critics of the ITC and its dubious practices since the Bilski days, so this one is yet another example for our list. It often seems like all that the can ITC offer is protectionism for US (mega)corporations, not justice. The injunctions are so biased that it’s just too hard to ignore. █
“Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke.” —Kelledin, PLI: State Street Overruled… PERIOD
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Power serving Power
Summary: Analysis of the embedded biases inherent not just in self-acclaimed independent auditors but also union-busting, espionage-connected entities like Control Risks
THE MORE we learn about the EPO, the more appalling it looks. They have plenty to hide up there, hence they’re desperate to crush whistle-blowing and journalism.
The EPO’s witch-hunt against people is going well beyond staff. Like the CIA (based on relatively new leaks), they target “investigative journalists” and we too became a target, as we explained in previous articles, such as:
Last year we wrote about action (or lack thereof) by Transparency International, which has done virtually nothing to stop institutional abuse and serious harassment. What kind of spineless body is that?
Well, when one looks beneath the surface, Transparency International isn’t quite what it seems. People who are familiar with the pseudo-politics behind it (mostly commercial interests, not politics) shared some interesting information. “Strange links” is what they called it and these are strange connections indeed, for they serve to show that the supposed oversight or regulator is in bed (or the same bank account) with the subject/target of oversight and regulation. It’s basically a sham and it makes “Transparency International” looks like just a corporate publicity stunt, or a badge of endorsement that is paid for. To quote:
In 2014 Transparency International published a so-called “integrity study” of several EU institutions. The study analysed whether these institutions had the regulations and mechanisms in place to detect and prevent corruption. SUEPO suggested at the time that the EPO invite Transparency International to do the same for the EPO. “Transparency” seemed supportive. Not surprisingly, the EPOrg (Mr Kongstad) was quick to dismiss the idea. But obviously: “Transparency” does not really need a company or organization to welcome them in order to do a study. If that were the case, few if any deficiencies would ever be exposed. So we were a little disappointed that “Transparency” simply vanished from the scene without a trace for unclear reasons.
The German magazine “Der Spiegel” reported on various Union bashing scandals involving Control Risks, the firm that is now assisting the Investigative Unit interrogating EPO Union officials and staff representatives (see below).
Lufthansa and Deutsche Bahn were amongst the clients of Control Risks. Given that background, it is surprising that Control Risks is a corporate member of Transparency International Germany, something that could easily be interpreted as a seal of approval. But there are more surprises waiting: Lufthansa and Deutsche Bahn are also on the list of corporate members of “Transparency”. These corporate members pay for the honour. We are not the first to wonder whether such contributions from corporate friends could affect Transparency’s independence. The European Patent Office is fortunately not (yet?) on the list. Nevertheless: the very concept of “corporate friends” would not seem in line with Transparency’s message and mission.
Back to Control Risks: the Control Risks employee who seems to be the main consultant for the EPO (and the main interrogator) is Matthew Kinch of Control Risks Berlin. He is the co-author of an article about “Krisenmanagement im Falle einer externen Korruptions- ermittlung” (sic). Control Risks claims strict adherence to national law and to their code of ethics. We have some doubts about that. In the pending procedures Mr Kinch and other Control Risk employees cannot claim they adhere to the EPO regulations, as they are no EPO employee, but external contractor / consultant. As with all other contractors working for or at the EPO, national law remains applicable to them:
The employees of Control Risk remain bound by national law in their interactions with individual EPO staff members. This means that they should respect the broader rights given to EPO staff members by national law, e.g. right to remain silent, right to be accompanied by legal assistance of their choice, and right to know who is the accuser1.
It further means that if an EPO staff member suffers damage, e.g. undue dismissal, on the basis of material collected by Control Risks in a procedure that would be considered flawed under national German law, Control Risks can be held liable for that damage. We are currently looking into this matter.
1 This right is even recognised by ILOAT, see Judgment 2014: “It is contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons. The staff member is entitled to confront his or her accusers. In the present case, if the Organization was not willing to disclose the identity of the complainant’s accusers, and had no other independent evidence to rely on, the charges should not have been brought.” It is, however, happily ignored by the Investigative Unit.
As a matter of law, as pointed out in the footnote, the accused has the right to know who the accuser is. The European Patent Organisation systematically hides the supposed accuser, in an effort to intimidate and entrap people (ensuring they don’t have access to a lawyer in the interim). This may be the same kind of bullying used against Elizabeth Hardon, where there are efforts to exploit lack of awareness of the laws and therefore bring allegations against a person from a total vacuum, not a person. The European Patent Organisation is not a person but a collection of people who laughably call themselves public servants.
Next month we are going to show how the EPO does this not only in one single case. There is systemic misuse of the law and a systematic effort to crush truth-telling. █
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Summary: Indian proprietary software and Free/libre Open Source software (i.e. everything except for large multinationals’, such as Microsoft or IBM) is at great danger after terrible changes were proposed to Indian patent law
TECHRIGHTS spent a lot of time writing about software patents in India, especially recently. These have not been legal, but Modi’s government threatens to change this. Does Modi work for patent lawyers and multinationals, or will he keep his promise (like many vacuous election promises) to defend the people of India from such corporate, colonialist occupations? Recent trips to software giants in the US don’t serve to inspire much confidence in Modi right now.
Patent lawyers in India go where the money is: protecting the companies that profit from Indian deaths. Many of these patent lawyers (essentially profiteers) lobby for stronger protectionism of foreign pharmaceutical giants (driving up prices of medicine), but to make matters worse, there are those who want software patents in India because they can profit at the expense of Indian programmers. Are lawyers and their big clients (foreign companies) winning this battle?
“It is unthinkable that India can in any way benefit from software patents.”“New patent guidelines may spell trouble for Indian software developers” was the other day’s headline from Legally India, a site which correctly states that: “Every city or town, big or small, is seeing a spurt of startups that do path-breaking work in the area of software products, mobile apps and embedded products. However, these firms could soon be threatened by the dark-clouds looming large over the technology horizon of India in the form of software patents.”
It is unthinkable that India can in any way benefit from software patents. The Hindu, a large Indian news site, published “Tying up innovation in legal knots”. It said that: “While law-making in Parliament seems to have come to something of a halt over the last couple of years, the executive branch of government, in contravention of its constitutional role, is busy passing regulations that are, in essence, amendments to laws. The examples of executive overreach over the last few years are numerous — for instance, the notification of the Information Technology (Intermediaries Guidelines) Rules, 2011, which, inter alia, expanded the scope of offences under the Indian Penal Code in the context of the Internet by criminalising activities such as blasphemy.”
“If Modi and his government don’t choose to stop this madness, India will definitely shoot itself in the foot, all for multinationals’ sake (trying to attract foreign businesses at the expense or mortality of local companies).”What is happening to India? No sane person (except perhaps lobbyists of software patents) can deny that software patents would be a terrible thing for software powehouse like India. Programmers don’t want patents, they already have copyrights (instantaneously obtained and easily enforceable by law).
“Software patents back to the fore” was another news article that got published early this week. To quote: “Successive governments have supported open source software. The earlier Open Standards Policy and the recently released Open Source Software for E-Governance, are all welcome measures in this direction. How, then do we explain government’s sudden shift towards software patenting, that too through executive action and in violation of the will of the Parliament?
“Software patents are like the “living dead” in the zombie film genre that Hollywood has made popular. They just refuse to die. As many times you kill them, they revive again and keep coming back.”
If Modi and his government don’t choose to stop this madness, India will definitely shoot itself in the foot, all for multinationals’ sake (trying to attract foreign businesses at the expense or mortality of local companies). Recall what we wrote about this government earlier this year in relation to Free/libre Open Source software.
Indians should consider taking action, and not just public protests. Maybe if enough politicians, who never wrote or even saw a computer program in their entire life (not at code level), became better informed, things would quickly change, much like the debate in the media. Indian politicians need programmers to explain to them the stark difference between patent protection and copyright protection. If programmers don’t speak out, only lobbyists of companies like Microsoft will. We already saw how Microsoft worked to derail India's Free/libre Open Source software policy, behind the scenes (with help from front groups that pretend to represent India's interests). Never underestimate Microsoft’s influence in the Indian government. █
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Defeatism or learned helplessness increasingly unjustified in the fight against software patents
Summary: The United States’ supposed leadership in software patenting grinds to a halt as more software patents simply die in the courtrooms and patent lawyers try hard to overcome this new debacle of theirs, usually by misleading current and prospective clients
COMPANIES that are consciously — as matter of strategy in fact — patenting software usually patent everything in bulk. A handful of patents would just be ineffective, unless one is a patent troll (i.e. lacking any real products) or plans to sell the patents to a patent troll somewhere along the way (e.g. bankruptcy). There is no one patent for every single program or — put another way — there is no one-to-one correspondence between a component in a program and a single patent. Think of poetry and ponder the equivalence involving a program’s components and verses (or paragraphs). Software is, by its very basic nature, quite suitable for copyright assignment (not at a binary level) but not for verbal descriptions asserting a monopoly over a mathematical (implemented and executed by a machine) idea. In practice it means that in order for a company to effectively use software patents (offensively) it needs a huge pile of software patents — much bigger than those of its competitors. Suffice to say, such a state of affairs favours and inevitably benefits vast companies such as IBM. No small software company can sue IBM over software patent infringement because IBM, in response, can sue with far greater a number of patents, covering an almost infinite number of software that can conceivably be created. It’s shameless stockpiling that makes up deterrence. People who have actually looked into pertinent software patents will probably know why; they’re so vague and often so trivial that almost every simple program can infringe on thousands of patents (some patents may already be expired, inferring woes for past generations and possibly planned retardation of science and technology).
“No small software company can sue IBM over software patent infringement because IBM, in response, can sue with far greater a number of patents, covering an almost infinite number of software that can conceivably be created.”Thankfully, courts in the United States have not lost sight of last year’s SCOTUS ruling — an important and very widely-referenced ruling which determined that abstract software patents (that’s a lot of them!) have no room in the system. Not only has that discouraged filings of new software patents and lawsuits; it also helped invalidate existing software patents which, once brought forth litigiously (even defensively, in response to offensive action), were subjected to lengthy challenges in courts, whereupon they stood little chance of surviving (statistically-speaking, so far). Today we present some new examples that we have been gathering over the past 4 weeks. We will start, however, with a cautionary tale or two. It is largely reactionary as we still see misconceptions about patents in the mass media.
The Mirage of ‘Defensive’ Software Patents
The Alice Case/§101 has already shut down many cases involving software patents, but not everyone caught up with the news. Some companies carry on pursuing software patents. Bank of America, for instance, is patenting software [1, 2, 3, 4, 5, 6] pertaining to cryptocurrency, such as Bitcoin.
“Does Coinbase really think it can take on Bank of America when it comes to patent battles?”Coinbase, a Bitcoin company, is already patenting software too (applying for nine patents at the moment) although according to this article: “The CEO went on to say that while he does not personally believe in software patents, the company would invest effort in ensuring it would “play nice” while navigating the realities of the patent space.”
Does Coinbase really think it can take on Bank of America when it comes to patent battles? Who would be bankrupted first due to quickly-amassing legal fees? Which side would have more leverage in a court of law? Patenting of software is the core issue; the solution to it isn’t acquiring more patents of one’s own.
“We continue to protect our freight tracking software with new patents,” said this statement some weeks ago, from a company which is apparently hoping it can block competition using software patents. Has it not heard the news about the status of software patents in the US? Has it considered hypothetical scenarios in which this patent can actually help the company? Is this patent just purely for marketing/posing (as is often the case these days)?
“These examiners put aside science for the sake of business-minded considerations.”Misguided USPTO examiners will no doubt continue to issue some software patents, in order to increase their profits (quantity rather than quality). By rushing their job (not properly reviewing the applications and searching for prior art) they actually increase income rather than compromise their income (rewarded for doing a poor job as opposed to a proper job). These examiners put aside science for the sake of business-minded considerations. They operate in somewhat of a business now, and they treat other patent offices as “competition”. The EPO has had the same problem in recent years and it even prioritised large applicants (discrimination by design), disgracing the very foundations of this overly glorified occupation.
The USPO still glamourises monopolies (patents) in a bunch of recent articles in which the sheer number of patents is publicly boasted, as if the more patents get granted, the merrier (irrespective of the quality/thoroughness of an examination job). China has a huge number of patents (probably the most granted per year in recent years), but that doesn’t mean that China is at the forefront of innovation. To quote one article: “The US Department of Commerce’s United States Patent and Trademark Office (USPTO) launched PatentsView(link is external), a new patent data visualization platform. The PatentsView beta search tool allows members of the public to interact with nearly 40 years of data on patenting activity in the United States.”
It does not really say much except lenience in acceptance of applications. Consider the fact that about 92% of US patent applications eventually reach "success" (granted). It’s nothing to brag about, it highlights the poor quality of these patents and the USPTO’s incompetence (if not corruption).
“Consider the fact that about 92% of US patent applications eventually reach “success” (granted).”Courts, unlike the USPTO, don’t earn any less or any more based on the validity of patents. They usually just do their job and each time a patent gets re-examinated (and usually then trashed after a court’s intervention) it serves to discredit the USPTO. Below are recent examples of this.
Video-On-Demand Patent Killed by Alice Case/§101
Earlier this month we learned from this post that the famous “pen and paper” analogy was used to invalidate (or in the process of invalidating) a software patent. Here is the core of the story: “The court granted defendant’s motion for summary judgment that plaintiff’s video-on-demand patent was invalid for lack of patentable subject matter and found that the claims were directed toward an abstract idea. “Plaintiff briefly complains that Defendants’ descriptions of the patent claims are ‘oversimplifications,’ but it does not delineate what, if anything, Defendants leave out. . . . [T]he patent claims the concept of ‘using the same hierarchical ordering based on metadata to facilitate the display and locating of video content.’ To do so, the patent exploits matches between hierarchical identifiers – uploaded at one end of the process as metadata, and read at the other end to display listed videos – in order to facilitate the automatic [electronic program guide] listing of videos sent to cable companies by outside publishers. . . . Even though the [patent-in-suit] anticipates that its steps will be performed through computer operation, it describes a process that a person could perform ‘[u]sing a pen, paper, and her own brain.’””
Signal Transmission Patent Killed by Alice Case/§101
“Another signal transmission patent [was] held invalid under 101/ Alice,” Patent Buddy noted, linking to this analysis (same blog as above). To quote: “The court granted defendants’ motion for judgment on the pleadings that plaintiff’s signal transmission patent was invalid for lack of patentable subject matter and found that the patent was directed toward the abstract concept of translation. “Plaintiff argues that the claimed invention is not directed to an abstract idea because it addresses a problem that ‘specifically arises in the context of communication networks due to the presence of incompatible devices and formats.’. . . This problem, however, does not ‘specifically aris[e] in the realm of computer networks,’ and the solution is not ‘necessarily rooted in computer technology.’ Incompatible communication types have existed since before the emergence of computers and the Internet. Translators have been used for centuries to facilitate communication between individuals who speak different languages. The translator receives a message in one language, translates it into another, and delivers the translated message. Here, the claims require a computer system that receives a payload in one media form, translates it into a different media form, and delivers the translated payload. This is no different than the function of a translator.”
“Courts, unlike the USPTO, don’t earn any less or any more based on the validity of patents.”Take note of the punchline, so to speak. “This is no different than the function of a translator.”
eDekka Lost to 84 Defendants Thanks to Alice Case/§101
“Notorious Patent Troll, eDekka,” wrote Patent Buddy, “Lost Patent and 84 Defendants with one Alice/101 Kill” (cited case).
This has also been covered by Joe Mullin, who wrote: “The most prolific patent troll of last year, eDekka LLC, has had its patent wiped out. The ruling (PDF) will shut down 168 lawsuits that eDekka filed based on US Patent No. 6,266,674, according to Texas Lawyer, which first reported the ruling.
“The ruling comes from a surprising source: US District Judge Rodney Gilstrap, the East Texas judge who has been criticized for making life extra-difficult for patent defendants. Gilstrap, who hears more patent cases than any other US judge, will eliminate about 10 percent of his entire patent docket by wiping out the eDekka cases.”
“Patent profiteers try to sell the impression that all is fine and dandy for software patents.”Over the weekend it was mentioned here too, with the author saying that there is a lot of public interest in the outcome (many victims, hence widespread concern).
Sole Survivor of Alice Case/§101
We only know of one case where a patent seemingly withstood challenge from Alice Case/§101 in recent weeks. This is about US patent number 6,963,859 and it’s quite a rare case where software patents are successfully defended in court. Patent lawyers, understandably, always latch on to such rulings and hype them up (endless jubilation and repetition). Patent profiteers try to sell the impression that all is fine and dandy for software patents. They are cherry-picking for their desired bias.
Let’s look at what patent lawyers have had to say about the status quo in recent weeks.
What Patent Lawyers (Profiteers) Are Saying
“Maybe they would rather not pay attention or remain in denial over the facts, or the statistically-meaningful number of rulings against software patents since Alice (2014).”The spin from patent lawyers is very much expected. Asking them about the situation here is like asking companies which manufacture weapons about the state of war (or peace) in some countries where weapon sales are imminent, possible, or at risk. Patents are the armament equivalent in the field of patent litigation.
“Value of software patents has fallen by 80% since SCOTUS decisions in Mayo and Alice,” wrote one ‘IP’-centric account at IPO Annual Meeting (#IPOAM15). Another, from IAM's patent maximalists, said: “No surprise that it’s standing room only for #IPOAM15 session on software post-Alice and Oracle” (the case of Oracle has been covered here too).
In short, patent lawyers try to deny the importance of Alice. There are some exceptions to this, but they are few. Here we have “Hawley Troxell partner Brad Frazer, with contributions from Hawley Troxell Patent Group Chair Phil McKay and patent attorney Allison Parker,” going with the dramatic headline “Software patents are dead! Long live software patents!” The article is in fact in favour of software patents and claims that they are far from dead. Here is the punchline: “So the next time you hear or read that software patents are dead because of Alice, think of young King Tommen and remember that a good experienced software patent attorney can still do much to obtain patent protection for your software-based inventions.”
“It’s sometimes referred to as cognitive dissonance.”It doesn’t seem as though they have been paying attention. Maybe they would rather not pay attention or remain in denial over the facts, or the statistically-meaningful number of rulings against software patents since Alice (2014). It’s sometimes referred to as cognitive dissonance.
Here we have proponents of software patents who are also patent lawyers admitting (in the headline even) that “Statistics show Alice PTAB interpretation not favorable to patent applicants”. To quote some relevant parts: “The United States Supreme Court is commonly known to resolve difficult issues of law. Yet, Alice v. CLS Bank[ii], last year’s unanimous Supreme Court decision, has caused confusion about whether computer-implemented business methods and software innovations are patentable under 35 U.S.C. §101. The question of patentability of software-related innovations – even those involving merely implementations of business-related innovations – seemed settled after State Street v. Signature Financial[iii], the Court of Appeals for the Federal Circuit’s 1998 decision[iv].
“After State Street, the U.S. Patent & Trademark Office (USPTO) granted thousands of patents related to computer-implemented business methods and software.[v] Simultaneously. America experienced an explosion of growth in e-commerce, Internet, and mobile phone technologies. Nonetheless, without even mentioning the terms “business method” or “software,”[vi] Alice has upended the understanding that computer-implemented business method innovations and software innovations are patentable under §101. One veteran litigation attorney starkly stated that the decision left us with the question of “[a]re software patents dead?”[vii] The Federal Circuit’s decisions after Alice have not provided much clear guidance to answer this question.”
“To say that software patents are as potent as ever before is to shamelessly lie.”The author says that the USPTO “granted thousands of patents related to computer-implemented business methods and software.” But how does the number relate/compare to previous years? There was a reported slowdown in litigation, application, etc. To say that software patents are as potent as ever before is to shamelessly lie.
Seyfarth Shaw LLP (patent lawyers) decided to come out with a gross dichotomy that frames secrecy and software patents as very much necessary. What about copyrights? They are not even mentioned before therein no lawyers fees are likely to ever materialise/emanate. To quote the lawyers-like language: “There are many ways to obtain intellectual property protection for software creations. Many keep the software code confidential and maintain the software as a trade secret. Others seek patent protection on the software, which discloses the higher-level concepts surrounding the software without explicitly publishing the source code. Recent changes in patent law have changed what types of software inventions are patentable and the requirements for obtaining such patents. However, the evolution of the law has been ongoing for quite some time.”
What about copyrights? They just pretend that it does not exist. How convenient. Gross propaganda terms like “intellectual property” are used instead.
“Parasitic, self-serving elements (or Hubris) in any patent system are ultimately its Nemesis.”IAM’s own patent maximalists (patent lawyers who profit from it) accept that software patents are now besieged by courts, albeit not in the USPTO. We mentioned the reasons for this earlier on. This is an institutionalised conflict which needs to be overcome by structural changes. Both the USPTO and patent lawyers profit from the injustice of dealing with bogus patents. Technical people are the ones whose personal wealth will be afforded and wasted. IAM uses the word “uncertainty” to say invalidity — the same word that other patent maximalists use (“Uncertainty is Where Patentability Resides”). Why are patent lawyers and lobbyists of software patents so eager to associate bogus patents with uncertainty? Is that really what they mean to say? That’s like saying that only in case of error or bad decisions will software patents be granted right now. It’s almost like admitting that they are trying to fool, game, and maybe even corrupt the system. Some cynics would nonchalantly say that this is what they indeed do; it’s their job and this is what they’re paid for. Parasitic, self-serving elements (or Hubris) in any patent system are ultimately its Nemesis. █
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