Summary: In an unforeseen kind of ruling, the same court which slapped down a lot of software patents last year is now legitimising the actions of a patent troll
Joe Mullin wrote about Patent Troll Tracker quite some time before he became a widely-recognised journalist focusing on patent trolls and some other patent-related matters. Patent Troll Tracker was later ousted with a bounty on his head (coming from a patent troll). Patent Troll Tracker was a patent lawyer from Cisco, which had attracted many trolls to it. Based on this new report from Mullin, Cisco has just lost to a troll at SCOTUS level (the highest possible level, which is also expensive). As Mullin put it: “The Supreme Court issued a ruling (PDF) today in Commil USA v. Cisco Systems, one of two patent cases it heard this term. On one key issue, the opinion favors Commil, a “patent troll” that won a $64 million jury verdict against Cisco. But other findings mean that the non-practicing entity won’t be getting a payday any time soon—and a final section of the opinion is wholly dedicated to reminding judges to sanction misbehaving patent plaintiffs, something that didn’t even come up in this case.
“In the Commil USA v. Cisco Systems case, a 6-2 majority of justices held that defendants in patent cases can’t evade claims of “induced infringement” by arguing they had a “good faith belief” the patent was invalid. That overturns an appeals court decision favoring Cisco. Justice Stephen Breyer was recused from the case.”
This is very bad because only one year after the Alice case we are now seeing SCOTUS leaning in favour of patent trolls, not just rubbish patents. SCOTUS is, in some sense, feeding the trolls here.
“Stop Feeding the Patent Trolls,” says the headline of a new article, explaining: “At AngelList, we’ve spent the last several years creating a platform for startups and founders to connect with their peers, secure seed investments and recruit employees. We’re passionate about what we do, which is why it’s all the more upsetting to see fledgling businesses continue to take unnecessary and costly hits from greedy patent trolls.
“What SCOTUS has just done is only going to further legitimise trolls.”“For years, patent litigation has drained small businesses of resources that would otherwise be used for research, investment and job creation. Specifically, flaws and loopholes in the current law allow patent assertion entities (PAEs), also known as patent trolls, to exploit the system and claim rights to patents without ever having made a product or provided a service to any customers. Congress’ inaction has led to billions of dollars spent on frivolous patent suits, needlessly costing the economy and consumers.”
There is then a reference to the PATENT Act, which only tackles small trolls but not big trolls. “The Protecting American Talent and Entrepreneurship Act of 2015,” says the author, “is sponsored by both sides of the aisle, including Senators Grassley, Leahy, Cornyn, Schumer, Lee, Hatch and Klobuchar.” It is also sponsored by the large corporations that are funding these politicians.
Let it be clear that patent trolls truly are an issue, but they are not the only issue and they benefit from the vast extent of patents on software. Various sites that focus on patent trolls (and patent trolls only) amplify the claims of those famed academics who focus only on trolls, for example Michael Meurer and Bessen. As Matt Levy put the situation, it was “Bessen that estimated that NPEs cost U.S. businesses at least $29 billion dollars in 2011.” Levy previously related a SCOTUS approval of Form 18 abandonment to patent trolls. 9 days ago he wrote: “In a blog post last year, I wrote about about the prolific patent troll eDekka, which filed well over 100 complaints in 2014. Not one of them gave any useful information to the defendants. Most of the complaints were filed in the Eastern District of Texas.”
Eastern District of Texas is where a lot of patent trolls operate from and the environment sure became fertile for their racketeering. What SCOTUS has just done is only going to further legitimise trolls.
IP Troll Tracker (not to be confused with Patent Troll Tracker) recalls one of the most notorious trolls out there, Erich Spangenberg, saying that there is alarming embellishment of what trolls like him are doing. “In another alarming chapter of the “saved from a troll by a troll” play book,” she writes, “Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg. Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.”
Here is Mike Masnick at TechDirt put it: “The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.”
One might expect patent trolls to be vilified or cracked down on by now, but even the SCOTUS helps them these days. Some of the media paints them as innovators and some as saviors. Actions are now judged by the actor’s size, not the action. █
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“People naively say to me, “If your program is innovative, then won’t you get the patent?” This question assumes that one product goes with one patent.” —Richard Stallman
Summary: Media that is dominated by patent lawyers and targets an audience of patent lawyers refuses to accept the post-Alice reality
THE USPTO is a sordid mess. As the previous article served to show, it attracts many opportunists and trolls. However, recent amendment of guidelines used inside the USPTO examination pipeline stopped many software patents, rendering them invalid while citing Alice (a relatively recent SCOTUS ruling). Both the court system and the patent system are now far less favourable or tolerant towards software patents.
“These patents are affecting not only Free software but also proprietary software.”As usual, patent lawyers’ sites are quick to shoot down the message and the messengers. Legal News Line says that a “new study shows first decline in patent litigation in five years”. It of course proceeds to refutation attempts. Other lawyers (McDonnell Boehnen Hulbert & Berghoff LLP in this case) are trying hard to shoot down claims that software patents are being stopped in the US. Here is their abstract: “A recent publication by PricewaterhouseCoopers announced that patent suit filings in 2014 had reduced by 13% from the prior year, and concluded that this “dramatic shift” was “[d]riven by Alice Corp. v. CLS Bank, which raised the bar for patentability and enforcement of software patents” (see “2015 Patent Litigation Study: A change in patentee fortunes”). This rather strong attribution has in turn driven a number of news outlets, such as IPLaw 360 and bloggers to pick up the story (see “Patent Lawsuits Took First Dive In Years, Report Says” and “Patent Litigation Study Should Cause Patent Reform Pause”).”
They say that this report “raises questions”, but actually it answers a question and tackles an issue. It’s a step towards the solution.
Another patent lawyers’ site, Managing IP, says that “Rumours of the death of software patents are greatly exaggerated” (well, they sure would hope so) and Gene Quinn (very vocal proponent of software patents, for he is a patent lawyer) asks, “Is there a future for software patents in an age of software innovation?”
What we are hoping to show here, as we did many times before, is that patent lawyers are very concerned about the death of many patents on software, not only at the court level but also, increasingly, at the examination level (where they can make a lot of money at the expense of software developers). These patents are affecting not only Free software but also proprietary software. Even Bitcoin, which strives to reform today’s monetary system, is said to be affected. As this report from the beginning of the month put it: “Bitcoin wallet company BitGo, Inc. is currently being circled by Redditors for its alleged attempts to patent the Bitcoin multisig technology.
“The San Francisco based company had submitted a patent request to the United States Patent and Trademark Office (USPTO) on February 4th last year, a document of which was published yesterday, on April 30th 2015. The document reveals BitGo’s application in which it is seeking a patent for a network device that is “configured to receive public keys, over an electronic network, of two or more second public-private keys,” something that is reportedly identical to the multisig functionality.”
They are patenting cryptological methods now. This is like patenting mathematics. It has got to stop at the examination level, not just at the courts (legal fees are obscenely high). █
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“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”
–IP Watch on Professor Joseph Stiglitz
Summary: A review of recent writings about software patents and patents on business methods in the United States, demonstrating that patent lawyers have gotten very vocal and sneaky (trying to evade the rules)
THE patent landscape in the US is getting a lot better, not because of any reform but because of a SCOTUS ruling in a case widely referred to as Alice. Brian Fung from the trend-setting media says “new patent lawsuits are down for the first time in five years.”
“Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones.”Over the past year (since the Alice precedence was set) we have written a great deal about patent lawyers’ fears and their endless attempts to rewrite the rules or cheat the system (which is basically what their job is often about–finding and exploiting loopholes, sometimes misleading judges).
Corporate Counsel, a site of patent lawyers (as its name reveals if not gently indicates), is trying to tell us that “Software Patents Are Still Valuable”. Written by R. Flynt Strean, Michele M. Glessner and Zachary A. Higbee from Corporate Counsel, the article basically tells patent lawyers what they want to hear. Surely it’s music to their ears.
Another lawyers’ site, Law 360, says that the Court of Appeals for the Federal Circuit‘s “Eon Ruling Offers Map For Clear Software Patents”. To quote: “A recent Federal Circuit decision invalidating an interactive TV patent owned by Eon Corp. IP Holdings LLC is the latest ruling by the appeals court stressing the need to make software patents clear by including an algorithm and provides guidance for writing software claims that can withstand scrutiny, attorneys say.”
This is basically the giving of tips on how to patent software, despite many of prospective patents being ineligible.
Watch sites composed by lawyers (National Law Review in this case) ridiculing critics even of patent trolls as if patent lawyers support patent trolls, not just software patents. This one site wrote this about Alice: “Alice did provide, however, that if the subject matter “improves the functioning of the computer itself” or “any other technology”, such subject matter may be patent-eligible. In this way, one can see this as leaving open the possibility of finding computer software patent-eligible.”
They are reversing the actual outcome as positive. Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones. The way lawyers like to frame it is a way that generally supports software patents, i.e. the opposite of what SCOTUS actually ruled on. These articles are full of lawyers’ tricks for patenting software despite the highest court’s ruling which serves to bar/limit them.
Watch this other lawyers’ site stating about CBM (covered business method): “As a § 101 analysis under Alice Corp. does not require the time and expense necessary to analyze prior art, swiftly launching a CBM petition that relies either solely or primarily on § 101 challenges presents a cost-effective approach with good potential for success. This is especially true in view of the limited estoppel particular to CBM post-grant reviews, which would allow for subsequent challenges under §§ 102, 103 and 112, at the district court. In addition, a CBM, unlike an inter partes review is not required to be filed within one year after a district court patent infringement suit is initiated. Note, however, that upon a final written decision, § 325(e)(1) estoppel will still bar grounds that the petitioner “raised or reasonably could have been raised” in pending or future PTO proceedings, this is true even if the parties settle.”
“To lawyers, everything that reduces the number of permissible patents is evil.”The pattern here is clear and we have omitted nothing that we’ve come across in our research (this month’s news). Lawyers who profit from patents are working very hard to get around the rules and continue to patent software, showing disregard not just for science but also for the highest court.
Here is one statement which we also found mystifying, under the headline “Patent Laws Are Getting Cloudy”: “While the cloud reduces the barrier to entry for innovation, moving from a hardware to a software model makes getting a technology patent more difficult, he added. He attributed this to biases in U.S. and European patent law.”
What biases? Ones that limit patenting of software? And for good reason? To lawyers, everything that reduces the number of permissible patents is evil. They view everything as a nail because they are hammers. All they care about is money and destruction (in courtrooms, where real products can be embargoed or castrated, companies can be driven to bankruptcy, and ideas come to be squashed). Don’t listen to patent lawyers if you want the facts; we know how they make their money. They create nothing but paperwork and court hearings. █
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Roman empire giving up
Summary: Opposition to the Unified Patent Court (UPC) is being crushed and Italy is one of the latest actors to have fallen in the battle
SO IT TURNS out that “Italy [is going] to join the UPC after decision of 5th May,” based on Benjamin Henrion’s rant. “Does Italy has a constitution?”
IP Kat backs that up in this article, showing us that Europe going the way of the dodo when it comes to patents. Four years ago we commended Italy for standing up against the this polymorphic and nym-shifting charade (Unified Patent Court is the latest name), but the EPO fought against them for years; it fought for software patents in Europe.
IP Kat‘s criticism of the EPO carries on in other ways, but the news from Italy is covered as follows: “Now it seems that the legal challenges to the new system are coming to an end but, as Merpel suggests, the biggest challenge of all remains — the challenge of making this unknown, untried, hybrid system work in practice. The patent-granting and administration work is the easy bit: all depends on the functionality of the Unified Patent Court.”
Large multinational companies will soon be suing European companies using patents Europe-wide, imposing embargoes and raising costs considerably. Patent trolls can join these multinationals in the heist. Who does the Unified Patent Court serve if not wealthy globalists? █
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Source: Conference by Richard Stallman, “Free Software: Human Rights in Your Computer” (2014)
Summary: Media mistreatment of the very roots of Free/Open Source software (FOSS), which is now approaching 35 years in age and increasingly thriving
IN recent weeks we have found several ‘news’ articles that gave us cause for concern. Some were shared with Richard Stallman, a regular reader of Techrights, for his views to be expressed and portions of the correspondence can be found here (cautiously redacted to reduce potential animosity/tensions).
It is not unusual, especially these days (age of openwashing), to see the label “Open Source” misused. Not too long ago we identified some very gross distortion of the term “open source” to essentially openwash Facebook’s surveillance ambitions, focusing on poor people. Facebook traffic has sunk pretty badly over the past year (based on Alexa it’s a massive drop), so Facebook is trying really hard to frame/paint itself as “ethical”, even when it tries to expand its surveillance to people too poor to get connected to the Internet. This isn’t altruism, it’s opportunism and malice. It’s definitely not “open source” and the dot org suffix (Internet.org) is clearly inappropriate, not just misleading. “Facebook mistreats its users,” Stallman explained. “Facebook is not your friend, it is a surveillance engine.”
There was also an effort to delete GNU from history — an effort that has gone rather aggressive. Stallman was in the process of speaking to editors who jad allowed this to happen (dumb lawyers called GNU and Stallman’s text “Open source Manifesto” in the article “Open source Manifesto turns 30″). Stallman asked me to show him the original publication site and tell him how to write to them. It wasn’t too clear whether to write to the editor/site or the author/law firm. The former can issue some fixes/corrections, we tend to think, superseding what was contributed by lawyers. The article comes from a formal publication which often publishes patent lawyers’ pro-software patents columns (we have seen over 100 of them over the years). The target audience is lawyers. The latest is no exception to the rule. It is an article by Leech Tishman Fuscaldo & Lampl LLC and the Web site is London-based, with Andrew Teague as the Associate Publisher, Mark Lamb as the Publishing Director, and Chris Riley handling subscriptions. When it was first published Stallman was eager to contact “Either one, or both! [editor and writer] But the sooner the better.” No correction has yet been published. It’s nowhere to be found.
GNU and Free software are 30+ years old. A lot of people contribute to the misconception that it all started when Torvalds released Linux or when the term “Open Source” (not open source intelligence) was coined by the likes of O’Reilly. Watch the “Open Source” O’Reilly nonsense starting the clock more than 10 years later than GNU: “Twenty years ago, open source was a cause. Ten years ago, it was the underdog. Today, it sits upon the Iron Throne ruling all it surveys. Software engineers now use open source frameworks, languages, and tools in almost all projects.”
Rachel Roumeliotis is advertising OSCON 2015 (OS stands for “Open Source”), but she should know about GNU and its age. These people conveniently start the clock when O’Reilly and his henchmen got involved. They want all the credit and they want people not to speak about freedom. Eben Moglen already ranted about this, right on stage in an OSCON event nearly a decade ago.
“This shows how “open source” misses the point,” Stallman wrote to us. “If the frameworks, languages and tools they use are free software, that is good for their freedom. But if what they develop with those is nonfree software, it doesn’t respect our freedom.
“So open source “won” by ducking the important battle.”
Well, the “we already won” attitude (or notion) helps a defeatist’s approach; why fight for more freedom if “we won”? That’s what those people (even developers) who open a MacBook or some ‘i’ device want to happen; some would further insist that Apple and Microsoft are now “open source” players, so “game over”…
We have noticed that Microsoft is now googlebombing with “Windows open source”, promoting the ludicrous notion that it’s now “open” (or gratis), or that it will be so one day. It started about a month ago, maybe two; dozens of articles have served this PR strategy. we wrote some rebuttals and will write another one this weekend. There is a gross distortion of what actually happened and what is happening.
“Stallman was unhappy about the increasing prevalence of proprietary software,” said the aforementioned article From Lexology, “software protected by copyright law and usually licensed on a commercial basis by its owners.”
Yes, but Free software too is protected by copyright law, it’s just twisted into copyleft. “Source code is sometimes licensed under GNU GPL terms,” says the article, “a form of
“copyleft” rather than copyright.”
OK, so surely they know what Free software is and where it comes from. Why proceed with statements like: “The “open source” movement emerged in GNU’s wake. As with GNU, users of
open source code can look at the source code and modify it. However, unlike with GNU, they are not required to share their developments with the world at large.”
“We have noticed many articles throughout this past year or so — including some from Linux Foundation staff — that basically start history in 1991 as if GNU/Linux came out of a vacuum or from Torvalds’ bedroom.”Actually, unless they are using something like the BSD licence, they usually must. Then there are issues like SaaS, which are addressed by the AGPLv3, among other licences. But either way, Free software remains Free software, there is no justification for renaming it “Open Source” and calling the GNU Manifesto “Open source Manifesto”. It’s insulting to those who started the whole thing and wish to receive fair coverage or attribution, at the very least.
The Lexology sites presents some other issues, mostly to do with access, not just paywalls. Stallman asked: “Can you email me the full text of that article? I tried to fetch the page and what I got did not include the text.”
Stallman said he “wrote to them”, but more than a month later the article remains uncorrected, not updated, etc.
Another big load of revisionism (changing history) uses the “Open Source” label to delete GNU from history. Published last month, the article titled “At Birth, Open Source Was About Saving Money, Not Sharing Code” focuses on Torvalds (see feature image) and frames the movement as one that is centered around money. Stallman asked: “Is that someone opinionated who won’t listen to me?”
It is of course worthless asking for a correction when you know in advance none would be made. It later turned out to be part of a broader series of articles, some of which did cover GNU. I personally read several hundreds of items from the author and he’s more into ‘practical’ benefits, so I don’t think it would be worth arguing over. Some people just aren’t fond of freedom in the context of computing.
We have noticed many articles throughout this past year or so — including some from Linux Foundation staff — that basically start history in 1991 as if GNU/Linux came out of a vacuum or from Torvalds’ bedroom. Quite frankly, we think it’s an insult to history. We deem it negligent at best. Of course it leads people to deducing that the success of the system in its entirety is owing to the great “Linux values”, not GNU philosophy.
In summary, in our threads of communication with Stallman we were able to reaffirm that there were factual issues in the “Open Source Manifesto” article (it speaks about the GNU Manifesto) and despite Stallman’s request for correction, nothing has been done by the publishers. It’s like people just don’t wish to speak favourably about freedom in computing. Mac Asay, a Mormon (i.e. more superstition a religion than most other religions), compares Free software people to dangerous religions — a typical smear directed at a largely secular Free software community. Perhaps there are just those who are impossible to please because they are inherently opposed to control over one’s machine and would rather buy digital prisons from Apple than work a little harder to gain control or acquire freedom-respecting tools. █
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Summary: Observations about media coverage and reactions to the focus on patent trolls, which distracts from desperately-needed reform around patent scope
OUR latest article about patent reform, which we published yesterday (late at night), talks about politicians in the US using a bill called the PATENT Act to tackle large corporations’ nuisance. This is receiving some attention right now and some bloggers took note of what we wrote about the other day, as well as over the past few years. The issue is not patent trolls but patent scope. It has been obvious for a long time, but corporate media will rarely (if ever) say this.
“Patent Trolls Aren’t The Problem – Broad, Vague Patents Are” — that’s the headline in last night’s article which alludes to Timothy B. Lee’s article, concurring with what we have pointed out for a very long time. To quote the summary: “Timothy B. Lee writes at Vox that the PATENT Act is focused on dealing with patent trolls: fly-by-night companies that get rich by exploiting flaws in the way the courts handle patent lawsuits. If trolls are the primary problem with the patent system, then the PATENT Act will go a long way toward fixing it. But according to Lee patent trolls aren’t the primary problem with the patent system. They’re just the problem Congress is willing to fix. The primary problem is the patent system makes it too easy to get broad, vague patents, and the litigation process is tilted too far toward plaintiffs. But because so many big companies make so much money off of this system, few in Congress are willing to consider broader reforms.”
As we pointed out before, the media, including John Oliver, diverts virtually all the attention to patent trolls as though they are the sole issue. A seemingly respectable (and large) lawyers’ site attacks the messenger, saying that “John Oliver is witty, dry, and often downright silly” when attacking his message, essentially defending trolls. The HBO-hosted shows has generally come under fire from many patent lawyers, including vocal proponents of software patents. Note the byline: “Michael Gulliford is the Founder & Managing Principal of Soryn IP Group, a patent advisory company that provides a host of patent-centric services” (i.e. patent lawyers). Watch the pattern here. They are all pretty much defending trolls and dismissing John Oliver, without necessarily coming across as too rude. Here is how one lawyers’ site put it: “In the wake of Jon Stewart and Stephen Colbert leaving their respective shows on Comedy Central for newer pastures, John Oliver has emerged as a new beacon of political humor and satire. If you haven’t watched his show, and especially if you considered the former two as having an obvious political slant, you should check out Last Week Tonight on HBO. His shots get fired everywhere.
“On this week’s, John Oliver took a shot at the patent system, particularly patent trolls…”
There was a lot of press coverage about that show [1, 2, 3, 4], but most of it — if not all of it — was supportive, except when it comes to patent lawyers’ Web sites. All the criticism that we could find of him was composed by patent lawyers and their media.
Incidentally, there was press release titled “Cal Poly Professor Emeritus to Offer Advice on Thwarting Patent Trolls at Upcoming RT Imaging Summit”. It appeared a couple of weeks back in many sites [1, 2, 3]. This too promotes the narrative wherein only trolls are the problem. We need to shift back attention to the broader issue. If software patents became unpatentable, the lion’s share of trolls would instantaneous disappear. █
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Chuck Grassley’s 1979 congressional photo
Summary: Big corporations, including some of the biggest patent aggressors out there, successfully lobbied for what has essentially become a bipartisan bill to eliminate the thorn in their side
“TROLLS” has become the dominant term in today’s news about patents. It has been like this for at least a couple of years. It’s all about trolls, trolls, trolls. The EFF, which sometimes speaks about software patents (especially this year), is still obsessing over “patent trolls”. In one of its recent articles it said: “Suppose you get sued by a patent troll. You then learn that the troll has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the troll.”
To rephrase the above text, suppose you get sued by a large corporation. You then learn that the corporation has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the corporation.
“Busting one patent at a time is not a practical approach to solving the overall issue.”The point here is simple; it makes no difference if the plaintiff is some corporation or a troll, but large corporations want to only eliminate the trolls, not themselves. Watch the ongoing AP obsession with trolls, this time too courtesy of Anne Flaherty. The Associated Press has almost literally flooded news houses and newspapers with articles that only focus on trolls, as we showed last week (dozens if not hundreds of large papers reposted/reprinted AP). This looks like propaganda. It’s a form of lobbying through media. AP’s obsession with trolls is exceptional mostly in the sense of impact, it’s not necessarily unique. AP is embedded or put in hundreds of Web sites around the world, shifting all focus to one misdirected ‘reform’ effort [1, 2, 3, 4, 5, 6]. The headlines vary a little, but the storyline is always the same.
Here is a better article from the EFF, focusing on a patent it squashed quite recently. The site says “EFF recently won our challenge to invalidate claims of the “podcasting patent” using a procedure at the Patent Office called inter partes review. This procedure allowed us to challenge a patent that was being used to demand licenses from individual podcasters, even though EFF itself had never been threatened by the patent owner. EFF’s ability to file this petition was important because many of those targeted by the patent owner—small podcasters—would be unable to afford the $22,000 filing fees to challenge the patent, let alone the attorneys’ fees that would come along with it. Also, if an individual podcaster had filed an inter partes review it would have faced a risk of retaliation in the form of a district court lawsuit from Personal Audio. Instead, EFF was able to defend the public interest on behalf of the community as a whole.”
The word “troll” is not even mentioned. Compare that to related coverage from “IP Troll Tracker”, which wrote: “Let’s just come right out with my point…the “podcasting patent” is no more. I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here). Why? Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process. You know, like Intellectual Ventures does. Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.”
Busting one patent at a time is not a practical approach to solving the overall issue. It is impractical and expensive to do this a million times. The only proper solution is to eliminate software patents, which obviously would invalidate this “podcasting patent” (along with hundreds of thousands — if not over a million — other US patents).
So, now there’s this relatively new talk about some ‘reform’ with a new name. It’s not really reform for the people but reform for the nation’s largest corporations (to better suit large corporations’ interests). The New York Times used a misleading headline: “With Patent Litigation Surging, Creators Turn to Washington for Help” (by “Creators” they don’t mean individuals). We quickly found a lot more coverage of this (usually following trend-setting media) and it kept mentioning this thing called “PATENT Act”, which is fairly new. Lawyers’ sites covered it [1, 2, 3] and so did a lot of corporate news sites [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]. Mike Masnick wrote about this thing called “PATENT Act” a few days ago, highlighting early signs that this is just another “act” with gimmicks and branding rather than substance, just like “Freedom” Act and “Patriot” Act. He said that the “Patent Reform Bill [is] A Good Step, But Still Falls Way Short Of Fixing A Broken System”, explaining that: “As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It’s backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid’s leadership position as Reid prepares to retire, has declared that this time the bill is getting done.”
It looks like it will really become law (based on dozens of articles we saw), but what will this achieve? “2015 could be the year Congress takes action on patent trolls,” wrote Timothy B. Lee, noting that it’s all about trolls.
“There’s a growing problem with patent trolls,” he wrote, “the companies that create no products of their own but earn money threatening other companies with patent lawsuits. The problem has become so widespread that even low-tech companies like restaurants and grocery stores have begun lobbying Congress to do something about it.
“It’s not really reform for the people but reform for corporations (to better suit large corporations’ interests).”“Now Congress could be on the verge of taking action. On Friday, a Senate aide close to the negotiations told me that a bipartisan group of senators is “very close” to introducing legislation with broad support in the Senate.
“Supporters of the legislation have good reason to be optimistic, as the coalition supporting the legislation is broader and more unified than in the past. But given Congress’s penchant for gridlock, it’s far from a sure thing.”
We wrote about Grassley before (in relation to Microsoft) and mentioned some of the other supporters of this bill. They are not necessarily corrupt, they are probably just misled by the lobbying. Our conjecture is that to make the bill passable they don’t really want a proper and complete reform, they just amend it based on input from corporations (lobbying). A slightly later (and very good compared to the rest) article from Timothy B. Lee explains “how big companies are stopping Congress from fixing the patent system”. He hits the nail on the head when he says that “the problem of large companies exploiting the patent system hasn’t gone away. If anything, it’s gotten worse as the courts made it easier to get broad, vague patents in the 1990s and early 2000s.
“A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That’s not because Google was caught copying Microsoft’s Windows Phone software (which has never been very popular with consumers). Rather, it’s because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft’s patent arsenal has become so huge that it’s effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.
“The proliferation of software patents has triggered an arms race. Google, for example, spent $12.5 billion for Motorola, largely for access to its large patent portfolio. A consortium of technology companies including Microsoft and Apple spent another $4.5 billion on patents from the defunct technology company Nortel. Their vast patent libraries help protect them from each other — but they could also help them crush potential future competitors.”
Grassley, we venture to guess, is not trying to tackle abuse by large corporations, he is just listening to some abusive large corporations (and the corporate media). As The Hill put it not so long ago: “Bipartisan senators on the Judiciary Committee are close to unveiling legislation to fight so-called patent trolls.
“Judiciary Chairman Chuck Grassley (R-Iowa) told reporters at the National Press Club that negotiators are “close to getting a final agreement,” with his office later saying it could come as soon as this week. Another aide familiar with the talks said senators are close to a bill.
“The proposal is not expected to look like the House’s Innovation Act but will include some of the same provisions. It will have provisions on discovery and pleading requirements that are less strict than the House version, according to Grassley.”
Call it “PATENT Act” or “Innovation Act”, these are just labels. What it’s really about is tackling trolls, but not promoting innovation or even improving patents. The bill targets the plaintiff type, not the patent type. These are just an opportunist’s methods for promoting oneself without really serving the public. Recall the patent 'reform' from the GOP and watch this latest publicity stunt for Rick Santorum (disgraced GOP candidate who never gained traction).
As with many giant corporations that support Linux (IBM or Google), there's no chance of them tackling software patents as a whole. They are not Free software communities. Their problems are different. “Google collects patents while lobbying against them,” wrote one vocal proponent of software patents. It is a correct observation actually, exploited by proponents of overly broad patents in this case. Here are the British lawyers from IP Kat taunting Google as well in their article “Google says ‘We want your patent. Maybe.’”
Never expect large corporations to do the right thing unless their interests somehow coincide with the interests of people (which is rare). Patent reform will require popular action and pressure from the public, not from the likes of IBM and Google, not even Red Hat. This is why the effort to stop software patents must regain some momentum (lost several years ago). █
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Summary: The debate about software patents in this post-Alice era parallels the Net neutrality debate, where voices of people with vested interests contribute to confusion and meddle with largely-accepted views/consensus
OVER the past month and a half there have been quite a few articles about software patents. We have kept track of them and accumulated what amounts to an alta vista of sorts — a kind of zeitgeist of patent debate trends. Back when this site was born (2006 being the year of establishment, i.e. almost a decade ago) debates about software patents were habitual; later we saw these debates distracted, diluted, and then virtually extinguished, i.e. largely gone. It wasn’t an accident; the debates are controlled by corporate media, which is in turn motivated by the wills and itches of large corporations. Now they love to moan about “patent trolls”, despite the strong correlation between trolls and software patents, let alone the fact that many big corporations act just like trolls. Those who insist that the only problem worth tackling in patents is “patent trolls” are probably just trying to protect multinationals from them; this includes some patent lawyers who perceive trolls as a legitimacy problem (serving to discredit the system they make money from and thus must protect).
Alice Changed Everything
The article ““Ineligible Subject Matter” Patent Litigation Spikes In 2014″ (note date) provided an interesting perspective. “More than 20 lower court rulings since the Alice decision have invalidated software patents,” said this other article about the HP patents (see [1, 2, 3, 4, 5, 6] or this analysis which says one “can help to have these [HP] patents revoked by providing ‘prior art’ examples on Stack Exchange”). Clearly enough there continues to be progress in this area, but the media is largely absent from it. The voices of patent lawyers dominate and they contribute to the illusion that nothing has changed after the Alice decision, or that very little has changed.
“CAFC affirms invalidity of patent on computerized meal planning,” Charles Duan wrote the other day. “Case was so easy they didn’t issue an opinion.”
Now, for CAFC, the most overzealous pro-software patents court to do this must truly count for something.
“Lenovo Says Alice Kills Tranxition Software Patents,” according to this article which states: “Lenovo (United States) Inc. on Tuesday asked an Oregon federal court to find invalid two Tranxition Inc. software patents it is accused of infringing, saying the patents are abstract and unpatentable under the U.S. Supreme Court’s Alice Corp. decision.”
Also consider reading the article “Future Of Software Patents In Doubt After Supreme Court Decision Last Year”, despite it being a little older.
Vivek Wadhwa, a longtime critic of software patents, weighed in last month and said that “Patents are like nuclear weapons”. “Vivek Wadhwa,” said the introduction, “Indian-American tech entrepreneur and academician is an outspoken advocate of abolishing software patents in the US.” Vivek Wadhwa also published some other pieces in large newspapers, noting that the “Founding Fathers of the United States considered intellectual property so important that they gave it a special place in the Constitution: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.””
Satish Babu said that the “‘Improve Patent Quality’ campaign Is a distraction & doesn’t lead to elimination of software patents [according to] RMS delivering the keynote at #lp2015″ (recent event).
To quote an article about it, “Big companies that don’t really want to get rid of software patents but do want to get rid of nuisance patents have launched a competing, weak, not-worth-bothering campaign to quote ‘improve patent quality,’ unquote,” Stallman said, presumably in reference to the lobbying group United for Patent Reform, which launched in January.”
Stallman is right. As we’ll explain later, there is one effort to blame it all on “bad patents” and another to blame it all on “trolls”, as CCIA (a front group) likes to do. Uniloc, which is clearly a patent troll, was mentioned here a short while ago because “PTAB Will Review Widely Asserted Uniloc Software Patent”. To quote: “The Patent Trial and Appeal Board agreed Tuesday to conduct an inter partes review of a patent on software registration technology that Uniloc USA Inc. has asserted against dozens of companies over the years, in a win for Sega of America Inc. and other accused infringers.”
Here is another development in the realms of software patents. BreezyPrint dodges a software patents lawsuit in Texas, where the courts are very favourable to plaintiffs. Quoting Law 360: “A Texas federal judge ruled Thursday that BreezyPrint Corp., a small mobile printing company, did not infringe several printing software patents owned by rival PrinterOn Inc., which was recently acquired by Samsung Electronics Co. Ltd.”
“Software patents at center of abuse problem, report says” is the title of another report. Thankfully, some people do realise/understand the core issue and this issue has already been addressed to a large degree by the highest court in the US. One oughtn’t be surprised to see patent lawyers panic.
Lawyers Distort the Record
So all in all one might assume that we’re moving in the right direction and the world can finally grasp that software is not patentable, not even in the US. Sadly, however, patent lawyers and people in the patent ‘industry’ still flood the channels (news, forums, etc.) and it shows. They are fighting back against this new reality.
A Microsoft-backed pro-software patents lobbying group (BSA) was given the platform right here, promoting software patents of course. This piece of lobbying/propaganda was posted by Dennis Crouch, who is himself very biased.
Crouch gives his platform not just for lobbyists to exploit (for software patents around the world) and to dismiss Alice but also for other pro-software patents voices, usually patent lawyers. Consider this “Guest Commentary” by Robert Stoll and the notoriously pro-software patents Michael Risch (he believes and insists that some software should be patentable).
Other patent lawyers took on other media. An article by James M. Singer (Fox Rothschild LLP) remarks on Alice and Singer again did this when it comes to patent reform. They are pushing forth the interests of patent lawyers. “We’re hearing a lot of claims about the STRONG Act as an “alternative” to patent litigation reform,” wrote the CCIA-backed (and powered) site. “The campaign supporting the bill has been misleading at best.” This CCIA-backed site keeps focusing on trolls, as usual, as it last did even a fortnight ago. It’s not asking for real “Patent Progress” (the name of the site) but a ‘progress’ that its funders (which include Microsoft) want. A patent bill’s acceptability is determined by the paymasters and “trolls” remain the only mentionable issue. “According to Lex Machina’s data,” says Levy (CCIA), “in January this year, there were 442 patent cases filed compared with 334 cases in January 2014. That’s a 32% increase. In February this year, there were 500 patent cases filed compared with 440 cases in February 2014. That’s a 13.6% increase. For the year so far, there are about 22% more patent cases filed in the first two months of 2015 compared with the first two months of 2014.” But that’s not the point; the real issue is not just litigation but the scope of patents. Why not tackle the core issue?
Patent propagandist Gene Quinn published “The Road Forward for Software Patents post-Alice”, one among his many pro-software patents posts (he makes money from these). Gene Quinn derives revenue from this parasitic system, so his torrent of pro-software patents pseudo-patriotism and salesmanship (appeal to emotion with terms like “Problem Child”) should not be shocking.
In another lawyers’ site we find another post-Alice pro-software patents piece. “Given past precedent,” it says, “counsel should not expect the pendulum to stop swinging back-and-forth on software patent eligbility” (it has already swung).
In another lawyers’ site we found more of the same and other lawyers’ sites offer no exception. They are teaching patent lawyers what to do as they are trying to get around the rules and share tricks for doing so. That’s what lawyers do, not just when it comes to patents. They want to keep patenting software, i.e. generate business for themselves. Watch how one firm, Akin Gump Strauss Hauer & Feld LLP, selectively covered cases where software patents were upheld by courts. It’s this bias by omission that we covered in prior month.
In conclusion, the world is changing, but don’t expect it to change without aggressive and persistent resistance from the parasites. █
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