Summary: Microsoft-connected patent trolls like Larry Horn’s MobileMedia are still attacking Microsoft rivals and Microsoft wants more money from Korea, after it attacked Linux with software patents over there (notably Samsung and LG)
“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).
How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).
Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”
A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.
“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”
Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:
(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.
MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”
MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.
In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:
The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.
Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.
When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).
Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █
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Although not centrally orchestrated (top-down/peer coordination), the patent microcosm in the US knows what it is trying to accomplish
Summary: Microsoft is pursuing more Linux ‘patent tax’ (using software patents) and patent law firms are preoccupied flooding the media with their shameless self-promotion which is also software patents promotion
OVER the past week we repeatedly wrote about our expectation which turned out to be true. McRO has truly become the latest go-to case when a patent law firm tries to fool software developers into pursuing patents on algorithms, even in a climate that is so hostile towards them. One aspect of it which we mentioned here twice before was Microsoft’s role. Here is a direct link to what Microsoft said in its lobbying blog (later cited by numerous Microsoft advocacy sites, in order to give it the veneer of “news” or “report”). From the company that brought us patent lawsuits against Linux, e.g. Microsoft v TomTom comes yet more advocacy of software patents. And they tell us that they “love Linux”? This may mean that Microsoft would be happy also with the CAFC case that it lost to Enfish, as this outcome was desirable for software patents in general. In other related news, this new report from the Microsoft-friendly IAM, citing another report from Korea, reminds us that Microsoft wants more money from patents, now in terms of a refund of tax. This probably alludes to taxation on money from LG and Samsung, which both surrendered to Microsoft nearly a decade ago. Microsoft signed patent deals specifically covering their use of Linux (we covered this in 2007) and Microsoft now wants more money from this extortion (using software patents which are probably not even valid) and is suing the Korean authorities for it. What a bunch of thugs. ‘New’ Microsoft they say? Loves Linux? What a load of nonsense. To quote IAM: “Korean newswire Pulse recently reported that Microsoft had filed a claim with the country’s internal revenue services requesting the return of 600 billion won ($533.1 million) in corporate taxes it had been charged on patent licence fees and royalties paid to it by Korean businesses. The US company argued that it had been taxed on licences relating to patents covering jurisdictions other than South Korea, when the government of that country should only be able to collect revenue on patents applied for and issued domestically.”
Put in very simple terms, Microsoft, which is openly calling for more software patents, continues to use these to tax Linux and wants even a higher share of the money squeezed out of successful companies. Microsoft has attacked Linux users with software patents for about a decade (raising the costs of everything) and now it sues the Korean tax authorities to get additional extortion money. Coming from one of the world’s biggest tax evaders, which also got caught engaging in financial fraud, surely this takes some nerve and audacity. One can only hope Microsoft layoffs will accelerate fast enough to remove it from the planet (there have been Microsoft layoffs for a while and this month there are Microsoft layoffs in the UK). Recall that Microsoft also pays David Kappos to help resurrect software patents, in his capacity as former Director of the USPTO. It may not be classic bribery but lobbying. He is one of the fiends responsible for the biggest software patents push right now; he is a malicious, greedy man. Software patents remain a key issue that determines success/failure of FOSS; Section 101 is a possible solution and they try to put an end to it. We need to work against a huge patent microcosm which plays dirty behind closed doors. Unpatent is “fighting the smoke rather than the base of the flames,” told me one person yesterday and the President of the FFII thinks so too. Unpatent has good intentions, no doubt (I spoke to its founder several times), but it won’t ever work towards resolving big issues like this massive lobbying push which targets or strives for purely legislative changes (system-wide).
So who else is promoting McRO this week? Pretty much everyone who would be profiting from an upswing in software patents. Here is Watchtroll promoting software patents again (in the form of a “Free Webinar”) and here are some so-called ‘analyses’ or articles from today and yesterday. To quote just the headlines, “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”, “McRo v. Bandai: Evidence related to claimed improvement is key to whether claims are directed to an abstract idea”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis”, “What the Federal Circuit’s Decision in McRO v. Bandai Could Mean for Computer-Based Inventions and Other Innovations”, “McRO v. Bandai: Latest Federal Circuit § 101 Decision Breathes New Life into Software Patents”, “McRO v. Namco – Fed. Cir. Reverses s. 101 Invalidation of Animation Method Patents”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit is In Sync with Patent’s Validity Under Section 101″, “Gone Enfishing: Software Patentees Reel in Another Huge Win at the Federal Circuit”, and “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”. Every single one of these was published by a patent law firm and they effectively flood news feeds with these (the signal, or actual journalism covering this case, has been washed away by now). These people are just trying to attract clients and we are still seeing lots of these patent law firms piggybacking McRO to promote software patents and make their sales pitch. Judging by what happened after Enfish, this can carry on for weeks to come. Utterly misleading and self-serving — that’s what it all about. This perturbs public understanding of the case. There is hardly even any pretense of balance when it comes to software patents whenever patent law firms just try to sell us more lawsuits.
The patent laws we have typically get written by politicians who are lawyers and lobbyists, not scientists like software developers, hence the sordid state of affairs. Watch how Bilski Blog is attempting to discredit courts for not understanding science, as if patent law firms are that much better at it. From the latest part of “Bad Science Makes Bad Patent Law”:
The Supreme Court in Mayo acknowledged that “Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature.” Indeed. And it is precisely because the courts cannot make such distinctions, that the Supreme Court needs to correct the problem it created by adopting a more scientifically coherent approach to laws of nature.
It’s been argued that it’s too soon for the Court to take up another patent eligibility case, having only recently decided Alice. But it’s been just over four years since the Mayo decision. The Supreme Court “corrected” Parker v. Flook (1978) only three years later in Diamond v. Diehr (1981). And fixing this problem is necessary before more patents (and patent applications) are improperly invalidated for important inventions in diagnostics and treatments.
The Court had that opportunity in Ariosa but it denied Sequenom’s cert. petition. Now the Court has the opportunity again. Genetic Technologies has filed for certiorari. The Court should take up the case for the reasons I’ve articulated in these posts.
More specifically, the Court can address two issues. First, the Court can articulate a more complete and “patently” useful definition of a law of nature. In the past, the Court has expressed a particular distaste for bright line rules in the patent law, preferring instead flexible standards. Consider the Court’s rejection of the “machine-or-transformation” test in Bilski, and the rejection of the “teaching-suggestion-motivation” test in KSR. However, the Court’s current definition is such a bright-line rule, by making any natural relationship a de jure law of nature. A revised definition need not be perfect, only more in concert with current scientific theory and practice.
Australia, which still has issues with software patenting (developers of software oppose these, but they have little or no impact on the law), inherits a lot of the ills of the US patent system. One patent law firm from Australia asks, “Does Australia Have a (US-Style) Two-Step Test for Patent-Eligibility?” These systems are inherently different, but proponents of software patents (like the author in this case) try to assimilate them. To quote:
In its Mayo/Myriad/Alice series of cases, the US Supreme Court has established a two-step test in order to determine whether a claimed invention defines patent-eligible subject matter or not. In the first step, the claims are examined to determine whether they are ‘directed to’ a patent-ineligible concept, i.e. an abstract idea, law of nature or natural phenomenon. If not, then the subject matter of the invention is eligible for patenting. Otherwise, the analysis proceeds to step two, in which the claims are further analysed to determine whether or not they comprise some additional element, or combination of elements, that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’
That latter part alludes to the loophole often used inside the EPO or even in New Zealand. it often seems as though the USPTO gets more similar to what used to be the EPO while the EPO becomes more like the USPTO pre-Alice. In fact, some people theorise that Battistelli is trying to attract the bottom of the barrel by welcoming all the worst patent applications which even the USPTO would reject. This is a recipe for disaster.
As an aside, there is pressure to impose software patents on countries that don’t formally have them. For instance, the media in Taiwan says that the ITC “launches probe into alleged patent infringement by Advantech,” noting that based on “the complaint filed by Rockwell in August, the three accused firms violated the U.S. law by importing into the U.S. market and selling industrial control system software, systems using the same, and components that infringe upon patents…”
These are software patents by the sound of it. These threaten to embargo physical products from Taiwan, where some of the best products are made (in several sectors). So much for innovation… █
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“Called “patent sharks”, they bought dormant agricultural patents and then sued farmers who were unknowingly using protected technology. This brass knuckles tactic outraged rural activists and led to the same calls for sweeping patent reform that we hear now.” —Gerard N. Magliocca, Blackberries and Barnyards: Patent Trolls and the Perils of Innovation
Summary: The unwanted elements of the patent system (as it stands at present) illuminated by very recent news and patent court cases
WE sometimes worry that our growing focus on the EPO has distracted somewhat from the patent quality problems at the USPTO. We spend an enormous amount of time looking into patent news from all around the world and occasionally something catches our eye that needs a quick comment but not a comprehensive rebuttal. Herein we lay out some recent patent news, with or without further comment.
“Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome).”When it comes to patents, rules vary wildly depending on the country. Here we have Switzerland-based site praising its own country on patents, but it’s only part of the story because for a rich country to have a lot of patents makes a lot of fiscal sense, for reasons we explained last month. The Swiss patent system and the role of Switzerland in the EPO requires taking into account Switzerland’s rather unique economy.
According to the patents-centric media, Judge Koh, probably best known in recent years for her involvement in Apple and Samsung trials, is still going strong. “The Senate Judiciary Committee on Thursday voted 13-7 to approve the nomination of U.S. District Judge Lucy Koh to the Ninth Circuit,” says this report.
One article, this one coming from a niche Web site, wrongly assumes that ‘app’ (buzzword, usually meaning software for mobile devices) development requires patents. If you develop a mobile ‘app’ and waste time/effort worrying about patents on software, then you’re probably doing it wrong and wasting resources. Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome). Deterrence using patents does not exist when trolls are involved.
“Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes.”“Apple Was Hit with a $22M Verdict for Infringing an Acacia Patent,” wrote a patent attorney the other day. Acacia is a Microsoft-connected patent troll. As for Apple, when it sued HTC 6 years ago it showed that it too was quite a patent bully. “According to the complaint,” says another new report, HTC is being sued again and “the plaintiff [Infogation] alleges that Infogation Corp. suffered damages to its business from having its patent infringed. The plaintiff holds HTC Corp. and HTC America Inc. responsible because the defendants allegedly manufacture and distribute mobile phones containing software that infringes the plaintiff’s patents.”
They just can’t leave HTC alone, can they? Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes. Speaking of embargoes (or injunctions), another example of the ITC being exploited for embargoes (using patent allegations before even a proper trial) can be seen in this new press release. So much for promoting innovation, eh? Promoting racketeering maybe… Microsoft has used the ITC for embargoes using patents for nearly a decade now.
“What’s a Patent Worth?”
“Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.”That’s the headline of this article which says: “When a technology business fails, and the flesh of the going concern is stripped away, often the only thing that remains is a paper skeleton of potentially valuable patents. In 2011, Nortel Networks’ patent portfolio of wireless technology patents sold for $4.5 billion. A few years later in 2013, Kodak’s portfolio of digital imaging patents brought in $525 million. Now, Yahoo’s patent portfolio of nearly 3,000 patents is on the block, and experts estimate that it could sell for $1 billion. While “expert” valuations are not always accurate, (Nortel’s portfolio was initially valued at $1 billion, and Kodak’s portfolio was initially valued at $2.2-2.6 million; see http://spectrum.ieee.org/at-work/innovation/the-lowballing-of-kodaks-patent-portfolio) the estimates for Yahoo’s portfolio work out to more than $300,000 per patent, well in excess of the cost of acquisition.”
As we explained before, Yahoo’s patents are mostly software patents, thus they’re pretty worthless right now (after Alice).
Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.
Hartig Drug Co. v Senju Pharmaceutical Co.
“Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.”A patent maximalism site said about a fortnight ago: “Perhaps one of the most influential first year law school classes for the task of learning how to “think like a lawyer” is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies of the topic, its intricacies can make for a challenging final exam. These experiences should come to mind for many antitrust lawyers when considering the Third Circuit’s decision in Hartig Drug Co. v. Senju Pharmaceutical Co., where the Court applied subject matter jurisdiction principles to reverse a District Court’s dismissal of Hartig’s antitrust allegations on the pleadings.”
Notice the antitrust element of it. It’s quite common when it comes to patent monopolies.
Asetek v AVC
“Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time.”This recent coverage of a case involving patents on cooling systems is also noteworthy. To quote: “The Asetek patents cover liquid cooling systems used to cool integrated circuits (such as those on a computer). Over the past several years, Asetek has sued several competitors for infringing the patents including CoolIT and Cooler Master. In 2014, Asetek sent AVC a letter accusing the company of infringing — however the letter mistakenly accuesd AVC of manufacturing the Liqmax 120s (it does not). After some letters back-and-forth, Asetek eventually sent a letter that it “believes that AVC is likely selling other infringing products in the United States.” After an unsuccessful meeting, AVC filed its declaratory judgment action. The question is whether these facts are sufficient to show an actual controversy between the parties.”
So this can formally become a lawsuit pretty soon, unless money is coughed out in pre-trial settlement. This too often turns out to be of an antitrust nature. Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.
Stryker v Zimmer
Earlier this month we found some coverage of the case at MIP which explained: “The Federal Circuit has affirmed the jury’s finding of wilful infringement but vacated and remanded the district court’s award of treble damages, in its Stryker v Zimmer decision”
“Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too?”We wrote about Stryker/Halo in the past. “The jury awarded Striker [sic] $70 million in lost profits,” explains another site. “On appeal,” it added, “the Federal Circuit affirmed as to infringement, validity and damages. [...] Most of the new Stryker opinion involves a recitation of the Federal Circuit’s previous opinion affirming the district court as to infringement and validity. The last three pages, however, deal with the § 284 enhancement issue on remand. What’s interesting is that the Federal Circuit is maintaining its bifurcated approach to enhancement of damages, first requiring a predicate willfulness determination followed by the judge’s discretionary determination of whether and how much to enhance damages. This is essentially the same process as before. See i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (2010). Pre-Halo, the second step of the process (the district judge’s determination of whether and how much to enhance damages) was a totality-of-the circumstances analysis that was reviewed for abuse of discretion (i.e.: basically the same as the court required in Halo). Id. The Federal Circuit’s post-Halo approach to enhancement involves the same two steps, with the exception that the willfulness determination itself is guided by the holding in Halo rather than requiring the two-element objective/subjective determination of Halo. (The enhancement determination is too, but it’s hard to see much difference there.) Under Halo, the subjective component alone can be enough to establish willfulness.”
This was very good news for patent trolls. It still is.
Patent Lawyers and Plagiarism
“It sure looks as though patent trolling is a ‘thing’ in east Asia right now…”Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time. There is even plagiarism reported and potentially a lawsuit to provide evidence of it. “This creates some very interesting problems for lawyers,” said a patents pundit, “and calls to my mind the case a few years ago where a patent prosecutor was sued for using language from a patent in a specification for another client. I’m not a copyright lawyer, and so just raise this case for you to think.”
Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too? Another article by Dennis Crouch speaks of patent malpractice today. It’s part of an outline of upcoming SCOTUS cases. To quote the introduction:
The Supreme Court will begin granting and denying petitions in early October. Meanwhile, several new petitions are now on file. Last week I wrote about the TC Heartland case as a mechanism for limiting venue. Without any good reason, the Federal Circuit overruled a 1957 Supreme Court case that had strictly limited patent venue as spelled out in the patent venue statute 1400(b). See VE Holdings (explaining its overruling of Fourco Glass). A result of VE Holdings is the expansive venue availability that facilitated the rise of E.D. Texas as the most popular patent venue. TC Heartland simply asks the Supreme Court reassert its Fourco holding – something that could almost be done with a one-line opinion: “REVERSED. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957).” The best arguments for the Federal Circuit’s approach are (1) the reasoning of Fourco itself is a bit dodgy; and (2) VE Holdings is well settled doctrine (decided 26 years ago) and Congress has revised the statutory provisions several times without amending. As a side note, several members of Congress have suggested they will act legislatively if SCOTUS fails to act.
Two new petitions (Grunenthal v. Teva and Purdue v. Epic) stem from the same Federal Circuit OxyContin case and focus on anticipation and obviousness respectively. Grunenthal v. Teva questions how ‘inherently’ operates for anticipation purposes. Purdue suggests that – despite the final sentence of Section 103, that the actual circumstances of the invention should be available to help prove non-obviousness (but still not be available to prove obviousness). Another new petition includes the BPCIA case Apotex v. Amgen that serves as a complement to the pending Sandoz case questioning the requirements and benefits of providing notice of commercial marketing.
USPTO is Getting Sued Again
“What they mean by “monetisation” is shakedown or a gentle form of blackmail.”Last week we wrote about fraud at the USPTO, or examiners defrauding taxpayers as Florian Müller and others chose to frame it. According to this article, the USPTO has another embarrassment to cope with. To quote: “In Hyatt v. USPTO, Civ. No. 16-1490 (D.Nevada, Filed June 22, 2016), Hyatt asks for injunctive relief to stop the PTO from repeatedly ‘reopening prosecution’ in his cases and consequently shielding the cases from judicial review by either the PTAB or Article III courts. Hyatt is experiencing the common reality of examiners reopening prosecution once an appeal brief is filed.”
The Ts: Patent Tax and Trolls
“Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess.”In recent weeks we wrote about what had happened in east Asia, where patent trolling is becoming an epidemic. It sure looks as though patent trolling is a ‘thing’ in east Asia right now and here is IAM writing about a new non-practicing entity (IAM would never use the T word). To quote: “Just over a month since display maker Sharp came under the formal control of Hon Hai Precision Industry (Foxconn), big changes to its IP operations are already in the offing. Nikkei Asian Review reported on Tuesday that the Japanese company’s IP function would be hived off into a separate IP management company on October 3rd, with one goal being to create more value from Sharp’s massive global patent portfolio. Speaking exclusively to IAM, Foxconn IP chief YP Jou confirmed how the responsibilities for the Sharp portfolio will be divided within the sprawling Foxconn IP apparatus, and revealed the team’s priority when it comes to monetisation.”
What they mean by “monetisation” is shakedown or a gentle form of blackmail. Speaking of so-called ‘monetisation’, this new report says that “[f]ive big holders of cellular patents, including Qualcomm Inc., are joining an effort proposed by Ericsson AB to jointly license patents in an emerging field called the Internet of Things.”
“Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them.”Here comes the patent tax to surveillance of all Things (IoT). “Qualcomm has long derived a chunk of their revenue from licensing,” said this one person, “so this isn’t a big change for them.”
Qualcomm also came under heavy regulatory scrutiny for it. Watch what IAM wrote about this. These guys are looking at the surveillance of all Things (IoT) only from the point of view of patents; yes, patents alone.
Patents on Corny Stuff
“Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws.”Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess. This new press release says that “GreenShift Corporation (OTCQB: GERS) provided an update regarding the ongoing patent infringement action involving GreenShift’s subsidiary, GS CleanTech Corporation (“CleanTech”), and its corn oil extraction patents.”
Corporate Domination of IP [sic] Law
Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them. Watch the corporate sob story: “It’s clear the current system is working for no one except those who want money for nothing. America’s inventive spirit has been the lifeblood of our economic growth for generations, moving us from horse-drawn carriages to electric cars in just over a century. Missteps by the courts, Congress, and the Patent Office have threatened to drive that underground, unwittingly rewarding a few large corporations happy to profit off the work of others at no cost to themselves. That’s not the American way.”
“…TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed.”What he is trying to say is that people accused of infringement “want money for nothing” and that it’s the “American way” to give large companies monopolies, so as to prevent others from competing. He advocates protectionism, not an American way. Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws. It’s the sad truth. Here is another new lawyers’ congregation (EPIP) where they speak ‘on behalf’ of inventors, developers etc. Notice the “IP” in the event’s name. The notion of so-called ‘IP’ (an umbrella for several totally separate things) helps mislead people into equating patents with copyrights and secrets; this event wasn’t about patents as it covered other aspects of so-called ‘IP’ (an umbrella for several totally separate things) and when people say “IP” we should always ask them to be specific. IP means nothing; copyrights, trademarks, patents and trade secrets do. Here is how EPIP started: “The plenary session kicked off with Professor Rochelle Dreyfuss highlighting the expansion of trade secrets protection globally, and the worrying potential unintended consequences. There are increasing concerns that trade secrets and economic espionage law in the US is being used to racially profile researchers. (Interesting coverage on the targeting of Chinese-American researchers here.) Dreyfuss discussed the potential negative impact of non-compete clauses on innovation, employees and economic growth. She argued that criminalisation related to trade secrets generates an especially strong chilling effect as high-tech workers are unwilling to risk incarceration. Dreyfuss also observed that TPP (Trans Pacific Partnership) does not create a minimum trade secrets standard, and is trying to express a new norm that information shouldn’t be free.”
Just to remind readers, TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed. █
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Writing their nonsense only when it helps them attract ‘sales’ (where desired ‘products’ are typically lawsuits)
Summary: Increasingly desperate to convince people to pursue software patents and/or use their software patents to initiate growingly risky lawsuits (high risk of losing), the patent microcosm hugs McRO v Namco while distorting the complete record of the Court of Appeals for the Federal Circuit (CAFC) on this subject
WITH patent quality still a huge problem at the USPTO, as we last noted in our previous post, it’s only expected that many invalid software patents remain inside the system, probably hundreds of thousands of them (some have expired by now and will thus never be invalidated).
After Alice (2014 decision by the Supremes) a lot of software patents essentially became invalid, but only upon reassessment/assertion/challenge/appeal. The Court of Appeals for the Federal Circuit (CAFC), quite notably, finds them invalid about 80%-90% of the time. CAFC is where software patents typically come to die (the question has not returned to the Supreme Court since 2014). There’s rarely a chance for appeal after that, maybe just a referral or some other extraordinary circumstances.
“They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).”Patent lawyers are rightly upset (from their point of view that is hinged on profits from legal fees) at the Supremes for ‘interfering’ with the patenting of software. They are also upset at CAFC for invaliding so many software patents. They’re most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).
How do patent law firms respond to the current situation? Simple! They lie. They cherry-pick, they spread half-truths, they insult judges, they shame or block other people (yours truly included), and they generally show their true selfish selves. I have spent years writing about this and I saw how bad this can get. These people are not friends of investors and inventors. They’re leeches. They just try to come across as professional, objective, and law-abiding.
Last week we wrote several articles about McRO v Namco noting (quite correctly as it turned out) that patent law firms would start another Enfish-like extravaganza in the press. They latch onto this decision in an effort to market themselves and mislead the public (potential clients). Here, in one of their blogs, the predators are trying to take down the Supreme Court’s decision on Alice. Section 101 is named as though it’s a nuisance that needs to be removed. Here is one of the predators saying that he is “not sure CAFC using “preemption” in same way envisioned by SCOTUS in Alice-MCRO seems more like “passes step 2″ case” (refers to steps in the law).
“They just try to come across as professional, objective, and law-abiding.”An ‘article’ or ‘analysis’ (really marketing/self promotion) by Joel Bock, David Metzger, andEric Sophir of Dentons says “McRo decision gives software/computer-based patents a big boost,” but that’s pure sensationalism. This headline is wishful thinking nonsense as it ignores ~90% of CAFC’s decisions on the subject. How convenient…
Where were sites like these each time CAFC ruled AGAINST software patents? Don’t believe patent lawyers who say software patents in the US are suddenly fine. For those who think it’s just an isolated article or few articles, see also [1, 2, 3, 4, 5, 6, 6, 7, 8, 9, 10, 11, 12]. We don’t have time to rebut each of these individually, but what we have here is rigged “media” of lawyers. Over 20 articles have been produced about a CAFC decision in favour of software patents and usually there are zero or very few about decisions against software patents. “Liars” might not be the right word to describe the authors by; they’re just opportunistic and they are selectively covering things so as to promote software patents under the guise of ‘analysis’. We saw this many times before and provided evidence of it.
“Don’t believe patent lawyers who say software patents in the US are suddenly fine.”Noteworthy is the fact that the legal firm which fought for software patents here is the same firm that works for Microsoft (on patents) and the EPO hired to bully me (Mishcon de Reya). Here is their press release about it. They are clearly hostile towards people like me, for at least 3 reasons (EPO pays them to send me threatening legal letters, Microsoft pays them to fight on the patent front, and they are working to defend software patents). Speaking of Microsoft, the company still says it “loves Linux” but it also loves software patents which are inherently not compatible with Linux. Here is yet another ‘article’ (from a Microsoft advocacy site) showing that Microsoft celebrates the above decision. We gave another example of this several days ago. The intersection of interests here is uncanny.
What did Watchtroll say about all this? We mentioned some of his responses before (widely-cited by others in the patent microcosm on the face of it), but now there’s more on other subjects [1, 2], still advancing a patent maximalism agenda (as if limiting patent scope is a sin).
Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.
IAM’s writers, longtime propagandists of software patents and PTAB bashers, carry on passing off agenda as 'news', this time with the headline “After the CAFC’s Planet Blue decision early Alice motions may now fade away” (citing only the patent microcosm, e.g. a partner in New York-based firm Kroub Silbersher & Kolmykov).
“Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.”We are still waiting for IAM to give a platform not just to patent lawyers who profit from software patents but actual programmers. Not that it ever happens…
“In the following piece,” IAM wrote, “Silbersher argues that the true significance of the case is not what it says about software patentability, but in the way it may affect how and when courts handle motions to dismiss based on the Supreme Court’s Alice decision. Read with the earlier CAFC judgments in Enfish and Bascom, Silbersher states, Alice motions at the front end of a litigation are set to become significantly less attractive. For patent owners, that is very good news.”
That’s just another example of lawyers name-dropping Enfish and Bascom, hoping that readers will pay attention to none of the other decisions (all against software patents as of late). This isn’t reporting, it’s lobbying.
Speaking of lobbying, David Kappos rears his ugly head again. He was hired by large corporations including IBM (his former employer) to help demolish Section 101 and “IBM’s Chief Patent Counsel Manny Schecter welcomed the McRO decision,” according to the above. Indeed, based on his tweet, IBM is still against the Supreme Court and for software patents. Benjamin Henrion told him that “freedom of programming is a one liner.”
“How far will the patent lawyers go in their attempt to save software patents?”The software patents proponents of IBM, a huge patent bully, are at it again. They just don’t seem to care what the Supremes say. Here comes IAM trying to shoot down Section 101 at a legislative level. To quote: “Of course, the likes of former Chief Judge Michel would argue that the fundamental test that the court is trying to apply to determine whether something is patent eligible remains inherently flawed. But as the case law on 101 as it applies to software begins to mount from the Federal Circuit, members of the tech community can at least rest a little easier that question marks no longer hang over large parts of their patent portfolios. If nothing else, that is to be welcomed.”
IAM says that “members of the tech community can at least rest a little easier” with software patents, but that’s a lie because technical people dislike these. Reading IAM about patents is like watching Fox ‘news’ coverage of all things Obama. It’s just agenda disguised/dressed up as news. It’s agenda presented in the form of ‘news’, and truly a great service to Battistelli when he needs to support some lies of his.
Watch the patent microcosm trying to resurrect software patents by trashing the Supreme Court [1, 2] in light of the above. It’s like that pack of hyenas we wrote about a week ago. How far will the patent lawyers go in their attempt to save software patents?
“Is the Technology for Self-Driving Cars Patent-Eligible?”
“Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared.”That’s the headline of this new ‘analysis’ from the patent microcosm, writing about software patents that are disguised as 'device' (cars), prior art being the driver. The answer is probably no; no for the courts but yes for the USPTO, which continues to grant almost everything that comes in, irrespective of quality, scope, prior art, etc. The examiners cheat on their timesheets (defrauding taxpayers), so shoddy work seems to be the norm. Here we have an article about Goldman Sachs filing for software patents on electronic payments — the one area where the invalidation rate of software patents is extremely high (around 90% of patents invalidated). Blockstream says it is pursuing patents in this area/domain, but it has not got any. Patent examiners oughtn’t grant any, either (citing the CLS Bank case).
Elsewhere in the news we find this short docker report about a case in the court of choice of patent trolls, one of several in the Eastern District of Texas. It upholds software patents, as usual, probably because it’s a farce of a court and it likes to brag about being friendly to the plaintiffs, especially trolls. Upon appeal, and if it reaches CAFC (expensive), the patent would probably be invalidated. This can be a rather traumatic experience to people who thought they had earned valid patents from the USPTO. Take the case of Keith Raniere; he used several software patents for frivolous litigation and got penalised very badly for it, as we noted earlier this month. Another new report about it says: “The plaintiff, Keith Raniere, filed the suit in February 2015 against AT&T and Microsoft, alleging the companies were using a number of his patents for intelligent switching systems for voice and data. In his lawsuit, Raniere claimed that AT&T used the software patents in its AT&T Connect service and Microsoft used the patents in its Lync 2010 products. [...] Following dismissal, both AT&T and Microsoft filed a motion to have their attorney fees covered by Raniere. AT&T requested that $935,300 be paid by the plaintiff and Microsoft presented $202,000 in costs and fees to be covered. Lynn requested both parties present proof of the costs and fees incurred from the case and denied Raniere any chance to correct or modify his lawsuit.”
Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared. But therein lies the key point. The greater the mess, the more profit the patent microcosm makes. This isn’t only a US problem but a European one too (see all the UPC lobbying).
“The greater the mess, the more profit the patent microcosm makes.”We previously wrote about software patents in Australia (they sort of exist). This new post from the patent microcosm says: “The expansive approach of NRDC was subsequently relied upon by the Federal Court in 1991 to establish that computer programs were not excluded from patent eligibility under Australian law, a decision that effectively opened the gates for software patents in Australia.”
As we wrote about this before, we can safely say that Australian software developers are upset by that. They never wanted such patents; it’s the patent microcosm that did (while trying to convince developers that they too need software patents). █
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Summary: Another glimpse at where Nokia stands after Microsoft entryism and the ugly effects of patent trolling — something which Microsoft has played a considerable role promoting as it harms Free/Open Source software (FOSS) the most
ONCE UPON a time there was a mobile giant called Nokia, before Microsoft infiltrated the management (Elop), had it turn down Linux, and later turned it into a patent parasite, as expected by us all along. Any way one looks at it, Nokia is a patent parasite and Benjamin Henrion has said, “I booked http://nokiaplanp.com [P for patents] where that was the frenzy of its future. I was right.” See the latest articles in our Wiki for a detailed blow-by-blow chronology.
“Remember that IAM is funded by a troll of Nokia, MOSAID (now called Conversant, after all the negative publicity), armed with Nokia patents after Microsoft insisted on it (this is well documented).”According to IAM, Nokia is so large a patent parasite right now that it makes literally billions by taxing companies with its old patents. “Nokia Technologies head steps down just after company joins the $1 billion licensing club,” says the headline from IAM. Remember that IAM is funded by a troll of Nokia, MOSAID (now called Conversant, after all the negative publicity), armed with Nokia patents after Microsoft insisted on it (this is well documented). Microsoft has a certain ‘skill’ when it comes to creating and/or arming patent trolls, including the world’s largest patent troll, Intellectual Ventures.
The other day we saw the article “Spotify Under Attack from Suspicious ‘Patent Troll’ Venadium LLC…” (probably not one among the thousands of satellites of Intellectual Ventures, but who knows)… [via]
We find it rather ironic, as the company which recently hired from Microsoft the patent mafioso who had armed patent trolls to attack rivals (including Linux, even after his departure) now faces the threat of an incognito patent troll. To quote this “Exclusive” report:
These companies often earn the dubious award of being known as “patent trolls,” of which Venadium may qualify within frustrated tech circles. The Eastern District of Texas is a well-known breeding ground and lawsuit haven for dubious, ‘patent troll’ type cases, with an 88% win for plaintiffs in patent infringement lawsuits, compared to a nationwide average of 68% (at least back in 2006).
The Eastern District of Texas and statistics about it put me in a long argument with the patent microcosm (they don’t like the characterisation of it as plaintiff-friendly), culminating in this citation that claims “36% win rate for plaintiffs”.
Regardless of the true numbers (can we trust lawyers more than we trust journalists?), here is a new article published very recently to explain how patent trolls operate.
How the current patent system actually hurts innovation (and how patent trolls are being fought)
One of the most common questions I get asked when talking to companies about their issues with innovation is “how do we prevent someone stealing our ideas? Should we get them all patented?”
Unfortunately, the answer to that isn’t so simple.
And that is because the current system for getting patents is in many ways no longer in line with how the world’s businesses work.
And worse than that, in many cases it is being abused by companies in ways which actually discourage innovation completely.
The issue seems to stem from the fact that the patent office just cannot check whether the people filing for a patent are in fact the original creators of the technology. For example, here is a patent granted to a person in 2002 for his description of “How to swing on a swing“.
If you want to prove that the patent was not valid, then the only way to prove that the lawsuit should not have happened in the first place is to have the legal system decide, analyse all the patents and claims, and determine once and for all whether the patent is valid.
This process can take 3+ years, and cost over $3 million.
This is much too expensive for most small companies to pay, so instead they are forced to pay the settlement claim to the patent troll.
A lot of the most innovative companies out there are making breakthroughs in the way we work, live and play using new software, whether we use it directly (a game on our phone) or to underpin their service (the vehicle prioritisation and routing within the Uber platform).
However, software is not always something that can be patented.
In some countries you can patent software (such as the USA, although this is often debated) while many other regions including most parts of Europe do not allow it.
As many software-based companies also operate on a global basis, this can make enforcement of patents extremely problematic, especially if software with different code is able to perform the same end-result.
In fact, there is a growing movement in Silicon Valley to open up patent portfolios and let anyone gain access to and build upon some of the most important software technology in the world. Echoing Henry Ford, who openly pined for the abolition of the patent system, Elon Musk has described patents as “intellectual property land mines” that inhibit progress.
That latter part speaks more specifically about software patents — a subject we shall focus on in our next post. Suffice to say, software patents are inherently incompatible with FOSS. █
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When enemies of the GPL (GNU) like Microsoft and VMware — not just GNU/Linux-friendly companies such as Red Hat — pay the Linux Foundation to get their way
Summary: The growing danger of a Linux Foundation which is funded not just by proprietary software giants but also direct opposition of Linux and serial violators of the licence of GNU (GPL)
THE level of entryism at the Linux Foundation has become way beyond acceptable and now that only corporations are involved in decision-making (see reminder below) we expect to see the verge of the farcical. How long before the Linux Foundation is not even pro-Linux but is instead pro-industry (for the industry giants that fund and thus dominate it)? Or, put another way, will it endorse things irrespective of the very spirit of both Linux and GNU? Whether something is or is not Free/Open Source software and whether it promotes (GNU) Linux? You know something is very wrong when the (paid-for) keynote speech at the biggest Linux conference is given by the company that called Linux “cancer” and continues to attack Linux to this date. That’s like having Donald Trump at the Democrat’s conventions and campaigns.
We have been trying to write more about patents, especially about the EPO, so not many articles mention Linux or talk about Microsoft these days. Microsoft’s latest patent attacks on Free software are revealing; Microsoft says it “loves Linux”, but its attacks on Linux definitely carry on (as recently as a couple of weeks ago or less).
“Microsoft’s latest patent attacks on Free software are revealing; Microsoft says it “loves Linux”, but its attacks on Linux definitely carry on (as recently as a couple of weeks ago or less).”The following points were mentioned a lot over the past 2 weeks, but we finally decided to write an article about it because sponsored articles (for Linux Foundation funders) continue to come out from the Linux Foundation’s Web site (this disclosure says IBM, but previously it was Microsoft). Why is the Linux Foundation simply morphing into a mouthpiece? Why, for example, is it willing to publish Microsoft lies? Just because Microsoft pays for it doesn’t mean it’s ethical or worthwhile. It reminds us of the years when Microsoft used (exploited) Novell for Microsoft marketing. I’ve exchanged nearly a dozen E-mails about this with Stallman this past week and he too is concerned about it.
The main subject of this article is actually VMware, a company that has been notorious for GPL violations for quite a few years (almost a decade). Some people wrote articles noting that Torvalds had publicly acknowledged the important role of the GPL at LinuxCon. Shortly thereafter, however, Torvalds blasted GPL enforcement. A week ago we saw at least two articles about exactly that [1, 2] (related but less relevant is this article).
“VMware recently poached Dirk Hohndel from Intel (head of Open Source [sic] or whatever they call it) and it was him who interviewed Torvalds as his trusted colleague less than a fortnight ago at LinuxCon, just shortly before the above attack on Kuhn et al.”Journalists then saw a rant in the mailing lists and decided to inform readers regarding Torvalds’ public rant against the Conservancy [1, 2] (these link to the original from the mailing list). A few more articles about the subject have been published since (these are in our daily links) and they serve to reinforce suspicions that Sandler (not just Kuhn) from the Conservancy got pushed out of the Linux Foundation, causing a lot of backlash about a year ago. The backlash was about abandonment of funds (material support) to the Conservancy; it happened after VMware had joined the Linux Foundation and the Conservancy got involved in a GPL enforcement lawsuit against VMware.
But here comes the interesting thing — an observation which I mentioned last week (in passing) over at Tux Machines. VMware recently poached Dirk Hohndel from Intel (head of Open Source [sic] or whatever they call it) and it was him who interviewed Torvalds as his trusted colleague less than a fortnight ago at LinuxCon, just shortly before the above attack on Kuhn et al. It reinforces the suspicion that the Conservancy’s decision to uphold the GPL on behalf of a client made Hohndel an enemy and then, by inference, made Torvalds somewhat of an enemy. Remember that a lot of ‘ex’ Microsoft executives now run VMware (look who has been running the company since 2008) and the company famously violates the GPL (this has been known for many years), just as Microsoft did when it created a shim for its proprietary, back door-compatible Hyper-V (that too was a GPL violation, but Microsoft moved quickly to comply once caught [1, 2, 3])?
“How long before the Linux Foundation is truly/entirely incapable of defending Linux from patent lawsuits and upholding the GPL because Linux foes and GPL foes develop financial strings, making them harder (or riskier) to publicly criticise?”The above observations came out late (I did not wish to write about the subject), but when Microsoft attacked Linux with patents it became too much to skip (I only say “Linux” because it’s Android in this case). How long before the Linux Foundation is truly/entirely incapable of defending Linux from patent lawsuits and upholding the GPL because Linux foes and GPL foes develop financial strings, making them harder (or riskier) to publicly criticise? █
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Quality of patents causes markets to prosper or contrariwise perish
Giving aggressors like Microsoft sacks of patents to breed Mafia-like behaviour, not healthy competition
Summary: Revisiting the EPO’s vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)
“A skilled patent attorney working with a qualified searcher could cobble together a colorable obviousness argument against the vast majority of issued patent claims,” says a new article from Patently-O. Not to mention “abstract” criteria, prior art and so on. “Part of the difficulty for patentees,” continues the article, “stem from the the billions of prior art references available via increasingly effective search tools. Even when an invention results from a ‘flash of genius,’ patent law typically back-fills extensive knowledge for the obviousness analysis – even when that knowledge was not actually available at the time of the invention. The larger difficulty though is likely the large number of hard-to-pin-down facts such as the motivations, common sense, and level of creativity of a person having ordinary skill in the art.”
“In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO]) can be used to compel companies to pay up without even a trial.”If the EPO replaces examiners with algorithms, things will exacerbate further and patents get granted incorrectly, leading to an ocean of frivolous lawsuits. In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO) can be used to compel companies to pay up without even a trial. Recall the Microsoft v TomTom case. Picking on small companies is Microsoft’s thing; it doesn’t sue Google.
The above reminds us of the danger of poor patent quality as well as streamlining grants, which is what Battistelli’s EPO has in effect done for Microsoft (and evidence we showed for that led to legal threats from the EPO). They — like the USPTO — in effect facilitate patent racketeering by Microsoft.
“They — like the USPTO — in effect facilitate patent racketeering by Microsoft.”Watch this new article titled “Primetime: Microsoft’s Android Cross Patent Dealings”. That’s misleading because it's not cross-licensing, it's a patent settlement (in bundling form) and it’s essentially a patent shakedown without even a trial and without an opportunity to properly assess the quality (and thus in/validity) of patents. The article says that “to press on this advantage, Microsoft does need to sign into more cross licensing or similar patent deals with manufacturers. Given Microsoft’s patent portfolio and how useful this will be to those manufacturers wishing to break into the North American market, such as Xiaomi, we may be seeing more of these arrangements in the coming months. The alternative might be Microsoft suing any manufacturer that tries to sell devices into a patent-friendly market.”
But again, these are not cross-licensing deals, these are patent shakedowns. One might even call this extortion or racketeering, even though Microsoft is too well-connected to face court charges brought forth by the government.
It is worth noting that many of Microsoft’s patents — those which it uses to shake down Android players (OEMs) — are not even valid anymore (if properly scrutinised), but there are so many of them that it would cost a fortune to demonstrate it to the court. It’s a numbers game, quantity rather than quality. It’s cheaper to just settle and let Microsoft continue to wield software patents like a weapon, even post-Alice. PTAB cannot take a request to review hundreds of patents from just one single company because it’s already overburdened by a growing number of reviews (IPRs).
Speaking of patent aggressors, there is this new software patent from Facebook (the usual, see our Facebook wiki page). These are oftentimes surveillance patents, but this time is’s about languages, at a time of increased competition with Google. Facebook's growing stockpile of patents is a real problem (Facebook has a history of going aggressive with them) and The Next Web says that “the US patent office issued 6,789 patents. Each patent adds a little something new to the human knowledge base. As we cannot list all six thousand, the PatentYogi team has selected the five most interesting patents.” How many of these are software patents that oughtn’t have been granted? How many of these will be toothless some time in the near future?
Patently-O says “The number of pending Ex Parte appeals continue to drop. Great work PTO.” There are other statistics of interest, based on PDFs from the USPTO (like this one). Patently-O claims they suggest that: “Design patent applications expected to reach 40,000 for FY2016 – up from under 30,000 in FY2010. The PTO is working to improve design patent prosecution speed – current wait of more than a year for a first office action.”
Well, the Office may have granted 40,000 patents on designs, but once reassessed the Office may need to throw them all away, on a per-request basis (post-Apple v Samsung at SCOTUS). Granting again for the sake of granting? Until the next Alice happens?
Patent quality control is the principal pillar of true and potent patent offices, otherwise they would be just archives of untested claims (a registration/filing system). █
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Microsoft, IBM and few other large companies pay former USPTO officials to promote software patents
Summary: The latest lobbying from David Kappos, who blatantly exploits his connections in patent circles to promote software patents and work towards their resurgence after Alice v CLS Bank
LAST NIGHT we wrote about the demise of software patents in the US. The USPTO, which David Kappos had turned into more of a rubber-stamping operation (because of the growing backlog), finally had to accept that many patents were erroneously granted (if not fraudulently granted to increase measurable figures).
“The FTC PAE report should be the final nail in the coffin for Software Patents,” AntiSoftwarePat wrote last night in response to my article. He or she has been saying this for quite a while. PAE is a type of patent troll, for those who don’t know.
“He doesn’t want people to know what he does for a living in his capacity as a de facto lobbyist.”Kappos deserves at least some of the blame for the terrible status quo. So many patents at the USPTO are junk and patent trolls needn’t even go to court and face the burden of proof; they just target small businesses in secret (divide and rule) to shake these down using bogus patents. Kappos is absolutely fine with that and we wrote a lot about this nefarious activity of his quite a lot this year. He doesn’t want people to know what he does for a living in his capacity as a de facto lobbyist. Instead, says his own description of himself: “Dave Kappos is a partner at Cravath, Swaine and Moore LLP and previously served as under secretary of commerce and director of the United States Patent and Trade Office.”
He does not disclose he works for a front group funded by monopolists which support software patents. Yesterday, published in the Morning Consult Web site was this Kappos piece protesting Alice v CLS Bank. He took wonderful news, namely the gradual end of software patents in the US, and called it “the terrible” (not for software developers but for parasites like him and his ilk).
Once again he pretends it’s a loss to software innovation and other such malarkey. He does not disclose who pays him to utter this nonsense. Here is the ending paragraph:
Rather than celebrate or mourn the anniversary of Alice, we should recognize that its overly broad application stifles software innovation in fields that require major, sustained investments to address humanity’s truly daunting challenges—across industries from life sciences to information technology to transportation and beyond. There is some room for cautious optimism—recent decisions from the federal circuit in Enfish, Bascom and Rapid Litigation Management have upheld quality patents challenged on eligibility grounds—but unless the courts continue to provide clearer guidance, a long heritage of American innovation leadership will be at risk. We should seek balance by applying Alice narrowly, “lest [Section 101′s exclusionary principle] swallow all of patent law”— and let the other parts of the law do their work.
“When legislation and/or caselaw is up for sale we all lose.”It’s clear that he is asking for loopholes so that software patents can still be granted and asserted (successfully) in courts. It’s not about “clarity” (we explained this spin of his before and also showed the so-called whitepaper he published last year to reveal his bias on this topic). Quick to promote this article was IBM’s Manny Schecter, who is funding him through IBM (Kappos used to work at IBM, which now just pays him through a front group). Congratulating one’s own lobbyist again? Does he not see ethical breach amid all that patent aggression by IBM? Microsoft is paying Kappos as well and it too is attacking even Android/Linux using patents, as recently as a few days ago.
What will it take for these companies to stop bribing former officials and hide behind them while they lobby for the resurrection of software patents? Who are those people kidding? Can one file a formal complaint for “revolving doors” kind of abuse here? We might try soon, perhaps once we identify the best authority/institution to address regarding the unprofessional (and likely unethical if not in breach of contract) practice. When legislation and/or caselaw is up for sale we all lose. █
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