Whether it’s called “PAX” or “SuperPAX”, it does not solve the issue but merely exacerbates the patent thicket problem
Summary: One last take on the whole “PAX” brouhaha, which is far from a solution to problems we’re all facing in the software world
THE announcement of “PAX” made a lot of headlines/press last week, e.g. in the financial press1. Well, Android-centric sites covered that quite a lot and to a lesser degree GNU/Linux-centric sites did too (like SJVN2). We wrote several articles about that, e.g. [1, 2]. We believe that as long as the USPTO grants software patents there is room for things like “PAX”, but they are not a solution to the underlying problem, which is the patents themselves (on software).
“We believe that as long as the USPTO grants software patents there is room for things like “PAX”, but they are not a solution to the underlying problem, which is the patents themselves (on software).”Jeff Roberts, a writer whom we respect for his firm grasp of these issues, published the article “Google-Backed Patent Network LOT Adds Cisco, Slack” and separately added: “Patent folks: Google-backed LOT adds Slack & Cisco to its non-aggression pact. (how long till @IBM joins too?)”
Well, IBM has already fed some patents into Android OEMs for defensive purposes (at great cost). It would not be shocking if it joined “PAX” sooner or later, even if it has OIN. Maybe there will even be some bridging between OIN and “PAX”, as one defends GNU/Linux (not just the kernel anymore) and another Android, which uses the Linux kernel and some Free software projects that are covered by OIN.
“Well, IBM has already fed some patents into Android OEMs for defensive purposes (at great cost).”“Collective shields don’t work against trolls,” Benjamin Henrion rightly reminded them. This is why we prefer different approaches. We don’t think that patent pools, even if advertised as “defensive”, will ever lead to eradication of deprecation of software patents. █
1 Google Creates Community License to Unify Android Makers (GOOG, MSFT)
Alphabet Inc. subsidiary Google (GOOG) is attempting to create peace in patent litigation.
The Mountain View company launched Android Networked Cross-License or PAX (Latin for Peace), a community license between manufacturers of Android devices that makes their collective patents available to each other minus royalties. “ We call it a community license because all members grant licenses to one another on a royalty-free basis, thereby promoting patent peace within the Android ecosystem,” the company wrote in a blogpost. (See also: Patents Are Assets, So Learn How To Value Them).
Signatories to the patent license include prominent makes of Android phones, such as the likes of Samsung Electronics Co. Ltd (SSNLF) and HTC. Collectively, they hold more than 230,000 patents. According to Google, the agreement “materially reduces patent risk.” In other words, this means that members will not sue each other for using Android-related patents in their devices.
2 PAX: Android patent protection consortium formed
OIN was formed in 2005 when Linux was under legal siege from SCO for imaginary copyright violations and then Microsoft CEO Steve Ballmer claimed Linux violated over 200 Microsoft patents. So, IBM, Sony, Phillips, Red Hat, and Novell formed Open Invention Network (OIN) to defend Linux against IP attacks. Since then, many major companies have joined OIN from both inside the technology business, such as Google and manufacturing companies like Damiler.
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Their biggest sponsors simply do not oppose software patents and instead hoard some themselves
Summary: The arms race of patents, or the notion that bad patents can be countered using more bad patents, has become an infectious mentality that acts as a barrier to real progress and only makes the patent thickets a lot ‘thicker’ (impenetrable to small companies/market entrants)
THE US patent office is no longer as lenient as it used to be, but software patents continue to be granted on occasions and troll lawsuits are still being filed (albeit fewer of them than before). As so many companies out there now use Android (Linux), the targets of litigation are often users/distributors of Android and hence “PAX” has some real/perceived necessity. We recently wrote two articles about PAX [1, 2] and Andrew Updegrove, who had worked for the Linux Foundation, wrote the following about it yesterday, under the headline “Google Announces Android “PAX” Cross-License Program – But to What Purpose?”
The first meaningful OSS defensive initiative was Open Source Development Labs (OSDL), founded back in 2000 by companies like IBM, Intel and HP to reassure developers and customers in the face of the veiled threats then being made by Microsoft against users of Linux and other OSS, and in light of the actual (and ultimately unsuccessful) litigation by SCO, perhaps bankrolled by Microsoft, against four companies using Linux.
Like OSDL, OIN was heavily funded by its founding members and has a high-powered Executive Director and staff. Over 2,000 organizations have now signed the OIN License Agreement, which you can read here, without having to send in a request to be vetted, or incurring a confidentiality obligation.
And then there are the many efforts that were far less meaningful. Beginning with an announcement by IBM on January 11, 2005, many of the leading IT companies made public “patent non-assertion pledges” to reassure users of Linux (and sometimes other prominent OSS programs) that they would not be sued. Those companies ultimately included Motorola, Nokia, Sun, Google, Oracle and others, each publicly releasing its own slightly different legal pledge, and its own specified list of patents – dozens, scores and even hundreds of them. In the case of IBM, the package included exactly 500 patents, an oddly round number. (The same press release also noted that IBM had filed more patents than anyone else for the fourth year in a row, conveying a rather mixed message to the patent-averse open source community.)
PAX and OIN are both ineffective against trolls and as we reminded readers earlier this afternoon, companies like Ericsson and Microsoft pass patents for trolls to sue, bypassing all sorts of alleged defenses such as OIN.
Yesterday or earlier this week, more detailed analysis emerged on the cases involving Samsung, Apple and Qualcomm (which had abused its position against both Samsung and Apple). To quote what Florian Müller wrote this morning:
Procedural decisions relating to two major Apple cases have come down this week. With respect to design patent damages in Apple v. Samsung, Apple did not get its preferred way forward (affirmance of prior damages verdict and an immediate re-retrial necessitated by the Federal Circuit’s dismissal of Apple’s trade dress claims), but the United States Judicial Panel on Multidistrict Litigation has granted Apple’s wish that its contract, patent and antitrust action against Qualcomm be kept separate from a long list of (consumer) antitrust cases related to the FTC’s mid-January complaint against Qualcomm.
There isn’t much to say right now about the Apple v. Samsung design patents case. In a case management order handed down on Tuesday, Judge Lucy Koh disagreed with Apple’s most aggressive suggestions, which would have cut the remand proceedings short (after the Federal Circuit decided that the district court should take a closer look at the record in light of the December Supreme Court ruling). I’m not surprised and I doubt Apple itself was.
Qualcomm’s abuses against all sorts of companies were covered here before [1, 2] and where were groups like OIN while this was going on? Nowhere. Because in practice they are something between “deterrent” and “bloody useless”. To properly address these issues, we need to tackle the underlying issues, which are the patents themselves, notably software patents that Qualcomm still uses and advocates for. █
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But Microsoft carries on with its usual tricks, this time calling them “Azure IP Advantage”… (Microsoft-armed trolls attacking Azure’s rivals and non-customers)
Summary: With the demise of software patents come some interesting new developments, including the decision at Infosys — historically very close to Microsoft and a proponent of software patents — to join the Open Invention Network (OIN)
OVER the past month or so we’ve published 10 articles about Microsoft siccing patent trolls on GNU/Linux [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. It’s already happening on the face of it (we have since our last article learned that the Toyota patent deal covers “OS” and “file systems”, i.e. Linux), and LG adopts similar tactics that prevent responsibility/reaction by ‘proxifying’ to trolls (see this old cartoon about it — one that we’ve just ‘massaged’ or flattened to fit our layout above). This is the kind of thing OIN was supposed to protect against, but we have hardly seen any evidence of effective defense (OIN told one such tale about half a decade ago, but nothing since).
“OIN cannot guard against this.”The idea that OIN will somehow ‘snatch’ patents before they reach trolls (even where Microsoft arranges for others’ passage, e.g. from Nokia to MOSAID/Conversant) assumes that Microsoft is naïve. See what happened with CPTN. OIN cannot guard against this. OIN is not the solution to the core issue, which is patents on software. OIN stakeholders, in particular the large ones, don’t want patents on software to stop. They want GNU/Linux and they want patents on software too; they want the impossible!
Over in India, thanks to vigilant populace and local businesses, software patents have been kept illegal all these years. Infosys, a Microsoft proxy which had a change of heart on software patents (because they’re impossible to attain/enforce), joins the Open Invention Network this week [1, 2, 3, 4]. It’s rather surprising, but given the nationality of Infosys (Indian), this is not entirely shocking. Their CEO has actually lashed out at software patents — a move which we very much welcome.
“OIN is not the solution to the core issue, which is patents on software.”Over in the United States, there is still some uncertainty over the death of software patents. Companies generally know that courts are hostile towards software patents (the higher the court, the more hostile) and fewer of them — albeit not all — dare sue. It’s the initiation of a long and expensive process which typically yields nothing after Alice (only court and lawyers’ fees).
IAM, an enemy of India [1, 2, 3] and a proponent of software patents (also the mouthpiece of patent trolls, as we last showed yesterday), worries about an impending SCOTUS ruling which would most likely further inhibit patent trolls and software patents in the US. IAM wrote the following yesterday:
As anyone with even a cursory interest in patents could tell you, this means that as things stand a large proportion of patent suits are concentrated in the Eastern District of Texas, which because of its handling of issues such as discovery and early case motions, is perceived to be particularly plaintiff friendly.
Because it is. And it’s even advertising itself as such! So much for justice! It’s like a disciplinary committee under Battistelli, which evidently continues to be a problem
“Over in the United States, there is still some uncertainty over the death of software patents.”According to this new article (sheltered behind a paywall, as usual), the USPTO is probably realising that software patents are a thing of the past. To quote the summary:
Recent Federal Circuit decisions, and updated Guidance issued by the USPTO have provided practitioners with a new roadmap to navigate the minefield left in the wake of the “Alice” case.
Alice, as we repeatedly noted last year, is here to stay. There are no signs that Justices will revisit the matter (patentability of software) any time soon. Instead, again behind paywall, Justices now look into other matters. MIP give paying subscribers a glimpse at what happens in Impression v Lexmark (oral arguments). It’s a SCOTUS patent case which along with TC Heartland will quite likely further restrict patent scope in the US (a much-needed and overdue reform). █
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Attacks on GNU/Linux and Free/libre software, but OIN cannot do anything about it
Summary: Microsoft’s patent litigation strategy has become clearer, and patents-centric efforts such as OIN offer no defence against such a strategy, which attempts to pressure everyone to flock to Microsoft for ‘protection’ (from Microsoft itself)
SEVERAL readers have sent us this latest article about OIN, which we no longer believe does anything beneficial to Linux, except in name. The USPTO continues to grant software patents (more rarely than before) and OIN plays a role in a group designed to promote software patents, or support their resurgence. Where has OIN been when we needed it? Our readers emphasise that OIN is not effective against trolls and Benjamin Henrion (FFII) recently said that OIN itself had admitted it. So if OIN isn’t trying to stop software patents and isn’t effective against trolls, what good is it anyway? It’s somewhat of a distraction from the real solutions. The latest puff piece for OIN says: “When you think of Linux and open-source companies, the automobile industry is not the first business to spring to mind. But maybe it should be. Daimler, Mercedes-Benz’s parent company, has joined the Open Invention Network (OIN), the Linux and open-source non-aggression patent consortium.”
“Where is OIN now that Microsoft is coercing Linux/Android OEMs into bundling malware, using threats of patent lawsuits?”The piece was possibly initiated by some phonecall and/or a press release from OIN’s CEO (I should know as he phoned me too, in order to garner support). Where has OIN been when Microsoft attacked GNU/Linux? Where is OIN now that Microsoft is coercing Linux/Android OEMs into bundling malware, using threats of patent lawsuits? Microsoft already sued over it, e.g. Microsoft v Samsung.
We kindly remind readers that Microsoft is passing patents, usually in bulk, to trolls, which OIN can do nothing about (by its own admission). Buying patents before these make it into the hands of trolls would not work if the seller is Microsoft or a company intruded by Microsoft, such as Nokia when it sold patents to MOSAID. OIN is absolutely useless in circumstances such as these. Recall our recent article titled "As Long as Software Patents Are Granted and Microsoft Equips Trolls With Them, “Azure IP Advantage” is an Attack on Free/Libre Software" — one among several such articles, posted along with the following articles:
One reader that alerted us about the OIN piece had already found out a curious report from Microsoft’s booster Kurt Mackie. “I lost the link (ignored it because of Azure),” this reader explained, “but after thinking about it, if Microsoft is selling or renting patents to trolls (NPE) then their tactic works. In particular they are able to attract trolls with the bait on Azure, let them have a patent for a fee, and then point the troll at their competitors. Just speculation but I that’s what I though after considering the Azure news.”
Upon further exploration the article in question was found again. “I found where I saw it,” our reader explained, quoting the following passage from it:
Lastly, Microsoft is promising that if it transfers Azure-associated patents to “nonpracticing entities,” then the arrangement will be such that the holding company can’t assert IP claims against Azure customers. This latter arrangement is called a “springing license” arrangement in legal lingo.
This is pretty significant as it shows that our interpretation of the strategy was all along correct. “If Microsoft is doing those “transfers”,” our reader noted, then “it is effectively siccing trolls on its competitors’ customers.”
The strategy above is rightly compared to the Novell deal that we protested against for a very long time. To quote: “On the IP side, Microsoft early on provided “IP peace of mind” by issuing certificates for Novell’s SuSE Linux Enterprise server use in a controversial program that promised customers using that software that they would not be subject to IP claims from Microsoft. That program emerged from Microsoft’s early legal claims that Linux and other open source software had violated 235 of Microsoft’s patents.”
“This is pretty significant as it shows that our interpretation of the strategy was all along correct.”So again, just like we had said all along, Microsoft basically reintroduced the same tactics. It just markets them differently now, using similar words but a different platform. 10 years ago Microsoft tried to get everyone to use SUSE, which it taxed, and now it is trying to make everyone move to Azure, with perceived or concrete risk of patent lawsuits as an encouraging factor.
And some people naïvely believe (based on a PR campaign) that Microsoft has changed… █
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OIN has in many ways contributed to the problem rather than or instead of working to tackle it
Summary: An update on patent trolls and the role played by supposed allies of Free/libre software, who in practice do everything to exacerbate the problem rather than resolve it
Trolls are a symptom of a big problem, typically the granting of far too many patents and too lenient a treatment (favouring the claimant) at the courts. This is why the US was so popular among patent trolls and China is now attracting if not giving birth to those same sorts of trolls.
Things are about to change for the better in the US. “Broad patent venue rules allowing corporations to be sued for patent infringement almost anywhere,” as this new article puts it, is a regime which will likely end soon (it’s reminiscent of what UPC proponents envision in Europe — a recipe for patent trolls in the EU and beyond).
“This is why the US was so popular among patent trolls and China is now attracting if not giving birth to those same sorts of trolls.”This new article refers to TC Heartland — a decision we eagerly await — and says this: “Broad patent venue rules allowing corporations to be sued for patent infringement almost anywhere are under siege both in Congress and in the courts. Yet, a non-patent case that was recently granted certiorari by the Supreme Court, although not widely noted in intellectual property law circles, may provide another potential front in this ongoing battle. [...] Based on the cert grant, the U.S. Supreme Court now appears set to decide when a claim sufficiently “arises out of or relates to” a defendant’s contacts with the forum state. Although Bristol-Myers is not a patent case, it involves the same specific jurisdiction criteria that the Federal Circuit has found satisfied in patent cases by product shipments into a forum. Therefore, it is possible that a Supreme Court decision that tightens the nexus between the claims and the defendant’s acts that is required to establish specific personal jurisdiction may curb patent owners’ abilities to bring suit in as wide array of fora as is possible under current Federal Circuit precedent.”
“OIN has become pretty useless and it’s likely that it was always this useless.”Some time later this year, assuming that new Justices grasp the damage caused by patent trolls, the whole business model of trolls is likely to collapse, having already suffered a great deal when Alice made their patents a lot weaker. We cannot rest on the laurels, however, as patent maximalists constantly try to sabotage all this progress and Make Trolls Great Again, as we last noted yesterday. Here, in this new article from Embry-Riddle, a person who makes a living by promoting patents (or patent maximalism) unsurprisingly promotes more and more patents. We see articles like these every day. This other new article, one from Beta News, is very wrong and misguided; it oddly enough calls or paints OIN as anti-trolls, even though OIN openly admits that it’s not (OIN is absolutely incapable of stopping trolls). Here is the key part:
More and more, we’re seeing businesses band together to find creative, efficient solutions to the patent troll problem.
Take OIN (Open Innovation Network) [sic, it's Invention] as an example. This organization operates in the open source community, cross-licensing patents to protect companies against litigation using Linux-related patents. Another example is the LOT Network, the non-profit community that I lead. More than 80 percent of patents litigated by patent trolls are acquired from operating companies through events like bankruptcies, M&A, or when a company is looking for an extra revenue stream. LOT members agree that if one of their patents falls into the hands of a troll, the other members get a free license. This acts as immunization for member companies — rendering a troll lawsuit involving that patent moot. At the same time, LOT Network does not affect the traditional uses of patents — like buying, selling, or even suing other companies.
One could argue that OIN helps weaken trolls by attempting to grab (buy) particular patents which would otherwise be given to trolls, but having seen how it works from the inside (long conversations more than half a decade ago), that just barely ever happens. It happened maybe once before (that we know of). OIN has become pretty useless and it’s likely that it was always this useless. Its stated goals are not its real goals. Recently, OIN pretty much endorsed a lobby for software patents, misleadingly named Center for Intellectual Property Understanding (CIPU). OIN often seems to have remained somewhat of an IBM front group, often aligned with IBM’s own agenda and even led by former IBM staff. Speaking of IBM, which is becoming an ally of Apple and a foe of GNU/Linux, its patent chief said the other day: “Patents should promote innovation regardless of inventor size (large co, small co, independent) and regardless of technology” (easy for him to say, coming from the largest patent assignee). Benjamin Henrion’s response to him can be see here; it’s all just mumbo-jumbo from IBM, equating patents with “innovation” — however one defines that thing. IBM uses its patents to bully competitors and extract ‘protection’ money from them. That’s hardly innovation.
“Recently, OIN pretty much endorsed a lobby for software patents, misleadingly named Center for Intellectual Property Understanding (CIPU).”Where was OIN when Acacia, a patent troll with connections to Microsoft, attacked GNU/Linux vendors such as Novell and Red Hat? As expected, patent trolls such as Acacia pivot/expand in China after SIPO and the courts had done damage to the country (diluting the patent system with low-quality patents). According to the trolls’ news site the “Texas-based NPE [which the headline calls "Acacia alumni NPE"] Longhorn IP announced this week that it has acquired a patent portfolio, including several China-only patent families, from a major Chinese telecoms company.”
Guess what will happen next… █
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Backed by IBM, Microsoft, and all the usual suspects…
Summary: An introduction to what the Center for Intellectual Property Understanding [sic] really is, what it is for, and who is behind it
YESTERDAY we wrote about OIN's role in the Center for Intellectual Property Understanding (CIPU), which is the opposite of what its name says (common practice among front groups). Watch the composition: this is a software patents lobby with David Kappos, a clear IBM role, and Microsoft role also.
IAM, the mouthpiece of patent maximalists, says this right now (shielded behind a paywall, so it’s easier for them to evade scrutiny):
As well as being headed by Berman, CIPU includes former IBM and Microsoft IP supremo Marshall Phelps as vice-chairman. A number of other high profile IP figures have helped with getting the Center off the ground. These include Philips CIPO Brian Hinman, former Chief Judge of the Court of Appeals for the Federal Circuit Paul Michel and former USPTO Director David Kappos. Microsoft, Philips and Duke University are among those providing support.
It is too easy to see whose interests are served by this front group. Now watch the sole comment on this blog post, published by Peter Harter of The Farrington Group (friend of IAM): “Glad to see that the FAKE NEWS of the infringer lobby can be countered. Perhaps all ethics reviews for IP professionals, journalists and bloggers should include a literacy evaluation built on the CIPU rubric?”
“They try to strike down Alice, bring back software patents, and extort a lot of companies for many billions of dollars.”We are probably going to hear a lot from this front group in the coming weeks/months. It will also lobby politicians behind closed doors, we are pretty sure about that…
It’s clear what they want as they repeatedly write about it. They try to strike down Alice, bring back software patents, and extort a lot of companies for many billions of dollars.
Christopher Hall, writing for the National Law Review right now, seems to be on that same bandwagon. He seems to have not gotten the memo about death of software patents, or maybe he just conveniently pretends that Alice does not exist. People like him, along with the CIPU backers, have been constructing a bunch of tricks for loopholes that often work in the EPO; they try to pass off algorithms as a “machine” (to quote, “could be a computing machine of some sort, for computer-based algorithms”).
These are technically meaningless terms (Deepak Chopra-style mumbo-jumbo) that may in fact suggest that Hall does not know how computer programs work (Watchtroll evidently has the same problem). Here is the full paragraph, which does cite §101:
Claims written with the above template capture initial values, iterative values and results in the context of an iterative algorithm tied to a machine (which could be a computing machine of some sort, for computer-based algorithms). Variations on this can be written for tangible media and for system claims. This approach should pass muster for arguments and subject matter patent eligibility under 35 USC §101, because the algorithm and presumably tangible result are inextricably tied to the machine that is executing the algorithm, so that a computer is not a mere field of use limitation.
We need to keep track of all these firms and front groups that are trying to spin things and even lie in major newspapers, basically telling people that the potency of software patents is just fine (when clearly that is not the case).
Apple, for example, based on its patent promotion sites (not affiliated with Apple but always pushing Apple agenda on patents), is still gambling its future on Steve Jobs’ “thermonuclear” patent wars against rivals. The same goes for IBM and Microsoft, both of which are attacking companies that use GNU/Linux. If software patents are taken away from them, then they are pretty hopeless. That’s why they lobby so hard against Alice (Apple, IBM and Microsoft pay Kappos through his front group for lobbying on this). █
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Companies that are using GNU/Linux in their datacentres have become the target of software patent lawsuits from a fake ‘friend’ of GNU/Linux
Summary: IBM’s poisonous policy on patents, which has long been incompatible with Free/Libre software, has gotten even worse and the company now takes the lead in lobbying for patenting of software
The “Open Invention Network,” Florian Müller told me a few hours ago in Twitter, “has co-founded a *pro-patent* advocacy thing,” called “The Center for Intellectual Property Understanding”. The press release reveals the involvement of the man who turned both IBM and Microsoft into massive patent bullies (Marshall Phelps, who is also quoted at the bottom):
“The IP knowledge gap is growing,” said Marshall Phelps, former head of IP at Microsoft and IBM and CIPU’s Vice Chairman. “Many people, including the general public and many in government, haven’t a clue what patents and other IP rights achieve. The incentive for taking IP seriously is at an all-time low. The Center for Intellectual Property Understanding will engage groups like schools, parents and the media about the benefits of respecting new ideas and the impact of failing to.”
It is worth noting that the Open Invention Network (OIN) was founded in part by IBM and was first headed by an IBM employee. The above serves to reinforce our growingly sceptical view of both OIN and IBM, which now engages in a lobbying campaign for software patents in the United States. Adding insult to injury, IBM is once again aligning itself with Watchtroll, which has been attacking people like Michelle Lee (USPTO Director) in an effort to engineer her dismissal [1, 2, 3, 4, 5, 6] and make way for a crooked person like Rader. Manny Schecter, IBM’s patent chief, actually contributed to Watchtroll — didn’t just link to it — and the headline was “Congress Needs to Act So Alice Doesn’t Live Here (in the Patent System) Anymore”.
“IBM’s willingness to do it so openly is a slap on the face of anyone who ever supported or praised IBM as some sort of guardian of GNU/Linux.”It doesn’t get any clearer than this. IBM is an enemy of software developers everywhere, and not just Free/Libre software developers. This was published yesterday, February 13th. Once upon a time IBM tried phoning me to control the narrative of my stories (I told them off immediately). They love shaping the media behind closed doors, but Schecter continues to make it abundantly clear that IBM is now just a business ally of Apple, not “Linux” (or GNU/Linux). IBM is actually rapidly becoming an enemy of GNU/Linux and everything that has helped IBM grow over the past 2 decades.
Others are also promoting software patents this week, for example Finnegan, Henderson, Farabow, Garrett & Dunner, LLP (as expected from patent profiteers). IBM’s willingness to do it so openly is a slap on the face of anyone who ever supported or praised IBM as some sort of guardian of GNU/Linux. IBM is now suing massively all sorts of companies with massive GNU/Linux deployment, using software patents. █
“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”
–Marshall Phelps, IBM and then Microsoft
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Summary: Another roundup of patent news from around the Web with special focus on software patenting
THE USPTO is problematic for quite a few reasons, chiefly or primarily the low patent quality (especially in recent years). When there’s no quality control, as was increasingly the case under Kappos, patents cease to be respected and people resort to filing lawsuits and fighting in courts, which is an expensive process (small companies would just settle out of court, even if they know they can win the case).
“As Suntory and Asahi settle their patent dispute over non-alcoholic beer,” wrote MIP the other say, “John A Tessensohn surveys the state of litigation in Japan, and compares it with the United States” (where litigation is extremely high in frequency).
It is worth taking stock of who’s suing with patents in the US. “Of the 19 patent lawsuits filed today,” United for Patent Reform wrote some days ago, “16 were filed by patent trolls — 84%. It’s time for Congress to take action to #fixpatents!”
It has been estimated recently that nearly 90% of all technology patent lawsuits are now filed by patent trolls. Most of them use software patents. In other words, in the absence of software patents, there would be far fewer trolls and lawsuits.
Speaking of trolls, the EFF’s Elliot Harmon tackles an old problem which is universities selling their patents by the tons/bucketloads to patent trolls (Microsoft’s patent troll Intellectual Ventures, quite notably compared to other entities, buys them and then shakes companies down with these patents, which were originally earned thanks to taxpayers’ money/investment). Here is what Harmon wrote:
When universities invent, those inventions should benefit everyone. Unfortunately, they sometimes end up in the hands of patent trolls—companies that serve no purpose but to amass patents and demand money from others. When a university sells patents to trolls, it undermines the university’s purpose as a driver of innovation. Those patents become landmines that make innovation more difficult.
A few weeks ago, we wrote about the problem of universities selling or licensing patents to trolls. We said that the only way that universities will change their patenting and technology transfer policies is if students, professors, and other members of the university community start demanding it.
It’s time to start making those demands.
Well, many demands should be made, even here in Europe. The system is unregulated, so it has been evolving along the lines large corporations and their patent lawyers demand, not the public good. Watch this new article about the “Patent Box Regime”, which is a tax evasion scam/scheme (Microsoft does a lot of that), using patents as loophole. “It relates to income that arises from patents, copyrighted software, and, in the case of smaller companies, other intellectual property that is similar to an invention that could be patented,” according to this article from Tax News.
“The system is unregulated, so it has been evolving along the lines large corporations and their patent lawyers demand, not the public good.”That’s probably too much for small companies to apply for, as is often the case when it comes to Ireland as a notorious tax haven. To quote: “The regime is only available to the companies that carried out the research and development, within the meaning of section 766 of the Taxes Consolidation Act 1997. The guidance provides definitions of a qualifying company, a qualifying asset, and profits arising from exploiting the qualifying asset. It also explains the extensive documentation requirements that must be complied with to claim relief under the KDB.”
We wrote about this subject many times before. There’s no indication that European authorities are doing anything at all to stop this abuse.
Speaking of Microsoft, a Microsoft promotion site says that PTAB, abolisher of many software patents, has just come to Microsoft’s rescue. “Personalized Home Page patent troll threatening Microsoft, Google and others squashed by appeal court,” says the headline. To quote:
Bloomberg Legal reports that the Patent Trial and Appeal Board has invalidated a patent held by B.E. Technology LLC for a Personalized Internet User Interface or home page which dates back to 1998 and which the company was using against Google, Microsoft and 6 other companies.
B.E. Technology filed 11 lawsuits accused smartphones and tablets of infringing their patent, but also included a wide variety of other devices, including Microsoft Xbox 360 consoles.
Google , Microsoft, Samsung and Sony all challenged the patent, submitting 5 petitions with the Patent Trial and Appeal Board, and was eventually able to show that a 1996 patent covered all of B.E. Technology’s claims, rendering it invalid.
Speaking of PTAB, Michael Loney wrote a couple of articles (from New York) about the latest figures. He is presenting some graph about big growth in post-grant reviews in 2016, but also demonstrates a decline in the first half of year for filings. The “Patent Trial and Appeal Board filing so far this year is down on 2015,” he notes (as he did before). However, another graph is presented in this article. It says that “Post-grant review petition filing this year is already higher than the whole of 2015, with biopharma companies leading the way.” The part about the decline says this: “The 826 petitions filed in the first six months of the year was the lowest half-year figure since the 730 filed in the first half of 2014 while the PTAB’s appeal was taking hold.”
It’s not entirely clear (yet) if PTAB will grow fast enough to ever overwhelm all software patents, or most patents which Alice effectively invalidates. The patent microcosm just keeps attacking PTAB’s legitimacy, with shameless smears too.
A theme we found in the news today [1-3] was patents of pharmaceutical giants (often referred to, collectively, as Big Pharma). It is common knowledge that Big Pharma are to a large degree subsidised by the US government (i.e. taxpayers), consistently to the tune of tens of billions of dollars per year (this number too is common knowledge), yet all money and patents go to private hands. Talk about injustice! Here is a new comment regarding one of these new articles:
It seems the new patentability landscape post-Alice, Myriad and Mayo is taking shape
- Alice really meant that computer implemented inventions were only patentable in as far as they related to the working of a computer somehow, and so business methods and mental acts are unpatentable inventions
- Myriad and Mayo could could not have meant all inventions relating to natural products and laws were not patentable, and products in particular which are different from nature and have practical uses remain patentable
- Mayo remains a bit of mystery until the Federal Circuit approves an invention based on a natural correlation. Sequenom shows it is difficult to get broad claims where any sort of natural correlation is involved and so diagnostic inventions remain in limbo.
In an age when patents are foolishly treated like money  and the patent microcosm spreads tired old myths about patents (marketing)  it’s only to be expected that reduction in patents would be portrayed as a loss to “innovation” or something along those lines. Shelston IP, the self-serving propagandists (for their own pocket) who lobby for software patents down under [1, 2] can again be found in the media . They still try to change New Zealand’s patent law so as to allow software patenting. They don’t care about programmers, they just want to tax programmers.
In the US, software patents are somewhat of a passing fad. It doesn’t mean that nobody applies for them and even gets granted some. According to this new article about an acquisition, “Denning noted that AppFirst also has a number of patents around the architecture of its agents.” Additionally, this other new article says that “several patents related to the technology behind their picking system.”
This sounds like software patents, but software patents are rather useless when it comes to litigation as courts typically reject those nowadays. This new article states about CAFC (where software patents very rarely survive scrutiny) that “[i]t is also a reminder that, for the Federal Circuit, the underlying patent and prior art documents represent the most important evidence available in a patent validity dispute.” Well, that’s just common sense and any courts ought to consider that aside from Alice (in the circumstances of allegedly abstract patents).
Another new article says that “Bose holds several patents on this technology…Bose also improved the sound silencing software.” Regarding BlackBerry, which is becoming somewhat of a patent troll nowadays, this article says that “Blackberry [is] slowly fading into obscurity when it comes to the handset market, it makes sense the company would turn to its software, patents, and enterprise expertise as a way to keep the company afloat.”
Nowadays, as we correctly predicted, BlackBerry is a troll (PAE). It is even filing lawsuits down in Texas, as we noted earlier this month. Some of these patents are on software, some on hardware, and some on networking. And speaking of which, there is this new article (behind paywall) about Internet Protocol (IP) patents. The summary says: “Fluent in both types of IP: Scott Bradner has been an architect of intellectual property (IP) policy for internet protocol (IP) standards. He played a core role in the development of internet protocol, leading to the very digital revolution we know today, as well as the next generation IPv6, all the while designing intellectual property policy to go along with it. Here is an interview with Bradner.”
The Internet is supposed to be open to all. Just like the World Wide Web, it should be free from patents (less true today than it was at its genesis, for reasons we covered in past years), so the notion of so-called ‘IP’ on IP (Internet Protocol) is troubling. So is the notion of a ‘FOSS’ group which is open to software patents. OIN, for instance, was created by companies that are not against software patents but wish to minimise risk of being sued. Deb Nicholson, who moved to OIN from the Free Software Foundation, defends OIN as follows. From an interview published earlier today:
The Open Invention Network — OIN, as its friends call it — “is a defensive patent pool and community of patent non-aggression which enables freedom of action in Linux.” That’s what it says (among other things) on the front page of the organization’s website. Basically, if you join OIN (which costs $0) you agree not to sue other members over Linux and Android-related patents, and in return they promise not to sue you. Google, IBM, and NEC are the top three members shown on OIN’s “community” page, which lists over 2,000 members/licensees ranging from Ford to one-person Android app developers.
Today’s interviewee, Deb Nicholson, is the group’s community outreach director. One description of her says she “blurs the line between professional and punk rock,” which is a very cool line to blur. She travels a lot and speaks at a lot of conferences.
She used to work for the Free Software Foundation. You may have heard of them. It is less likely, however, that you know about OIN. But you should, because it does hugely valuable work in keeping the slimy jaws of patent trolls away from innocent FOSS developers and users. If you’re an OIN member and a nasty software patent beast comes after you, they risk the wrath of… well, not “The Wrath of Khan,” but of running afoul of one of the many thousands, possibly hundreds of thousands, of patents held by OIN’s many members.
That’s hardly the solution at all. Just hoarding software patents and putting them in a very large pool — no matter how large — does not rid us from the actual menace. It’s like stockpiling weapons to make one secure from other groups with a large arsenal. Mutual disarmament of all groups, or invalidation of software patents, is the solution. Nicholson’s previous employer, the Free Software Foundation, ‘gets’ that. █
Related/contextual items from the news:
Two recent developments in U.S. patent law mean mixed news for the bio-pharmaceutical industry. First, the bad news — the U.S. Supreme Court declined to accept for review the closely-watched Ariosa Diagnostics v. Sequenom case concerning the patentability of a diagnostic method. Second, the good news — a panel of the U.S. Court of Appeals for the Federal Circuit issued the Rapid Litigation Management v. Cellz Direct decision further clarifying application of the two-step Alice/Mayo test (1. claim directed to a patent ineligible category and 2. lack of inventive concept) concerning laws of nature.
Earlier this summer, the Patent and Trademark Office created an expedited review process for certain patent applications covering “immunotherapies” — new cancer treatments that re-engineer the body’s immune system to attack tumors. Within days, the National Institutes of Health rejected a petition that urged the agency to use “march-in” rights to effectively take back the patent on a prostate cancer drug: It would’ve had a chilling effect on the development of new drugs if such blatant government overreach was implemented.
It’s time to restore the U.S. patent system to its original purpose – to protect and incentivize invention, not innovation. There’s a difference. Innovation is the investment in the commercialization of inventions. Just because a company invests money to commercialize a drug does not mean it has invented a new drug. This is where today’s patent system is broken. If we continue to muddle innovation with the patent system’s original purpose of invention, we will continue to hand out 20 years or more of monopoly power to companies for the same science over and over again and keep paying higher drug prices. Instead of incentivizing a race to the top, we are pursuing a policy of a race to the bottom. Only with genuine inventions can true medical innovations flourish and support both society’s health and a strong drug development pipeline.
Thailand has enforced a new law to promote using intellectual property as loan collateral, an effort likely to make intellectual property a more valuable asset for its holders. But experts caution that the country still lacks the infrastructure of a viable IP market.
A New Zealand “innovation patent”? Unlikely, but watch this space nonetheless. The popularity of Australia’s innovation patents regime has been well documented. Although it is not without its faults, has been prone to certain unintended outcomes and has recently gained some high-profile critics, the Australian innovation patents regime has arguably been relatively successful in stimulating R&D activity (innovation) amongst Australian small-to-medium enterprises (SMEs).
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