Lives of ordinary Europeans silently compromised
Summary: The European Patent Office and European Commission promote the agenda of large multinational corporations (at the expense or European citizens) and critics are being kept at bay
Ahead of the May 5th Unitary Patent decision we have been hoping for stronger action and a push/effort that puts the underlying issues in European media. Sadly, however, it has been quiet on this front. Secrecy plays a role in this relative calm. If Europeans knew what was going on and what was really at stake, they would be up in arms, marching in the streets everywhere (hundreds of millions of them). Ignorance — induced by silence or passivity — works in favour of the rich looters. Most people are just too lazy or too apathetic to study these issues, which tie into several other issues that do in fact have Europeans marching in the streets (many protests reported last week and this week).
For the uninitiated, the Unitary Patent can lead to software patents (and with them patent trolls) in Europe. The Unitary Patent offers a lot to large corporations and just about nothing to ordinary European citizens. It’s corporations-led and plutocrats-steered globalisation — like that which we find in TPP and similar treaties that have nothing to do with ‘freedom’ or ‘trade’, just passage of wealth from the bottom to the top (trickle-up effect).
Over in the United States, software patents continue getting weaker, but it doesn’t prevent opportunists from making self-promotional noise. Here is press releases celebrating software patents earlier this month and another couple of brags about software patents. As we shall show another day, however, the real trend is the demise of software patents, especially once they reach the court. This is why the vocation of patent courts in Europe matters so much. It’s a hugely important decision, but the public is not contacting European officials.
In the US, even automobile companies (remember where the first software patent came from, granted to Martin Goetz) acquire patents on software. As this month’s report from “Fortune” Magazine put it, “the automaker has also been getting into the software space, according to patenting data, which shows that GM filed 592 software patents over the past five years, accounting for over 15% of their patenting activity.”
Well, Europe has a large automobile industry (engines manufacturing for example) and with it there’s the risk of patents on software creeping in. Some companies sure are working on it and amid USPTO misconduct (glorifying patents by manipulating the process; see this related new propaganda from patent lawyers’ media) we should keep alert. Those who are familiar with controversial ‘trade’ treaties in the EU ought to know by now the role of automobile giants in selling out European citizens.
The EPO, whose current management is dominated by large and greedy corporations, increasingly copies the USPTO for increased private profits, introduced by poor quality patents that include software patents.
Referring to the Unitary Patent, Dr. Glyn Moody now writes that it shows “Why is EU Pushing Itself into Irrelevance” (he frames this as a question).
“Although I haven’t written about the Unitary Patent for a while now,” Moody says, “it hasn’t gone away – alas. Instead, it is still grinding through the ratification process that is necessary before it comes into force. There are many questions about how it will work in practice, and whether it will offer any real benefits to European companies. So it’s strange that the European Commission recently came out with a total puff-piece on the subject, which tries to convince people that it’s all going to be great. As you will see if you click on that link, that puff-piece also seems to have disappeared, which is rather telling (if anyone finds it again, please let me know.)”
Moody refers to text which can still be found here. He concludes as follows: “Assuming the Unitary Patent ever comes into being – and a legal challenge from Spain at the Court of Justice of the European Union is just one reason why it might not – the new Unitary Patent and the Unified Patent Court that will rule on disputes are both essentially outside the control of the European Commission, existing in a bizarre political limbo that is one of the most problematic aspects of the whole idea, as I’ve noted before. Leaving aside the fact that many statements on the vanished page are/were simply wrong, the larger question has to be: why on earth is the European Commission pushing an idea that will not only marginalise its own role, but make it highly likely that European companies will be forced to start paying an exorbitant patent troll tax like their American colleagues? One, moreover, that will be particularly problematic for the open source world which has few resources to fight back.”
It sure looks like the European Commission, which has been defending the EPO (and by extension software patents in Europe), is working hard to make the Unitary Patent a reality. This is really bad. The only thing worse is that SUEPO has been almost silenced and EPO staff has not been so active in fighting back as of late. Based on this April 23rd press release: “At a round table meeting jointly initiated by the Chairman of the Administrative Council, Jesper Kongstad, and EPO President Benoît Battistelli, the SUEPO and FFPE entered into a process which could eventually lead to their formal recognition as trade unions at the Office for the first time in EPO history. The meeting’s aim was to re-launch social dialogue to overcome disputes that have arisen over the inner reform agenda of the EPO.”
This does deal with some rights of staff, but it still does not deal with corruption in the EPO, appointment of criminals, expansion of patent scope, etc. The EPO’s management not only crushes EPO staff (leading many to suicide); it is crushing top people from the Enlarged Board of Appeal and on April 21st we learned from the EPO’s site about bizarre amendments that include: “In proceedings under Article 112 EPC the Board may, on its own initiative or at the written, reasoned request of the President of the European Patent Office, invite him to comment in writing or orally on questions of general interest which arise in the course of proceedings pending before it. The parties shall be entitled to submit their observations on the President’s comments.”
Why is the EPO run like a tyrannical regime where the so-called ‘President’ (with capital P) can exercise total power and intervene even in the processes of peripheral and presumably independent bodies? The EPO is corrupt and to make matters worse, it now seems as though many who are supposed to act as regulating forces are now complicit in making it more powerful — empowered to help the super-rich at the expense of everyone else. █
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ChromeOS and Android (Linux) cannot coexist with software patents, or patents on mathematics
Summary: A look at the ‘new’ Google, the company which is hoarding patents (2,566 last year alone) instead of fighting for reform
ONE OF IBM’s biggest or most prominent proponents of software patents (and ironically one of the original promoters of GNU/Linux over there) may now be retired, but he (Irving Wladawsky-Berger) is still writing long essays, even for notoriously anti-Google and anti-Free software publications like the News Corp.-owned Wall Street Journal. As we have pointed out before, IBM continues to be one of the biggest lobbyists for software patents. It’s not apathetic towards them. So what about other big proponents of GNU/Linux, such as Google (with ChromeOS and Android)?
According to this recent article from “Fortune” Magazine (another magazine which targets wealth people, just like the Wall Street Journal), Google has really changed a lot in recent years. “Similarly,” it says, “Google (GOOG), a software company, is rapidly moving into manufacturing. Thirty-nine percent of its patents from 2007-2012 have been in hardware — computer hardware, yes, but also power and energy devices, as well as mechanical hardware—many originating from their ambitious autonomous car project.”
Google has hired lawyers and it increasingly turns into a big proponent of these lawyers’ business: patents. We contacted Google executives before they did this, but to no avail. The company which helps make many Android devices, Qualcomm, is itself turning into somewhat of a patent troll. Consider this Wall Street-oriented publication which titled its analysis “Qualcomm: The Enemy Of My Enemy May Not Be My FRAND”. It says that “Jana Partners, one of Qualcomm’s largest investors, has called for the company to spin-off its chip-making business from its patent-licensing business.” It also says that “Qualcomm’s patent-licensing business, which primarily licenses standard-essential patents, drives most of its profits.”
Here is where Google comes into play: “A pending decision from the Ninth Circuit in a case between Microsoft and Motorola is expected to clarify the scope of royalty rates a company can seek when licensing standard-essential.”
The Microsoft-funded Florian Müller recently wrote about what he called the “real Google”, having done a lot of Oracle lobbying (anti-Google) in his blog, especially in the month March. He published something titled “The Google that has joined Via Licensing’s LTE pool is the real Google–not the FRAND abuser”.
Well, here is the thing; there’s no doubt Google is no longer much of a resistor of patents. There were changes there several years back, regretful changes no doubt. According to another recent article from from “Fortune” Magazine, “Google even uses analytics to prioritize its patent portfolio”. It gives some numbers too: “Google’s intellectual property portfolio is relatively modest compared with the monster one managed by IBM—just 2,566 added last year compared with the 7,534 added by the older company.”
That’s a lot of patents: 2,566. Google made a lot of headlines (more than a hundred of the press alone, including [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32], about one single patent regarding spoiler prevention) and it is now facing a lawsuit, as we’ve just learned, targeting word recognition (included as standard in many Linux-based Google software such as operating systems). “Google Inc. and Motorola Mobility LLC,” says this report from Law 360, “opened fire Tuesday on two software patents covering word-recognition technology owned by Luxembourg-based Arendi S.A.R.L., telling a Patent Trial and Appeals Board panel that key claims in the patents are obvious in light of prior inventions.”
These are software patents. If Google wants things to shift in its favour, perhaps it’s time to put some effort into battling patents on software, not amassing software patents as it currently does. Since the US increasingly turns against software patents (owing to the Alice case and widely-cited SCOTUS ruling), this is not a futile battle. █
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Summary: Intellectual Ventures is bluffing with software patents, but this time around it doesn’t get its way
Übertroll Intellectual Ventures, a Microsoft-connected patent troll which occasionally attacks Linux and Android (even recently, as early as this month), took another patent parasite to court. That parasite is known to many as Trend Micro and it not only attacked Free software with patent lawsuits, but also with words, as we showed here before.
While we have sympathy for neither party because Intellectual Ventures acts as a Microsoft front and we called for a boycott of Trend Micro several years ago, there is a worthwhile story from Reuters that’s going around the world right now (UK, US/International, and India) and it says that “A U.S. judge has invalidated two patents owned by Intellectual Ventures just weeks before its lawsuit against Japanese security software provider Trend Micro Inc over the same patents was set to go to trial.”
“U.S. District Judge Leonard Stark in Delaware said on Wednesday the two patents were too abstract to deserve legal protection.
“The ruling likely means Intellectual Ventures’ infringement trial with Trend Micro will not proceed.”
This is significance from a legal perspective pertaining to patentability of software in the US.
There is more about this in legal (as in lawyers’) sites. This latter one says: “A Delaware federal judge on Wednesday held that two Intellectual Ventures LLC antivirus patents are invalid for claiming abstract ideas, likely slashing a $17 million infringement verdict against Symantec Corp. and shutting down an upcoming trial against Trend Micro Inc.” █
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“In a world where there are $500 million dollar patent infringement lawsuits imposed on OS companies (although this is not completely settled yet), how would somebody like Red Hat compete when 6 months ago they only had $80-$90 million in cash? At that point they could not even afford to settle a fraction of a single judgment without devastating their shareholders. I suspect Microsoft may have 50 or more of these lawsuits in the queue. All of them are not asking for hundreds of millions, but most would be large enough to ruin anything but the largest companies. Red Hat did recently raise several hundred million which certainly gives them more staying power. Ultimately, I do not think any company except a few of the largest companies can offer any reasonable insulation to their customers from these types of judgments. You would need a market cap of more than a couple billion to just survive in the OS space.”
–SCO’s Strategic Consultant Mike Anderer
Summary: The corporate media and Web sites or people who are funded by large corporations have essentially suppressed any debate about issues in the patent granting process, thereby guarding software patents and preventing criticism of large corporations’ power grab
WE are deeply disturbed to see the already-elusive debate about patent scope getting lost in the noise, essentially drifting further away. This long post will put forth observations spanning almost 2 months in the English-speaking media.
Apple, which is patenting a lot software, even image editing software (according to Apple propaganda sites), “ramps up patent portfolio to take on Samsung,” to quote the ToryGraph (UK). Samsung is a backer of Android (albeit one that leans towards Microsoft) and it sells the most mobile phones, which run Linux at their core. So, Apple’s anti-Android (using software patents) agenda is very much relevant to the Free/Open Source software community. We have covered this for 5 years (Apple’s attacks on Android using software patents go back to 2010).
“Why does the corporate media not dedicate much space to cover the inherent issues which cause billions in damages to the technology sector?”Is Apple a patent troll? Well, it often behaves like one, but the media reserves the term “trolls” to small entities/actors. We are supposed to believe that Apple is some kind of heroic titan full of innovation, magic, sparkles and wonder, even though manufacturing for Apple is often done by other companies, including the underlying innovations (Samsung, other Korean/Japanese giants, and many Chinese companies make the components of ‘i’ devices).
Why does the corporate media not dedicate much space to cover the inherent issues which cause billions in damages to the technology sector? Why are corporate shakedowns by large corporations not newsworthy (or hardly worth covering)? These should be legitimate questions. Lies by omission are, by all means, lies.
The recent “John Oliver [segment] on patents [is] mostly just a critique of trivial patents and patent trolls but entertaining,” wrote one person among many who saw the HBO coverage. “I didn’t think it was all that funny anyway or maybe I don’t agree with the focus on trolls instead of patent scope,” wrote another person in response to my post. Even TechDirt said that John Oliver chose to focus on “Patent Trolls”. Since when is the patent issue simply reducible to “trolls”? What happened to the fierce debates over patent scope, as those which were of daily recurrence less than a decade ago? The problem of scope has not been addressed. It’s definitely not resolved.
One article that we found some time ago (a week back) portrayed the issue as “poorly written software patents”. To quote in full: “Congress is expected to take up legislation this year that would make it tougher to claim patent infringement.
“The bill has become a top lobbying priority this year for the tech industry, which says it repeatedly fends off frivolous lawsuits because of poorly written software patents and laws that favor patent holders.”
“There oughtn’t be patents on software in the first place.”The problem is software patents, not “poorly written software patents”. There oughtn’t be patents on software in the first place. They cost a lot of money and their toll on society would probably weigh at hundreds of billions of dollars (aggregated over the years worldwide).
Referring to the US-centric ITC, the British media recently shifted focus to patent trolls yet again. “US trade watchdog ITC needs reform to end $bn blackmail,” it said. What about software patents? Are they off topic now?
Consider press releases such as this one about how the USPTO “will grant RES Software two patents for its technological innovations Dynamic Rule Management and Taskbar Affinity.”
This is a couple of software patents. The USPTO is still granting those, despite changes following a SCOTUS ruling.
What was probably most frustrating this month would have to be Associated Press. It unleashed a lot of biased or narrow articles which lay virtually all blame on “trolls”. Consider this article [1, 2, 3]. The Associated Press (AP) set the tone for some widely-spreading AP reports [1, 2, 3] put only “Patent trolls” in the headlines. See for example the article “This year’s fight for the tech industry: Patent trolls”.
The Associated Press helped spread this kind of assumption under different headlines around the world [1, 2, 3, 4, 5, 6, 7] and so did PBS/NPR (Bill Gates-funded), among other large news networks.
“What are politicians going to think? It’s like they are being lobbied by large corporations through the corporate media (often owned directly by those corporations).”Where is the focus on patent scope? What are politicians going to think? It’s like they are being lobbied by large corporations through the corporate media (often owned directly by those corporations).
The political debate has already been perturbed. Watch what Chuck Grassley says. We can see politicians only ever speaking about “trolls” (or “Abusive Patent Litigation” to use Grassley’s term). Consider this report titled “Dem senator looking to slow ‘patent troll’ debate”. To quote: “Sen. Chris Coons (D-Del.) is trying to end the rush to get a bill through Congress to rein in “patent trolls.”
“Judging by the speedy approval of the Innovation Act in the House last Congress, Coons said many members might not be in tune with the debate.”
They call it “Innovation Act”, but all it does is target trolls. It does nothing to or about innovation. It just helps large corporations push aside patent trolls, except themselves.
“Regarding the Innovation Act”, another article about this misleadingly-named bill, says: “As a student at the University of Minnesota, one of the top research universities in the nation, I am greatly concerned with the proposed legislation dealing with patent reform. I agree there is a need to cut down on abusive patent practices under the current law by so-called “patent trolls.” However, current legislation in Congress is too broad in addressing this problem. The unintended consequences of the Innovation Act are too great to ignore.”
Well, that is not the issue. The analysis above, courtesy of a student, is too shallow and does little to actually show what’s wrong with the so-called ‘Innovation Act’. the “Innovation Act” as they call it is just a wishlist of large corporations. That’s not to say that patent trolls are not a problem at all; they’re mostly a symptom of a much larger problem. What the “Innovation Act” would do is tackle only some actors while leaving large corporations exempt from reform. Rather than call it “Innovation Act” we should call it “The Large Corporations’ Act”.
“532,900,000 Reasons Why We Need Patent Reform Now” is the headline from TechDirt in which a ruling about software patents (or relating to software patents) gets mentioned. TechDirt writes: “Over the last year, there’s been plenty of good news in the fight against the abuse of patents to stifle innovation. A bunch of court rulings have gone the right way, with the biggest being the Supreme Court’s ruling in the Alice v. CLS Bank case, that has resulted in many courts invalidating patents, the US Patent Office suddenly rejecting more patents and a rapid decline in patent lawsuits.”
“A real reform would tackle the patents, not the actors who use them.”A real reform would tackle the patents, not the actors who use them. Many of these actors are parasites, but one can generalise the means, not the ends.
“Conservatives and Patent Reform,” an article by Gary Shapiro, alludes to the above and says: “A serious case can be made that they should reconsider their opposition.”
With or without a bogus bill that does little or nothing to tackle the core issue we will all remain between a rock and a hard place. The problem of “trolls” is being overly exaggerated (not dealing with the patents they so often use) in stories like ““Shopping cart” patent troll shamelessly keeps litigating, and losing”. Corporate media pundits like Bill Snyder also play a role in the misdirection, with articles like “Patent trolls are on the run, but not vanquished yet” or “Why Congress must ensure ‘game over’ for patent trolls” (from The Hill).
It sure looks like the corporations hijacked the debate, it’s all about “trolls” now. Debate over patents must focus on patent scope, yet all the large corporations want us to obsess over trolls (smaller trolls than them). “The FTC should release an interim report to help patent reform,” said this other headline from The Hill and on the third of April we learned from this site that “Conservatives wrong to oppose patent reform” (the bogus reform, not the reform that is actually needed).
In the Web sites of patent lawyers we learn of “Two signs that patent reform momentum may be slowing” and get told the typical myth of “Startups and Patents”. Patents are protectionism for large corporations and only a waste of time and money for startups, which can usually not sue large corporations because it would get them sued back, using a much larger heap of patents from these large corporations.
A recent article by Glyn Moody was titled “Does Patent Licensing by Patent Trolls – Or Anyone – Serve A Useful Purpose?”
Moody alludes to a “paper [which] also provides yet more evidence that the 1980 Bayh-Dole Act, designed to encourage the commercialization of research results through licensing, actually turns universities into patent trolls — something that Techdirt has discussed before. Although the authors suggest that further research is needed to confirm their results, it already seems pretty clear that both patent trolls and Bayh-Dole need to go.”
“When some nonsense like “Innovation Act” says it targets “trolls” what it actually means to say is that it targets small entities with no real products. These are a nuisance to large corporations because the corporations cannot sue back (there are no products to sue over).”Yes, universities too can act like patent trolls, not just large corporations do. When some nonsense like “Innovation Act” says it targets “trolls” what it actually means to say is that it targets small entities with no real products. These are a nuisance to large corporations because the corporations cannot sue back (there are no products to sue over).
There was recently some discussion about the case of Life360, including the ‘Dear Piece of Shit’ letter. “Fresh off his patent win against a company called AGIS,” said one trolls expert, “Life360 CEO Chris Hulls has published an op-ed advising other companies on how to respond to similar patent threats.” Here is more from the same expert: “In May 2014, Life360 CEO Chris Hulls received an aggressive patent demand letter. The letter, from lawyers representing a company called Advanced Ground Information Systems (AGIS), told him he needed to pay for a “royalty-bearing license” to its four patents, or Life360 and its customers would have to “cease and desist” from infringement.
“In other words: pay up, or shut down your company.”
In the case of large corporations it would be “pay up, or we’ll block imports.” It can also be “pay up, reduce your revenue/increase running costs, pass costs to your customers”.
How is that different from what Apple is doing? How is that different from Microsoft’s patent extortion? It’s only semantics and labels (“trolls”), revolving around either scale or branding. The debate has been littered with propaganda, so a lot of people have been systematically incited against “trolls” while ignoring the broader picture.
Over a month ago there was a large online argument over trolls because “Patent trolls serve valuable role in innovation, Stanford expert says”. Defending patent trolls is not unthinkable, especially from universities where trolling has become a common practice (we have covered some examples over the years). Stanford staff, some allege, was probably paid to say that or has some conflict of interest. But we suspect the cause of this stance is different. This whole “Stanford” story (it was framed as a Stanford thing, despite involving just one person) led to some strong responses from ‘anti-trolls’ (and trolls only) sites [1, 2, 3], with one arguing that proof is required. To give some background to this (quoting the above): “So-called patent trolls may actually benefit inventors and the innovation economy, according to a Stanford intellectual property expert.
“Stephen Haber, a Stanford political science professor, suggests in new research that concerns about too much litigation involving patents is misguided.”
“There’s almost a refusal to return to talking about patent scope.”The obsession over patent trolls is what bothers us the most, not the stance — however dumb — of Stephen Haber. There’s almost a refusal to return to talking about patent scope. One site that focuses on trolls (“Patent Progress”) lobbies hard for the “Innovation Act”, stating in one of its headlines: “If the Innovation Act Is Bad For Patents, Why Do Large Patent Owners Support It?”
Those “Large Patent Owners” are large corporations, such as those which are funding “Patent Progress” (through CCIA). Watch the tone of recent posts. It’s like lobbying on behalf of large corporations. Another post says “Professor Stephen Haber of Stanford recently came out with a paper that, according to him, “suggests in new research that concerns about too much litigation involving patents is misguided.”
Well, the real issue is too much patent granting, not too much litigation, which usually is simply the result of too much patent granting. Tackle patent scope, not scale of plaintiffs.
Here is a recent “I.P. Scholars’ Letter to Congress re Patent Reform”. “This open letter to Congress,” says the abstract, “signed by 51 economics and legal scholars, responds to claims that there is little empirical evidence available to assess the performance of the American patent system. The letter explains that a large and increasing body of evidence indicates that the net effect of patent litigation is to raise the cost of innovation and inhibit technological progress. The letter also includes a bibliography of relevant empirical studies of patent litigation.”
Why focus on patent litigation and not the scope of patents foolishly being granted by the USPTO?
Covering patents have become frustrating in the sense that mega-corporations keep distracting from the real debate(s), lobbying for laws that instead protect only themselves. A lot of blogs that proclaim to be speaking for patent reform are actually tools of large corporations that fund them. Pseudo activism (lobbying) is when you’d be led to believe that you’re reading from real activists while in reality they’re tools of corporate power. The academics (non-’IP’ academics, i.e. not boosters of the parasitic elements) want software patents and other software patents to end, but corporations want to demolish only their own competition and rivals, thus they focus on ‘trolls’ and the corporate media helps them achieve this.
“Well, the real issue is too much patent granting, not too much litigation, which usually is simply the result of too much patent granting.”The EFF, a relatively independent (from corporations) activism group, now says it is “Fighting for Patent Reform in Washington, D.C.”. Having just tackled the infamous podcasting patent as part of a broader new action to take on software patents, the EFF receives a lot of positive publicity [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]. Can real change come about this way? Is the EFF influential enough?
There is currently another piece of useless ‘reform’, but nothing is as bad as the America Invents Act, which we wrote about before. “Using the new Post Grant Review and Inter Partes Review procedures in the America Invents Act,” Steph writes, “hedge funds are extorting money from pharmaceutical companies by either filing or threatening to file for re-exam.”
When it comes to pharmaceutical patents, there is no lack of articles about “trolls”, including pro-trolls articles. There are anti-reform lawyers writing about it because to patent lawyers the trolling can be good business; their main concern is that it harms the legitimacy of the system through which they prey on real (producing) workers, acting more like parasites than scientists or even lawyers. █
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Gold rush memories
Summary: The morbid obsession with monopolising mere ideas still dominates the media, even increasingly in China
LAST month we came across a lot of pro-patents propaganda. One lawyers’ site gave us what it called “WIPO facts and figures” and several sites framed US universities as some kind of champions of patents (see for example [1, 2, 3, 4]). Local news networks tried to turn this into a local issue, e.g. in Tennessee [1, 2] and in Washington, D.C. Even China jumped into this bandwagon and conflated patents with “innovation”. Large corporations in China have increasingly grown patents-greedy and now lead the charts in terms of the number of patents. This is protectionism. To call it “innovation” is simply misleading.
“The most disturbing fact is perhaps the deemphasis of real patent debates.”This is all somewhat disturbing because the obsession with patents, which was typically a north American thing (and to a lesser degree Japanese-Korean), is now spreading to China, which was historically associated with knockoffs and cloning.
This whole cult-like mentality of proponents of patents is occasionally being challenged; while patent lawyers continue to cheer for a future full of patents (more then ever before) there are those willing to ask, “Do patents still work in today’s fast-moving tech landscape?”
The National Post (Canada) published exactly one month ago a piece titled “Getting patents right”. It’s a rebuttal to lobbyists who want yet more patents, even when it’s clearly against the public interests. Richard Gold said that “Canadians would be saddled with an extraordinary number of patents that would have deterred other researchers from investigating the use of known drugs for novel uses.” The same applies to software, among other fields.
The most disturbing fact is perhaps the deemphasis of real patent debates. It has all been reduced to “trolls” now. We shall cover this in the next post. █
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USPTO: when quality does not matter, only the payment does
Summary: The USPTO, much like FISA (notorious court for surveillance/espionage authorisation), has become a rubber-stamping operation rather than a patents examination centre, as new evidence and old evidence serve to show
EARLIER this evening we wrote about the OIN’s response to the growing patent problem, HBO’s (corporate media) misdirection, and now we turn our attention to the USPTO, which has been busy hiding or perfuming its systematic abuse.
The EPO, which is now working towards the Unitary Patent Package (see the latest in IP Kat [1, 2]) is becoming increasingly assimilated to the USPTO, where software patents are still, at least in principle, allowed.
“It has actually become a lot more difficult to acquire software patents in the US, let alone win with software patents in court.”“A look at the USPTO’s examples for patent eligibility” is the title of a recent article from lawyers’ media. As we have demonstrated hundreds of times before, patent lawyers work hard to deny the post-Alice reality, which disqualifies many software patents. This kind of bias helps distort people’s perception of the status quo. It has actually become a lot more difficult to acquire software patents in the US, let alone win with software patents in court. That is of course good news and a step in the right direction. This is what can possibly salvage some of the USPTO’s past reputation and perhaps make US patents worth more than the paper they’re printed on.
The lawyers’ site says: “This article is the second installment of a three-part series examining the USPTO’s Interim Guidance on Patent Subject Matter Eligibility. The first installment describes the Interim Guidelines’ implementation of the Supreme Court’s two-part test for determining patent eligibility. Now, we will review examples published by the USPTO of patent-eligible and patent-ineligible claims.”
As we have noted here before, after the Supreme Court’s ruling the guidelines for patent examiners were modified. Surely this can reduce the overall number of patents granted, which in turn makes the USPTO look “less successful” (meaning less profitable, as quality clearly does not count when 92% of applications are "successful"). According to this lawyers’ site, “USPTO Can’t Be Sued For Not Axing Re-Exam, Fed. Circ. Says” and one patent lawyer’s site (vocal proponent of software patents) talks about USPTO fees. There are surely changes underway (less software patents) and many patent lawyers must be nervous.
“Surely this can reduce the overall number of patents granted, which in turn makes the USPTO look “less successful” (meaning less profitable, as quality clearly does not count when 92% of applications are “successful”.”As we mentioned the other day, the USPTO uses some dirty tricks to make itself look better. “US Patent Office Gamed The System To Make Sure Patent 9 Million Wasn’t A Crazy Troll Patent,” said the title composed by Mike Masnick. “As I’m sure you were carefully anticipating,” he wrote, “on Tuesday, April 7th, the US Patent and Trademark Office issued patent 9,000,000. As you of course are already aware, over the past few decades, the USPTO has been rapidly ramping up the number of patents it approves. That’s why, even though patents only have a lifetime of 20 years from the date of application, 1/3 of all issued patents are still in force today. Think about that.”
Watch the press release and self-congratulatory Smithsonian spin. If a country has 9 million patents and 92% of patent applications are eventually accepted, it does not mean the country is innovative, it just means it is too lenient when it comes to patent granting. It means it is unable to recognise real innovation. This is why the EPO (especially its examiners) must guard against the greed of businesspeople like Benoît Battistelli. As it stands, the EPO is not (yet) a laughing stock, only its management is. █
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Summary: More of that awkward shifting of the patent debate towards small actors who are misusing patents, not large conglomerates like Apple and Microsoft which use patents to destroy competitors, crush startups, drive up prices, and so on
SEVERAL people have already contacted us regarding the new video shown above (as always, since it’s HBO, not accessible to the British audience at all). John Oliver (working for HBO), who is ironically British despite his show not being accessible to the British public online, spoke about patents, but look at all the headlines it led to. We could find only the following:
With the exception of one headline (“Most Powerful Tech Lobbyist in the Country”), it’s all about “patent trolls”, isn’t it? That sort of sums up the case about patents, right? That’s what large corporations, such as HBO, would like us to believe. If John Oliver is acting as a “lobbyist” here, he sure helps lobby politicians to tackle the wrong thing. Scale of plaintiff isn’t the principal issue, especially given the strong correlation between patent trolls’ lawsuits and software patents (the large majority of patents that they use).
“HBO’s “Last Week Tonight” with John Oliver did yesterday a piece on patents,” wrote to us a reader, but from what we can gather (without having access to the video because of HBO’s silly policies) it overemphasises “trolls” without noting that large corporations often act just like trolls but at a larger scale and the real problem is patent scope, e.g. software patents, patents on genetics, etc.
We are planning/hoping to do many articles about patents this week, time permitting. We are going to show how the corporate media has been systematically emphasising the issue of “trolls” as the only (or main) issue with the patent system. It’s only make believe — made by large corporations and their lobbyists. █
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Making distribution of software strictly contingent upon payments
Summary: A look at recent news about software patents and especially Free/libre software, which is inherently incompatible with them
SOME time ago the OIN announced that it was extending its ‘coverage’ of ‘protection’ for Linux-related packages. “For this update,” is said, “115 new packages will be added to the Linux System, out of almost 800 proposed by various parties. Key additions are the reference implementations of the popular Go and Lua programming languages, Nginx, Openshift, and development tools like CMake and Maven. This update will represent an increase of approximately 5% of the total number of packages covered in the Linux System, a reflection of the incremental and disciplined nature of the update process.”
It’s a shame that they don’t mention GNU at all, but let’s not get too pedantic about words and ‘brands’. Simon Phipps from the OSI covered this almost a week later (the technology media largely ignored the OIN’s announcement), writing that “Docker, Puppet, LibreOffice, and the Go language are the latest additions to the Open Invention Network’s extensive patent nonaggression umbrella” (patent pool may be more accurate a term than nonaggression umbrella).
“Out of nowhere,” the inventor and developer of Ogg wrote some weeks ago, “a new patent licensing group just announced it has formed a second, competing patent pool for HEVC that is independent of MPEG LA. And they apparently haven’t decided what their pricing will be… maybe they’ll have a fee structure ready in a few months.”
So a new patent troll emerges to attack Free software in multimedia, adding its weight (and tax) to that of MPEG-LA, a patent troll that’s already viciously criticised by Simon Phipps. It’s not getting much better, is it? The OIN has no way to protect against such patent trolls. If they are non-practising, then there is no way to retaliate with a defensive lawsuit, is there? That’s just why we deem OIN not part of the overall solution, just a sort of duct tape. The OIN does not lobby for patent reform that involves elimination of software patents. The OIN was founded and first run by proponents of software patents (it was initially managed by a man from IBM, perhaps the leading or biggest proponent of software patents).
“It is somewhat understandable that Google fears destruction by patents given all the patent attacks against Android, multimedia codes that are FOSS (VP8/9), etc.”Meanwhile we have noticed (last night) that Google goes deeper into the patents mess. “Google is a large company that has plenty of technology and many innovations,” says the report, “and in turn they hold plenty of patents on those technologies, but they still fell behind other big name tech companies last year for the biggest earners of U.S. patents. According to Fortune though, Google did rise up the list to reach being the company with the 8th largest amount of U.S. patents being awarded to them last year, gaining around 38% more patents in 2014 than they had the previous year which totaled a number of 2,566 U.S patents in all. With such a large portfolio it must seem like a daunting task to keep up on all the information related to patents in Google’s portfolio, and that may be true, but Google’s legal team has more than a few tools at their disposal to get the job done and one of those is an analytics software called PatentIQ.”
It is somewhat understandable that Google fears destruction by patents given all the patent attacks against Android, multimedia codes that are FOSS (VP8/9), etc. Companies like Microsoft, Apple, Oracle and numerous smaller trolls that they are feeding (Rockstar Consortium and MPEG-LA, to name just a couple, let alone Intellectual Ventures, CPTN, MOSAID/Conversant, and Acacia) are usually behind it.
“Kudelski Group and Google Enter Into Patent Cross License Agreement,” said this headline very recently, adding not many details except this: “The Kudelski Group, a leading independent provider of media protection and value-added service technology, and Google, today announced they have entered into a multi-year patent cross licensing agreement.”
There is clearly a systematic issue here and unless we manage to get rid of software patents in the US, this issue won’t just go away.
Simon Phipps wrote another related article recently. Titled “Facebook gives in on patent grant”, the article explains how occasional patent bully Facebook tries to appease its critics:
Late Friday, Facebook announced it’s finally giving in to pressure from the open source community and fixed its open source patent grant. While most people felt the intent was good and welcomed the original version of the grant, it was worded in such a way as to give Facebook a significant legal advantage in any open source community where it was the initiator.
While current versions of modern open source licenses, such as the Apache License, the Mozilla Public License, and the General Public License, all include coverage to patent rights associated with the copyrights the licenses cover, older licenses like BSD and MIT include no explicit patent grants. Facebook was following common practice by giving a full license to any patents necessarily infringed by users of code in Facebook projects that incorporated the grant under those licenses.
For the Free/Open Source software world the patent situation has become very tricky, so in the coming few posts, spread across the coming few days, we are going to explain where we’re at when it comes to patent law. It’s not looking too good because large corporations diverted the entire public debate to “patent trolls”. The corporate media helps them do this. █
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