Going back to physical, backing away from “abstract”
Summary: Even patent lawyers finally acknowledge that the incentive to file software patent applications has been reduced, as the scope of patents on software has been noticeably narrowed and they are harder to acquire, let alone enforce in a courtroom
DESPITE the CAFC‘s push for expanded scope of software patents, the SCOTUS ruled in favour of new limits, whereupon the USPTO began rejecting software patent applications, among other things like rejection of software patents in the courts. This was wonderful news!
An article by Nutter McClennen & Fish LLP’s Intellectual Property Practice Group (i.e. patent lawyers) said that the USPTO had “Preliminary Examination Guidelines” for software patents after the SCOTUS ruling. To quote:
Following closely on the heels of the Court’s decision, the United States Patent and Trademark Office (USPTO) issued guidelines for the examination of patent applications claiming abstract ideas. The guidelines are preliminary and the USPTO indicates that it will issue additional guidance after further consideration of the Court’s decision and public feedback.
This article was also published here.
Holland & Knight LLP (patent lawyers publishing behind paywall) wrote that the US “PTO Provides Examiners with Guidance on Software Patents in Light of U.S. SC Ruling” and Glaser Weil IP File said: “Though recent U.S. Supreme Court rulings have not provided much help, the U.S. Patent and Trademark Office’s efforts to more closely scrutinize software patents is reducing the incentive for patent applicants to seek vague, broad claims, experts told USPTO officials at a forum Tuesday.”
There are also new articles about it, written not by patent lawyers.
The signifiance of the above articles is that even patent lawyers finally acknowledge that software patents are facing news limits. Weeks ago they worked hard to deny it (we gave dozens of examples), hoping that the SCOTUS ruling would go away or go unnoticed.
Steph writes about the patent lawyers’ propaganda rag, IAM ‘magazine’, calling them “silly”. She says: “A while back you published this article about a study that came out, touting the damage that patent trolls do to start ups. OK, not necessarily start ups, but “entrepreneurial activity”. And not necessarily “patent trolls”, but NPEs/PAEs/Euphamisms-of-the-Month.” █
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Summary: The Linux Foundation’s AllSeen Alliance welcomes as a member a company that uses software patents to sue Free/Open Source software
THE improperly-named AllSeen Alliance recently let Microsoft in, immediately discrediting itself. But it’s not just FOSS foes, proprietary software giants, patent trolls and software patent lobbyists that are among the AllSeen Alliance’s members. It’s even a company that sued Chrome using software patents. It seems like growth for the sake of quantity — not quality — is what the AllSeen Alliance is after. Since the AllSeen Alliance is tied to the Linux Foundation, this bodes poorly for Linux as a whole. Here is the AllSeen Alliance’s latest mistake: “Red Bend Software is a community member of the AllSeen Alliance and a leader in mobile software management. More than 2 billion Red Bend-enabled devices use the company’s software and services for firmware over-the-air (FOTA) updating, application management, device management, device analytics and mobile virtualization. Customers include more than 100 leading manufacturers, mobile operators, semiconductor vendors and automotive companies worldwide.”
Did the AllSeen Alliance bother to check Red Bend’s history? Maybe, but probably not. Having said that, since the AllSeen Alliance even opened the door to Microsoft, it does not seem to bother at all with quality control. Its name seems to insinuate in-house (universal) surveillance and judging by its members, that is the route it is quite likely to take. █
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There are software patents even on progress bars
Summary: The Federal Circuit Appeals Court has just “invalidated a software patent for being overly abstract,” says a patents expert
Some days ago we noted that the USPTO had begun rejecting software patents owing to a SCOTUS decision. Thankfully, the subject of software patents is back in the headlines (not “trolls”), with articles like “Kickstarting an Old Patent System for the New Software Era”. More fantastic news from the US (regarding software patents) seemed to suggest that the tide is changing, as CAFC — not just the USPTO — destroys software patents (both CAFC and USPTO the are software patents maximalists). Here is some new coverage of it:
On Friday we got our first taste of the practical consequences of last month’s landmark decision from the Supreme Court restricting patents on software. The Federal Circuit Appeals Court, which hears appeals in all patent cases, invalidated a software patent for being overly abstract. And the reasoning of the decision could lead to a lot of other software patents going down in flames, too.
This is exciting news. Some of the most pro-software patents entities are now forced to obey the guidance from SCOTUS. This is a real change and one that the corporate media has not been covering. After the Bilski ruling we saw something similar. █
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Summary: Good news on the software patents front as the USPTO starts rejecting software patent applications, based on patent lawyers’ words
There is a curious new piece from zealous patent lawyers who promote software patents and equate sales with need for patents, adding foolish statements like the conclusion below (from WatchTroll’s co-writer): “The Alice decision will no doubt take some time to shake out in the lower courts and perhaps some certainty (i.e., one or more tests for each step in the Mayo framework) will develop. In the meantime, I note that according to the U.S. Dept. of Commerce, the U.S. software and IT services industry had revenue totaling US$606B in 2011, with overall research and development spending of US$126.3B, and a U.S. workforce of nearly two million people. Further, a PriceWaterhouseCoopers report pegs the cumulative value of technology-related M&A activity for 2013 at US$99.8B, with software representing 25% of this total value and 35% of the total deal volume. This is a substantial amount of U.S. commerce that deserves stable and predictable patent law protection! Until then, code (and patent) on!”
This is a completely bogus argument, whose premise can be used to say the very opposite about software patents. Just because he ends with an exclamation point doesn’t mean he is right. Quite the contrary. These patent lawyers only care about themselves. The status quo of software patents is mostly beneficial to patent trolls, as pointed out by this new article that says: “Surveys dating back to 1996 and statements by leading visionaries in the area of software programming such as Richard Stallman show that most people in the industry are not in support of software patents. These show that reform is required in this area and most are of the belief that software development is impeded by the fact there may be patents and/or copyrights. These patents and/or copyrights may prevent them from releasing their product on to the market and may also cause monetary damage to them in terms of legal fees and lost sales arising out of potential litigation.”
Meanwhile, looking at the latest from Microsoft’s propaganda and FOSS mole blog, the company makes money out of taxing GNU/Linux, due to SUSE’s appalling complicity. This is what patents on software lead to.
While SUSE does continue to exist (although with diminished presence) people around the world should just boycott it. Microsoft wants software patents not to encourage innovation but to assure extortion; likewise, patent lawyers fight hard to re-frame the SCOTUS ruling because it limits their parasitic overreach which taxes software everywhere.
Going back to the previous article, let us remember who else benefits from software patents. This is a correlation that we noted numerous times before, especially when arguing that patent scope — not trolls — is the core issue and the way to tackle this issue. To quote just the conclusion: “The fourth chart depicts that unto 93% of patent litigations in the software area are being initiated by NPEs (Non-practicing entities) aka patent trolls; whereas for other technology areas, the percentage of patent litigations being initiated by NPEs are in a minority. The fifth chart depicts the percentage of patents with at least one invalid claim (as decided by the courts during the course of litigation), wherein the invalidity may be based on novelty and/or non-obviousness. 38% and 53% of the patents in the software and business method area respectively have at least one invalid claim; whereas only 27% of patents in the other technological areas have at least one invalid claim. Further, this chart also shows that 59% of patents assigned to trolls have at least one invalid claim. The sixth chart depicts the rising number of patent litigations in the courts, with chart #7 depicting that the ratio of litigations related to patents from the software/business method have been rising at an average of 2000 per annum. The ninth chart depicts the costs of patent litigation and the ever increasing trend of the costs.”
Gene Quinn, the WatchTroll himself, is a patent lawyer who is actively lobbying for software patents. Based on this important article from him (important for what he reports, not his commetary), things rapidly improve in the US as software becomes hard too patent and hence also hard to enforce through the courts. To quote the software patents booster himself: “A friend who handles large numbers of software patent applications for some of the most elite technology companies sent me an e-mail late last week about what he has already started seeing coming from patent examiners. He says he has seen the below form paragraph twice within a week. Most alarming, in one case the form paragraph came in the form of a supplemental office action, but the outstanding original office action didn’t have any patent eligibility rejections under 35 U.S.C. 101.”
Well, he is very much upset by this. He accuses the messenger. He says: “The claims are abstract because the claims do not recite limitations significantly more than an abstract idea. Truthfully, this rather ridiculous logical construct can’t be blamed on patent examiners when the Supreme Court refuses to provide a definition for what is an abstract idea.”
All software patents are abstract (not code), so they should all be seen as invalid. We explained this several times in the past month. This is something that lawyers struggle to grasp, either because they don’t want to grasp it (cognitive dissonance) or because they cannot. █
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Obama’s top contributors in 2012 election. Source:
Summary: Philip Johnson is no longer poised to become the Director of the USPTO, which is basically an establishment that provides protectionism to primarily US-based corporations
THE USPTO, like much of the US government, is effectively run by corporations that fund it (campaign ‘contributions’, patent applications, and so on). We previously showed how Apple had been receiving special treatment from the USPTO and other pseudo-Federal branches of government. It’s all protectionism. Money calls the shots.
The other day The Mukt covered “Apple fil[ing] Auto-Unlock Patent although already available on Android” and since the USPTO has been approving almost all applications (92% of them) irrespective of prior art and quality, this too might pass. It’s just Apple’s arrogance, pretending that it invented everything under the Sun when it in fact imitates a lot of companies, as Steve Jobs himself once admitted to the camera.“Early Apple Employees Said They Would Never Work With Steve Jobs Again” is a new article that should be read by Apple fans, reminding them or even teaching them that Jobs is more of a con artist than an artist.
Now, given the inherent corruption in the USPTO (serving corporations, not public interests) we were not too shocked to see Philip Johnson almost becoming its new head. It’s the outcry from some corporations — not from the public — that must have stopped his appointment. It’s corporations that still call all the shots and some hypothesise that resistance to him came from the technology/high-tech sector as opposed to pharmaceutical giants. They vote with their money in the White House (e.g. withdrawing funds or bribing politicians under the guise of campaign ‘contributions’). Previously, a man from IBM, David Kappos, ran the USPTO and unsurprisingly promoted software patents (IBM lobbies for them even in Europe and New Zealand).
Kamdar from the EFF says why Philip Johnson oughtn’t have been nominated for USPTO Director:
Philip Johnson is Chief Intellectual Property Counsel of Johnson & Johnson, one of the largest pharmaceutical companies in the world. He is also a representative member of the Coalition for 21st Century Patent Reform, the leading trade group opposing patent reform this past year.
And now he’s rumored to be next in line to be the director of the United States Patent and Trademark Office.
What we need is someone who understands the problems with patent law, especially when it comes to software patents. Some are pointing to the fact that David Kappos, the previous director of the Patent Office, was from the tech industry, so the next one has to come from pharma or biotech. This push does a great job of highlighting the fact that one single patent system shouldn’t apply to technologies as different as pharmaceuticals and software. In any event, the nominee to head the Patent Office shouldn’t be the face of opposition to patent reform that was championed by the White House, passed by a majority of the House, and supported by a considerable proportion of Senators.
Thankfully, as Ars Technica put it, “The White House has reportedly put its chosen nomination for head of the US Patent and Trademark Office on ice.”
The Mukt called Philip Johnson “patent extremist” and added: “The Obama administration was about to repeat the mistake it made by picking Tom Wheeler as the head of FCC. The administration was planning to hand over USPTO to Phil Johnson, a Johnson & Johnson executive who is a strong opponent of any patent reform in the country. Johnson actually played a pivotal role in the death of the patent reform bill this May.”
We still don’t know who will fill the seat formerly occupied by the software patents booster. Just because one patent extremist is not approved by the White House does not mean that a different patent extremist can’t take this place. We need to keep watching and praising/criticising, as appropriate, the decisions made by the White House. Corporations that sank billions of dollars in campaign ‘contributions’ (bribes) have a much louder voice than ours (collectively). They also get privileged access into private meetings in the White House, offering their ‘consultation’ (lobbying). █
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Summary: The debate about software patents in the Unites States continues, with academia on one side and greedy patent lawyers on the other
Vox has published a new article titled “The case against software patents, in 9 charts”. It was authored by James Bessen, a professor widely known for his well-researched publications which show that software patents are bad (for the economy, for science, and just about everything except patent lawyers and monopolies or trolls). Recently, the decision from SCOTUS led patent lawyers to deep denial, trying to pretend that nothing has changed and that software patents are as valid as before. These so-called ‘law’ firms have their own agenda. The Webb Law Firm wrote: “Alice Corp. v. CLS Bank International [PDF] is the last of several patent law cases decided by the US Supreme Court in its October 2013 term. While the decision has generated considerable speculation questioning the future of “software patents,” conclusions on the scope of patent-eligible subject matter will have to wait.”
Wait for who? Lawyers?
Moritt Hock & Hamroff, another so-called ‘law’ (technology monetisation by bureaucracy) firm wrote: “Patent eligibility, up until a few years ago, was even easier. Basically, anything new under the sun made by man (or woman) was patentable. That has now changed. Eligibility excludes from patent protection some obvious exceptions such as laws of nature and mathematical ideas. For example, you can’t get a patent on Maxwell’s equations. How would you enforce such a patent? But you can get a patent on a new application of Maxwell’s equations. A less-developed exception to patent eligibility is the concept of an “abstract idea.” Such abstract ideas are not patentable. Here’s the problem, what is “abstract”? What test do we use to determine whether an invention is an abstract idea? And what level of abstraction do we look at?”
This seems like a more rational analysis than the previous one. Here is an analysis from lawyers who alluded to the European law. To quote a fraction:
It is not possible to obtain a patent in Europe for a program for a computer “to the extent that a patent or application for a patent relates to that thing as such”. In the United States, however, that has not been the case and this has proven a fruitful source of dispute in the Courts. This may be about to change.
The danger is that patent trolls from the United States (and especially from Texas where Daniel Nazer says they like to hang out in for patents  if not other ludicrous causes [2,3]) will one day land in Europe, due to a sort of unification of patent laws. Right now we can only hope that the US will work to eliminate software patents for good, pushing back against a European trend of gradually legitimising such patents. █
Related/contextual items from the news:
There is a lot in our current patent system that is in need of reform. The Patent Office is too lax in granting patents. Federal Circuit case law has consistently favored patentees. Another part of this problem is the forum shopping by patentees that leads to a disproportionate number of cases being filed in the Eastern District of Texas.
Back in 2011, This American Life did a one-hour feature called “When Patents Attack!” The story included a tour of ghostly offices in Marshall, Texas, where shell companies have fake headquarters with no real employees. For many people, it was their first introduction to the phenomenon that is the Eastern District of Texas, a largely rural federal court district that has somehow attracted a huge volume of high-tech patent litigation.
A Texas lawyer intent on shutting down Pink Meth, a site known for facilitating revenge-porn, has named the Tor Project in a lawsuit claiming at least $1 million in damages. The inclusion of Tor apparently was based on a statement on Pink Meth’s site that thanks the project for enabling users’ anonymity. “Once we verify that they’re not helping Pink Meth, we will dismiss them,” the lawyer said.
Tor, which offers encrypted software and an open network of protected communications, has been sued in the state of Texas over a revenge porn website that used its free service.
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Summary: M-Cam’s assessment of Microsoft’s bundle of extortion (using software patents) shows toothlessness, irrespective of the SCOTUS decision to effectively annul “abstract” software patents
China, reacting rationally to the threat of proprietary software from another sovereign nation, has done much to punish and marginalise Microsoft (e.g. banning Windows and Office in the public sector) due to Microsoft’s strong ties with the NSA. When it comes to patents, China also did what it could to stop Microsoft's extortion racket, causing real damage to Microsoft's "divide-and-conquer" approach. This is working out quite well because M-Cam, which we mentioned here before (it analyses patents) says that many of these patents are quite likely invalid, with or without the latest ruling from SCOTUS (prior art — not just triviality — can invalidate them). As SJVN put it: “China revealed exactly what patents Microsoft has in its Android patent portfolio. After examining these patents, M-Cam doubts the validity of many of Microsoft’s Android claims.”
Meanwhile, however, Microsoft’s proxies are trying to put more patents inside Android and other Linux-based platforms. It’s not just Xamarin which is doing this anymore. Remember that Mono has Microsoft copyrights in it, not just Microsoft software licences and patents. Now that there is something called MonoTizen (mentioned here back in May) we should really watch out. Based on this new post, a company called Kitsilano Software is behind it, run by Bob Summerwill who has been working with Unity3D (a poster child for Xamarin/Mono). Something happened some days ago:
Kitsilano Software released MonoTizen-1.0.0 today, 10th July 2014, to coincide with Tizen Developer Summit Russia 2014
Anything that brings these Microsoft patents close to Linux should be treated as a threat, especially now that Microsoft is struggling to make patent claims and derive fees from Linux. Microsoft does not always attack directly; as Nokia and others have taught us, Microsoft likes to shift patents to trolls, such as MOSAID. “70% of troll suits use patents from real companies,” says this new article, “Will “license-on-transfer” fix things?””
While Microsoft is trying hard to portray itself as "in peace" with FOSS (this is fiction, but one that Microsoft fights hard to push into the media), the truth of the matter is that it feeds patent trolls who attack FOSS. Giving them ammunition by putting Microsoft code (with patents on it) inside Linux is a dire error. Stuff like MonoTizen enables Microsoft to expand the bundle of extortion which is sends over to companies under NDA. █
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The FAT police is at it again
Summary: Canon and Microsoft sign a patent deal which relates to patents on FAT file systems and impacts some of Canon’s products, potentially Linux products as well (Canon makes drivers for Linux but does not develop products with Android or GNU/Linux just yet)
While we are unaware of any Android- or Linux-based products from Canon, the company does deliver drivers for FOSS platforms, especially since under a decade ago (we covered this quite often at the time of a turnaround). Therefore it is regretful to learn about FAT patents, which were disgraced by entities and people including Torvalds (there is prior art and TomTom never pushed the case to the end), are used to tax Canon products or legitimise FAT patents.
Linux-centric sites hardly paid attention to it last week, but someone in IRC told us about it. Looking it up very quickly we found Microsoft’s booster Mary Jo Foley at ZDNet saying: “Today’s patent agreement isn’t the first forged by the two companies. Canon previously licensed Microsoft exFAT file system technology for an undisclosed amount.”
Sometimes companies pay for it via Microsoft partners such as Tuxera, but sometimes there are deals like this one. The OIN’s CEO told us over the telephone that Microsoft has been using FAT patents while calling them “Linux-related” or something along those line in the case of LG and maybe Samsung also (Samsung’s deal seems to have been broader than that the second time around).
Nikon's deal with Microsoft was quite different and the booster correctly pointed out: “Today’s agreement also is not part of Microsoft’s ongoing campaign to convince companies using Linux, Android and ChromeOS to license its patents. Nikon announced an Android-related patent licensing deal with Microsoft in February 2013.”
This is not entirely true because the deal practically serves to legitimise exFAT, which is a common attack vector on embedded Linux. The post from the booster (hogwash of sorts) attracts comments from Microsoft sceptics, who know a lot better what Microsoft has been up to. There are comments such as: “Do we need a repeat of FAT? If I see a product’s filesystem using exFAT I will return it.”
Another person says: “The fact the the US Supreme Court recently re-addressed software patents is a move in the positive direction, even though it was not a large move. While much damage has already been done since these huge giants like Microsoft and IBM already have an enormous software patent portfolio, at least there is hope in future software patent releases. Eventually, technology will advance forward and the current software patent portfolios will probably start to become stale, at which point I can see the general public begin to feel the advantages if we make the right decisions today moving forward. But, we must end the monopolies that this huge companies get with their enormous patent portfolios. The trend in software patents granted within the past 30 years or so is staggering, just do some searches on this subject as it is well worth the reads. My hope is that we don’t continue to make the same mistakes moving forward.”
Canon has many patents on physical and mechanical or optical things like lenses. Microsoft has mostly software patents, which may be utterly worthless in the eyes of SCOTUS, as opposed to the USPTO that granted them without scrutiny. The USPTO has just become even more zealous about patents and it approves almost every patent application, even though SCOTUS deems many of those patents too abstract to be patentable (patent lawyers don't quite agree).
Carl Erickson, the “co-founder and president of Atomic Object, a software design and development company founded in 2001,” (based on his introduction) says that “Investors in software startups need to understand that such companies are unlikely to have strong IP protection through patents. Instead, investors should look for evidence of engaged, delighted users, significant market share or the potential for rapid growth, exclusive relationships or special market channels. For a software startup and their investors, these will beat patent pending, any day.”
His whole analysis, however, sometimes (in the text) claims that patents too are needed, with phrases such as:
As I wrote in my last post, protecting your intellectual property isn’t just about patents. It’s important for companies to ensure they own the copyright on their software.
Copyright protects a particular expression, patents protect an idea. The nature of software is such that an idea can be implemented in many different ways, in many different languages, and therefore patent protection on an idea is potentially legitimate and important. So when should you worry about a software patent?
If you’re confused by software patents, you’re not alone. While our legal and business structures will eventually adapt, technology, as usual, is moving faster, and the results aren’t always good or predictable. A recent Supreme Court decision didn’t radically alter the status quo, but reinforced a trend away from some of the sillier past decisions.
Software patents should be dragged to courts and defeated there. There is a valuable precedent now. All these FAT patent deals (Microsoft has been signing them for years) may be as valuable as estate on the Mars. █
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