The selection of Philip Johnson, the head of intellectual property at Johnson & Johnson, is being resisted by tech industry groups as he is best known for spending years to halt against any effort to change the way patents are submitted and approved. The appointment of Johnson contradicts Obama’s stand against lobbyist in Washington as well as his promise to bring patent reforms. Appointment of Johnson would be the same kind of mistake that Obama made by appointing lobbyists for the cable industry Tom Wheeler as the head of FCC. Wheeler is all determined to kill the Internet and give the cable companies unprecedented control of the internet.
Summary: A patent case in the United States gets sent from SCOTUS to CACF, showing a rather odd hierarchy of justice (top-to-bottom, back to notorious patent boosters)
THE Rader corruption and the impact on CAFC was mentioned here just weeks ago, noting that the Court had been put under mortal danger (some people call for its abandonment/abolishment). This is the court which was responsible for software patents in the United States, home of software patents (universally). According to this update from the EFF, CAFC may actually have a go at overriding SCOTUS. As the EFF put it: “The Ultramercial case has been bouncing around the federal courts for years. In 2010, a trial court held the patent invalid on the grounds it claimed an abstract idea. On appeal, the Federal Circuit reversed, finding the patent non-abstract because it “clearly require[s] specific application to the Internet and a cyber-market environment.” The Supreme Court then sent the case back to the Federal Circuit for reconsideration. In a remarkable decision by former Chief Judge Randall Rader, the lower court thumbed its nose at Supreme Court authority and upheld the patent for a second time. The defendants returned to the Supreme Court. EFF filed an amicus brief urging the Court to take the case and find the patent abstract.”
We’ve seen this many times before, how patents can hold back very useful developments. Notice how 3D printing is suddenly a big thing? It’s not because of any new miraculous breakthroughs, but because some key patents finally started expiring, allowing real innovation to move forward. We saw something similar in the field of infrared grills, which were put on the… uh… back burner (sorry) until key patents expired. Derek now points us to a similar example.
This article goes on to showing how microwaves got retarded by patents, and there’s no exception here. Patents just tend to harm innovation and those who promote them (usually lawyers) do a great disservice to society.
One day the patent system (if it still exists in its current form) might actually be reshaped by people representative of society, not patent lawyers. █
Summary: Continued discussion about the meaning of the US Supreme Court (SCOTUS) ruling and what it means to programmers all around the world, not just patent lawyers who seek to monopolise and tax software development
Here is another new analysis from Dykema Gossett PLLC, saying that “Litigants involved in current or future litigation over software patents will want to study the claims at issue to assess their vulnerability under the framework laid out in Alice Corp. While patent eligibility of any particular software claim will remain a case-by-case, fact specific inquiry, at least now there is some guidance by which to conduct that inquiry.”
“Basically, the corporate media is now a platform by which lawyers ‘report’ to the public on a decision in which they have vested interests.”Dr. Glyn Moody looks at the glass as half full, celebrating the fact that the SCOTUS is at least recognising that there are limits to software patents. He also, however, bemoans Europe moving in the opposite direction. To quote Moody: “I’ve written a number of times about the curse of the “as such” clause in Article 52 of the European Patent Convention, which has allowed software patents to creep in to Europe by the backdoor. In the US, which has a far more liberal attitude to patenting everything under the sun, there has been a cognate problem, whereby patent applications have been made on a abstract/trivial idea simply by appending “using a computer” to make it novel. At long last, the US Supreme Court has addressed this issue.”
“European Unitary Patent system will work means that there is no independent court to which appeals can be made – only an appeal court within the new patent system itself. That lack of an external check is an extremely dangerous feature – and one that the European Union may well come to regret.”
Here is America Online (AOL) giving a ‘report’ (not analysis) about the SCOTUS ruling. Guess who wrote it. That’s right, AOL treats ‘IP’ groups as journalists now, boosting their position, which is what we foresaw and worried about. The article begins with the following promotion: “Michael Gulliford is the Founder and Managing Principal of the Soryn IP Group,a new breed of patent management and advisory company that provides a host of patent-centric services to a select group of innovators.”
“The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope.”Basically, the corporate media is now a platform by which lawyers ‘report’ to the public on a decision in which they have vested interests.
Here is an analysis from Davies Collison Cave, separate from the press (legal sites host these). It says: “To be eligible for a patent in the US, a computer implemented invention will probably now need to provide a technological improvement, solve a technical problem or effect some improvement in technology or a technical field. It will certainly need to involve more than simply implementing an abstract idea on a generic computer.
“Whether it was intentional or not, the US Supreme Court may have introduced into US law technical contribution requirements similar to those of European patent law.”
Yes, so the US is moving closer to EU patent law while EU patent law is moving closer to US patent law, which includes software patents. There seems to be some kind of dangerous convergence here. We need to fight hard to stop it.
Software patents vulnerable: use of a computer is “not enough”
This decision will likely be cheered by technology companies with patent portfolios directed to more sophisticated inventions that go beyond computer-implemented business methods. However, software patents directed to general business processes, such as those that involve the performance of well-known financial transactions on a computer, may be in jeopardy of being invalidated.
That basically sounds like the “as such” nonsense that we have in Europe and to some degree in New Zealand as well. This is not good. This might mean that spurious patent litigation (over software patents) can soon break out of places like the Eastern District of Texas, where stories like this one are being reported by the patent trolls-obsessed:
A controversial patent that has been used to wring millions of dollars in settlements from hundreds of companies is on the verge of getting shut down.
US Circuit Judge William Bryson, sitting “by designation” in the Eastern District of Texas, has found in a summary judgment ruling (PDF) that the patent, owned by TQP Development, is not infringed by the two defendants remaining in the case, Intuit Corp. and Hertz Corp. In a separate ruling (PDF), Bryson rejected Intuit’s arguments that the patent was invalid.
Notice the type of patents they are using. The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope. Here is Steven W. Lundberg (highly vocal proponent of software patents [1, 2, 3]) boosting software patents again (as if nothing has changed) and several other patent boosters like Fenwick & West LLP and Stroock & Stroock & Lavan LLP. Perhaps they view all this as an opportunity (in the long run) to file their patents in yet more continents, making even more money by taking away from society and tying the hands of programmers.
Last week I argued that the Supreme Court’s widely anticipated ruling in the case of CLS v. Alice wasn’t the knockout blow software patent opponents had been hoping for. The Supreme Court struck down the specific patent at issue in the case, but it was vague about when, if ever, other software patents were allowed.
Reading commentary on the case has made me more convinced that software patent owners should be worried.
In a nutshell, the Supreme Court said two things: you can’t patent abstract ideas, and merely implementing an abstract idea on a generic computer isn’t enough to turn it into a patentable invention. The big question is: what’s an abstract idea?
The patents the Supreme Court struck down last week and in a 2010 case called Bilski v. Kappos were extremely abstract. In essence, both patents took an abstract business strategy — like holding money in escrow to prevent either party to a deal from backing out — and claimed the concept of implementing it on a computer. In both 2010 and 2014, the Supreme Court said that wasn’t enough for a patent.
Some software patent supporters, like former Patent Office director David Kappos, have concluded that the decision leaves most software patents unscathed. But the respected patent scholar Robert Merges, a software patent supporter himself, is not so sure.
David Kappos is not credible because he worked both for the patents-greedy USPTOand for IBM, one of the most aggressive patent-rattling companies and leading lobbyist for software patents, even in Europe. The argument we made some days ago is that all software patents are — by definition almost — abstract. Unless there is a working implementation to be patented, all that the application allude to are ideas, barely any function at all.
What it boils down to is this; if a judge was competent enough to tell the difference between pseudo code, programming, UML etc. (which is unlikely, especially in clueless, biased and corrupt courts like CAFC), then every software patent would be deemed “abstract”, hence invalid. To construct a legally-cohesive argument along those lines might require a lawyer. Are there any “good” patent lawyers out there? █
Summary: Heaps of editorials and analyses from patent-centric firms pretend that nothing has changed after the Supreme Court abolished patents on “abstract ideas” (as opposed to working implementations)
POTENTIALLY substantial patent changes are afoot, especially owing to a decision from SCOTUS. A new article by Timothy B. Lee chastises this court for not understanding technology, which is a typical problem with judges. “The Supreme Court doesn’t understand software, and that’s a problem,” says Lee. “Patent litigation has become a huge problem for the software industry. And on Thursday, the Supreme Court could have solved that problem with the stroke of a pen. Precedents dating back to the 1970s place strict limits on software patents. The court could have clearly reiterated that those old precedents still apply, and that they rule out most patents on software.
“Instead, perhaps fearing the backlash from invalidating billions of dollars worth of patents, the court took an incremental approach. It ruled that the specific patent at issue in the case was invalid. But it didn’t articulate any clear rules for software patents more generally. In effect, the court kicked the can down the road, leaving a huge question mark floating over most software patents.”
In recent days we found more examples from Proskauer Rose LLP, saying that “Applying this rationale, the Court found that the claims at issue recited computer steps that are “purely conventional” and a “basic function of a computer.”15 The Supreme Court therefore affirmed the Federal Circuit and held the claims were ineligible under § 101.”
The SCOTUS decision was too weak in some sense and law firms are spinning it in their favour. Here is an example where the title says “Supreme Court silent on general eligibility of software patents” (not entirely true). Cooley LLP , Fenwick & West LLP, Seyfarth Shaw LLP and Lathrop & Gage LLP also try to assure their clients that patenting more algorithms is OK, as if nothing has changed. “Although the Court’s decision provides some clarity concerning the inventive effect of reciting computer implementation within patent claims,” says the last analysis, “there remains some ambiguity concerning how courts will define “abstract ideas” moving forward (indeed, the Court stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”).”
Code is already copyrighted, so one might argue that patenting anything but code would be patenting “abstract ideas”. Suffice to say, this is not what greedy patent lawyers are going to tell customers for whom they produce useless papers that the USPTO almost blindly stamps for approval.
Patent lawyers continue to rely on the ignorance or gullibility among judges (who are themselves lawyers and are rarely technical enough to grasp programming). Perhaps any court that deals with patents should have an imperative to be technical. CAFC, for example, needs to be abolished for being corrupt and also utterly dumb on technology. █
Posted in Patents at 10:44 am by Dr. Roy Schestowitz
Obsession with shares instead of sharing
Summary: Deviation from the mentality which says ideas should be patented and ‘protected’ (meaning that others are prevented from using similar ideas) based on new examples from the media
THE world of MBAs is vastly different from that of engineers. When all that matters is oneself (financially), then the notion of sharing makes little sense, as long as one can exploit or hoard others’ work (the selfish approach). This is why, despite engineers’ spirit of sharing (wanting to show their achievements), many companies continue to embrace secrecy and isolation.
Bloomberg (Wall Street-friendly press) gives its press platform to a famous patent troll, Jay Walker. This grooming piece is highly disturbing as it helps the likes of Walker (patent trolls) and the USPTO make patents seem almost synonymous with innovation (classic lie). Monopoly and protectionism are being spun as a wonderful thing. That’s what corporate media likes to do. It’s repeated so often that many people actually believe it without questioning.
“Monopoly and protectionism are being spun as a wonderful thing.”We recently countered the marketing nonsense that associated/conflated de-weaponising patents with becoming “open source”. Tesla did not open up designs of cars and make them downloadable or anything, but the corporate press sure helps Tesla’s marketing by stating that “Tesla founder has given away patents on electric car technology” (not given away actually). This is shameless PR for reasons that we highlighted before. “Elon Musk took the decision to invest heavily in patent protection. Without patents, Tesla won’t have any control over the commercial opportunities of its inventions,” says this generally poor coverage from the financial press (equating patents with currency). A Red Hat site did yet another article about this, saying that “Elon Musk and crew at Tesla Motors made some big waves last week. In case you missed this recent news roundup, it was announced that Tesla is effectively relinquishing their patent portfolio—particularly around charging stations.”
Here is a VC (venture capitalist) who opposes software patents (Fred Wilson is one of several) weighing in again. To quote: “If you did a topic analysis on AVC over the past 10+ years that I’ve been blogging, I suspect patent reform would rate highly. I’ve been advocating for eliminating software patents and cutting back patent protection broadly as loudly and frequently as I can. I believe that sharing intellectual property will lead to way more innovation than hoarding and protecting it. I’ve seen a huge amount of pain and agony inflicted on innovative companies by trolls and “inventors” who never did anything other than write their ideas down on paper. Having ideas is not innovation. Making something new and different and putting it into the market is innovation.”
So basically, several VCs too want to see a society that shares ideas. Patents may not be needed at all. Even investors can reject them. Patents are a threat when counterparts and trolls use them. Here is a post titled “What If Drug Patents Were Written Like Software Patents?” To quote: “Not happening, that one, and it’s a good thing. But stuff nearly that vague and idiotic is all over the software patent landscape. Such patents list a superficially impressive amount of detail about how their “invention” is to be implemented, but all too often, that scheme turns out to mean something like “Someone uses a computer to contact a web server” or “Someone turns on their mobile phone”. It would be as if we in the drug industry could enable our compounds by citing a few synthetic organic chemistry textbooks – that’s how you make ‘em, right there!”
In general, much of the whole patent hype is inherently bad, as it encourages isolation. Tesla is at least realising this after it wasted a lot of money patenting a lot of stuff. For that Tesla deserves some credit. It acknowledges its wasteful mistakes now, grasping a culture of sharing instead. The lesson we should learn from Tesla is not patents giveaway; we should learn from Tesla’s error and avoid this error by never patenting stuff in the first place. Tesla merely gave back what it took away. █
Wherever we go in the world there is a war waged by parasitic patent lawyers who try to tax innovation while promising to ban competition or tax the competition (they get commissions on it all). In the patent system itself there is a big desire to always patent more and more things (unlike in courts), so there too there is a conflict of interest and we must stop it. Eternal warfare is market stability to arms companies and maximal patenting/litigation is market stability to law firms. We should tackle both problems similarly and mercilessly. It’s not going to be easy. █
Summary: Apple continues to misuse patents as a tool of competitive advantage, relying in part on a biased US corporations-run system (USPTO and ITC) or courts (CAFC)
AS WE SHOWED earlier this month, the US patent office has been exceptionally friendly towards Apple, not the Korean giant, Samsung. The USPTO (and by extension ITC) is one of those pseudo-public institutions that are run by US corporations, not impartial actors. Those are are friendly towards Apple have financial reasons to be like that.
It was very recently reported that Apple patents ideas that relate to stuff which already exists from Samsung but not from Apple. Since the patent system checks what’s already filed rather than what exists in the world/market, this type of abuse is allowed. Apple is basically allowed to patent what the rivals have (and have not patented), then copy the rivals and block their products (e.g. ITC embargo on imports). Watch this ITC war that Apple started. It’s failing badly, but it is still unjust. “Apple Inc. and Samsung Electronics Co.,” says this report, “on Friday agreed to drop their appeals of a patent-infringement case at the US International Trade Commission (ITC) that resulted in an import ban on some older model Samsung phones. Samsung has been seeking to overturn the ban, while Apple was trying to revive other patent claims it had lost. The import ban will remain in effect, according to a filing with the US Court of Appeals for the Federal Circuit. Last month both companies blamed each other for their inability to reach a global settlement. Appeals of district court cases between Apple and Samsung are still pending.”
The US Court of Appeals for the Federal Circuit is a corrupt sham. It should cease to have any impact on law and it is highly predicable (barely surprising) that it let Apple make all this mess. As one respectable site put it, Apple’s patent wars may in fact be “a Marketing Strategy”, pretending that Apple invented everything despite its founder’s admission that it copies a lot from other companies. To quote the analysis: “The latest battle in the three-year long Apple-Samsung patent saga concluded few weeks ago. In contrast to previous litigation between the two tech-giants—which revolved on the overall look of the phones—this case focused around autocomplete, tap-from-search and slide-to-unlock software. Despite the technical nature of these innovations, there are a few broad managerial lessons that have emerged from this prominent patent case.”
Further down it says: “The Apple-Samsung patent war illustrates how patent litigation has impacts that go far beyond stopping a specific firm from copying a particular technology. This narrow view overlooks the effect it has on brands, and on other competitors not named in the suits. In considering their own IP strategy and in responding to litigation, managers can benefit from thinking more broadly about patent wars and recognizing their multiple effects.”
Apple is a shameful embargo company that copies others, then tries to ban them. Apple relies on an inherently corrupt and biased legal system in the US. Those who have not yet chosen to boycott Apple should think about what Apple does to innovation and fair competition. Remember that all those devices that Apple fights against are based on Linux. █
“We’ve always been shameless about stealing great ideas.”
Patent lawyers fight to maintain artificial barriers
Summary: Systematic distraction or obfuscation of the SCOTUS ruling, which basically rendered a lot of software patents utterly useless in every court in the United States and abroad/at the border (ITC)
WE SAW THIS after the Bilski case. We saw it many times after that. Lawyers try to shape the truth based on their own preferences. That’s what they do for a living. We must counter them before they successfully change the nature of this whole debate.
Various articles that we see coming from patent lawyers (and patent-centric publications) are an absolute disgrace, but this is precisely what we predicted would happen. Revisionism as such typically becomes necessary when there’s a decision impacting their business. They turn their back on truth and start spinning, or lying by omission.
Remember that lawyers are good liars (or truth twisters), they are not necessarily judges, although judges too have their faults and occasional corruption. Their goal is not justice. They need to just lie on behalf of people (clients), or twist the facts not for the purpose of justice but for winning a case. That’s their occupation by definition and the SCOTUS decision is seen as a threat to some of them.
The corporate media’s coverage [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12] was mostly OK (sticking to the facts rather than twisting them), but there’s already spin from patent lawyers, such as this article by James M. Singer from Fox Rothschild LLP. Its headline states “Supreme Court Delivers Blow To ‘Abstract’ Software Patents, While Stating That Software Still Can Be Patent-Eligible” (the latter part conveys bias).
Watch how Microsoft booster Richard Waters twists the facts, by going with the deceiving headline “Software patents survive US Supreme Court test”. This lousy journalist is a longtime Microsoft spinner (who told lies) and he has just told readers the very opposite of what happened. Richard Waters makes the Financial Times look no better than Fox ‘news’ (AP and CNN did get it right this time).
The SCOTUS decision would do more to help than all those so-called ‘reforms’ that achieve nothing serious, except perhaps the claim that something has been done (a distraction).
Another lawyer, Matt Levy , continues to divert attention to patent trolls. To quote his latest analysis: “Yesterday, the Supreme Court released its final patent opinion of the term, Alice v. CLS Bank. This case should help clarify the patent eligibility of software, and improve patent quality, but we’re still going to need patent reform legislation to really fix the problems in the patent system that are exploited by patent trolls.”
Nonsense. As many trolls use software patents, it is scope we should be striving to change. Some very large trolls like Microsoft would not be impeded by a reform that deals with small “trolls”. Patent Progress, the site of Levy, always focuses only on trolls; perhaps his goal is not to get rid of software patents but to merely change the landscape of litigation. Here he is speaking about trolls, including Intellectual Ventures, conveniently failing to mention the company behind it or that company’s record of racketeering with patents. “And earlier this week,” said this one post. “Matt Levy explained why the demand letter bills are insufficient to fix the patent troll problem.”
Matt Levy should be doing more to tackle software patents. The same goes for Steph from this trolls-focused site which asks: “You know what the biggest problem with patent trolls is? Oh sure, it’s that they cost companies buckets of money and stifle innovation by shutting down start ups. Those are bad, of course, but the real tragedy here is that they make people like Chris Hulls call someone a “piece of shit” and then look stupid in the process.”
The focus on trolls is the reason we stopped covering patent issues for nearly a year. Here we have an important decision regarding software patents, but people who claim to be pursuing “patent progress” carry on talking about trolls, as if they simply fail to see the broader issue and the ultimate solution to spurious litigation. █