Helping US patenting standards go international
Summary: How the European Patent Office (EPO) not only turns a blind eye to European law while patenting or granting patents on software but also openly advocates this now
THE EPO has been under fire here for nearly 8 years. The original reason, well before sheer corruption became evident at numerous levels, was patent scope. We had written a great deal about software patents in Europe and the “EPO [is] still pushing for patents on software and business methods,” according to the FFII’s President who now points right into the EPO’s own site.
Well, none of these domains should be patentable in Europe. Anything else would be Battistelli breaking the law yet again, this time in order to artificially increase the number of granted patents, the overall revenue, etc. (making himself look good at the expense of the public to whom he does a huge disservice).
“Democracy in Europe is gradually being crushed under the auspices of “unity” and patents are just one aspect among several (see so-called ‘trade’ deals for more).”Here is the EPO writing “Big data, linked data, linking data: what’s the difference & what role do patents play in them?”
This is promotion of this conference, which seemingly strives to expand the scope of patents.
Jesper Lund, who has been active in this area, says that the “EPO is actively advising people on circumventing the ban on patenting sw [software] and business methods as such (“if claimed as such”).”
The FFII’s President adds that it’s done “With the blessing of the Danish Patent Office DKPTO!” Remember that a Dane, Jesper Kongstad, is Battistelli’s number one minion (or one among several), which is why protests by EPO staff targeted the Danish Consulate earlier this year [1, 2, 3, 4]. Also recall what the Danish Presidency did 3 years ago to further empower the EPO's grip and potentially bring patent trolls to Europe. According to two new reports from IP Kat [1, 2], Europe takes further steps towards this. This issue wasn’t voted on, there was no referendum, and it’s clearly against the interests of ordinary Europeans. Democracy in Europe is gradually being crushed under the auspices of “unity” and patents are just one aspect among several (see so-called ‘trade’ deals for more).
For the EPO it would make perfect sense to eventually patent methods of breaking the laws (abusing staff, patent scope and so on), then evading justice, as was previously done in the Dutch courts system, with help from a corrupt official. █
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Summary: Response to claims that the patent problem is being tackled by focusing on patent trolls and their favourite courts in the Eastern District of Texas
TECHRIGHTS has consistently (over the course of several years) opposed the obsession with “patent trolls”. The de facto usage of the term implies small firms without products, but in reality a lot of the same tactics are used by multinational companies such as Microsoft. The only difference is the number of products advertised on their sites (if any exist at all).
The other day the EFF said that “[w]e Need Venue Reform to Restore Fairness to Patent Litigation”, citing a TV programme about the issue of patent trolls, not patent scope or anything like that. To quote the EFF: “Back in 2011, This American Life toured an office building in Marshall, Texas, and found eerie hallways of empty offices that serve as the ‘headquarters’ of patent trolls. For many, that was the first introduction to the strange world of the Eastern District of Texas, its outsized role in patent litigation and especially its effective support of the patent troll business model. Trolls love the Eastern District for its plaintiff-friendly rules, so they set up paper corporations in the district as an excuse to file suit there. Meanwhile, defendants find themselves dragged to a distant, inconvenient, and expensive forum that often has little or no connection to the dispute.
“The remote district’s role has only increased since 2011 The latest data reveals that the Eastern District of Texas is headed to a record year. An astonishing 1,387 patent cases were filed there in the first half of 2015. This was 44.4% of all patent cases nationwide. And almost all of this growth is fueled by patent trolls.”
But that’s far from the only issue.
An article by Joe Mullin, who specialises in patent trolls, says that “changes to patent law have made it easier to beat patent trolls, but it hasn’t made the patent hotspot of East Texas any quieter. In fact, it’s been in the news more. Massive numbers of patent troll suits continue to be filed there, and the judge who hears most of them has erected barriers to defendants seeking to have their cases disposed of early.”
So it’s obviously not working out. This whole kind of activism (or corporate lobbying) does nothing to eliminate the core issues, mostly addressed by SCOTUS for the time being (more on that in a later post).
Xerox, itself a patent troll by extension, is claimed to have just beaten a patent troll, MPHJ [1, 2, 3, 4]. To quote a lawyers’ site, “Xerox Corp., Lexmark Corp. and Ricoh Americas Corp. won their bid to undo a so-called patent troll’s patent for document scanning Wednesday when the Patent Trial and Appeals Board ruled eight of the invention’s claims unpatentable.
“Nonpracticing entity MPHJ Technology Investments LLC, once called a “patent troll” by Vermont’s attorney general, was unable to persuade the board that the claims in its patent didn’t just combine decades-old prior art, according to a decision handed down by PTAB.”
It is so strange to see Xerox among the defendants here because Xerox itself has become a troll. ~100 Novell employees ended up working for Xerox after Fuji Xerox signed an early patent deal with Microsoft (involving Linux). Xerox now uses proxies to act as its own private patent trolls. Remember when the Microsoft-connected Acacia attacked Linux using Xerox patents (5,276,785 and 5,675,819)?
If spurious litigation (not just “patent trolls”) is what we’re seeking to combat, then we ought to look beyond the scope defined by large conglomerates with an army of lobbyists. Contrary to common belief, Xerox is not a dead company as it still enjoys an annual revenue of $26.58 billion. █
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More protectionism for more large companies, even those coming from outside of New Zealand
Summary: Corporate conquest or takeover of New Zealand culminates in empty promises from government officials and blackmail against citizens of New Zealand, especially the country’s dairy industry
THE DEBATE about software patents in New Zealand is very important because it set the tone for similar debates in Europe and Anglo-Saxon-dominated countries such as Australia and Canada. It usually revolves around lobbying from US giants against local companies in New Zealand. The lobbying is done through law firms and front groups, but sometimes it’s done more directly (risking backlash and brand erosion for the likes of Microsoft and IBM).
The fight is back in a big way and there are many articles in the local media, as well as the international media. The Institute of IT Professionals has just had the corporate media in New Zealand lobbying for TPP, as expected, despite it being an evil secretive deal, enabling more systemic looting by the world’s super-rich. Some myths and classic nonsense get propagated, but there is also criticism of the secrecy, for instance: “Despite some of the potentially positive matters outlined below, we still hold concerns about the detail – or rather, lack of it. As the negotiations are being held in private, the actual wording being negotiated is restricted to negotiators and other government officials only. This means we and others can’t undertake independent analysis of the impact of what is being agreed until negotiations are complete.”
Rob O’Neill, who has used his role at the CBS-owned ZDNet to fight back against software patents in his country, now explains “How New Zealand’s software patent ban can survive the TPP”.
“Officials give assurances there will be no changes to software patents, ISP liability and parallel importation,” he wrote the other day. Does he really trust these officials given their terrible track record on other secrets? Remember how John Key repeatedly lied about surveillance. It was only when leaks came out (undoing the secrecy) that he had to respond like an angry brat, shooting the messengers rather than admit that he had lied.
It may sometimes seem like the corporate press helps raise scrutiny rather than help the corporations that own the media. Despite that, on the very same day IDG hosted (at ComputerWorld) a notable lobbyist these days for software patents (Martin Goetz). He is now treated as a guest author in this nonsensical piece denying the existence of patents on software, even if he’s just reposting there (plus some “NZ” added) what he very recently wrote for lobbyists of software patents in IP Watchdog (patent lawyers with an exceptionally big mouth). How dumb does he think the readers are?
The people who want software patents in New Zealand are basically blackmailing for changed laws, using sanctions in reverse. As Clare Curran (MP) put it the other day, “Will Groser trade NZ innovation 4 dairy? Software sector raises concern over patents 2 secure access 4 dairy products”
See this Australian article which supports what she wrote and take note of this article from New Zealand:
While not unanimous, there is strong consensus from the industry against software patents. “In a 2013 poll of over 1,000 New Zealand IT Professionals across the sector, around 94% of those with a view wanted to see software patents gone,” Taylor says.
“Following significant work by IITP and others, the Government agreed and modified the Patents Act to protect New Zealand technology firms from software patents in their home market.”
“The patent system doesn’t work for software. Research shows it’s near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, often for ‘obvious’ work.
The government is of course lying and misrepresenting the opposition. It just wants this deal sealed and done for the plutocrats, some of whom are not even based in New Zealand at all. As one author put it the other day, alluding to Groser: “The government is also running the line that those same hard core anti-TPP protesters have opposed every single trade deal that New Zealand has entered. This is willfully deceptive in that it assumes the TPP is a free trade deal – when in reality, several of its most noxious provisions are anti-trade in that they entrench existing corporate advantage.
“Also, regular protest is necessary because successive “trade” pacts have included the same objectionable elements for well over 20 years. Almost identical investor-state dispute settlement mechanisms (which enable corporations to sue sovereign governments when they pass laws that infringe on profit expectations) have cropped up in mooted trade deals ever since the MAI (Multilateral Agreement on Trade) proposals in the 1990s. Eventually, the MAI was defeated by a mass mobilization around the world very similar to the anti-TPP protests today. It can be done.”
New Zealand is under attack. It’s not just affecting software professionals but also countries outside of New Zealand, which is why we hope that citizens of New Zealand will get involved and help crush TPP. The assurances given by government officials are just lies and a shallow form of deception whose purpose it to sell the deal. Once it’s signed there’s no going back. █
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The UK silently adopts a worse patent system without even consulting the public
Summary: A collection of news stories about patents, accumulated over the past week or so
LAST week we observed quite a few ongoing patent cases, as well as new developments in Europe and the United States. This post summarises all the important ones.
The Economist Started a Massive Debate
In at least two articles, both of which published earlier this month, The Economist slammed the current patent system, alluding not specifically to the notorious US patent system. It’s a global problem, that’s for sure, as many systems are interconnected (more so over time, especially with so-called ‘trade’ deals afloat). It is very nice to see a respected British newspaper like The Economist (notable as the UK’s patent regime and copyright regime have historically been most overzealous) joining the opposition to it all, after all…
“In at least two articles, both of which published earlier this month, The Economist slammed the current patent system, alluding not specifically to the notorious US patent system.”Days later, citing The Economist, David Perry of Red Hat said that “more recently, it seems that the problem of patent trolls has captured the attention of a broader audience. Four years ago, NPR produced an episode of This American Life called “When Patents Attack!” And, four months ago, John Oliver devoted the bulk of his time on Last Week Tonight, to raising awareness about patent trolls. “Most of these companies don’t produce anything—they just shake down anyone who does, so calling them trolls is a little misleading—at least trolls actually do something, they control bridge access for goats and ask fun riddles,” he explained.”
Red Hat focuses on patent trolls again. “The patent troll problem is not a new one” is the headline. The Economist, however, did not focus on trolls at all. It’s regretful to see Red Hat distracting the debate again, moving us away from the core issues.
Another article, composed by Mike Masnick, offered a better response. “Once Again The Economist Thinks Patents Are Hindering Innovation And Need Reform” was the headline and citing The Economist, Jeff John Roberts of Fortune, a man who recently wrote some good articles about patents, published an article titled “Hey lawmakers, patents and innovation aren’t the same – here’s a reminder”. This too was motivated by the debate above. To quote Jeff John Roberts: “Patents mean more innovation, right? Sadly, that’s not the case as The Economist makes clear. In a terrific piece of writing in the August 8th issue, the UK magazine explains in clear language what has gone so wrong:
“Red Hat focuses on patent trolls again.”“Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils […]
“Innovation fuels the abundance of modern life. From Google’s algorithms to a new treatment for cystic fibrosis, it underpins the knowledge in the “knowledge economy”. The cost of the innovation that never takes place because of the flawed patent system is incalculable.”
“The Economist editorial comes at a time when patent reform is getting bogged down yet again in the U.S. Congress. If you’re keeping score, this is the third time in five years that lawmakers have tried to fix the system but, as before, the patent lobby is swooping down with money and dire slogans to grind the process to a halt.”
It has been nice to see the public debate changing somewhat (diverted away from “trolls”), owing to articles that question the system as a whole, not just parasitic elements in it.
Sadly, discussions about patent scope are almost inexistent. That’s a due to a failure of scientists to ‘butt in’ and become involved in the debate. Maybe it’s also the fault of journalists for not approaching scientists for their views.
Lobbying for and Against Patent Reform
Reform debate has been locked down. When the political system in the US speaks of patent ‘reform’ (especially these days but also historically) it basically speaks about “trolls”. Classic “patent troll”, as per definition, is a firm looking to make financial gain not from products (they do not exist) but from extortion. Patent trolls encourage and promote a non-producing economy for parasites to thrive in, nobody can deny that. Is it any better if products exist though? Companies like Microsoft have some products, but in many areas they act like parasites, preying on companies that actually have the lion’s share of the market (Android for instance). It should be clear by now that eliminating “trolls” alone would not end the problem. It’s therefore a misguided debate, driven for the most part by corporations, their lobbyists, and patent lawyers to whom they are top clients.
“It is important that the people who actually produce (actual products, not paperwork) provide their input regarding patent law, or else they will be misrepresented and the law steered against them.”Last week we saw an occupied media lobbying on patent ‘reform’ [1, 2, 3, 4, 5]. As expected, much of this comes from corporate media for corporate agenda [1,2],  (posted in other sites) is a “Case for Patent Reform” by Lee Cheng, the chief legal officer at Newegg, which is exceptionally proud of its fight against 'trolls', having done so for years. It receives recognition in this new piece titled “Don’t Be a Victim: Protecting Your Small Business from Patent Trolls”.  is a piece from the lobbyists’ media, composed by member of the “Independent Inventors of America”, who basically lobbies against the favoured reforms currently on the table. We sure wonder if this is just another lobbying piece from a front group pretending to be “inventor”. Lastly, in  we have greedy patent lawyers who openly call for expansion of patent scope. Where are the scientists in all this? It’s mostly lawyers again. It is important that the people who actually produce (actual products, not paperwork) provide their input regarding patent law, or else they will be misrepresented and the law steered against them.
We were rather amused to see greedy patent lawyers who openly call for expansion of patent scope trying a gross reversal of today’s reality and attempting distortion of facts, pretending that large corporations pass patents to startups (the ‘trickle-down’ nonsense), as opposed to troll-feeding by large corporations, so as to get their rivals attacked by trolls like MOSAID (renamed Conversant). Well, to be fair to patent lawyers, that’s just what they do for a living. They present a gross, biased, and often inaccurate picture of reality in order to get their way and win cases.
Patent Lawyers/Maximalists Against Patent Reform
Yet another lawyers’ firm, McCarthy Tétrault LLP, writes about what it labels “Google’s “FFF” patent plan”, noting: “These two initiatives build on Google’s effort to impact patent reform in the United States and beyond. Prior to these announcements, Google’s efforts included the launch of the Patent Purchase Promotion in April (which we discussed here). Google has not officially released any information on the outcome of the Patent Purchase Promotion but Kurt Brasch, a lawyer at Google, reported that the program was a big success. In a phone interview with Fortune.com Mr. Brasch stated that the company bought numerous patents at purchase prices ranging from $3000 to $250,000.”
“Google cannot fend off patent trolls, so its claims to be helping startups with its patents are just marketing.”Google claims that it helps startups, but this won't work. Google’s IBM-like strategy was talked about by other sites of patent lawyers (covered in brief along with expected protests against the aforementioned reports from The Economist).
Here is what IP Troll Tracker wrote about Google’s strategy when it comes to a startup it supports: “Google would rather shutter the venture than try and fend off the lawsuit, unless the Ordrx software were already pulling in mountains of money.”
Google cannot fend off patent trolls, so its claims to be helping startups with its patents are just marketing. Fortune‘s Jeff John Roberts said so too. That was just a couple of weeks ago in the corporate press.
“JDate is not a classic patent troll, but it sure acts like one.”Tackling the JDate case, which we wrote about repeatedly for weeks, TechDirt says that “The whole lawsuit is absurd, and it starts with the trademark claims that come before the patent ones.”
JDate is not a classic patent troll, but it sure acts like one. JDate will hopefully get sued in a move of retaliation, preferably to the point of bankruptcy. What the company has done here sets a very bad example to any others that are watching. Software patents on very vague concepts are the weapon.
Jawbone and Fitbit
Citing this patent maximalists’ site (which even grooms notorious patent trolls), IP Kat says that “Jawbone holds 78 utility patents and 78 design patents compared to Fitbit’s 89 utility patents and 11 design patents. Jawbone’s patents lean towards hardware and design, whereas Fitbit’s patents are more focused on hardware and software.”
Yes, Fitbit is patenting software, as we noted here several times before. Its Orwellian surveillance tendencies aside, it ought to convince people to avoid these products. A good friend of mine had purchased a Fitbit device and saw it lasting for only one week. It’s a fragile toy and a fashion accessory that tracks the owner even when the owner is asleep. Nobody needs that.
We recently wrote about Cisco's attempt to portray itself as a trolls buster, having acted like a troll itself. Some GNU/Linux-centric sites help the former narrative. This is a good example where a massive corporation, Cisco, not some small startup, uses patents for anti-competitive purposes while claiming to be fighting trolls.
Large corporations want the population to only be obsessed with patent trolls. It helps those large corporations protect themselves and does nothing to tackle the broader issues.
EPO and UPC in the UK
The EPO is coming to the UK. It’s entering from the back door. It gets more of a presence in the UK in ways that we first covered last week, noting that no public consent was even sought! The lawyers who work for (or with) the UK-IPO must think they are above the law, as it increasindly looks a bit like government-sanctioned collusion.
“The UPC is almost guaranteed to bring patent trolls to Europe, enabling them to expand their scope of litigation (or threatening letters, demanding payments).”A maximalist of patents (including software patents), AmeriKat of IP Kat, wrote about the UPC courtroom being established before it’s even authorised. AmeriKat “interprets this as meaning that if the UPC doesn’t happen (pending a UK referendum on membership of the EU) or is somehow delayed than the IPO or, indeed another governmental body, can make use of the space.”
Another piece from the same blog speaks of a “[b]ill that is drafted by civil servants – his servants – and that is supposed to protect the interests of businesses” rather than those of citizens. The UPC is almost guaranteed to bring patent trolls to Europe, enabling them to expand their scope of litigation (or threatening letters, demanding payments).
When people return from their summer holiday we are guaranteed to hear a lot more about the EPO and the UPC. It’s truly undemocratic and often secretive, too. █
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Summary: Analysis of Cisco’s claims that it is making a new video codec ‘royalty-free’ in an effort to fight trolls (probably MPEG-LA et al.)
Cisco, itself somewhat of a troll these days (reversal of a previous stance and previous actions), is trying very hard to paint itself ‘anti-trolls’ right now (picked by LWN by now), leading to misleading press coverage like “Cisco hands license-busting troll-hammer to THOR”. To quote:
Cisco is sick of the state of patent licensing for video codecs, so has decided to set a royalty-free of its own loose on the world.
The Borg’s problem is twofold: on the one hand, the licensing pools for H.264 fail to represent many of the participants in the industry; on the other, the successor, H.265, can be vastly more expensive.
Is Cisco ever going to stand up to MPEG-LA? Cisco enters a space already populated by Google’s WebM/VP9 and Ogg Theora/Vorbis (here is Monty Montgomery’s initial response to Cisco making its codec free, but not Free software like his own ‘baby’). It would be nice to see Cisco throwing its weight against MPEG-LA, and by extension MPEG-LA backers such as Apple and Microsoft. Some sites frame Cisco’s software as “H.264 and H.265 alternative”. Let’s see how they cope with the patent troll, MPEG-LA. Sooner or later we are bound to find out.
It is no secret that Techrights distrusts Cisco, even for reasons other than patents. Today in the news there are damaging allegations about (and also from) Cisco. Cisco claims that its gear can be hijacked (Cisco’s very own back door must not have helped and instead contributed to it). Perhaps Cisco found out that letting only the “Good Guys” get into everything from Cisco rarely works in practice. Cisco is a back doors industry leader, with public attempt to even standardise the practice and Web pages that boast about it (Cisco may have removed or watered down these pages since the Snowden-provided leaks). Does anyone wish to actually use Cisco products, irrespective of the codecs used, to transmit audio and video inside a private business? Sensitive data is being passed around, making it an attractive target for espionage. Cisco gear is a bug waiting to be remotely accessed (or its communications intercepted) by Cisco’s partners in high places, such as the NSA. Remember that Cisco’s stacks are almost entirely proprietary, no matter how much openwashing the company habitually resorts to. █
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Summary: The plot to monopolise more of what is public (e.g. public domain, common knowledge) gradually unravels as people secretly (dodging public participation) congregate to centralise power structures, opportunistic predation, costly litigation, and enforcement of demands from corporations (like I.S.D.S.)
IT IS saddening to see that despite some patent progress which is being made in the US, owing for the most to SCOTUS*, other countries/islands/continents regress and essentially derail their own economy. It’s a class war waged between multinational corporations, i.e. plutocrats without borders, and everyone else, irrespective of nationality. It’s a large-scale heist cleverly disguised as harmonisation of national and international laws.
Not too long ago we explained how the software patents debate in New Zealand was being bypassed or worked around in secret. Some vigilant people caught this secretive ploy and alerted the media, calling for action while fighting back against software patents. Now there is a press release and resultant/accompanying media coverage from the local/national media, even ZDNet outside the country [1, 2, 3, 4]. Will this be enough? Well, it’s only the beginning of what could become a very long struggle. New Zealand has already devised the same loophole that Europe is sneakily using in order to allow software patenting, provided it’s tied to some unspecified device.
Speaking of Europe, the Unified Patent Court (UPC) ‘harmonisation’ ploy is well under way as here in Britain, without public consent (no referendum, no polling, not even a Parliamentary debate), the London division of the UPC [is surprisingly] announced”. Yes, the patent parasites (practitioners) just jump the gun and according to this report, “UK Intellectual Property Office has announced the new location of the London section of the Unified Patent Court.”
So UK-IPO basically ignores the standard authorities and procedures, just like the EPO‘s management. One might say that they virtually operate outside the law, much like the Mafia. They know what’s good for them and they don’t bother consulting the public. According to IP Kat, a blog of patent maximalists from London, the Enlarged Board (tackling EPO disputes) finally has something to reveal.
Just like these secret (and now notorious) ‘trade’ deals which we rarely write about (even though more is known about them now), these patent conspiracies (or collusions) serve to just enrich a meta-industry of people who profit from taxation of real practitioners — people whose practice is producing stuff like software and machines. █
* According to Patent Buddy, the SCOTUS ruling in Alice keeps squashing software patents. “New PTO eMod system,” allegedly (no link to the source), “seamlessly generates automated § 101 rejection on every appl’n, saving the PTO millions of $$ a year in exam costs.”
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Protectionism regime has gone metaphysical
Victorian arcade in Manchester
Summary: Today’s roundup of patent news, focusing exclusively on software patents and patent scope, not the scapegoat which is patent trolls
THE patent landscape keeps changing (it’s dynamic just like every law, never static), and the more it’s subjected to public scrutiny, the more likely it is to serve the public’s interests, as opposed to corporate interests (the interests of the tiny minority which is extremely affluent). Today we break down our post into several sections as follows.
Patents Scope in the European Patent Office (EPO)
It has been quite some time since we last wrote about the EPO, but it turns out that the Board of Appeal which Battistelli and his goons try to silently crush (or at least make more subservient) is debating patent scope and doing the right thing sometimes. “The application was refused on appeal for lack of inventive step and lack of clarity,” says IP Kat.
Alicestorm Continues to Eliminate Software Patents
“Let’s hope that Alicestorm will discourage companies, or even patent trolls (JDate has begun acting like one), from blackmailing companies using software patents.”Alicestorm is a term coined to demonstrate just how profound an impact the case of Alice Corp. v. CLS Bank has had on patent scope. “US Pat 6,625,582, Converting future retirement,” wrote Patent Buddy, has just been “Killed by 101/Alice @ CAFC” [with analytics at the Patent Buddy Web site].
Chalk up another defeat for software patents (in CAFC even, despite its notorious patent maximalism).
We recently delved into the bullying (using patents) by the JDate 'meat market'. The company, as it turns out, pursues patents on software, despite lots of prior art and obvious triviality, and then uses these patents to bully competitors, even though a court (after a very expensive legal process) would likely invalidate such patents. It’s like SLAPP-type abuse by JDate. As this very long new article puts it, there is nothing novel here. “Does it change anything if it’s on a computer or the Internet?”
Addressing this question, the author says: “This is the question that has been vexing patent types for some time, but patent experts feel that the Supreme Court finally answered the question last year with the unanimous Supreme Court Decision of Alice Corp. v. CLS Bank Int’l.
“In that case, CLS Bank had software to serve as an intermediary in financial transactions, holding funds in escrow, work that financial intermediaries have been doing as long as humans have traded with money. The Alice Corporation didn’t do any work of that kind and had never created any actual software, but it had a patent describing how it could work using a computer.
“In his opinion on behalf the court, Justice Clarence Thomas wrote, “The relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. They do not.””
Let’s hope that Alicestorm will discourage companies, or even patent trolls (JDate has begun acting like one), from blackmailing companies using software patents.
Facebook’s Surveillance Software Patents
“Facebook Patents Technology That Could Allow Banks And Businesses to Discriminate Based on Social Connections,” according to this article from AOL. A lot of the fury is directed at Facebook’s privacy violations (as if that’s news), but what about the company’s efforts to patent software — patents which the company sometimes bullies with?
What we find scandalous here is that Facebook patents software, but AOL looks at it from another angle. To quote: “Facebook, the website everyone and their sister, brother, cousin, uncle, and friends you didn’t even know you had is a member of just secured a patent on Tuesday that could help filter spam and offensive content and improve searches. Isn’t that great? Less spam and no more nude pics, Obama monkey memes, and tea-billy racist outbursts, but there’s more. A lot more and it’s not good. The technology could also allow lenders to use a borrower’s social network to determine whether he or she is a good credit risk. Let that sink in.
“Got that? Your Facebook friends and their spending habits, credit rating, behavior – hell, maybe even their character, could determine whether or not you get a loan and presumably how much interest is going to be applied to that loan.
Credit where due: “The patent was uncovered by Mikhail Avady, founder of SmartUp, a legal technology company in Atlanta. Fortune, CNN, TNW News, and VB all say they reached out to Facebook for comment, but none have heard back, according to the articles.”
In case it’s not obvious, we discourage the use of Facebook for anything at all. Facebook servers need to be blocked at operating system/router level, permanently. Facebook is an attack on the Web and nobody truly needs Facebook. It’s Facebook that needs people, not the other way around.
‘Trade’ Agreements for Patent Loopholes
We recently wrote about how so-called 'trade' agreements were exploited by software patents proponents in New Zealand. Now we learn that patent ‘reform’ in the US (not really the required reform) is closely connected to other issues such as the so-called ‘trade’ agreements, notably TPP. To quote the Washington Examiner: “The House of Representatives has delayed voting on the Innovation Act, a bill designed to curb patent trolling, until after the August recess. But patent abuse still finds itself part of the legislative discussion, in this case with the Trans-Pacific Partnership (TPP).”
“Only in secret, when few of each country’s richest people collude, can such deals be tolerated.”To quote the key part: “The concern centers on sovereign patent funds (SPFs), government-funded organizations that acquire and leverage patents in pursuit of national economic objectives. Ideally, they should act as one-stop clearinghouses where a person or entity can acquire a bundle of interrelated patent licenses instead of negotiating with every individual patent holder. Given that the average smartphone incorporates as many as 250,000 patents, patent pools provide a function in streamlining access to IP rights.”
Patents are a tool of protectionism, perpetuating injustice and social/financial disparity. Why would any country other than patent glorifiers sign these unacceptable ‘trade’ agreements? Only in secret, when few of each country’s richest people collude, can such deals be tolerated. These people are all traitors to their country, especially to their people.
Google’s ‘Good’ Software Patents
Here we go again. The IEEE, steward of leading international journals that I used to do peer reviews for back in my twenties, is doing some shameless Google PR. The “our [software] patents are good patents” nonsense received coverage from Spectrum. It’s that same tactic that IBM once used as part of its PR strategy, portraying itself as a big friend of GNU/Linux. It is still out there. After setting up OIN (headed by an IBM lawyer) we learned that it was an entity so useless against patent trolls that one may wonder whose interests it really serves. Google is now trying to do the same thing. Google keeps saying it will “help startups” (similar to “think about the children!”) by freeing up its patents, even though (as some sites have pointed out by now, even in the corporate media) this helps in no way against patent trolls, since they basically have no actual products to sue over.
Now that a Google-backed company is finding itself as a victim of patent trolls (new article from corporate media), where is Google to help? Where it Alphabet? Nothing.
“We quickly attracted attention,” said the company. “We were living the American Dream. Until a patent troll — a company whose only business is suing legitimate businesses to force expensive settlements — hit us with a frivolous lawsuit.”
So where is Google with its ‘good’ patents that are intended to help startups? Oh, that’s right, there’s no solution there for patent trolls. This alone (situations such as this) helps justify a patent reform — like those delayed until Congress returns to normal sessions after the summer’s vacation. █
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Patents not on engineering (or physical products) anymore
Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android
THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].
Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.
Open Invention Network
We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).
Earlier this morning FOSS Force published this very long interview with Deb Nicholson, who had worked for the FSF before she moved to OIN. This interview is very good and Nicholson’s views on patents are fine. We shared them here before.
“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”
Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.
“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”
She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).
The Finjan-led patent extortion crusade was mentioned here just weeks ago (they are Microsoft-connected) and now, just weeks later, this firm’s troll entity (Finjan Holdings) gets extortion money from a really nasty company, Blue Coat, which some say the EPO hired to spy on people like yours truly and EPO staff. “Finjan Holdings,” as a trolls expert explains, is “a patent-licensing company operating in the cybersecurity space” and it has just “won a hefty $39.5 million jury verdict (PDF) on Tuesday, when a San Jose jury found that Blue Coat Systems infringed five of its patents.”
Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.
Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.
“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”
“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”
The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”
Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.
A new article from Timothy B. Lee helps chastise the bully called JDate, which we wrote about very recently. “JDate,” he explains, “recently sued JSwipe, a mobile dating app for Jews that works like Tinder. Most media coverage has focused on mocking JDate for essentially claiming that it has a monopoly on certain uses of the letter J.
“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”
There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.
The Economist Versus Patents
The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).
“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”
Yes, patent scope is a huge part of the problem.
“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.
Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”
It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?
Patent Propaganda From Lawyers’ Sites
Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”
Yes, they even suggest software patents right there.
“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).
“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”
That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.
“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.
“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.
Design Patents and Linux Gadgets
Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”
The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”
This forever-legal-limbo scenario helps hurt Android, so we cannot just pretend that software patents are not a problem. More FOSS and GNU/Linux site must learn to address these issues as a matter of priority. Not enough are doing this at the moment and it definitely helps our foes. Many people seem to forget that Microsoft still attacks GNU/Linux using patents (albeit more discreetly than before). █
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