WE really did have some high hopes when we heard about David Kappos' appointment. As an IBM veteran we did not expect him to abolish software patents, but we initially hoped he would help improve patent quality or at least tackle the patent trolls. He appears to have done neither so far.
Software patents are broken and the only possible justification for having them is self-defence (which is itself a risky accumulation of armaments that could fall into hostile hands in the future). It seems plenty of important members of both the Linux Foundation and the Open Invention Network make public assertions claiming they believe that assertion, so there should surely be no objection to equipping both of these trade associations with firm, meaningful sanctions.
The question is, what form should those sanctions take? It's very hard for a trade association to take a position in cases like the Oracle-Google lawsuit. But both organisations have membership rules, and membership in both is a valuable asset. Perhaps OIN and the Linux Foundation need to make membership conditional on members taking no first action against each other with software patents?
“Businesses needn't have monopolies and needn't exclude rivals from the market in order for the market as a whole to offer jobs.”Kappos continues: "Patents enable innovators to put products and services in the marketplace and to hire people."
They could do that without patents. That's just the fairy tale we keep hearing from lawyers. Kappos is one of them. Businesses needn't have monopolies and needn't exclude rivals from the market in order for the market as a whole to offer jobs.
Kappos then says: "They create opportunity and they put Americans to work."
"Americans," eh? Does that confirm that, as Glyn Moody put it last year, patents are “a neo-colonialist plot to ensure the continuing dominance of Western nations” or is that something else?
Kappos finished this paragraph with: "And so every patent application that's sitting here in our agency is potentially American jobs that aren't being created."
"Not in FOSS, they don't. This is old-think," said Pamela Jones in Groklaw. Kappos must get his facts straight. He seems to have been immersed in the same old propaganda we always see in lawyers' blogs. The USPTO is supposed to represent and to serve the interests of science and technology, not the meta-industry created artificially by the patent system this accompanies. Based on this new blog post, even some lawyers would publicly admit that patents have gone the wrong way in the United States. Software patents need to go.
Based on my 40 years of experience in the computer system development, much of it before software patents were introduced, I believe that the alleged connection between such patents and the stimulation of innovation is tenuous at best and probably negative.
Back in March, we headlined our discussion of the district court judgment in the Myriad case “Pigs Fly.” Guess what?—they’re still aloft. On August 4, in a highly technical patent case that, appropriately enough, involved “porcine virus DNA,” one Federal Circuit judge—dissenting Judge Timothy B. Dyk—suggested that he might agree with the basic principle of the Myriad holding: that isolated DNA sequences are not necessarily patentable.
A federal court in California has invalidated a patent by plaintiff Ultramercial, LLC as not covering patentable subject matter. Specifically, the court applies a test the Supreme Court recently drew up in its landmark decision, Bilski v. Kappos, over business method patents. The test is whether a patent covers a "machine-or-transformation." In invalidating the patent, the California district court rules that the patent in question is not aimed at a computer-specific application, that the Internet is not a machine, and that the mere act of storing media on computer memory doesn't tie the invention to a machine.
We are pretty good at providing patents for specific engineering methods or sophisticated inventions. We even do allow a software patent to stand from time to time. However, there are many ideas that are simply embraced, and extended by the gorillas.
3 Stocks that Could See a Windfall of Cash from Patents
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Note: All three of these companies appear to be racking up impressive licensing deals that will, over the long-haul, generate compelling free cash flow growth
"People naively say to me, "If your program is innovative, then won't you get the patent?" This question assumes that one product goes with one patent." —Richard Stallman