Summary: A FOSS-centric look at patent news from the past week or so

THE patent frenzy we find in the media (associating R&D with "patents") shows no signs of abatement but many signs of resentment from the public. With patent-pending 'inventions' like search marketing stuff and stuff for "faster web" or network access we rapidly approach the age of mega-lawsuits over patents. This is not an industry of technology but an industry of deterrence and litigation.

"This is not an industry of technology but an industry of deterrence and litigation."In the case of Motorola, Microsoft the patent extortionist is trying to play the victim card, as we explained before (Apple does the same). At the same time, Apple is attacking Motorola with a lawsuit which Microsoft booster and Linux basher Tony Bradley uses to create fear of Android. He is quoting/citing Microsoft lobbyist Florian Müller, who is leading to damaging headlines in the British press such as "Apple could force Moto to destroy phones" (among others).

This Microsoft lobby is promoting FRAND and so does Apple (Nokia has joined as well), which is being a total hypocrite because Apple does a lot worse than FRAND. And to quote this new criticism with nice pictures:

This system promises an ugly future in which mobile communications are slow (as it would be uneconomical to participate in FRAND communications standard development), there interfaces will be clunky (a company will be limited to a handful of UI elements for fear of infringement), and product quality will be decreased to offset an inevitable slew of licensing fees.

In an article titled "Patently Absurd – The Latest in the War to Stifle Innovation", the author correctly states that "[i]t’s become the go-to strategy for languishing tech companies: When out-innovated, claim patent infringement."

The author continues: "One patented “technology,” for example, is for “generating meeting requests and group scheduling from a mobile device.” Does easily getting people together at a specified date and time from a smartphone seem ingenious to you? Of course not, it’s what we obviously want our phones to be capable of – without enforced limitation by the patent system."

"It's all about monopolists expanding their field of influence."In Germany, Apple faces another setback as its legal aggression backfires. Other cases where smartphones get retarded by patents include this new one: "In the cases of both Comerica and Southwest, the infringement supposedly occurs in the use of the smartphone software to communicate with other technology systems that the companies operate, the lawsuits allege."

Here's more. It should be rather clear by now that there is no benefit here to customers. It's all about monopolists expanding their field of influence. The system is also good for litigation startups, pointless for the rest of the startups, contrary to the claims presented here. It is well established that startups do not have the resources to deal with patents, so a sort of rebuttal comes from Timothy Lee, who writes in Slate. He says more in Forbes:

When talking about the smartphone patent wars, it’s important to recognize that, as Stanford’s Mark Lemley pointed out a few years ago, almost all software companies ignore their competitors’ patents. There are two basic reasons for this. First, there are so many software patents, and they have such unclear boundaries, that finding and negotiating the rights to necessary patents is essentially impossible. And second, patent law awards triple damages in cases of willful infringement. So if a company finds a patent, tries to work around it, and is later ruled to have infringed the patent, it’s on the hook for three times the damages it would have faced it if had never found the patent in the first place.

A troll called BackWeb, which we wrote about before, is back at the scene and it makes money for doing nothing, having just settled with IBM. BackWeb is not a startup, it is a symptom of the farce that the patent system has become.

Who really benefits in this case? It is time to reform the system for reasons that Everything is a Remix recently explained very succinctly. Or as this one article put it:

Filmmaker Kirby Ferguson recently finished Everything is a Remix, a four-part video series illustrating the interconnectedness of our creations and how current laws and norms miss this essential truth. Some viewers protested that the series ended without offering much in the way of prescriptive ideas. Here, he takes up that challenge, offering his thoughts on intellectual property reforms and best practices with the interests of remixers and creators in mind.

Android is still under attack from Oracle [1, 2, 3, 4, 5] even though the patents prove to be worthless:

The US Patent and Trademark Office (USPTO) has issued a ruling rejecting Oracle's patent of the Java language. The "final office action" by USPTO was one of several related rulings the agency issued relating to the popular programming language. The rulings came in response to a joint filing by Oracle and Google, which have been battling over the use of a modified form used in the Android mobile operating system.

As put by the British press:

Oracle must decide whether to wait for USPTO before trial in Android lawsuit

[...]

Oracle's handling of its Android patent infringement claims has been little more than a farce and on the face of it, the firm has managed to engineer a situation that is worse than when it started. Not only have its repeated attempts to estimate damages suggested that the firm doesn't have a clue about what its Java patents might be worth, or why, but also it is looking increasingly likely that several of its patents are going to be invalidated by the USPTO.

More here:

The US Patent and Trademark Office (USPTO) has issued a ruling rejecting Oracle's patent of the Java language. The "final office action" by USPTO was one of several related rulings the agency issued relating to the popular programming language. The rulings came in response to a joint filing by Oracle and Google, which have been battling over the use of a modified form used in the Android mobile operating system.

We recently wrote about Facebook and Yahoo, just after Facebook had been getting its own taste of the patent system. It was only some days ago that Yahoo! attacked and demanded payments for patents (patents boosters wrote about it too) so "Yahoo [is] now using its patents to extort money from Facebook and others," put it some folks, perhaps realising that Yahoo! could one day be used like Microsoft uses Nokia -- to attack competition. TechDirt has an interesting take on this subject, among others that involve Facebook.

Nintendo, to its credit, refuses as a matter of principle to succumb to patent trolls:

Rick Flamm, Nintendo of America's senior vice president of Legal & General Counsel, has spoken out against "patent trolls" after winning a third litigation case this year.

Here's more on that.

TechDirt explains the obvious observation that the patent system has been rigged to favour patent maximalism:

When the numbers came out showing that 2011 represented yet another record year for patents granted, it was such a non-surprise that I didn't even bother mentioning it. The number of patents granted just keeps going up. And yes, there were two small dips during the past decade, but they corresponded with the rare situations in which the Supreme Court finally took an interest in some element of patent law and pushed back on the Federal Circuit (the appeals court that handles all patent issues) and the USPTO. We've discussed at length in the past, the problems of having a single appeals court that solely focuses on patent issues, because you lose the diversity of opinions (made worse at times when some of the judges on the panel have been former patent attorneys -- or, most famously, when a judge at the court was the same former patent attorney who wrote the last major update to patent law...).

When people like Dennis Crouch are prominent among those who write on patents, no wonder there is so much promotion of yet more patents. This whole system needs a rethink, an overhaul, or abandonment. We're merely trying to summarise and show the trends here, not so much from a sceptical or critical point of view; the articles increasingly speak for themselves because disdain for the patent system is mainstream. Now we need action. ⬆