Bonum Certa Men Certa

Patent Trolls Increasingly Recognised as an Issue, Taking Attention Away From Software Patents as Key Issue

Dodging the main issue, which is monopolies on maths

Logic



Summary: Patent trolls and patent "quality" increasingly targeted rather than the debate about software patenting

There has been a lot of patent resentment recently, all directed at patent trolls and software patents, the trolls' weapon of choice. There is this new post from someone whose work is being attacked by a patent troll. It bothers me personally also because it is similar to an Android app I developed; to think that patent trolls can extort such apps is enough to convince myself and other developers that patent trolls and software patents harm everyone in almost every way.



A new style of trolling emerges following general apathy and tolerance towards patent trolls. This one report speaks of a troll scam which uses extortion, but unlike patent trolls, these ones go to prison:

An organization calling itself the "Internet Copyright Law Enforcement Agency" (ICLEA) recently sent out a batch of copyright infringement notices. One letter reproduced online states that "if this matter is not settled by Friday, March 1, 2013 then you may face serious potential criminal and/or civil charges filed against you. If you are arrested for felony criminal copyright infringement you will be fingerprinted, photographed, and held in jail until you are arraigned in court." Recipients have been asked to pay various amounts, such as $395 or $495.

Needless to say, this is a scam. Under US law, only the government can indict defendants or throw them in jail. And the scammers seem to have realized that they made a big mistake, as their website now states, "Effective immediately, the Internet Copyright Law Enforcement Agency has ceased operations. Please disregard any notices you received from us, and please do not send us any payments."

But as a screenshot captured by Fight Copyright Trolls shows, that's not what the website used to say. Previously, the ICLEA claimed to be "an international organization that helps to enforce copyright laws on the Internet worldwide by informing potential copyright law violators regarding the serious criminal and/or civil liability they may face, and providing them with an opportunity to help them comply with copyright laws."


I don't believe that patent trolls should be sent to prison, just bankrupted. "A small company is suing us for patent infringement" says a Dilbert cartoon which can be found here. It sure seems like this whole trolling phenomenon has grown deep into public conscience. Here is a new high-profile trolling case, which CBS reported on as follows:



Maz Encryption Technologies, a Delaware company made up of two former employees of Maz Technologies, filed suits last week against Apple, Dell, Hewlett-Packard, Toshiba, Fujitsu, Lenovo, and Research In Motion (now BlackBerry).


There is a case fought by Function Media, L.L.C. against Google Inc. and lawyers who cover if say: "Function Media sued Google for infringement of three related patents: 6,446,045; 7,240,025; and 7,249,059. The patents involve a system for facilitating advertising on multiple advertising outlets (such as different websites) with different formatting requirements. The district court granted summary judgment that the sole independent claim of the '045 patent was indefinite and a jury subsequently found that the asserted claims of the '025 and '059 patents invalid and not infringed. The district court granted JMOL of validity of four claims but the noninfringement verdict stood. FM appealed several issues including the indefiniteness ruling and raised a challenge based on O2 Micro."

Here is another interesting article from the same site: "In a 9-0 decision, the Supreme Court has limited the scope of "arising under" jurisdiction for patent cases and held that the Minton's patent litigation malpractice case does not arise under the patent laws and therefore is not amenable to exclusive federal jurisdiction."

In a relatively arrogant and rude site of patent lawyers we find someone willing to accuse of faith-based insistence those who actually have academic studies and developers' voices on their side. Watch this opening paragraph:

Rarely a week goes by these days without the publication of one academic study or another that addresses the “problem” of software patents in the US, often in tandem with a dissection of the cruelties inflicted by “patent trolls”. The conclusions of these studies are almost always variations on the same theme: “Something has to be done because the current regime is stifling economic growth, as companies are afraid to innovate because they may be sued for patent infringement.” These studies are always very precise about the specific problem within the system that they address, but they never seem to provide any evidence that innovation is, in fact, being affected by patents. That just seems to be taken as an article of faith.


The software patenting proponents, or in other words patent lawyers, latch onto Rader, a SCOTUS-glorified lawyer, for advocacy of this whole patent mess. The WatchTroll says "the patent system is far to important to allow bad actors and those with an anti-patent agenda to manipulate the mass-media, public and policy makers into believing that patents are inherently evil and deserving of the blame. Patents are objectively good by any fair and factual assessment of history. We just need to get the message out."

It's not about good or bad, it's about within or outside scope. All software patents, for instance, are bad because they apply to abstract ideas. Meanwhile, the "head of litigation and intellectual property at Twitter" (i.e. a lawyer) promotes something which is not the solution but a hack of some kind, as we covered before. He says: "Even if the company or a future buyer of the patent wants to renege on the promises of the IPA, the inventors can hold them accountable and grant licenses to others. Suppose a company sells the patents to someone who decides to sue others offensively (in violation of the IPA); the inventors then have the ability to grant a license to the person or entity being sued. The license would thus protect the people being sued if the suit violated the promises in the IPA."

A simpler solution would be to just eliminate software patents. The SHIELD act is an example of addressing the issue in another dodgy way, which IDG promotes as follows:

I've said before, and often repeated, that software patents are evil. Ask almost any experienced software product engineer -- especially in an open source project -- and they'll tell you software patents are a bug, not a feature. The worst problem they face is patent trolls appearing from nowhere and enaging in a legal shakedown. Even President Obama says, "They don't actually produce anything themselves. They are essentially trying to leverage and hijack somebody else’s idea and see if they can extort some money out of them."


But if you take away software patents, then a lot of trolls would go extinct. The SHIELD act is just a hack which assumes the defendant can afford a long trial. Here is what one writer says to provide background:

Last year, the first bill that could take a bite out of the business model of so-called "patent trolls" was introduced. Not much happened with it, but today a reworked bill has been introduced by the same sponsors: Reps. Jason Chaffetz (R-UT) and Peter DeFazio (D-OR). The bill is called the SHIELD Act of 2013, which stands for "Saving High-Tech Innovators from Egregious Legal Disputes


Here is a criticism of SHIELD:

Evidently at least one Congressman feels that the AIA does not go far enough to combat patent “troll” lawsuits. Congressman Defazio of Oregon is sponsoring yet another bill entitled “Saving High-Tech Innovators From Egregious Legal Disputes Act.” The bill, like its 2012 predecessor, proposes that the costs (including attorney fees) of certain types of patent lawsuits should be recoverable from the Patentee once the court finds the patent invalid, or not infringed. The 2012 version of the bill was limited to software type inventions and mandated payment for only frivolous suits.


If they can classify something as "software type", why grant a patent on it in the first place?

These cases would usually be dismissed provided there is prior art, so why are such patents granted in the first place? Well, it is hard to exhaustively study all software in existence, whereas for hardware it is much simpler because few players can manufacture cutting-edge hardware.

Here's a new article about how to locate prior art and something in the news about frivolous patent cases:

The law firm of Pearl Cohen Zedek Latzer and two of its partners have been hit with more than $200,000 in sanctions for filing a frivolous patent case, opposing an earlier sanctions ruling and, according to a federal judge in Manhattan, wasting the court's time.

On Feb. 21, Southern District Judge Colleen McMahon (See Profile) ordered the legal team for plaintiff Source Vagabond Systems Ltd. to pay $200,054 in sanctions to defendant Hydrapak Inc.


Those lawsuits show that patent trolling, or the turning of patents into a business model, are a true issues as courts can recognise. In order to properly set up a deterrent they need to find out where those patents come from in the first place. We rarely if ever hear about trolling with hardware patents; statistically speaking, trolling is mostly a symptom of software patenting.

Recent Techrights' Posts

Google, FSFE & Child labor
Reprinted with permission from the Free Software Fellowship
[Video] Trainline Finally Issues a Refund, But It Took 9 Days and Showed How 'Modern' Systems Fail Travelers
They treat people like a bunch of animals or cattle, not like valuable customers
 
Links 13/04/2024: Whistleblowers, OpenAI and Microsoft Leakers
Links for the day
'Our' Technology Inside the Home is Becoming Less Reliable and It Implements the Vision of Orwell's '1984' (Microphones and Cameras Inside Almost Every Room)
Technology controlled by who exactly?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 12, 2024
IRC logs for Friday, April 12, 2024
Links 13/04/2024: Huawei and Loongson PCs, IBM Layoffs
Links for the day
Gemini Links 13/04/2024: Specification Changes and Metaverse Newbie
Links for the day
Links 12/04/2024: Big Brother in the Workplace and Profectus Browser Alpha 0.3
Links for the day
WIPO UDRP D2024-0770 Debian vendetta response
Reprinted with permission from Daniel Pocock
Links 12/04/2024: Reporters Without Borders Rep Kicked Out of Hong Kong
Links for the day
Gemini Links 12/04/2024: Funny Thing, Manual Scripts, and More
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 11, 2024
IRC logs for Thursday, April 11, 2024
DebConf22 Kosovo segregation of women exposed
Reprinted with permission from disguised.work
Links 11/04/2024: Web Diversity and More Crackdowns in Russia
Links for the day
Gemini Links 11/04/2024: Activity and Motivation in Geminispace, gwit Implementations
Links for the day
First They Came for Iranian Developers...
Red Hat/IBM and 'cancel culture'
[Video] A Debian Project Leader Needs to Also be a Technical Project Leader
We do not vouch for one (or none) horse in this race
Aggressive Efforts (and Threats) for Those Who Speak About What Happened in the Balkans
Acting in this way in an effort to censor people typically results in a second scandal on top of the original scandal
How Kosovo won DebConf21
Reprinted with permission from Daniel Pocock
[Video] How the Media Blamed SSH and Linux (for Nearly a Whole Fortnight!) Instead of Microsoft's GitHub and Systemd
Microsoft-connected sites have said a whole bunch of lies
Anzacathon: a hackathon for Anzac day at home
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 10, 2024
IRC logs for Wednesday, April 10, 2024
On Julian Assange, Now 5 Years in Belmarsh Prison: The Good News, the Bad News, and Ugly Noise
Some time this spring (or summer) we'll revisit the Appelbaum case