"Software patents are hardly a speakable subject and patent scope in general is relegated to 'specialist' sites."Today we wish to cover rather than ignore the zeitgeist/news cycle which relates to patents. It's all just trolls, trolls, trolls. Software patents are hardly a speakable subject and patent scope in general is relegated to 'specialist' sites. It's truly a shame, but that's where we're at. We can only hope to change that.
Lex Machina has just shown a massive growth in patent litigation, having previously shown a massive decline that was widely reported on (we too covered it at the time). Here is the accompanying Lex Machina press release. There was also a report from (self-described) defensive patent aggregator Unified Patents, which came out at around the same time, leading to a lot of coverage and calls to take on patent trolls. To quote some headlines that dominate the press right now:
"It is safe to state that there is strong bias there. It relates to how these parasites make a living."Yup. "Let the lobbying continue." IAM went as far as openly opposing reform against trolls and pretending it faces "the tough road". Another patent maximalist (usually meaning patent lawyer who makes money from all this mess) wrote: "Fee shifting provisions are again front in center in both the Innovation Act in the House of Representatives and the PATENT Act in the Senate. With this in mind I thought it would be interesting to speak with Telscher on the record. He obliged. In part one of my interview with Telscher we discussed the back story of the case, how Octane Fitness was the little guy getting pushed around by the larger corporation. We discussed the problem of patent trolls, and started discussing litigating in the Eastern District of Texas."
It is safe to state that there is strong bias there. It relates to how these parasites make a living. All these patent lawyers' sites are still full of self-serving propaganda about patent reform, not just the status quo of software patents. Here is a patent lawyers' site publishing the article "Lessons learnt from top entrepreneurial inventors" (as if patents are the same as entrepreneurship and innovation) and here is another patent lawyers' site on "Possibility of More Reform Spurs Increase in Patent Case Filings" (i.e. more business from them, the lawyers).
We were a little struck by the lobbying done so openly in the media (see for example "Patent reform opponents make late pitch", "A Measured Approach to Patent Reform Legislation", and "Commentary: Federal “Innovation Act” trolls Florida businesses"). Some in the corporate media call "trolls" just "patent owners" and claim that: "While curbing abusive lawsuits is a noble goal, opponents worry a congressional push could stifle innovation and punish the wrong people."
This article was originally published by Susan Decker from Wall Street media and it helps show who's really against reform. Watch the lobbyists' favourite outlet framing this as a budget issue. To quote: "A House bill to rein in abusive litigation tactics of so-called patent trolls will have an insignificant effect on the government's budget, according to the Congressional Budget Office."
Budget is not really at stake here. This is a sort of misdirection. "Patent trolls are infesting small hotels" is the title of another article, but the real pushers for reform are actually big businesses that don't like to get bitten. They want exclusivity on patent aggression. It's large corporations that pursue reform of this kind and have already watered it down accordingly, as we noted before [1, 2, 3, 4, 5, 6, 7, 8].
One of the best articles on this topic was composed by Mike Masnick (as is often the case because he has no stake in the outcome). "The good folks over at Unified Patent," he wrote, "have a report out on the latest numbers, which suggest the decline in patent troll activities last year was merely a brief disturbance and that patent trolling has bounced back significantly."
As we pointed out last week, politicians such as Jerry Ortiz have begun weighing in [1, 2] and their concern seem to often be large corporations as the "victims". They are trying to shape this 'reform' according to the whims and goals of large corporations. Here is the lobbying from 3M's "vice president and chief intellectual property counsel" who "chairs the Steering Committee of the Coalition for 21st Century Patent Reform."
Why are these people steering policy in the first place? Their voices represent not the will of ordinary people.
Graphs showing where patent efforts are diverted to have even been published by Free/libre software-oriented sites in recent days (this is rare), stating that "numbers really get interesting when we compare the number of cases brought by NPEs with those brought by companies that actually make products covered by their patents. In the first half of this year, NPEs initiated 2,075 cases in District Court, compared with 975 initiated by non-NPEs. While the cases being brought by non-NPEs remains relatively steady — with 949 and 963 cases being brought respectively in the two halves of 2014 — the numbers for NPEs is on the rise: They only initiated 1,797 cases in the first half of last year and 1293 in the second — much fewer than this year." Gary Shapiro wrote: "Patent trolls filed a damaging 2,791 new suits in 2014."
This is why large corporations are worried. It is often them who are the targets and they wish to make it a one-way street where only large corporations exercise control (or domination) through patents. That's why they worry so much about "trolls" (entities similar to them but much smaller and often non-practising). This new comic from a front of large corporations (CCIA) is hoping to shift all attention towards trolls, not the effect of software patents on Free software, for instance.
The large corporations are themselves often the backers of patent trolls. Petter Reinholdtsen confronts the Microsoft- and Apple-connected patent troll MPEG-LA, showing how they deal with video:
After asking the Norwegian Broadcasting Company (NRK) why they can broadcast and stream H.264 video without an agreement with the MPEG LA, I was wiser, but still confused. So I asked MPEG LA if their understanding matched that of NRK. As far as I can tell, it does not.
[...]
As far as I understand it, MPEG LA believe anyone using Adobe Premiere and other video related software with a H.264 distribution license need a license agreement with MPEG LA to use such tools for anything non-private or commercial, while it is OK to set up a Youtube-like service as long as no-one pays to get access to the content. I still have no clear idea how this applies to Norway, where none of the patents MPEG LA is licensing are valid. Will the copyright terms take precedence or can those terms be ignored because the patents are not valid in Norway?
"Money buys law and also buys changes to the law."There are many articles such as "Patent trolls increasingly targeting tech: Apple, Amazon among most frequently" or "Apple Remains the Number One Target of Patent Trolls in 2015". The pro-Apple circles really exploit this even though Apple itself is actually a huge patent aggressor (just see all the cases against Android companies).
It would be fair to point out that Google itself turned to the dark side of patents, patenting more and more software (even in my own doctoral-level field of research, computer vision [1, 2, 3]) and other Android actors do the same [1, 2], even though they rarely (if ever) resort to patent lawsuits.
The bottom line is, don't expect objective assessment in the corporate media and do not accept this media's narrative on "trolls". The big issue is not patent trolls (as in small plaintiffs) but the patents themselves. There is a misleading (double standard) narrative here, akin to how media deals with terrorism versus state terrorism. It is a conundrum of scale and power, not necessarily an objective assessment. The sooner people realise it, the sooner this whole patent mess will end. A lot of people in academia already know this (I often speak with my friends who are professors about this), but it is companies, not universities, which steer policy. Money buys law and also buys changes to the law. ⬆