Bonum Certa Men Certa

Patent Lawyers and Judges Don't Understand Software Development and It Harms Programmers, Practicing Software Companies

Metaswitch logoSummary: Europeans, including European companies such as Metaswitch (British), continue to suffer from software patents in the United States and from British patent lawyers to whom the whole notion of software development is elusive, grossly misunderstood (they profit from the misunderstanding)

HAVING written literally thousands of articles on this subject, it often feels like repetition even when it isn't. It's never repetitive because new cases and new observations come to light. The other day, Patent Buddy fished out this recent court's decision [PDF] (originally OOXML) and said that "TX [Texas] Magistrate Report Rejecting Alice101 Ineligibility Argument Against a Firewall Patent" (used against Metaswitch Networks, a British company). We have looked at this 18-page decision and found Alice mentioned in page 3 as follows: "The Supreme Court has held that there are three specific exceptions to patent eligibility under €§ 101: laws of nature, natural phenomena, and abstract ideas. Bilski v. Kappos, 561 U.S. 593, 601 (2010). In Mayo, the Supreme Court set out a two-step test for “distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97 (2012))."

"So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company)."Alice is also mentioned many times in page 4, then 14-15 and in page 17 it says: "Metaswitch is likewise wrong to characterize “an application proxy” and “a packet filter” as inherently abstract components because they refer to “broad ‘types’ or ‘classes’ of firewall components and do not require or connote any specific structure.” (Dkt. No. 255 at 24). A hypothetical claim limitation directed to “a cup” might encompass an extensive class of objects of varying shapes, sizes, materials, and functions (a coffee mug, a champagne flute, a disposable paper cup), and thus the word “cup” is abstract in the sense that it spans many different structures. But a cup is not an “abstract idea” in the sense meant by Alice, and neither are the “application proxy” and “packet filter” components recited in the claims. These components are not “building blocks of human ingenuity,” “a method of organizing human activity,” a “fundamental truth,” an “idea of itself,” or the like. See Alice, 134 S. Ct. at 2354–56. The “application proxy” and “packet filter” terms refer to specific components that have been construed to perform specific functions within a network. See (Dkt. No. 310 at 7–13). The fact that these components can be implemented in the form of “hardware and/or software” does not change their concrete, network-specific nature."

So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company). In page 18 it says: "For the foregoing reasons, Claim 12 of the ’561 Patent is patent-eligible under €§ 101. The Court agrees with Metaswitch that Claim 12 is representative for purposes of the €§ 101 analysis; the other asserted claims of the ’561 Patent are likewise patent-eligible."

Here is the court's conclusion: "For the reasons stated above, summary judgment of no willful infringement should be GRANTED. Partial summary judgment of no indirect infringement prior to April 14, 2014 should be GRANTED. Partial summary judgment of no indirect infringement after April 14, 2014 should be DENIED. Summary judgment of invalidity under 35 U.S.C. €§ 101 should be DENIED."

"Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents?"This is a classic case where software is being described as non-abstract by trying to tie it to "network" and the likes of that. There is a whole infamous class of "over the Internet" patents and this one too resembles that. The decision cites a case of the world's largest patent troll, Intellectual Ventures v. Capital One Bank, in page 4 along with Alice and Bilski.

How clueless could the judge be? Did the judge ever write a computer program? Was a degree in some scientific discipline earned/acquired? Was the judge bamboozled by mumbo-jumbo from lawyers? Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents? Does US law dominate globally? Well, rhetorical question actually. This is similar to the cases of Finjan, which is a patent aggressor in a similar field of technology.

As a British programmer myself, I cannot help but worry that the Texan courts now threaten the British industry as well. The UPC would make things even worse and there are already signs of that happening with patent trolls that come to Europe and attack from London (Unwired Planet). Apple too is attacking companies from inside Europe, with help from ridiculous software patents that are found invalid by European courts after EPO negligently issues them. Recall the case of Wi-Lan v. Apple, which pro-software patents sites are writing about these days. Why is the industry tolerating this? How can anyone wrongly deduce that this is good for innovation, or in other words, encourages the creation of better computer products, programmes, etc. available in the market?

"Developers of software don't brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms."When patent lawyers, who don’t actually create anything, speak of (or hijack the word) “innovation” we end up with clueless blog posts such as this new one from IP Kat. While EPO coverage from IP Kat has been rather good, much of the rest constitutes UPC promotion, patent maximalism, and clueless prose such as this: "Second is the recurring assertion that the patent system is intended to encourage innovation. There are various implications that flow from this, most notably that any patent that does not further the innovation interest is at odds with the patent system. Weak patents, patent trolls, patent thickets, patent hold-up and other patent undesirables all derive from the underlying assumption that patents are the hand-maiden of innovation. As such, at least in the US, a material driver of proposed patent legislation is to better align the patent system with the needs of innovation. The only problem with this view is that it is not correct. Patents are about encouraging invention and not impeding competition in a manner consistent with the patent grant, where the legal system has developed tools to define invention. Some forms of innovation (however defined) can be expected to flow from improving the manner by which we encourage and protect invention, but innovation is not a surrogate for invention. Introducing innovation as a construct within the patent system, parallel to invention, novelty and inventive step, is simply inappropriate."

"Software developers don't "invent". They write code, and some code may be better than other."The above says "innovation is not a surrogate for invention", but these are just clueless repetitions (regurgitations) or rather meaningless/vague terms, none of which actually alludes to or pertains to programming (these words predate computer programs). Developers of software don't brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms. Everything is being reused and built on top of existing work. One should expect people who never saw or wrote a computer program to actually grasp this. The comments from readers, who are mostly patent lawyers, are equally clueless or weak. One says regarding "Innovation vs. Invention": "

If innovation = 'new' Then innovation is one prong of a three-prong test for invention. The other two prongs are 'useful' and 'non-obvious'


Software developers don't "invent". They write code, and some code may be better than other. Lawyers using terms like "innovation" are clueless. They're reusing terms from centuries ago and another one says

One has to focus on the fact that the patent system is about disclosure of inventions. Although such disclosure may impact innovation, invention and innovation are not the same thing. One looks at various comments distinguishing the two.


What needs to be assessed is whether more (or less) code is generated which is solid and reliable in the presence of 100,000-1,000,000 software patents. Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don't even bother reading patent applications (it's infeasible). They just get sued, often by trolls that produce nothing at all.

"Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don't even bother reading patent applications (it's infeasible)."It should be noted that several people sent us links to the above article and several programmers expressed annoyance at this level of ignorance. Why is a system that presents itself as "protecting inventors" (or whatever) run by non-inventors? When will it be geeks and computer science professors running such courts* (if any courts "as such" are necessary at all)? The system, as is, became besieged by parasites preying on software developers, rather than people with the required skills and knowledge. It's a form of takeover or coup. Programmers need to unite so as to fight to regain control. ___ * I myself have been writing software since I was 14 and it's what I currently do for a living in many languages and paradigms, as well as (peer) reviewing papers about software for international journals, so the opinions above don't come from a position of cluelessness but from genuine concern for a scientific discipline which multinational conglomerates want to monopolise as a matter of law.

Recent Techrights' Posts

New Techrights Turns 2
Today starts the third year of the SSG-based Techrights
What Scares Them the Most is Independent News Sites That They Cannot Control and Censor
Wikileaks was a good example of this
If You Don't Control Your Online Platform, Then Someone Else is Controlling You
be (or become) independent
The Solicitors Regulation Authority (SRA) Has a Policy on Racism and Sexism
In then future we'll show the misogyny and racial slurs
Links 22/09/2025: Murdochs Might Join Fentanylware (TikTok) 'Investors' (Masters), United Kingdom Recognises Palestinian Statehood
Links for the day
The 50-Pound Note Experiment and the "War on Cash"
Britain is actually seeing a rebound in cash payments, and it's not a temporary phenomenon
 
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
Oracle Started This Year With Slop. Then It Stopped.
Passing fads are like this
Distros That Run on PCs Made 20 Years Ago and Don't Use Systemd
Betas for now
The Complaint About Brett Wilson LLP - Part I - Abusing British Women on Behalf of American Men Who Abuse American Women
Transparency is important to us, so we've decided to make this series
Slopwatch: Google News and the Evident Slopfarm Infestation
This is what people get about Linux when they query Google for Linux
Gemini Links 22/09/2025: Esperanto Music History and Apps For Android
Links for the day
Links 22/09/2025: More American 'Censorship' (Retaliation for Journalism), Cheeto "Might Be Losing His Race Against Time"
Links for the day
The Blob Slop
Give me more words, give me some text
Slopwatch: Blaming the Victims for Microsoft's Failures and Plagiarising Phoronix
That's what Google has been reduced to: slop and slopfarms
Links 22/09/2025: Breaches, Windows TCO, and Arrests
Links for the day
Gemini Links 22/09/2025: Rabbit Hole and DeGoogling Fairphone
Links for the day
Links 22/09/2025: Russian War Planes Invade NATO Airspace While Dihydroxyacetone Man Escalates Attack on Free Speech Because of Critics
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 21, 2025
IRC logs for Sunday, September 21, 2025
Links 21/09/2025: "Hey Hi" (Hype) Under Fire, Fakes Identified; Tesla Burns Family
Links for the day
Google's Software is Malware and Malware in Mobile Devices
Originally posted by Rob Musial
Links 20/09/2025: Hegemony Coming to a Close, Luigi Mangione Ruled Not Terrorist
Links for the day
Gemini Links 21/09/2025: "Charlie Kirk Was a Hateful Piece of Shit" and Slop Code Attempted by Microsofter
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 20, 2025
IRC logs for Saturday, September 20, 2025