Bonum Certa Men Certa

Patent Policy is a Mess and It's Not Hard to See Why

Corruption and greed have become embedded in this whole system

CAFC corruption
Composition of [1, 2, 3, 4]



Summary: A critique of some patent injustices and the reasons why scientists are sacrificed for the benefit of revenue-maximising managers and their lawyers/lobbyists

Cory Doctorow, citing his EFF colleague, says what an Australian Commission has found regarding software patents. It's strongly against them. It's a subject which we covered here before [1, 2]. "The report," Doctorow writes, "which was commissioned in part to investigation the codification of fair use in Australian copyright law, condemns virtually the whole edifice of Australian IP law. It calls for shorter copyright terms, more flexibility for copyright users, stricter criteria for granting patents, tightened rules and shorter terms for software and business-method patents, and more."



"It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad."The EFF's post says they "wrote about a discredited industry report that spread misinformation about the supposed costs of Australia adopting fair use into its copyright law. That document, commissioned by media and entertainment giants, had been written in anticipation of a recommendation for the adoption of fair use by the Australian Productivity Commission, a government agency tasked with improving Australia's capacity for production and innovation."

Further down it says: "Restricting the availability of patents for software and business method inventions, which are an impediment to further innovation. As regards software, the Commission notes that software development cycles of around 5 years are far shorter than the 20 year term of protection granted by patents, and that other incentives for software development (among them copyright) also exist."

It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad. Europe came to the same conclusion a very long time ago, but the EPO conveniently (for its own gain) ignores the law. There is now a new software patents loophole in the EU, as Dr. Glyn Moody showed last month. Yesterday he had more to say about that:

A couple of weeks ago, I wrote about a disturbing aspect of the European Commission's proposed Digital Single Market: the fact that "ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms." That's a problem, because FRAND licensing is inherently incompatible with open source.

As well as generating a fair amount of interest here on Ars, the article seems to have provoked some discussions in the wider open source community, and inside the European Commission too. Given that interest, and the absolutely key nature of this issue, I thought it would be worth exploring it a little more deeply, not least because there have been some important developments in the last two weeks, including a way for Ars readers to help stop open source being locked out of EU standards.

First, it's probably a good idea to summarise why FRAND, which stands for "fair, reasonable, and non-discriminatory," is a problem for open source. Put at its simplest, licensing terms can be totally fair, quite reasonable, and absolutely non-discriminatory and yet impossible to implement in free software.

For example, a patentholder might think they are being super-kind by requiring a per-copy licence payment of just €0.001. And for traditional software, that might indeed be generous. But consider what happens with open source code, which by definition can be copied and shared freely as many times as you like. Since there is no way of knowing how many copies have been made, it's impossible to pay even that "reasonable" €0.001 per copy. The only licensing fee that works in this context is zero—and even then, it's not guaranteed that the licence will be compatible with free software. For example, there may be some other limitations on use, which aren't allowed for open source.

What is needed is not just "royalty-free" licensing, but "restriction-free."

[...]

The other case concerns the open source giant Red Hat, and how it settled a patent dispute with a company called Firestar. What is remarkable about this deal is that Red Hat not only acquired a licence for itself, it obtained it for everyone else in the open source community, upstream and downstream from Red Hat. In other words, it effectively took out a patent licence for the open source world.

Again, some have pointed to this as an example that proves that paying patent licences is perfectly compatible with open source; and once more, that's not true. First, this solution was only possible because Firestar agreed to provide this blanket licence for the open source community: the fact that it had never been done before shows how exceptional that was. For companies that offer FRAND licensing, there is no reason at all why they would have to follow Firestar's example.


"This is IAM doing its usual routine trying to urge companies -- even in China -- to pursue more and more patents/patenting obsession."It is not too shocking that lobbyists for software patents get their way in spite of what scientists and programmers are saying. The lobbyists never grow tired and they are backed by wealthy corporations like IBM. There is now a push for new taxes in the embedded Linux space (increasingly characterised using the silly buzzword, "IoT"). "If demand for connected devices does prove durable," IAM wrote, "then Chinese appliance makers could be big winners – and so could patent licensors. But the big Chinese players are likely not finished spending money to beef up their patent positions in the hopes of easing their royalty burdens." This is IAM doing its usual routine trying to urge companies -- even in China -- to pursue more and more patents/patenting obsession. In Europe they encourage companies to pursue patents even in domains that are out of reach, e.g. software, as in the US patent system it is growingly a challenge (inevitably, they cannot just snub the courts eternally). This new article from Robert Sachs says: "On May 4, the USPTO issued a new memorandum for patent examiners, “Formulating a Subject Matter Eligibility Rejection and Evaluating the Applicant's Response to a Subject Matter Eligibility Rejection” (“Examiner Instructions”) along with a new set of five example claims, this time in the life sciences and chemistry arts. The Examiner Instructions are a positive step forward in refining the examination process, but leave open many questions."

A notoriously corrupt court, CAFC, is where software patents came from in the first place (several decades ago) and it has just been brought up by Patently-O in relation to the Patent Act. "The Federal Circuit created the rule of automatic assignment through agreement without any basis in the Patent Act," Patently-O says and to quote some bits: "The core problem is that the court has ignored the Erie doctrine. Under the Supreme Court’s 1937 decision in Erie v. Tompkins, a federal court ruling on a matter of state law under its diversity jurisdiction must apply the law of the state from which the dispute arose. Which state law to apply is a matter of choice of law principles. What the federal court cannot do is create its own federal common law in lieu of the state statutory or common law. As the Court affirmed in Butner v. United States, 440 U.S. 48 (1979), the Erie doctrine applies to a court’s supplemental jurisdiction over state law claims attendant to a federal question. By creating its own federal common law of contracts, the Federal Circuit reveals a fundamental error in its understanding of the federal court system. [...] The case of conflicting patent assignments bears some similarity to the law on intangible future interests in creditor-debtor law. Both entail rights in property that has yet to come into being. The main lesson from creditor-debtor law, which is largely a matter of state law, is that many interests are implicated and therefore simple rules are not satisfactory. The Federal Circuit has arguably adopted too simple and misguided a rule in the Filmtec. The Supreme Court has confounded the error in the Stanford decision by ignoring the issue of automatic assignments. One way to correct course is by granting Shukh’s petition for certiori and restore the proper balance between federal patent law and state commercial law."

"We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption."This may seem like an injustice because it is. A lot of patent law in the US is completely unhinged from sanity, evidence, facts, and justice. The other day we wrote about how NASA had hoarded a lot of patents; it should not have patents at all (taxpayers pay NASA to explore space, not to acquire patent monopolies) and it gets worse when NASA gives these to private hands and sells them to trolls. Yesterday we found 31 articles about NASA's latest patent PR, but not a single decent article which actually put claims to scrutiny and did an actual investigation [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31].

We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption. Many countries are negatively affected by this.

Recent Techrights' Posts

IAM Magazine is in Effect Dead, It's Now Fused Into Microsoft's Patent Troll (Which It Has Promoted All Along)
Microsoft-connected patent trolls in Europe [...] Now, in his new job, Wild can use his 'expertise' to help guide blackmail/extortion to better harm Europe's industry
 
Codecs and Software Patents - Part IX - GNU Project Has Chosen to Adopt AV1 for Its Videos, Conversion and Additions Underway
One of our readers is working to help GNU through the maze of software patents and maze of patent lawsuits, which aren't the same thing but are somewhat overlapping issues
SLAPP Censorship - Part 86 Out of 200: The Position of Courts on Computer-Generated Lawsuits and Filings From Another Continent (Made by Two Men Who Work for Slop Companies)
Lawsuits by proxy from California
Links 24/05/2026: SoftBank CEO Getting Conned by Scam Altman, Hotter 2026 and El Nino With Growing Impact
Links for the day
Links 24/05/2026: Ebola Outbreak and "Journalists Identify Murder Victims Of Trump’s Boat Strike Program"
Links for the day
A Huge Proportion of 'Articles' in The Register MS Are Actually Paid Spam of the Communist Party of China, Selling Compromised (for Wiretapping) Technology
The Register MS is having a go at becoming a marketing company or "B2B"
Top Officials Have Just Left Microsoft, Layoffs in Anything But Name
Microsoft's debt is very fast-growing
Local Staff Committee The Hague (LSCTH) Meets "Alicante Mafia" at the European Patent Office (EPO)
Report on meeting with VP1 and his team on 21 April 2026
UbuntuPit (ubuntupit.com) Has Deleted Slop Pages, Its Slopfarm Experiment Has Failed (Like Always!)
Turning one's site into a slopfarm is a death knell
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 23, 2026
IRC logs for Saturday, May 23, 2026
The "Next Big" Bonus for IBM's CEO Apparently Comes From American Taxpayers While Veteran IBMers Are PIP'd and RA'd (Laid Off)
the next big thing will be the CEO's bonus
Links 23/05/2026: Starbucks Scraps Disastrous Slopfest, Colbert’s Final ‘Late Show’
Links for the day
Gemini Links 23/05/2026: Poetry, Hobbies, ROOPHLOCH, and More
Links for the day
Government Bailouts Won't be Enough to Save IBM
Bailouts from taxpayers in the US
Links 23/05/2026: Social Media Bans and Demise of Userbase of LLM Chatbots
Links for the day
Legal Letters Are Not Postcards
It seems like intimidation, nothing more
SLAPP Censorship - Part 85 Out of 200: The United Kingdom's Rating for Press Freedom Has Improved, But We Can Do Even Better
we see the US at #64
Sites Realise That Becoming More Active by Using Bots (LLM Slop) is Self-Destructive
We'll soon (maybe next year) also show that some of the 85+ KG of legal papers sent our way are computer-generated garbage, which might run afoul of some rules
European Patent Office (EPO) Strikes Persist, EPO Management Tries to Give False Impression of "Happy Staff"
EPO is trying to broadcast to the world a totally phony image of itself
Gemini Links 23/05/2026: Patience, LLM Chatbts Being Bad, and Unexpected Computer Surgery
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 22, 2026
IRC logs for Friday, May 22, 2026
Links 22/05/2026: Ebola Crisis and Samsung Averts a Walkout With Big Bonuses
Links for the day
The End of FOSSPost (fosspost.org), It Has become an LLM Slopfarm Like FOSSLinux
These sites will never get lucky with slop. These experiments always end badly.
Links 22/05/2026: Inflation Fears and Thailand Tightens Visa Rules for Tourists From Dozens of Nations
Links for the day
EPO Staff Representation Speaks of This Week's Discussion With the EPO's Budget and Finance Committee (BFC) Amid Mass Strikes
The Central Staff Committee's outline (prepared in a rush) or the "flash report"
SLAPP Censorship - Part 84 Out of 200: New Legislation Against SLAPPs on the Way (After We Reached Out to Ministers)
They dealt with the matter individually too, but we won't share this in public, at least not at this time
The Corrupt Lecture the Non-Corrupt - Part XXX - Where Was "The Ethics and Compliance Team" When the Family of EPO President Campinos Was Caught Doing Cocaine?
It remains to be seen if national delegates will tolerate this in future meetings
Gemini Links 22/05/2026: Esperanto Music History, Suspicious Adoption of Signal, and Unauthorised LLM Slop in Code
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 21, 2026
IRC logs for Thursday, May 21, 2026