Bonum Certa Men Certa

Software Patents Are Ebbing Away, But the “Swamp” Fights Back and Hijacks the Word “Fix”

When they say "fix" they mean the very opposite of it

Randall R. Rader
Photo from Reuters



Summary: The club of patent maximalists, or those who profit from excess prosecution and legal chaos, isn't liking what has happened in the United States and it wants everything reversed

"Twenty patents," this new report says. "That's how many patents were invalidated in only three decisions in the last few weeks alone." The report, titled "The Supreme Court's Impact on Patentable Subject Matter," is behind walled gardens (or paywall), but it shows just how desperate the meta-industry of patents is becoming. Confidence in abstract (esque) patents is eroding because of Alice (and Mayo to a lesser degree).



"Confidence in abstract (esque) patents is eroding because of Alice (and Mayo to a lesser degree)."Longtime readers of ours know that we are not against patents, not inherently or even intrinsically. We believe that quality control for patents is essential; otherwise we have just a cash cow controlled by few monopolists, granting millions of patents on anything conceivable and denying free (as in freedom) innovation.

We are amused to see this new piece from Quinn IP Law (not IP Watchdog's Quinn, but a similar attitude); it's titled "The 20 Year War On Patents: When Will It End?" (sounds like a headline from IP Watchdog/Watchtroll) and it is, as usual inverting narratives of the offensive and defensive. In reality, for a number of decades, patents attacked (as in "war") ordinary people and small companies; the system wasn't "under attack" but actually attacking, using patents. Unlike Quinn's portrayal (he puts it misleadingly, painting litigation/prosecution as "defense"), the reality is that the system is belatedly changing, having failed to fulfill its original goals.

"The matter of fact is, trolls use software patents most of the time; some have estimated 70% of the time (depending on how one classifies these patents and adds them up)."Quinn wrote that the "Federal Circuit’s 1998 State Street Bank decision was a sweeping departure from precedent and opened the floodgates to so-called business method patents, leading to a significant outcry against “bad patents.” Also, out-of-control patent troll litigation gave birth to the anti-troll movement, which further fueled the fires of an anti-patent backlash, resulting in judicial and legislative action amounting to arguably the most significant pendulum swing against patent rights in US history. Many of the resulting changes were necessary to address these problems, but how far have we gone, and when will it end?"

The matter of fact is, trolls use software patents most of the time; some have estimated 70% of the time (depending on how one classifies these patents and adds them up). So the two aforementioned issues are closely connected.

Joining the likes of Quinn IP Law, we now have Gene Quinn's Watchtroll (promoter of software patents and trolls), calling the the patent system to be "fixed". The "Swamp" of Watchtroll, which can't help attacking the USPTO Director who cleaned up a lot of the mess, says "fix the patent system" but actually it means break the system (again, like in the Reagan days). They're trying to hijack terms like "fix" (or "reform") to mean the very opposite of it!

"Facts are not on their side, but money is on their side and if they can afford to repeat their lies many times in a lot of different publications, then they might actually, successfully, fool some politicians."They also latch onto that China nonsense (it's granting patents on every silly thing). To quote one example: "While we have damaged our patent system, China has strengthened theirs. Today, China leads the world in new patent filings."

That's not strengthening, that's weakening. They lower their standards and have merely become a platform for opportunists such as patent trolls. The other day, Watchtroll also published this article titled "How to Fight Low Quality Patents Related to Commoditized Technology that Threaten Innovation". It did speak about trolls as follows:

The most successful patent trolls tend to be those with the sharpest noses for weakness. They sniff out low quality patents and hit legitimate businesses where they’re vulnerable in order to make money without doing the actual work of innovation.


And incidentally, they typically use software patents, which Watchtroll can't help promoting every other day.

The likes of Watchtroll and that greedy bunch of self-serving maximalists are thankfully enough losing the battle. That is why they have grown so desperate and are now painting a revocation of a fix (regression) as a "fix". Facts are not on their side, but money is on their side and if they can afford to repeat their lies many times in a lot of different publications, then they might actually, successfully, fool some politicians. Right now they try to get Rader installed as USPTO Director. If the "Swamp" had a human face to it, he is it.

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