Bonum Certa Men Certa

Lobbying Against the US Supreme Court's Landmark Decision (Alice) by Bristows, IBM, David Kappos, IPO, ABA, AIPLA, Adam Mossoff and Kevin Madigan

They want software patents back and they work hard to mislead politicians on it, sometimes under the guise/pretense of "academia"

A stacked panel
Echo chamber-like panels ("stacked" by their own admission) designed to talk about how wonderful software patents are



Summary: Using paid-for lobbyists and influence that's up for sale, companies such as IBM set up events and initiatives to compel politicians to change Section 101, gut patent progress, and basically give patent aggressors a free rein

THE one article we were extremely eager to publish (for over a month now) pertains to the efforts to overturn Alice or at least compel the US patent office to ignore it.



A lot has happened since we intended to publish this (pending some more fact-checking and research), including the pushing forth of a bill. Watchtroll, for example, has moved on to other matters and it's almost as though the lobbying effort completely lost steam by now. Nevertheless, we want to keep documented what happened around the month of May (and to a lesser degree June). There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO. Will they be back at it? We certainly think so.

"There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO."IP Kat used to be a good blog, but we hardly cite it anymore. It has become terrible. It's used for marketing and agenda-pushing. It plays a role in some of the most regressive activities. A longtime proponent of software patents (not that she ever wrote any software), Annsley Merelle Ward from Bristows, attacked the US patent system over Section 101 -- essentially the means for invalidating software patents these days. She piggybacked a bunch of people who lobby against Section 101 (or lobby to water it down). "His heightened sense of alarm stems from a concern that America’s patent system has been going in the wrong direction while other patent systems have been improving," she wrote. Pure nonsense. If anything, the US patent system is improving! Quality is up, lawsuits are down.

IP Kat, now effectively run by Bristows' liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it's not, in order to give its 'views' (financial agenda) legitimacy. There were many examples of this back in June, e.g. [1, 2, 3]. Is this what IP Kat boils down to now? A mouthpiece for AIPPI/AIPLA? Thrice in June alone (so far, based on a quick 'literature' survey) Bristows exploited the blog for marketing or lobbying by patent maximalists. This may sound benign, but considering what AIPLA has been up to recently, it's anything but benign. The US Supreme Court is under attacks from these think tanks and pressure groups (like AIPLA), primarily for stopping software patents with Alice (2014). See this article titled "AIPLA releases Section 101 legislative proposal" (one among several such reports). AIPLA, a pressure group, along with IBM and some other patent vultures, try to undermine the law itself. As United for Patent Reform put it at the time, "Steven Anderson of @culvers tells @HouseJudiciary that to lose #Alice “would be extremely disappointing and costly” to #smallbiz" (obviously).

"IP Kat, now effectively run by Bristows' liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it's not, in order to give its 'views' (financial agenda) legitimacy."People start to worry that the lobbying might actually work and Section 101 (in its current form) will be thwarted. Under Trump it will probably be easier to bribe politicians to 'buy' USPTO policies in defiance of SCOTUS. As The National Law Journal put it at the time (in its headline), "After SCOTUS Shake-Up, Lawmakers Plot Next Steps on Patent Reform" (we now know the resultant bill, which seeks to gut PTAB as well).

As is usual from IP Kat these days, comments are a lot better than the 'articles' (lobbying/advertising). Someone pointed out that Annsley Merelle Ward "lacks a grasp of what the subject matter in each STILL means." Well, exactly the opposite of what she said (AIPPI/AIPLA propaganda) is true. To quote the comment:

I must take issue with the statement of:

"The incredible developments in technology - how information is created, by what technological process, how information is accessed and where it is used - means the subject matter once the purvey of the patent world has crossed into the copyright realm."

It is not only incorrect, but troubling so, to think that that a person charted with writing on the subject does not understand that the subject matter of what patents protect and what copyright protects has "crossed into."

The subject matter remains clearly different between the different areas of Intellectual Property protection.

What perhaps has "crossed into" (and certainly, this crossing has been going on now for many decades) is that a particular manufacture of the hand of man (as those terms are understood in the various Intellectual Property legal terrains), has multiple aspects, each of which may earn protections in the different IP areas.

This is most definitely NOT a matter of "subject matter" crossing from one IP terrain into another.

Patents still protect that which patents protect. Copyrights still protects that which copyrights protect.

It is decidedly unhelpful to contribute to the view that somehow "subject matter" is "crossing into" one IP arena from another IP arena - and shows that the author lacks a grasp of what the subject matter in each STILL means.



Watch how Annsley Merelle Ward gets completely skewered in the comments in another one of her posts (again for distorting facts):

Terrible proposal. Assessing patent eligibilty without regard to sections 102, 103, and 112 is absurd. This allows completely ineligible subject-matter to become patentable simply by including a conventional and known piece of apparatus e.g. a computer doing something that can be performed solely in the human mind. It should be the new and non-obvious subject-matter that is assessed for patent eligibility.


And here is another:

Your post contains so many legal (and factual) errors that I scarcely know where to begin.

First, subject matter eligibility and patentability are separate concepts.

Second, the US law - as established by the Act of 1952 broke apart 101 and the other sections of law (102/103/112) for a reason. That reason is exactly the same reason that the current legislative suggestions are coming forth.

Third, eligibility remains something determined for a claim as a whole, so the notion that ineligible subject-matter now "becomes eligible" has nothing to do with the legislative changes - your "concern" already IS the law in the US. The easiest example of this is the Diehr case, where everything in that case was old, except for the use of a computerized math equation. The important aspect was that the math equation was there in the sense of applied math. Your over-stated concern of "a computer doing something" is exactly the type of thing that patent law was meant to protect. It was, is, and will remain a question (for eligiblity) as to WHAT the "doing" is, and whether that "doing" falls into the realm of patent protection of the Useful Arts.

Fourth, your position denigrates the factual situation that the known and conventional piece of apparatus is in fact improved. US patent law allows for improvement patents. In fact, a very large percentage of patents are of the improvement patent type. Your view exhibits the fallacy known in the US as the House/Morse fallacy. A television show called House has a protagonist that believed that only the first computer should have been patentable and that all improvements (via software) belonged to that first inventor. This though is the opposite of the US case of Morse which held that all future improvements were NOT captured by a first (grand) invention.

Fifth, your view ignores the actual factual state of what software is. Software is a manufacture (in the legal sense, as it is a fabrication by the hand of man intended to be a machine component). That is the nature of what software is, and always has been. It is a "ware" that is soft, or easily modified, changed, reconfigured, and the like. In the patent sense, this "ware" is every bit a patent-equivalent to other "wares" i.e., hard and firm "wares." There is nothing that can be claimed as a software invention that also could not be set completely in hardware.

Sixth, you conflate 102/103 with 101, and this conflation evidences an attempt to apply 101 on some per element basis. This gets each and every section of US law wrong.

I could continue, but I hope that you see the error in your views by now.


This would probably be excusable as gullibility if the author hadn't spent years gleefully promoting software patents. The matter of fact is, all the above is pure lobbying and it's happening right here in the UK.

Over in the US, things are just as bad because the patent microcosm (Jeff Lindsay‏ in this case) resorts to alarmist tone: "Many patents being allowed in Europe &China are rejected as ineligible in US, a sign of trouble in USPTO & SCOTUS.…"

So?

That's a good thing, no?

"This would probably be excusable as gullibility if the author hadn't spent years gleefully promoting software patents."Well, not for a "patent agent" like Mr. Lindsay‏. High patent quality is not "trouble" and Watchtroll promoting a right wing corporate think tank is hardly shocking (that's what Mr. Lindsay links to). The latest among all those think tanks involves Adam Mossoff, a pro-trolls academic who spoke of "Dave Kappos @ IIPCC conf on patents & innovation: the 101 situation is not improving, it has at best only stabilized in a terrible space" (yes, he calls David Kappos "Dave" as if this lobbyist is a buddy of his).

As can be expected, the company that hires these lobbyists, IBM, was there too. Mossoff wrote that "@MannySchecter @ IIPCC conf on patents & innovation: legal uncertainty is enemy of R&D & #innovation, & massive legal uncertainty today" (Schecter is IBM's patent chief). Nice lobbying platform you got there. IAM helped with this article:

US businesses deal with devastating effects of SCOTUS decisions; support grows for subject matter reform bill



[...]

In March, a paper by Adam Mossoff and Kevin Madigan from George Mason law school analysed a dataset of 1,400 patent applications, finding marked differences between patent eligibility in the US compared with Europe and China.


By their own admission, this is a "stacked" panel (lacking anyone from the other side of the argument). To quote, "@JackBarufka of @pillsburylaw moderating the stacked Section 101 panel #GWIP pic.twitter.com/kt1hAO65IM"

"Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101."As a reminder, the Intellectual Property Owners Association (IPO), the American Bar Association’s (ABA) IP section and the American Intellectual Property Law Association (AIPLA) play a big role in this, aided by Adam Mossoff and Kevin Madigan in "scholar" clothing. IPO and IBM even created a "task force" for this. They actively support sites like Watchtroll.

Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101. They are not only smearing SCOTUS (Watchtroll and his sidekicks) but are also insulting their own country. "America’s patent system favors low tech, not groundbreaking innovation," said one recent headline from Watchtroll. So says a man who doesn't invent anything and just attacks anyone (even judges) who applies patent law and issues a judgment based on the rules. Here is another example of Watchtroll posts. It says that "patent analytics software can be utilized to assess the corporate patent portfolio on an asset-by-asset basis, by technology or product focus, and within the context of a broader IP landscape." Seriously? Letting some machine do an in-depth analysis of the underlying concepts? Pure science fiction. Like that stuff Battistelli tends to fall for...

"It's not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as "innovation" or whatever)."Here is Watchtroll using terms like "piracy" and "patent owner" to further perturb the debate.

It's not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as "innovation" or whatever).

Recent Techrights' Posts

Security Isn't the Goal of Today's Software and Hardware Products
Any newly-added layer represents more attack surface
Godot 4.2 is Approaching, But After What Happened to Unity All Game Developers Should be Careful
We hope Unity will burn in a massive fire and, as for Godot, we hope it'll get rid of Microsoft
Purge of Software Freedom and Its Voices
Reprinted with permission from Ryan Farmer
 
Links 25/09/2023: Patent News and Coding
some remaining links for today
Steam Deck is Mostly Good in the Sense That It Weakens Microsoft's Dominance (Windows)
The Steam Deck is mostly a DRM appliance
SUSE is Just Another Black Cat Working for Proprietary Giants/Monopolies
SUSE's relationship with firms such as these generally means that SUSE works for authority, not for community, and when it comes to cryptography it just follows guidelines from the US government
IBM is Selling Complexity, Not GNU/Linux
It's not about the clients, it's about money
Birthday of Techrights in 6 Weeks (Tux Machines and Techrights Reach Combined Age of 40 in 2025)
We've already begun the migration to static
Linux Foundation: We Came, We Saw, We Plundered
Linux Foundation staff uses neither Linux nor Open Source. They're essentially using, exploiting, piggybacking goodwill gestures (altruism of volunteers) while paying themselves 6-figure salaries.
Linux Too Big to Be Properly Maintained When There's an Incentive to Sell More and More Things (Complexity and Narrow Support Window)
They want your money, not your peace of mind. That's a problem.
Modern Web Means Proprietary Trash
Mozilla is financially beholden to Google and thus we cannot expect any pushback or for Firefox to "reclaims the Web" a second time around
GNU/Linux Has Conquered the World, But Users' Freedom Has Not (Impediments Remain in Hardware)
Installing one's system of choice on a device is very hard, sometimes impossible
Another Copyright Lawsuit Against Microsoft (or its Proxy) for Misuse of Large Works by Chatbot
Some people mocked us for saying this day would come; chatbots are a huge disappointment and they're on very shaky legal ground
Privacy is Not a Crime, Reporting Hidden Facts Is Not a Crime Either
the powerful companies/governments/societies get to know everything about everybody, but if anyone out there discovers or shares dark secrets about those powerful companies/governments/societies, that's a "crime"
United Workforce Always Better for the Workers
In the case of technology, it is possible that a lack of collective action is because of relatively high salaries and less physically-demanding jobs
GNOME and GTK Taking Freedom Away From Users
Reprinted with permission from Ryan Farmer
GNOME is Worse Today (in 2023) Than When I Did GTK Development 20+ Years Ago
To me it seems like GNOME is moving backward, not forward, mostly removing features and functionality rather than adding any
HowTos Are Moving to Tux Machines
HowTos (or howtos) are very important in their own right, but they can easily distract from the news and howtos are usually quite timeless or time-insensitive
Proprietary Panda: Don't Be Misled by the Innocent Looks of Ubuntu (and Microsoft Canonical)
Given the number of disgruntled employees who leave Canonical and given Ubuntu's trend of just copying whatever IBM does in Fedora, is there still a good reason to choose Ubuntu?
Debian GNU/Linux is a Fine Operating System, But What if People Die Making It for Somebody's Corporate/Personal Gain?
Will companies that exploited unpaid volunteers ever be held accountable for loss of life, caused by burnout, excessive work, or poverty?
Links 24/09/2023: 5 Days' Worth of News (Catchup)
Links for the day
Leftover Links 24/09/2023: Russia, COVID, and More
Links for the day
Forty Years of GNU and the Free Software Movement
by FSF
Gemini and Web in Tandem
We're already learning, over IRC, that out new site is fully compatible with simple command line- and ncurses-based Web browsers. Failing that, there's Gemini.
Red Hat Pretends to Have "Community Commitment to Open Source" While Scuttling the Fedora Community (Among Others)
RHEL is becoming more proprietary over time and community seems to boil down to unpaid volunteers (at least that's how IBM see the "community")
IBM Neglecting Users of GNU/Linux on Laptops and Desktops
Reprinted with permission from Ryan Farmer
Personal Identification on the 'Modern' Net
Reprinted with permission from Ryan Farmer
Not Your Daily Driver: Don't Build With Rust or Adopt Rust-based Software If You Value Long-Term Reliance
Rust is a whole bunch of hype.
The Future of the Web is Not the Web
The supposedly "modern" stuff ought to occupy some other protocol, maybe "app://"
YouTube Has Just Become Even More Sinister
The way Google has been treating the Web (and Web browsers) sheds a clue about future plans and prospects
Initial Announcement of GNU (for Gnu's Not Unix) on September 27, 1983
History matters
Upgrade and Migration Status
Git is working, IPFS is working, IRC is working, Gemini is working
Yesterday in the 'Sister Site', Tux Machines (10 More Stories)
Scope-wise, many stories fit neatly into both sites, but posting the same twice makes no sense logistically
The New Techrights Will be Much Faster
A prompt response to FUD is important. It's time-sensitive.
Slanderous Media Campaigns Trying to Link Linux to 'Backdoors'
Backdoors are typically things that exist by design or get added intentionally (ask Microsoft!), but when it comes to "Linux" in the media the rules are different
The Spamification of GNU/Linux News Sites (or the Web as a Whole) and Why It's Time to Move on, Writing More Stories and Analysis
If you are an enthusiastic Free software user, consider setting up a blog or GemLog (Gemini log)
Techrights is Upgrading
Over the next few days Techrights will be archiving over 40,000 older pages
YouTube Was Never Free Hosting and It Turns Hard-Working People Into Hostages
An accusation, with presumed guilt, seems sufficient for some
The Right to Strike Underutilised by Workers in the Technology Sector
Geeks need to learn how to strike, too.
Welcome to the New Techrights
Looking ahead, we'll probably produce more stories than before because lessening the underlying complexity lets us focus on substance
A Short History of Content Management Systems or Data Shuffles in Boycott Novell and Techrights
In 2006 the site was 'purely' WordPress
GNU Turns 40 This Coming Week
4 decades of "4 Freedoms" show the world that the original definition withstood the test of time