The Retreat Inn

Summary: The momentum against software patents is growing as large firms which specialise in software -- even proprietary software -- speak out against what the US patent system has become

THE granting of software patents by the US patent office ought to stop because almost all of these patents turn out to be worthless. Courts reject them.

"We suspect there is going to be a patents battle in Wi‑Fi mesh software," The Register wrote yesterday, but if these are patents on software they will find themselves in the ashtray of history (even if the patents state something about "Internet").

Every now and then we find articles which make arguments similar to ours. We gave an example earlier today regarding trolls. There is another new article, this one from Dana Rao, a vice president of intellectual property and litigation at Adobe. He uses wording similar to ours in relation to patent quality and a "patent gold rush" (it's almost as though he might be reading Techrights). To quote some portions:

Improving Patents Will Not Kill Innovation

[...]

Every patent holder is proud of their patent. As they should be. Obtaining a patent is expensive, time-consuming, and there is an adversarial process with the U.S. Patent and Trademark Office that you must overcome to establish that your invention is valid. But the business of patents has changed. It used to be a system that rewarded an inventor for a genuine innovation, one that the patent clearly described, and entitled that inventor to prevent anyone else from making that invention. That was a good system; it produced good patents, and strong businesses were built on the backs of those patents. That system provided an incentive for innovation that has kept America the technology leader for more than 200 years.

Unfortunately, that system is broken. Patent filings have surged over the years. Twenty years ago the USPTO granted 123,147 patents. Last year, the USPTO granted 333,583 patents. That’s 168 percent growth! Does anyone think that the number of true innovations has increased by more than 200,000 patents in just 20 years? Not a chance.

What happened? A patent gold rush built by patent profiteers.

[...]

History tells us that a refocus on quality in our patent system will not end innovation in this country. Good patents will still be awarded for good inventions, with clear claims that limit the patent to the invention the inventor invented — the way it is supposed to be. And businesses will be built on the backs of those good patents, just like they always have. Instead of complaining about the end of the age of bad patenting and patent profiteering, we should be celebrating the rebirth of a strong and credible patent system, one that will enable America to maintain its technology leadership now and into the future — built on the backs of good patents.

There is a lot to be criticised about Adobe, whose views may be inferred from the above. But when it comes to software patents, Adobe was rarely a problem or even a nuisance. Adobe's Douglas Brotz once officially stated this: "Let me make my position on the patentability of software clear. I believe that software per se should not be allowed patent protection. […] We take this position because it is the best policy for maintaining a healthy software industry, where innovation can prosper." (this was Adobe's official position statement at the time)

"Software patents harm the industry," he argued, "with no corresponding benefit."

There is a patent bubble. It really needs to burst already. "A patent gold rush built [was] by patent profiteers," Dana Rao explains, echoing what we've been saying for a long time. The EPO under Battistelli shows the same kind of thing right now, with low-quality patents being granted and the UPC pushed by the patent/litigation 'industry'.

Speaking of the patent 'industry', watch what Frank Zhu from Baker Botts LLP (the patent microcosm) wrote earlier this week. He painted a negative picture of patent reform in order to thwart any improvements to patent quality. He also referred to trolls as "PAEs" and "NPEs" (the euphemisms). Here are some portions of what he wrote:

A troll is an ugly mythological creature that lives under a bridge, waiting to extort a hefty fee from whomever crosses the bridge. This vivid description of a patent troll often provides a sufficient reason to despise such an entity without giving it a second thought. However, missing from this picture is that the so-called patent trolls, often referred to as non-practicing entities (NPEs) or patent assertion entities (PAEs), actually own the bridge. A string of recent news reports seems to portray impending victory against the notorious troll: patent trolls were ordered to pay attorney’s fees;1 the original PAE law firm announced its shutdown;2 a number of PAEs have dramatically laid off employees;3 others announced that the environment has been so hostile and the business model is no longer feasible.4 However, today’s perceived success of the crusade against patent trolls may have come with a significant price.

[...]

he consensus of a panel discussion, titled “The Current Patent Landscape in the US and Abroad,” was “that dramatic changes to the US patent system are driving investment in research and development outside the country and threatening the future of American innovation.”

[...]

Hopefully, the Court is well aware that the fate of the despised is closely intertwined with that of the patent law system critical to the prosperity of this country.

That's utter nonsense. As Adobe said (above), what harms innovation (or "the future of American innovation" as he puts it) is a legion of patent trolls. They use software patents to shake down companies to the point where some of these companies decide to just move overseas.

Here is a new example, courtesy of the Computer & Communications Industry Association (CCIA). Josh Landau wrote about one patent troll yesterday, noting that "CustomPlay doesn’t deal with DVDs. Instead, its patents cover basic concepts in digital video playback."

Here's more:

The asserted patents claim to cover the concept of skipping back in a video and turning on the subtitles in order to figure out what someone said, the concept of identifying who appears in a scene of a video, the concept of providing an icon indicating information about a video scene exists, and the concept of providing information about a current video scene and a previous video scene. (The first one is asserted against Apple; the remainder against Amazon.)

So, yes, CustomPlay has essentially claimed to own the concepts of rewinding and rewatching a section of a scene with subtitles on, annotating media, the identifier for a footnote,

[...]

This is exactly what Bilski and Alice told us was unpatentable—claiming an abstract idea, and in this case, claiming an automated process for organizing a human activity. In this case, the human activity of rewatching a segment with the closed captions on so you can figure out what exactly they said.

Yes, Bilski and Alice ought to have already rendered this patent dead, yet the patent is still being used against real companies.

And speaking of Alice, Saurabh Vishnubhakat has this new paper (presented in brief today) on why abstract patents may be invalid not just because they're abstract but also anticompetitive. As he put it in his abstract:

Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation.

Here is what he had published in Patently-O last night:

Subject-matter eligibility is becoming a sort of per se shortcut for patent invalidity, in contrast to more costly inquiries like nonobviousness or enablement analogous to the rule of reason. The historical lesson of antitrust, though, has been that per se rules should be used very sparingly because a wide range of economic practices may prove to have procompetitive effects. This does not mean the conduct is definitively legal under the antitrust laws—or that a given patent is definitively valid. It simply means that more information and more careful judicial consideration are needed before an accurate decision can be reached.

Until now, the use of subject-matter eligibility at the pleading stage may be conserving decision costs, but without sufficient regard for error costs in decisions on patent validity. In my paper, I discuss problems with the current approach and propose three ways to guard against this irresponsible borrowing from antitrust.

We wrote a great deal about antitrust aspects of patent litigation/threats back when we focused on Microsoft's attacks on Linux and the FUD campaign it had launched with Novell in 2006. But at the same time we also pointed out that virtually all the patents were on software, so ending software patents would be an indirect remedy. Alice got us a lot closer to that. ⬆