Summary: The EFF’s long fight against patent aggression goes further than just trolls; it now speaks of the role of universities in the problem and the latest nonsense from parasitic academic/scholarly publisher Elsevier

THE EFF recently became vocal about universities that feed patent trolls (in effect turning publicly-funded research into a racket against the public). The goons from Watchtroll shortly thereafter attacked the EFF for saying what it said (we have just mentioned how Watchtroll also defends patent trolls in the Eastern District of Texas using spin and deception).

We agree with what the EFF said, but better yet, tell the universities to stop pursuing patents altogether. People (academics) I know from the universities in Manchester often say they’re against patents in their field (at times altogether) but are required or even pressured by administrators to pursue these, so it really boils down to universities’ patent policy. It can be altered centrally to appease or soften public opinion. These institutions go by their reputation, not their patent portfolio.

Now that the EFF asks universities not to sell patent to patent trolls (the first step in tackling a much broader problem) Red Hat’s opensource.com publishes this article titled “EFF asks universities not to sell to patent trolls”. To quote:

The Electronic Frontier Foundation (EFF), an international non-profit digital rights group, is reaching out to universities and their communities to combat patent trolls.

According to a report published by the Harvard Business Review, patent trolls are deterrents to innovation and drain billions of R&D dollars due to legal costs. The EFF warns that patents may become landmines and may inhibit innovation when a university sells patents to trolls. Universities are drivers of innovation and this purpose is lost when trolls use the patents against organizations that invest in R&D.

The EFF’s new initiative, Reclaim Invention, urges universities to rethink how they use patents by asking students, professors, and other members of the university community to take action by signing a pledge and urging their respective universities to not sell patents to patent trolls.

The Public Interest Patent Pledge (PIPP) is a promise which universities may make by signing the pledge that they will perform a due-diligence exercise before selling or licensing its patents to a third party. The pledge asks universities to assess the business practices of the buying party and ensure that those patents are used responsibly. The hope is that this pledge will discourage any license or sell of the rights of inventions, research, or innovation inadvertently to patent trolls.

This article is a lot better than the attack from Watchtroll (it’s like an attack site) — one which called the EFF “a leftist anti-patent activist coalition” (exact quote).

Another new EFF article, this one composed by Elliot Harmon and Daniel Nazer, reminds us that Elsevier needs to be stopped (and boycotted) for yet another reason. For those who are not aware of the many other reasons to boycott Elsevier, search the Web. There’s no lack of reasons. Here is what Harmon and Nazer published in at least two sites [1, 2]. It’s about a software patent:

On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468, titled; “Online peer review and method.” The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce. But we still think the patent is stupid, invalid, and an indictment of the system.

Before discussing the patent, it is worth considering why Elsevier might want a government granted monopoly on methods of peer review. Elsevier owns more than 2000 academic journals. It charges huge fees and sometimes imposes bundling requirements whereby universities that want certain high profile journals must buy a package including other publications. Universities, libraries, and researchers are increasingly questioning whether this model makes sense. After all, universities usually pay the salaries of both the researchers that write the papers and of the referees who conduct peer review. Elsevier’s business model has been compared to a restaurant where the customers bring the ingredients, do all the cooking, and then get hit with a $10,000 bill.

The rise in wariness of Elsevier’s business model correlates with the rise in popularity and acceptance of open access publishing. Dozens of universities have adopted open access policies mandating or recommending that researchers make their papers available to the public, either by publishing them in open access journals or by archiving them after publication in institutional repositories. In 2013, President Obama mandated that federally funded research be made available to the public no later than a year after publication, and it’s likely that Congress will lock that policy into law.

There is already an article about the above, titled “Elsevier’s New Patent for Online Peer Review Throws a Scare Into Open-Source Advocates” (not just those advocates). To quote:

Patents on software can be controversial. And often, so is the company Elsevier, the giant journal publisher. So when word hit the internet starting on Tuesday night that Elsevier had just been awarded a patent for an “online peer-review system and method,” reaction from people aligned with the publishing and open-source worlds came swiftly on Twitter and in other online venues, much of it reflecting suspicion about the company’s motives.

“Elsevier reveals its final form: Patent trolling to destroy scientific peer review,” said one tweet.

Elsevier itself then turned to Twitter in an effort to allay the fears. But its assurances have not quelled the anxieties, particularly those of advocates for more open-source options in scholarly publishing.

The concern revolves around the patent Elsevier received for its five-year-old “article-transfer service,” a propriety online system the company uses to manage journal-article submissions and the ensuing peer reviews.

It is nice to find the EFF raising awareness about these problems and occasionally naming the culprit explicitly, insisting that these “Stupid Patents of the Month” are in fact software patents. There is clearly a patent scope problem and the USPTO needs to correct it in lieu with Alice. █

Summary: Like IAM, which tries to portray sceptics and critics of software patents as “anti-patents”, IP Watchdog (or Watchtroll as we call it) is ‘trolling’ the Electronic Frontier Foundation, simply because it expressed an opinion that patent maximalists cannot tolerate

Watchtroll’s site, being the usual loud-mouthed proponent of software patents (sometimes even very rude), responded to a topic on which we commented this morning. Daniel Nazer (EFF) noticed that this “New IP Watchdog post [is] slamming “DC Based Electronic Frontier Foundation, a leftist anti-patent activist coalition”” (it’s not anti-patent, it is pro-patent quality, as are we).

Here is the relevant passage from the post: “Another incursion into research university governance and operations is now underway. And this time all research universities are affected. Led by the DC Based Electronic Frontier Foundation, a leftist anti-patent activist coalition that has initiated a 50-state legislative campaign to shrink research university patent licensing rights at the state level. (See) The measure’s purported objective is to prevent publicly funded university research patents from being licensed to so-called “Patent Assertion Entities” (PAEs, also known by the pejorative term “patent trolls”).”

Like IAM's editor in chief, they are also in denial about the trolls problem, just like people who are in denial about climate change (because this reality, once realised by the public, is a threat to one’s business).

The OSI took note and wrote about my article via Former OSI Dir. Jim Jagielski who wrote: “Shows the danger of s/w patents… is it time to finally squash them once and for all?”

Carlo Piana, a famous lawyer for Samba and generally a very nice intellectual (against software patents) wrote on Friday: Has anybody, ever, read a #patent on software without thinking “WTF”? Honestly. And now I have read like 100 of them. And I’m no developer.”

Benjamin Henrion (FFII) responded: “the state urgently needs to intervene between me and my keyboard to save innovation!”

The matter of fact here is clear; anyone with a keyboard and some rudimentary coding skills is affected by software patents and the population in general suffers from slowed innovation and artificially increased prices (often due to lawyers’ fees and patent trolls if not billionaire patent bullies such as Microsoft and Apple). We wrote about it this morning. █

Summary: A look at a highly destructive software patent (on podcasting) reaching a dead end only after the well-funded EFF stepped in and another new court decision which ruled a video streaming patent invalid

TECHRIGHTS spent many years writing about the infamous “podcasting patent” — a patent which was used to shake down many small businesses and even hobbyists. Not only was such a patent not justified to begin with; it deliberately targeted those without incentive to fight back in court (as it’s expensive).

The EFF stepped in some years back and two days ago it reported the latest in a press release by Daniel Nazer. It says:

The Electronic Frontier Foundation (EFF) will urge a federal appeals court at a hearing Thursday to find that the U.S. Patent and Trademark Office (USPTO) correctly invalidated key claims of a patent owned by Personal Audio, which had used the patent to threaten podcasters big and small.

EFF is defending a USPTO ruling it won last year in its petition challenging the validity of key claims of Personal Audio’s patent. EFF argued, and the USPTO agreed, that the claimed invention existed before Personal Audio filed its patent application.

So even the USPTO, which granted this patent in the first place, agreed/admitted/acknowledged that it had made an error. How many people and businesses have so far been harmed (financial impact, health impact etc.) by this terrible judgment? Who will be held accountable for it? There will never be proper compensation, let along a refund. Even without Alice — as the above clearly notes that it boils down to prior art — this patent should never have existed.

Looking elsewhere in the news, patent lawyers (as usual, Tyrus Cartwright from Seyfarth Shaw LLP in this case) only cover (or cherry-pick, or scrape the bottom of the barrel for) cases that end up in favour of software patents^*, but if one looks a little further at the latest in the docket (patent lawsuits, not PTAB), “Video Streaming Patents [Are Found] Invalid Under 35 U.S.C. § 101″. To quote: “The court granted defendant’s motion for judgment on the pleadings because the asserted claims of plaintiff’s video streaming patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea. “[T]he claims are directed to an abstract idea because the claims are not directed to an improvement in computer functionality, and the physical components of the claim merely provide a generic environment for carrying out the abstract idea. . . . The court is not persuaded that the claimed invention results in an improvement to computer functionality. [Plaintiff] did not invent the technology that converts video files into streaming format. . . . Moreover, [plaintiff] was not confronted with the problem of how to combine conversion technology and the Internet, or how to associate identification tags with video files. At most, the claims merely automate a sequence of known steps using conventional technology so that a human is not burdened with various manual steps. . . . The ordered arrangement of such conventional features provides no discernable benefits to computer functionality. This stands in stark contrast to claims which achieved such improvements to computing technology.””

Software patents die every week if not every day in the US (PTAB decisions are more frequent than court decisions). Things have gotten so out of hand for software patents proponents that they doubt Yahoo’s patent portfolio is worth much at all; today Forbes asks, “could Pokemon Go’s profit engine be derailed by challenges to the software patents underlying the game?”

Well, not really. Nintendo can afford going to court and since software patents typically die there, Nintendo will endure. In fact, post-Alice it’s unlikely that any firm (even patent troll) will bother suing. █
_____
^* In this case [PDF], “patents-in-suit are directed to inventions that verify the delivery and integrity of electronic messages” as judged by PTAB, not actual courts. Not all avenues/means have been exhausted and the analysis is not as thorough as can be.

Article as ODF

Publicado en America, EFF, Patentes at 8:40 am por el Dr. Roy Schestowitz

Al atacar el caso Lexmark la EFF trabaja para derechos de impresión/tinta/tóner en general

Sumario: Una mirada a las últimas actividades de la EFF en el área de patentes, donde probablemente habrá mayor énfasis en los daños de las patentes de software y la necesidad de eliminarlas completamente

LAFundación de Frontera Electrónica es un aliado potencial en la lucha contra las patentes de software. Hemos escrito sobre su papel en la batalla por casi una década (Novell pagó a la EFF hace casi una década) y seguimos de cerca su progreso. Fundada por Mark Cuban para hacer este tipo de activismo (Cuban, quién lee Techrights, esta sobre todo en contra las patentes de software), creemos que algo grande puede salir de lo que hace el EFF.

Julie Samuels de la EFFescribió hace cuatro dias que todavía está luchando “contra las patentes estupidas” (no demasiado útil elegir la palabra “estúpidas” por ella lucha contra las patentes de software). “A pesar de modesta, pero importante, el éxito del programa al eliminar a algunos de las peores patentes”, escribió, “que es atacada por aquellos que se oponen a la reforma de patentes y al parecer creer que un monopolio del gobierno de 20 años no debería tener que soportar ningún tipo de control. En concreto, los representantes de ciertas industrias (por ejemplo, las industrias farmacéuticas y biotecnológicas) afirman que los IPRs son “escuadrones de la muerte de patentes” y han estado trabajando duro en el Capitolio tratando de hacer retroceder la eficacia del programa por el embotellamiénto de sus procedimientos “.

“La EFF básicamente se involucra en el caso de las patentes de Lexmark (tratando de arrastrar al Tribunal Supremo) y está atrayendo /recibiendo cobertura de prensa apoyándola.”

Escribimos acerca del término “escuadrones de la muerte de patentes” en el pasado, e.g. en [1, 2, 3, 4]. Ellos usan otros maliciósos términospara describir la invalidación de patentes falsas y usan eufémismos para sus propios abusos.

La última batalla de la EFF parece ser atacar una materia sobre la que escribimos hace unas semanas [EN | ES]. La EFF básicamente se envolvió en el caso de patentes de Lexmark (tratándo de envolver en ella a laCorte Suprema) y está atrayendo /recibiendo cobertura de prensa apoyándola.Public Knowledgeescribió temprano esta semana: “Ayer, Public Knowledge llenó un amicus curiae brief con la Corte Supremaen el caso Impression Products v. Lexmark International. Al brief se unió la the Electronic Frontier Foundation y la R Street Institute.

“El caso se refiere a cartuchos de tóner de impresora que se rellenan y revenden. Lexmark sostiene que la reventa de cartuchos de impresora viola sus derechos de patentes. Impresion Products, empresa que reconstruye los cartuchos, sostiene que sus actividades están permitidas legalmente, porque los derechos de patente de Lexmark se agotaron en el momento de la venta de los cartuchos a los consumidores. El escrito de amicus presentado apoya la opinión de Impresión de que los derechos de propiedad de los consumidores deben anular los intereses de patentes de Lexmark”.

“El titular de Cory Doctorow dijo “que las guerras de tinta de impresora pueden hacer de la propiedad privada de dominio exclusivo de las corporaciones” y aquí la humilde declaración del EFF (“La EFF pide a la Corte Suprema anular este fallo peligroso permitiendo a los propietarios de patentes para socavar la propiedad”).”

Esto también fue cubierto por WIPR, que escribió: “La Electronic Frontier Foundation (EFF) ha urgido a la Corte Suprema de los EE.UU. escuchar y rechazar una “decisión problemática” pasada a ella por una corte de apelaciónes que se centra en la exaustación de patentes.”
El titular de Cory Doctorow dijo “que las guerras de tinta de impresora pueden hacer de la propiedad privada de dominio exclusivo de las corporaciones” y aquí la humilde declaración del EFF (“La EFF pide a la Corte Suprema anular este fallo peligroso permitiendo a los propietarios de patentes para socavar la propiedad”).
Para citar a la EFF: “El caso de Impression Products, Inc. v. Lexmark International, Inc. y se refiere a la cuestión arcana, pero importante, del agotamiento de patentes. Esta es la versión de la ley de patentes de “primera venta”, la doctrina de la ley de derechos de autor que dice que una vez que un consumidor compra una copia de una obra, que es el dueño y puede hacer lo que quiera con esa copia. La ley de patentes es similar. Una vez titular de una patente vende un producto, no puede más tarde demandar que el uso o la venta de ese producto infringe su patente.“

“Hemos sido críticos (a veces) del enfoque de la EFF, pero en general, lo que la EFF está haciendo es mejor que nada en absoluto.”

Al mismo tiempo, EFF pelea por otra causa (“Tribunal confirma que la EFF pueda levantarse por el Acceso Público a Expedientes de la Corte”).
“El mes pasado, explicó,” la EFF decidió intervenir en un caso de patentes con el fin de levantar el secreto de registros que se han mantenido indebidamente para evitar accesso del público. Ayer, el tribunal accedió a la petición de la EFF para intervenir, y al hacerlo, rechazó un argumento preocupante que fue puesto por el titular de la patente.
“El caso es de Blue Spike v. Audible Magic. Como señalamos en nuestro post del mes pasado, numerosos documentos, entre ellos al menos tres opiniones judiciales, han sido completamente ocultados al público. Los documentos sellados son altamente sustantivos, y de lo que podemos recoger, ayudarían al público a entender mejor qué es, exactamente, lo que Blue Spike afirma haber inventado.”
Hemos sido críticos (a veces) del enfoque de la EFF, pero en general, lo que la EFF está haciendo es mejor que nada en absoluto. Sólo desearíamos que hiciera más para abordar directamente las patentes de software en los EE.UU., sobre todo ahora que muchos de los gigantes de patentes presionan al gobierno (más sobre esto más tarde hoy).

Summary: A look at some of the latest activity of the EFF in the area of patents, where there probably ought to be increased emphasis on the harms of software patents and need for elimination thereof

THE Electronic Frontier Foundation is a potential ally in the fight against software patents. We have written about its role in the battle for nearly a decade now (Novell paid the EFF almost one decade ago) and we continue to monitor its progress. Funded by Mark Cuban to do this kind of activism (Cuban, who reads Techrights, is notably against software patents), we believe that a lot of good can come out of what the EFF does.

The EFF’s Julie Samuels wrote 4 days ago that she’s still fighting “Against Stupid Patents” (not too useful to choose the word “stupid” for one who fights against software patents). “Despite the program’s modest but important success at weeding out some of the worst patents,” she wrote, “it’s under attack from those who oppose patent reform and apparently believe a 20-year government monopoly should not have to withstand any scrutiny. Specifically, representatives from certain industries (e.g., the pharmaceutical and biotechnology industries) claim that IPRs are “patent death squads” and have been hard at work on Capitol Hill trying to roll back the program’s effectiveness by dulling its procedures.”

“The EFF basically gets involved in the Lexmark patent case (trying to drag in the Supreme Court) and is attracting/receiving supportive press coverage.”We wrote about the use of the term “patent death squads” in the past, e.g. in [1, 2, 3, 4]. They use other malicious-sounding terms to describe invalidation of bogus patents and they use euphemisms for their own abuses.

The EFF’s latest battle seems to be tackling a subject which we wrote about some weeks ago [EN | ES]. The EFF basically gets involved in the Lexmark patent case (trying to drag in the Supreme Court) and is attracting/receiving supportive press coverage. Public Knowledge wrote earlier this week: “Yesterday, Public Knowledge filed an amicus curiae brief with the Supreme Court in the case Impression Products v. Lexmark International. The brief was joined by the Electronic Frontier Foundation and the R Street Institute.

“The case relates to printer toner cartridges that are refilled and resold. Lexmark argues that the resale of printer cartridges violates its patent rights. Impression Products, who remanufactures cartridges, contends that its activities are legally permitted because Lexmark’s patent rights were exhausted at the time of sale of the cartridges to consumers. The amicus brief filed supports Impression’s view that consumer ownership rights should override Lexmark’s patent interests.”

“Cory Doctorow’s headline said “Printer ink wars may make private property the exclusive domain of corporations” and here is the EFF’s own humble statement (“EFF Asks Supreme Court to Overturn Dangerous Ruling Allowing Patent Owners to Undermine Ownership”).”This was also covered by WIPR, which wrote: “The Electronic Frontier Foundation (EFF) has urged the US Supreme Court to hear and overturn a “troubling decision” handed down by an appeals court that centres on patent exhaustion.”

Cory Doctorow’s headline said “Printer ink wars may make private property the exclusive domain of corporations” and here is the EFF’s own humble statement (“EFF Asks Supreme Court to Overturn Dangerous Ruling Allowing Patent Owners to Undermine Ownership”).

To quote the EFF: “The case is called Impression Products, Inc. v. Lexmark International, Inc. and it concerns the arcane but important question of patent exhaustion. This is patent law’s version of “first sale,” the doctrine in copyright law that says that once a consumer buys a copy of a work, she owns it and can do what she wants with that copy. Patent law is similar. Once a patent owner sells a product, it cannot later claim that that product’s use or sale is infringing.”

“We have been critical (at times) of the EFF’s approach, but all in all, what the EFF is doing is better than nothing at all.”At the same time the EFF fights for another cause (“Court Confirms EFF Can Stand Up for Public Access to Court Records”).

“Last month,” it explained, “EFF moved to intervene in a patent case in order to unseal records we believe have been improperly kept from the public. Yesterday, the court granted EFF’s motion to intervene, and in doing so, rejected a troubling argument being put forth by the patent owner.

“The case is Blue Spike v. Audible Magic. As we noted in our blog post last month, numerous documents, including at least three court opinions, have been completely withheld from the public. The sealed documents are highly substantive, and from what we can gather, would help the public better understand what, exactly, Blue Spike claims to have invented.”

We have been critical (at times) of the EFF’s approach, but all in all, what the EFF is doing is better than nothing at all. We just wish it did more to directly tackle software patents in the US, especially now that a lot of patent giants lobby the government (more on that later today). █

Publicado en America, EFF, Law, Patents at 9:25 am por el Dr. Roy Schestowitz

Sumario: Algunas noticias acerca de patentes con enfasis en la situación de la EFF presente estrategia, que no observa al meollo del asunto, patentability de Software en los Estados Unidos

HOY (o esta tarde) el focus será la USPTO. Hay un montón para decir del sistema de patentes de los EE.UU., ambas buenas y malas noticias. Como nuestros viejos lectores saben, no somos oponentes del sistema de patentes per se, somos oponentes de las patentes de software, las que no deberían ser otorgadas, por que el código es propiamente protegido por derechos de autor. Virtualmente todos los desarrolladores de software (basado en viejos reportajes y encuestas) están de acuerdo con nosotros en patentes de software. Difícimente es materia de debate dentro de la comunidad de software, sólo fuera de ella.

“Virtualmente todos los desarrolladores de software (basado en viejos reportajes y encuestas) están de acuerdo con nosotros en patentes de software.”Hace unos dias remarcamos en la Acta VENUE, el último exagerado proyecto de ley que pretende sólo abordar cuestiones incluso tratándose de una solución a medio cocer. El año pasado vimos Ley de Patentes e Innovación (¿recuerdan? Una de las muchas encarnaciones y esfuerzos [1, 2, 3, 4, 5, 6, 7]). Son tan sólo palabras de moda y se centran en los trolles de patentes, no se enfocan en la esfera de patentes. El esfuerzo tomado para llegar a esos acrónimos tontos (como PATRIOTA) muestra que se trata más de su comercialización alrededor de ella en vez de enfrentarse al verdadero problema. Como lo acaba de explicar Techdirt el Acta VENUE (Nathan Leamer y Zach Graves, los autores, no son personas de Techdirt), “no es el tipo de corrección integral al problema de los trolles de patentes de los Estados Unidos” que nos gustaría ver, el Venue Equity and Non-Uniformity Elimination Ac abordan una pequeña parte del problema. El proyecto de ley, S. 2733, reduciría las rampantes compra de lugares que injustamente distorsiona los resultados legales al permitir que los demandantes seleccionen jueces amigables con anticipación”.

Dada la inclinación algunos tribunales o jueces a aceptar patentes de software abstractas, esto potencialmente tiene un efecto positivo en la resistencia a las patentes de software. Aproximadamente al mismo tiempo que el artículo de la EFF anteriormente, Techdirt también republicó un artículo de la EFF (EFF es un defensor del Acta VENUE por cierto) acerca del mayor troll de patentes de Microsoft, Intellectual Ventures, a que calificó de “Mega-Troll” y afirmando que “Golpea florista con la patente de programación Hazlo-En-Un-Ordenador” (patente de software).

“Este Troll de Patentes conectado a Microsoft también ataca a Linux y Android, como lo mostramos aquí antes.”Para citar a la EFF: “Cuando se trata de trolles de patentes ninguno es más grande que Intellectual Ventures. El behemoth basado en el estado de Washington está al centro de ambos trolling de patentes y el debate acerca de la reforma. Aunque clame promover la innovación, Intellectual Ventures está detras de la más vergonzósas campañas de trolles en años reciéntes. Famosa por esconderse detrás demiles de compañías de cubierta, creó Lodsys, el troll que asedió a pequeños desarrolladores de apps, y la Oasis Research litigación que apareció en Esta Vida Americana.

“Este mes, Intellectual Ventures presentó algunas acciones legales contra objetivos nuevos incluyendo JCPenney, Sally Beauty, y servicios de entrega de flores Transworld Floristerías. Estudiamos las patentes valer para ver si alguno merecía nuestro Premio a la Patente Estúpida del mes. Todos eran buenos candidatas, pero una en particular se destacó”.

Este Troll de Patentes conectado a Microsoft también ataca a Linux y Android, como lo mostramos aquí antes.
Esta actuando como una suerte de proxy de Microsoft, una entre varias. Intellectual Ventures también tiene una red de miles de firmas satelite, haciéndola un fantasma que es muy difícil/torpe para seguirle el rastro.

“Intellectual Ventures también tiene una red de miles de firmas satelite, haciéndola un fantasma que es muy difícil/torpe para seguirle el rastro.”Separadamente, basado en este post de la EFF, “Blue Spike es un contínuo jugadore en litigación de patentes. Lex Machina (un servicio que colecciona filing de patentes en todo el país) indica que hay más de 100 juicios relacionados a Blue Spike y ´sus´ patentes. No sorprende entonces que, la campaña deBlue Spike’s campaign ha atraído la atención de la prensa. Hemos escrito acerca de Blue Spike y sus patentes en conección con la serie “Estupida Patente del Mes”. Otros han escrito acerca de Blue Spike también.”

En noticias más positivas del EFF, en Twitter que dice: “Corte dispone que matón de patentes pague los honorarios del abogado del cliente EFF.” Aquí está el artículo correspondiente, que dice:

En una decisión que podría ayudar a otras víctimas de los litigios sobre patentes abusivo, un tribunal ordenó hoy que la Corporación Garfum.com debe pagar los honorarios de abogados de un cliente de la EFF. La corte encontró que el juicio por patente de Garfum carecía de mérito y fue litigado injustificadamente.

Volviéndo a finales de 2014, Garfum demandó un pequeño sitio web de fotografía llamada Bytephoto.com por violación de patentes. Garfum afirmaba poseer la idea de tener un “voto por el mejor” competencia, pero en el Internet. A pesar de que su absurda patente no era válida claramente en virtud de la decisión del Tribunal Supremo en Alice v. CLS Bank, Garfum exigía que los propietarios de Bytephoto, Ruth y Steve Taylor, que pagen unos $ 50.000. Teniendo en cuenta el elevado costo de defenderse incluso en una frívola demanda de patentes, los Taylor se enfrentarón a una situación difícil.

Esto ya fué cubierto por Joe Mullin, quién a seguido el rastro a trolles de patentes por una década. “La Electronic Frontier Foundation,” escribió, “ha advocado contra ridiculas patentes de software por más de una década, pero no fue hasta el año pasado que la organización tomo un pro bono cliente acusado de infringimiento de patentes. Un pequeño sitio web de videos llamado Garfum.com enjuició a la fotografo de Pennsylvania Ruth Taylor, diciéndo que ella estaba infringiendo la US Patent No. 8,209,618. Garfum, propiedad de un hombre de New Jersey llamado Michael Garofalo, diciendo que la patente era infringida por las competiciones de fotos que Taylor tiene en su website, Bytephoto.”

Vale la pena notar que delo que estamos tratándo aquí son patentes de software, de nuevo. ¿Porqué la EFF simplemente no se enfrenta a las patentes de software en vez de “patentes estúpidas” o “trolles de patentes” Mejor unirse a la pelea justa, mejor tarde que nunca. █

TODAY’s (or this afternoon’s) focus will be the USPTO. There is a lot to be said about the US patent system, both good news and bad news. As longtime readers of ours know, we’re not opponents of the patent system per se, we’re against software patents, which oughtn’t be granted at all because code is properly protected by copyright law. Virtually all software developers (based on old surveys and polls) agree with us on software patents. It’s hardly even a subject of debate inside the software community, only outside of it.

“Virtually all software developers (based on old surveys and polls) agree with us on software patents.”Days ago we remarked on the VENUE Act, the latest hyped-up bill which claims to tackle issues even if it’s a half-cooked solution. Last year we saw Innovation and PATENT Act (remember it? One of many incarnations and efforts [1, 2, 3, 4, 5, 6, 7]). They’re all just buzzwords and they focus on patent trolls, not patent scope. The effort taken to come up with those silly acronyms (like PATRIOT) shows that it’s more about marketing than about substance. As TechDirt has just explained VENUE Act (Nathan Leamer and Zach Graves, the authors, aren’t TechDirt people), “it isn’t the kind of comprehensive corrective to America’s “patent troll” problem that we’d like to see, the newly introduced Venue Equity and Non-Uniformity Elimination Act would address one small piece of the problem. The bill, S. 2733, would curtail rampant venue shopping that unfairly distorts legal outcomes by allowing plaintiffs to select friendly judges in advance.”

Given some judges’ or courts’ inclination to accept abstract software patents, this potentially has a positive effect on resistance to software patents. At around the same time as the above, TechDirt also reposted the EFF’s article (the EFF is a proponent of VENUE Act by the way) about Microsoft’s biggest patent troll, Intellectual Ventures, calling it “Mega-Troll” and stating that it “Hits Florist With Do-It-On-A-Computer Scheduling Patent” (software patent).

“This Microsoft-connected troll also attacks Linux and Android, as we showed here before.”To quote the EFF: “When it comes to patent trolls, no one is bigger than Intellectual Ventures. The Washington State-based behemoth is at the center of both patent trolling and the debate around patent reform. Though it claims to promote innovation, Intellectual Ventures is behind some of the most outrageous troll campaigns in recent years. Famous for hiding behind thousands of shell companies, it spawned Lodsys, the troll that harassed small app developers, and the Oasis Research litigation featured in This American Life.

“This month, Intellectual Ventures filed some fresh lawsuits against targets including JCPenney, Sally Beauty, and flower delivery service Florists’ Transworld Delivery. We checked out the asserted patents to see if any deserved our Stupid Patent of the Month award. All were worthy candidates, but one in particular stood out.”

This Microsoft-connected troll also attacks Linux and Android, as we showed here before. It is acting as a sort of Microsoft proxy, one among many. Intellectual Ventures also has a network of thousands of satellite firms, making it like a phantom that’s too cumbersome to properly track.

“Intellectual Ventures also has a network of thousands of satellite firms, making it like a phantom that’s too cumbersome to properly track.”Separately, based on this post from the EFF, “Blue Spike is a repeat patent litigation player. Lex Machina (a service that collects patent litigation filings from across the country) indicates there are over 100 lawsuits involving Blue Spike and its patents. Unsurprisingly then, Blue Spike’s campaign has garnered press attention. We’ve written about Blue Spike and its patents in connection with our “Stupid Patent of the Month” series. Others have written about Blue Spike too.”

In more positive news from the EFF, on Twitter it said: “Court orders that patent bully must pay EFF client’s attorneys’ fees.” Here is the corresponding article which says:

In a decision that could help other victims of abusive patent litigation, a court today ordered that Garfum.com Corporation must pay an EFF client’s attorneys’ fees. The court found that Garfum’s patent suit lacked merit and was litigated unreasonably.

Back in late 2014, Garfum sued a small photography website called Bytephoto.com for patent infringement. Garfum claimed to own the idea of having a ‘vote for the best’ competition, but on the Internet. Even though its absurd patent was plainly invalid under the Supreme Court’s decision in Alice v. CLS Bank, Garfum demanded that the owners of Bytephoto, Ruth and Steve Taylor, pay it $50,000. Given the substantial cost of defending even a frivolous patent lawsuit, the Taylors faced a difficult situation.

This has already been covered by Joe Mullin, who tracked patent trolls for about a decade. “The Electronic Frontier Foundation,” he wrote, “has advocated against ridiculous software patents for more than a decade, but it wasn’t until last year that the organization took on a pro bono client accused of patent infringement. A little-used video website called Garfum.com sued Pennsylvania photographer Ruth Taylor, saying she was infringing US Patent No. 8,209,618. Garfum, owned by a New Jersey man named Michael Garofalo, says the patent was infringed by the photo contests Taylor runs on her website, Bytephoto.”

Worth noting here is that we’re dealing with a software patent, again. Why doesn’t the EFF just tackle software patents as opposed to “stupid patents” or “patent trolls”? Better join the good fight, better late than never. █

Image credit: Electronic Frontier Foundation (EFF)

Summary: Patent trolls are still the subject of criticism from the Electronic Frontier Foundation, even though some major companies such as Apple and Microsoft (even those that pay the EFF) are a big part of the problem with patents, and software patents in particular

YESTERDAY we published this article which covered jurisdiction reform as a path to mitigation/cessation of patent trolls, who habitually use software patents (still granted by the USPTO where there is no effective quality control) as a weapon in the Eastern District of Texas. The USPTO doesn’t seem to mind over-litigation as it helps drive demand at the patent office^*.

The EFF has just published this recommendation (authored by Elliot Harmon) of the VENUE Act, which uses jurisdiction as a factor by which to throttle/impede trolls. Here is what the EFF wrote:

There’s a new bill in Congress that would finally address the egregious forum shopping that dominates patent litigation. The Venue Equity and Non-Uniformity Elimination Act of 2016 (VENUE Act, S. 2733) would bring a modicum of fairness to a broken patent system.

Forum shopping is a phenomenon that can appear when plaintiffs get a lot of latitude over which federal district to file a case in. Some plaintiffs make their choice based not on what federal district has the strongest connection to the dispute, but rather on which court they believe they have the best chance of winning in. A canny plaintiff will exploit differences between courts in her favor—differences in how they enforce certain rules, for example, or in their track records with a type of case. As anyone knows who’s been following the patent reform debate for very long, forum shopping runs rampant in patent cases.

The EFF correctly points out that this would not solve the problem but only slow it down a bit. What the EFF really needs to do is campaign against software patents — something which clearly it hasn’t been sufficiently interested in (we wrote a lot about this before, either praising or criticising the EFF’s approach/strategy). Justin Blows, a patent lawyer who likes software patents, writes that “Google has been awarded US patent 9,280,534 titled “Generating social glossary”. Broadly speaking, the invention is about scanning social media for new expressions and storing them in a glossary.”

This is similar to a Facebook patent which we recently covered here. Why are such software patents being granted in the first place? A clue might be in the footnote below. █
_____
^* “A PTO official said to me after my talk that trying to think about IPR with an overlay of prosecution will do nothing but harm,” wrote patent maximalists the other day. “He’s right,” they added. It sure seems like the wolf has been put in charge or the sheep of the wolf is guarding the hen now. They want more patents and more prosecution which drives demand for patents (elevating perceived value of patents).

Posted in EFF, Patents at 9:27 am por el Dr. Roy Schestowitz

Sumario: La Fundación Frontera Electrónica parece estar retornando a un directo criticísmo de las patentes de software en vez de criticar grupos particulares o personas que las explotan, ejemplo los trolles de patentes.

A través de los años (desde 2006 cuando Novell pago servicio de labios a la EFF con un dinero) hemos apoyado y criticado el punto de vista de la EFF sobre las patentes de software. Últimamente escribimos hace unos días. Otros articulos en tales materias incluyen:

• La EFF soliicita a la CAFC se enfrente a los Trolless de Docket, en el District Este de Texas
• Última agresión de Patentes de Microsoft Cae bajo Fuego de la EFF, Antigua GNU/Linux Compañía es Su Objetivo
• La EFF Regresa a Enfrentarse las Patentes de Software No Sólo a los Trolles de Patentes
• La Oposicion de la EFF contra las Patentes de Software Es Fuerto, Pero No lo Necesario
• La EFF Usa Alice v. CLS Bank Case para Presionar a la USPTO a Detener la Patentización de Software
• LaFSF y la EFF Desafían las Patentes de Software en la USPTO, Nature (Journal) Quiere que la OEP sea como la USPTO, y los Trolles de Patentes Deambulan en la Tierra de los Libres.
• La Foundación Frontera Electrónica (EFF) Debe Reenfocarse en Aplastar las Patentes de Software, No en Trolles de Patentes o “Estupid Patentes”

Basado en Este nuevo artículo from de EFF (publicado reciéntemente), no sólo la EFF es capaz de nombrar a los Trolles de Patentes explícitamente (siempre era acerca de ¨estúpidas¨ patentes y ¨trolles¨), también esta preparada para golpearlas. Para citar algúnos paragrafos:

En Diciembre más de 3,000 de ustedes se reunierón a apoyar una propuesta del Departamento de Educacion (ED) que haría sus recursos Educacionales mucho más accesibles a educadores y estudiantes en todo el mundo.

Ustedes no fueron los únicos: La Fundación de Sofware Libre, Creative Commons, Public Knowledge, la Software Freedom Conservancy, y numerosos otros grupos a favor del usuario hablaron fuerte. Juntos, mandamos un mensaje a alto volumen: La red de equipo está en el lado de educación abierta.

Leyendo a través de todos los 147 comentarios, un modelo emerge. Proponentes de la Web abierta, grupos de educación abierta y muchos educadores profesionales todos apoyan la idea de recusos solventados por el Departamente de Educación sean COMPARTIDOS CON LICENCIAS ABIERTAS (aunque tengamos diferencias en ciertos detalles). Aunque un grupo nos seguía confundiendo: las universidades. ¿PORQUÉ HAY ALGUNAS UNIVERSIDADES OPONIÉNDOSE A UN MANDATO QUE BENEFICIARÍA DIRECTAMENTE A SUS ESTUDIANTES Y FACULTAD?

Cuando cavas un poquito más, parece que esta oposición a licensia abierta no tiene que ver con el acceso de los estudiantes a recursos educacionales. Lo que en realidad sale a la luz es una lucha larga acerca de como las universidades usan patentes, más específicamente patentes de software. La Educación Abierta y al alcance de las mayorías simplemente esta en medio del fuego.

[...]

Las Patentes de Software Arruinan Todo

La expresión de la AAU cuestiona ¨si el Departamento tiene la autoridad legal bajo la 35 USC 212 para emitir un requerimiento para licensiar abiertamente todo el código fuente de sofware financiado con fondos de grants.¨ Esto es una referencia a una ley de 1980, comúnmente conocida como la Bayh-Dole Act. Antes que ella las Universidades no podían aplicar por patentes creadas usando fondos federales; en vez de eso, el gobierno era el responsable de patentar invenciones fundadas federalmente [.pdf]; cuando lo hizo así sólo las dejaba usar a otros bajo licencias no exclusivas.

Despues de Bayh-Dole, toda una industria de transfer de tecnología de las universidades apareció. Cada programa de transfer tiene sus propias políticas, algunas son más flexibles y amicables a los deseos del inventor que otras pero todas existen para vender o licensiar invenciones de facultad a terceros. Algunas de ellas ejercen sus patentes directamentte, como la Universida de Wisconsin-Madiso hizo en su juicio contra Apple.

Es importante notar aqui que la propuesta de la ED no toca las patentes de ninguna manera. Ya que la propuesta cubre software, es posible que los recipientes quieran aplicar por algunas patentes cubiertas bajo esas policies. No hay nada en la propuesta que los impida hacer eso: no toda licencia de open source que obligaría a la política requeriría que sus creadores desistan de derechos de aserción de patentes.

Recuerden que las patentes de software están dando combustible a los trolles, así que cualquier discución acerca de trolles de patentes frecuentemente evade el núcleo central en vez de ello trata los simtomas (para la alegría de las grandes corporaciones). La OEP fundada Iam ´magazine´ que maquilla a lo trolles de patentes, acepta dinero de ellos y les organiza eventos, esta disfrazando las patentes de abiertas ahora mismo (¨innovación abierta¨) y muestra que pasa cuando los espéculadores de patentes habla o otros de su misma calaña. Iam se ha convertido en una clase de PROPONENTE DE TROLLS Y MAXIMALISTAS. Es suave y tierno con los trolles y los llamados entidades asertoras de patentes. En el otro extremo hay sitios como IP Troll Tracker, que ahora felicita a Florian Müller por criticar el sistema de patentes de los Estados Unidos. En todo es bueno ver que la EFF ahora habla un poco más acerca de las patentes de software no sólo de trolles de patentes. Los animamos a hacerlo más frequentemente. La Fundación De Frontera Electrónica parece estar retornando a un directo criticismo de las patentes de software en vez de grupos particulares que las explotan, ejemplo los trolles de patentes. █

Summary: The Electronic Frontier Foundation looks like it may be returning to direct criticism of software patents rather than particular groups of actors that exploit them, e.g. patent trolls

OVER the years (since 2006 when Novell paid a lip service to the EFF with some money) we have been both supportive and critical of the EFF’s approach towards software patents. We last wrote about it a few days ago. Other articles on such matters include:

• EFF Asks CAFC to Tackle the Trolls’ Docket, the Eastern District of Texas
• Microsoft’s Latest Patent Aggression Comes Under Fire From the EFF, Former GNU/Linux Company the Patent’s Target
• The EFF Back to Tackling Software Patents, Not Just Patent Trolls
• EFF Opposition to Software Patents Strong, But Not Strong Enough
• EFF Uses Alice v. CLS Bank Case to Pressure USPTO to Halt Software Patenting
• FSF and EFF Challenge Software Patents at the USPTO, Nature (Journal) Wants EPO to be Like USPTO, and Patent Trolls Roam Free in Land of the Free
• The Electronic Frontier Foundation (EFF) Ought to Refocus on Crushing Software Patents, Not Patent Trolls or “Stupid Patents”

Based on this new article from the EFF (published very recently), not only is the EFF capable of naming software patents explicitly (it was always about “stupid” patents and “trolls” as of late); it’s also prepared to slam them. To quote some relevant paragraphs:

In December, over 3,000 of you rallied in support in support of a proposed Department of Education (ED) policy that would make ED-funded educational resources a lot more accessible to educators and students around the world.

You weren’t the only ones: the Free Software Foundation, Creative Commons, Public Knowledge, the Software Freedom Conservancy, and numerous other pro-user groups spoke up. Together, we all sent a loud message: Team Internet is on the side of open education.

Browsing through all 147 comments, a pattern quickly emerges. Open web advocates, open education groups, and many education professionals all support the idea of ED-funded resources being shared widely under open licenses (though we might quibble on a few specific details). One group kept confusing us, though: universities. Why were some universities opposing a rule that would directly benefit their students and faculty?

When you dig a bit deeper, it looks like universities’ opposition to open licensing has nothing to do with students’ access to educational resources. What’s really playing out is a longstanding fight over how universities use patents—more specifically, software patents. Open education just happens to be caught in the crossfire.

[...]

Software Patents Ruin Everything

The AAU statement questions “whether the Department has the legal authority under 35 USC 212 to issue a requirement to openly license all computer software source code developed with grant funds.” This is a reference to a law enacted in 1980, commonly known as the Bayh-Dole Act. Before Bayh-Dole, universities couldn’t apply for patents for inventions created using federal funding; instead, the government itself was responsible for patenting federally funded inventions [.pdf]; when it did so, it would only let others use them under nonexclusive licenses.

After Bayh-Dole, a whole industry of university tech transfer offices began to appear. Each tech transfer program has its own policies—some are more flexible and friendly to the inventors’ wishes than others—but they all ostensibly exist to sell or license faculty inventions to third parties. Some of them also assert their patents directly, as the University of Wisconsin-Madison did in its recent suit against Apple.

It’s important to note here that the ED proposal doesn’t touch patents at all. Since the proposal covers software, it’s possible that grantees might want to apply for patents for a few of the works covered under the policy. But there’s nothing in the proposal to stop them from doing that: not every open source license that would comply with the policy requires that creators give up patent assertion rights.

Remember that software patents are fueling trolls, so any discussion about patent trolls often evades the core issue and instead deals with symptoms (much to the chagrin of large corporations). The EPO-funded IAM 'magazine', which often grooms patent trolls, accepts payments from trolls, and even organises events for them, is openwashing patents right now (“open innovation”) and demonstrates what happens when patent profiteers speak to other patent profiteers. IAM has become like some sort of think tank for trolls and maximalists. Here it is going soft on trolls and so-called patent assertion entities. On the other hand there are sites like IP Troll Tracker, which is now congratulating Florian Müller for criticising the US patent system. All in all, it’s nice to see that the EFF now speaks a little more about software patents, not just trolls. We encourage the EFF to do more of that. █

Image extracted from this video

Summary: Having been bankrolled by a billionaire, Mark Cuban (said to be worth US$3 billion, based on Forbes), the Electronic Frontier Foundation pursues a patent approach that would further empower large, rich corporations, not small companies

“A guide to alternative patent licensing,” wrote the EFF today, was “produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. Revised and expanded for 2016.”

For those who wonder who or what the producer actually is, see this page which says that “the clinic’s core mission is foster innovation by advancing a regulatory climate that is appropriately sensitive to the ways in which law—whether through litigation, legislation, or regulation—can serve to promote (or frustrate) the inventiveness, creativity, and entrepreneurship that provide the real engine for economic growth.” This is connected to Mark Lemley, who is widely known for his work in this area.

There was also this accompanying blog post which said:

We’re pleased to announce the 2016 edition of Hacking the Patent System, a guide to alternative patent licensing produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. First published in 2014, the guide provides a high-level overview of several tools that inventors and innovators could use to avert unnecessary and costly patent litigation (or at least to avoid trollish behavior themselves).

The tools we cover fall roughly into three categories: defensive patent aggregators, defensive patent pledges, and insurance. Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. These include organizations such as Allied Security Trust, RPX, and Unified Patents.

This is basically similar to the approache taken by large corporations such as IBM. They have lots of software patents of their own. What are small companies supposed to do? This relates to useless (e.g. against patent trolls) things like OIN or RPX, which is effectively quite malicious in many ways.

We have, over the years, expressed both agreement and disagreement with the EFF’s approaches. Past articles include but are not limited to:

• EFF Asks CAFC to Tackle the Trolls’ Docket, the Eastern District of Texas
• Microsoft’s Latest Patent Aggression Comes Under Fire From the EFF, Former GNU/Linux Company the Patent’s Target
• The EFF Back to Tackling Software Patents, Not Just Patent Trolls
• EFF Opposition to Software Patents Strong, But Not Strong Enough
• EFF Uses Alice v. CLS Bank Case to Pressure USPTO to Halt Software Patenting
• FSF and EFF Challenge Software Patents at the USPTO, Nature (Journal) Wants EPO to be Like USPTO, and Patent Trolls Roam Free in Land of the Free
• The Electronic Frontier Foundation (EFF) Ought to Refocus on Crushing Software Patents, Not Patent Trolls or “Stupid Patents”

In Twitter, the EFF has just named software patents as a problem (which is good), but the above is not the correct approach if eliminating software patents is the goal (we wrote a long article about it earlier today). Some people online, notably FFII people, are equally unhappy with the EFF’s approach. The EFF seems to be trying to coexist with software patents. It’s like OIN and the Linux Foundation, both of which are fronts of very large corporations with a lot of patents (some call it "war chest").

“What we see here is EFF policy being steered by and controlled by billionaires.”“The Apple patent that might become subject to the review is the so called “tap-to-zoom” patent,” said the patents maximalists earlier today, showing that there remains hope for elimination of software patents in the US. It is no longer an unattainable goal or some fantasy, not after Alice. No needs for aggregators or patent pledges, which are not binding contracts anyway (see how Oracle sued Google for instance, despite OIN membership). A lot of today’s chaos in the patent landscape helps act as a deterrence against small players, who simply cannot afford to pay legal fees (not for long). See today’s article from patents maximalists who say “Section 285 Does Not Support Deterrence Based Fee Enhancement” (this means proportional to what it takes to deter or discourage participation). As the patents maximalist put it: “In Octane Fitness, the Supreme Court noted the partial overlap between Section 285 fees and R. 11 sanctions. Section 285 does not particularly require sanctionable conduct but does require that the recipient be the ‘prevailing party.’”

Given where the money comes from to the EFF (for this particular initiative), it doesn’t shock us that the above approach is followed. Mark Cuban already invested in a patent troll and despite his rhetoric against software patents, he is no small player himself. What we see here is EFF policy being steered by and controlled by billionaires. Greenpeace has had similar issues. █

Satya Ballmer: different face, same strategy/policy

Summary: Microsoft continues its vicious patent war on anything resembling competition (however small), even the competition against which Microsoft previously committed competition abuses/crimes (subject of court cases) in order to attain total monopoly

MICROSOFT, which is connected to many patent trolls (including Intellectual Ventures, the world’s biggest), is still busy suing companies. Microsoft has a long history of patent aggression, including patent litigation against Linux (not just threats thereof). As longtime readers of this site may know, this and only this was the raison d’être of this Web site.

“…since winning a case for infringement of design patents can lead to a damage analysis based on “lost profits,” which can theoretically lead to a patent owner getting all of a defendant’s profits.”
      –Joe MullinAs we noted the other day, referring to the original from the EFF, Microsoft is now attacking a company that once dominated word processing. Microsoft allegedly engaged in competition crimes against this company, leading to decades of expensive litigation. This company also pioneered some important GNU/Linux efforts until Microsoft shut these down with a mysterious deal (which we wrote about on several occasions around 2007). Well, Microsoft is now trying to drive this company into bankruptcy, using patents.

What’s the name of this company? Corel. We have a whole category about Corel (with 51 articles, as well as leaked court documents). History is important here and it’s imperative that people properly study Corel to truly grasp how severe this situation really is.

Microsoft is now attacking Corel with what the EFF calls “Stupid Patent of the Month”. As noted by one good journalist (Joe Mullin), “it’s serious ammo, since winning a case for infringement of design patents can lead to a damage analysis based on “lost profits,” which can theoretically lead to a patent owner getting all of a defendant’s profits.”

“Remember the company called Novell? Yes, that company that pretty much vanished half a decade ago and whose patent/special deal with Microsoft (SUSE) will expire tomorrow (there are no signs of renewal or continuation).”In other words, expect layoffs, liquidation, bankruptcy, etc. Legal fees aren’t low, either. Remember the company called Novell? Yes, that company that pretty much vanished half a decade ago and whose patent/special deal with Microsoft (SUSE) will expire tomorrow (there are no signs of renewal or continuation). Other than the name being similar, Novell and Corel have a lot in common because both competed against Microsoft until signing some infamous deals with Microsoft, leading to their demise, as well as the demise of their ongoing court cases against Microsoft (for competition abuses/crimes). When Novell imploded Microsoft grabbed its patents. Sweet deal for Microsoft. Novell is virtually gone (devoured by another company) and its patents are in CPTN, which is a ‘conglomerate’ pool of Linux and Android foes such as Oracle and Apple.

“Microsoft is now using patents primarily against Android, which the company is at war against (don’t believe the pretenses and the “loves Linux” baloney).”We quite liked how Glyn Moody framed the situation in his article “If Microsoft Wins Its ‘Stupid Patent Of The Month’ Lawsuit, Expect A Plague Of Trolls To Move Into Design Patents”.

As if Microsoft itself is not somewhat of a massive troll itself (we wrote a lot about this before). Just look what the company has been doing with patents this past decade. “The recent Techdirt article about Microsoft’s design patent on a slider,” Moody wrote, “understandably focused on the absurdity of companies being forced to hand over all of the profits that derive from a product if it is found to have infringed on someone else’s design patent even in just a tiny portion of that product. But there’s another angle worth mentioning here that picks up on something Techdirt has written about several times before: the rise and threat of patent thickets. Back in 2012, it was estimated that 250,000 active patents impacted smartphones. That makes it impossible to build devices without licensing large numbers of patents, and even then, it’s likely that claims of infringement will still be brought.”

Microsoft is now using patents primarily against Android, which the company is at war against (don’t believe the pretenses and the "loves Linux" baloney).

“The EPO’s lawyers who currently deal with my case were also recently seen working from the same side as Microsoft on the patent front, based on Reuters.”Here is another new article about Microsoft’s “Stupid Patent of the Month”. “The design patent,” says Softpedia, “numbered D554,140, basically states that Microsoft is the owner of the slider you can see in the photo attached to the article. This is the very same slider that the company uses in its Office productivity suite to allow users to zoom in or out of documents, but it has also been implemented in a wide variety of Microsoft and non-Microsoft products.”

But when patent examiners are pressured to issue patents in bulk and/or do a rushed job (as in the EPO for example, with Microsoft being on the high-priority list), no wonder such nonsense gets granted, leaving European courts to sort out the mess at a huge expense to the defendants. It is worth noting again that only articles of mine which mentioned Microsoft were even the target of threatening legal letters from the EPO’s lawyers, which gives room for speculation. The EPO’s lawyers who currently deal with my case were also recently seen working from the same side as Microsoft on the patent front, based on Reuters. █

Summary: News about patents from all across the Web, placing special emphasis on software patents and how these affect Free software projects, including Linux and Android

THIS week’s patents roundup revolves around practicing companies that act in a way which is almost indistinguishable from patent trolls. As we have said here for several years, the term “patent trolls” can be misleading because many large companies act in the same way but don’t get labeled “trolls”, mostly because of their size. It means that a fight against “patent trolls” often turns out to be a fight over scale, waged by large corporations against smaller ones. Check again who is behind the PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].

Today’s post brings together several stories and themes/strands in order to keep readers abreast of the latest developments.

Open Invention Network

We have spent over 8 years writing about the Open Invention Network (better known as OIN) and why it cannot effectively protect Free software projects. We also exchanged many E-mails with the OIN and some trolls. We saw how toothless the OIN can be in many scenarios and we challenged the OIN over it. I spoke in length with their CEO a few times over the telephone and I still think that it helps legitimise software patents and rarely achieves very much, except promote the interests of large corporations (like those which founded it and still fund it).

Earlier this morning FOSS Force published this very long interview with Deb Nicholson, who had worked for the FSF before she moved to OIN. This interview is very good and Nicholson’s views on patents are fine. We shared them here before.

“My work at OIN involves a lot of research,” Nicholson says. “I read academic papers on litigation trends and try to stay on top of who’s getting sued this week. It also involves a lot of behind the scenes emailing. I have lots of informal conversations with people about how you run a free and open source software project. Sometimes, they don’t realize that lots of other companies are succeeding with FOSS business models and shared community resources. Once they see that it can be done, they often feel more confident.”

Nicholson then speaks about the role of SCOTUS in lowering the risk of software patents.

“The Supreme Court,” she explains, “has given the lower courts the tools to rule against two specific categories of vague and frivolous patents. This is great for companies that have the cash and the time to go to court. For companies that don’t want to fight in court — which is lots of them, because it really is expensive and time-consuming — the letters will keep coming. Plus, there are still plenty of overly broad or obvious patents on the books that may not be affected by the recent rulings. So, things are improving but I wouldn’t say that we’re finished.”

She makes an important point regarding the cost of litigation, but the matter of fact is, USPTO examiners are now tougher on software patents and fewer companies (or shell firms) are eager to assert software patents for fear of losing them. Not only the extorted party (usually developers) is scared of the courts; the plaintiff, e.g. a patent troll, is too. What SCOTUS has done is, in our humble assessment, the best news in nearly a decade. We cannot recall anything bigger or better in terms of magnitude, at least not when it comes to systematically squashing software patents (not one patent at the time as per the EFF’s much-advertised earlier efforts, dubbed “patent busting”).

Finjan

The Finjan-led patent extortion crusade was mentioned here just weeks ago (they are Microsoft-connected) and now, just weeks later, this firm’s troll entity (Finjan Holdings) gets extortion money from a really nasty company, Blue Coat, which some say the EPO hired to spy on people like yours truly and EPO staff. “Finjan Holdings,” as a trolls expert explains, is “a patent-licensing company operating in the cybersecurity space” and it has just “won a hefty $39.5 million jury verdict (PDF) on Tuesday, when a San Jose jury found that Blue Coat Systems infringed five of its patents.”

Keep an eye on Finjan, not just because of its Microsoft connections. Finjan has become a very malicious company. It deserves to go out of business. The sooner, the better.

Cisco

Cisco, now known for its surveillance and back doors (which is even openly discusses when applying for standards), is receiving negative publicly because as its profits run dry (or more meager), it increasingly turns into more of a troll, just like Microsoft and Apple. Is this what Cisco wants to be renowned (or notorious) for? Remember that TrollTracker, a fighter against patent trolls. was a Cisco lawyer, but Cisco is now turning into what it fought. Arista, according to this article, says that Cisco is “Very Much Like a Patent Troll” (that’s the headline) and it’s coming all the way from the top. To quote the article, “Arista’s top lawyer used the company’s earnings call for trash-talk Thursday, saying Cisco is “behaving very much like a patent troll” in its intellectual property lawsuit against Arista.

“Arista Networks Inc. CEO Jayshree Ullal kicked off the badmouthing: “Despite all the overheated rhetoric we’ve been hearing from Cisco blogs about Arista’s brazen copying, we think the only thing brazen about the suit is the extreme length Cisco has gone to,” she said. “Our customers have shown unwavering support.”

“Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents.”“Arista Vice President and General Counsel Marc Taxay agreed. “Ironically … it appears to us at any rate that Cisco is behaving very much like a patent troll, which is pretty much what they’ve spent the last decade condemning.” Cisco is claiming patents for widely implemented features and functionality that exist on a broad range of switches today, and some of the patents affect features the patents were never intended to cover, Taxay said.”

The Wall Street Journal, taking note of “expensive legal battle with Cisco”, also expresses concerns about this case. “That may give some investors pause,” the author claims, “especially when Arista remains embroiled in an expensive legal battle with Cisco, which has accused it of infringing on patents.”

Cisco has basically become another very malicious company, if not for colluding with espionage agencies, then for bulling/attacking rivals using patents. Cisco used to be on the defensive, but now it’s on the ofsensive, and not against trolls. For a company that is eager to be seen as a FOSS and GNU/Linux supporter, this surely is a dumb strategy whose gains — if any — are massively outweighed by public image erosion.

JDate

A new article from Timothy B. Lee helps chastise the bully called JDate, which we wrote about very recently. “JDate,” he explains, “recently sued JSwipe, a mobile dating app for Jews that works like Tinder. Most media coverage has focused on mocking JDate for essentially claiming that it has a monopoly on certain uses of the letter J.

“But in some ways, the part of JDate’s lawsuit that really merits mockery is the patent infringement claims. JDate is suing JSwipe for infringing a broad patent that essentially claims the concept of using a computer to match pairs of users who express interest in each other. The lawsuit illustrates the continuing need for patent reform, because the current system makes it too expensive for defendants to challenge dubious patents.”

There are some interesting comments about JDate here. Although this Web site only targets a small niche, we strongly encourage all readers to boycott JDate, or else they’ll continue their shameful bullying, perhaps inspiring other companies to do the same.

The Economist Versus Patents

The Economist, interestingly and surprisingly enough (given its strong pro-business bias), chastises the patents regime in at least two articles this month. One is titled “A question of utility” and says in its summary: “Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not” (we have covered such evidence for almost a decade).

“The ability to patent,” says the author, “has been extended from physical devices to software and stretches of DNA, not to mention—notably in America—to business processes and financial products.”

Yes, patent scope is a huge part of the problem.

“Time to fix patents” is the second such article from The Economist and it too is an assault on the status quo. “Ideas fuel the economy. Today’s patent systems are a rotten way of rewarding them,” said the summary.

Here is a key part of this article: “Patents are supposed to spread knowledge, by obliging holders to lay out their innovation for all to see; they often fail, because patent-lawyers are masters of obfuscation. Instead, the system has created a parasitic ecology of trolls and defensive patent-holders, who aim to block innovation, or at least to stand in its way unless they can grab a share of the spoils. An early study found that newcomers to the semiconductor business had to buy licences from incumbents for as much as $200m. Patents should spur bursts of innovation; instead, they are used to lock in incumbents’ advantages.”

It is nice to see even The Economist debunking these tiresome myths, many of which still perpetually spread by patent profiteers rather than producing companies. Are we on the cusp of a mindset change?

Patent Propaganda From Lawyers’ Sites

Lawyers’ media, seeking to maximise dependence on patent lawyers, promotes patents on construction in this series that starts with the following paragraph: “In the first of this three part series, clean tech, or green construction, was defined as construction that reduces or minimizes the environmental impact in building construction, operation and use. That article also discussed the importance of building intellectual property walls, and especially with patents, to protect inventions from being incorporated into projects by unlicensed users. Equally important is knowing the patents that may prevent a company from incorporating patented technology for which it has no license. Patent rights can shape an industry; consequently, companies must develop patent strategies. Patents for green construction encompass everything from building materials, to software for optimizing various processes, to green energy systems, amongst others.”

Yes, they even suggest software patents right there.

“The US may not have a world class patent system,” say the patent maximalists of IAM, “but its professionals are second to none” (for taxing by lawyers perhaps). Another site of patent lawyers who lobby for a lot of ludicrous types of patents (including software) pretends that patents take a short time to receive, despite that infamous backlog and these notorious issues which can only be tackled by lowing examination standards, hence granting bogus patents (trivial, and/or with prior art).

“Intellectual property & intangible assets” is the headline of this British article which is so full of nonsense that we don’t know where to start. To quote one part of it: “Newton says the real value in business these days is in knowledge, which is tied up in intellectual property, patents, trademarks and designs.”

That’s nonsense. The term “intellectual property” refers to patents, trademarks, and copyrights, so it cannot be separated as above. Then there are designs, which are already (in most domains) covered by copyrights and if the author wishes to speak about trade secrets, that’s different from all the above and still pertains to knowledge, without having to introduce that vague notion of “intellectual property” and “intangible assets” — both horrible propaganda terms that equate ideas with objects.

“Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.”The article titled “9 Tech Startups Disrupting the Legal Industry” talks about proprietary software that patent lawyers use to keep track of their work. “Experts say the market for legal technology is as much as $400 billion,” the article says, but there is nothing like a citation to support such a figure.

“We hear the same complaints over and over every time Congress tries to improve the patent system,” Matt Levy wrote the other day. “In fact, we’ve been hearing some of them for over 70 years.” Patent scope has been getting so much worse over time, to the point where abstract concepts like business methods, algorithms, and even basic designs become patents although copyright should definitely suffice.

Design Patents and Linux Gadgets

Speaking of design patents, watch what patent maximalists celebrated this weekend: “The text cluster provided here shows that much of Hasbro’s portfolio of 1,772 patents (339 of which are active) are related to toy vehicles, electronic games and ornamental designs, indicating a fair amount of design patents.”

The notion of “design patents” has got to be one of the most loathsome and ridiculous. The article “Apple v. Samsung and a Fight Over the Patents for Designs” was published by Forbes the other day, reminding us of so-called design patents (such as the widely-ridiculed 'rounded corners' patents). Apple is very desperate to stop Android (and by extension Linux), but doing so by bullying with outright bogus patents isn’t the way to compete. CPTN members (i.e. holders of Novell’s patents) Oracle, Apple and Microsoft have been systematically attacking Android using patents and Oracle now takes this further. “Oracle’s lawsuit against Google over Java copyrights probably won’t be back in a courtroom again until next year,” wrote The Register, “but in the meantime, Oracle has asked the court to let it expand the scope of its complaint to include events that have occurred since it was first filed in 2010.”

This forever-legal-limbo scenario helps hurt Android, so we cannot just pretend that software patents are not a problem. More FOSS and GNU/Linux site must learn to address these issues as a matter of priority. Not enough are doing this at the moment and it definitely helps our foes. Many people seem to forget that Microsoft still attacks GNU/Linux using patents (albeit more discreetly than before). █

THE US patent system, which is the primary source of software patents and by far the biggest facilitator of patent trolls, has not enjoyed much publicity as of late, especially not good publicity. Writers are picking on lawyers who want more patents, including Michelle Lee who is said to be destined to head the USPTO. It’s a system guarded by those who don’t represent the population but rather represent their colleagues and friends. It’s a system of protectionism, empowered by a government that’s heavily influenced by large corporations.

“It’s a system of protectionism, empowered by a government that’s heavily influenced by large corporations.”“The biggest impact on patent quality would be the USPTO injecting certainty into the eligibility debate,” IAM said a while ago. Well, actually, as we pointed out last night, the USPTO has already issued guidance on that (new examination rules), it’s just that patent boosters — like IAM — don’t wish to accept it.

As this other new post points out, the USPTO recently had its 9,000,000th “customer” (patent), for which it is being mocked. “So maybe we shouldn’t be so shocked,” said the author, “that USPTO plays the same game. There’s actual evidence backing it up. Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it’s for both.)”

That’s quite a bizarre way of numbering patents. But more to the point, there’s a lot of secrecy and anomalies in the USPTO. It’s hard to know how it’s working, which contradicts or conflicts with its function/status as government-run. Recently, the EFF pressured the USPTO and the USPTO then demanded that the EFF censors its comments on patent guidance, as if the rules must be kept secret. Not bad for a ‘public’ office, eh? To quote TechDirt: “As you know, last year the Supreme Court made a very important ruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn’t automatically make it patentable. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new “guidance” to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some “Preliminary Examination Instructions.” However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.”

“As you can see by the full filing,” TechDirt adds, “the EFF filing isn’t some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF’s comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn’t want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF’s complete dismantling of the USPTO’s guidelines will now get that much more attention…”

The EFF did a fine job showing how unreasonable the USPTO has become. Where does it derive consent from? Only large corporations? It’s now shrouded in secrecy. It’s rogue, a bit like the EPO, which is becoming more alike.

Not too long ago the EFF “Outline[d] [a] Plan to Fix the Broken Patent System,” to use its own words, but Will Hill, citing Jan Wildeboer (Red Hat), said that EFF was not serious about fixing the real issues. To quote Hill: “This is not an issue that deserves debate. Software patents are wrong philosophically and no good has come from them. In the last two years, the community told EFF as much and people have been saying the same things since the US first allowed a software patent 25 years ago. Who does the EFF think they are representing and why would they rather reduce a harm than eliminate it? Shame on them.”

The EFF seems to be having turf wars between opponents of software patents and sponsors who love them because the EFF sometimes speaks out against them (not always). Not too long ago (just earlier this month) we learned that the EFF helped bust an infamous software patent on podcasting, so well done to them. Daniel Nazer from the EFF also used the term “Abstract Software Patents” to describe the kind of patents the EFF wants the USPTO to stop issuing, citing Alice. Here is what Nazer wrote: “The Supreme Court took a major step in cutting back on abstract software patents last June when it issued its landmark ruling in Alice Corp. v. CLS Bank. In essence, the court said that abstract ideas implemented by conventional computer process are not eligible for patent protection. Since then, the PTO has attempted to write guidance applying the law to pending patent applications. Unfortunately, the PTO has floundered and continues to grant far too many invalid patents. This week EFF filed public comments asking the Office to do more to ensure its examiners apply the new law.”

Also see the article “EFF: If You Want to Fix Software Patents, Eliminate Software Patents”. It seems abundantly clear that some elements inside the EFF (not all of them) do wish to altogether eliminate software patents and that’s good, it’s definitely progress. As Wired put it: “That is by far the most incendiary proposal the Electronic Frontier Foundation offers in its comprehensive report on overhauling a painfully broken patent system. The report, two years in the making, suggests everything from strengthening the quality of patents to making patent litigation less costly. And there, on page 27 of the 29-page report, is “Abolish software patents.”

“The argument is that software patents may not just be flawed, but utterly unnecessary. This hasn’t always been EFF’s stance on patents, says Adi Kamdar, one of the report’s authors. But as the group compiled the report, it received 16,500 public comments from people in the business, academic, and policy communities. The idea that patents should be eliminated entirely was a common theme.”

Vera Ranieri from the EFF meanwhile (earlier on) suggested that SCOTUS “Shouldn’t Reward Ambiguity”, stating:

EFF submitted an amicus brief to the Supreme Court yesterday in Commil v. Cisco, a patent case that asks whether having a “good-faith belief” that a patent is invalid means that someone can’t induce infringement of a patent.

The issue of what it means to “induce infringement” is a complex, esoteric area of patent law. Generally, inducement liability is where the person accused of infringement didn’t actually carry out infringing acts herself, but instead encouraged other people to do them. For example, telling someone “hey, use this product to infringe this patent” might be inducement, whereas just making a product without any knowledge of a patent on its use would not be.

In conclusion, the USPTO is out of order as it tries to censor and hide its practices while the EFF, which is not perfect either, is at least pressuring the USPTO to stop issuing software patents. Given the EFF’s history of being soft on software patents (or ambiguous at best), overall this is definitely a step in right direction. █

Summary: Why the EFF should focus on eliminating software patents (like in Germany) and not just patent trolls or what it vaguely calls or alludes to as “stupid patents”

LEGAL SITE Groklaw shares this satirical video about patent trolls. It helps capture some of the patterns often observed when it comes to trolls’ attacks on practising companies, even if it’s a little Godwin Law-invoking.

The reality of the matter is, Germany is fighting to block all software patents. The EFF touches on “German Parliament Says No More Software Patents” — a subject we covered here before [1, 2, 3]. It says that the “German Parliament recently took a huge step that would eliminate software patents (PDF) when it issued a joint motion requiring the German government to ensure that computer programs are only covered by copyright. Put differently, in Germany, software cannot be patented.”

“The reality of the matter is, Germany is fighting to block all software patents.”There is a new article titled “EU banks face less threat of infringing software patents than those in US, says expert” and it helps show how the core problem is addressed. In Europe, patent trolls are barely existent. To quote the article, “EU banks are less likely to infringe software patents than their counterparts in the US but should still evaluate whether to undertake a freedom to operate (FTO) analysis before launching new products or services to the market, an expert has said.”

Everyone benefits from that.

At the same time, another part of the EFF is going after patents one at a time rather than work to eliminate software patents as a whole. Very ambivalent over there. It is Julie Samuels again (part of a long-observed pattern [1, 2, 3, 4, 5]) and she says:

Working together we can protect the mesh networking community from overbroad, illegitimate patents that threaten to stifle innovation and access to technologies that preserve personal freedoms.

Here is another new example of her focusing on trolls and not on software patents, as Mr. Cuban (her funder) said he would do.

How about just working to end all software patents? What is happening at the EFF? There is another person there, another lawyer (Mr. Nazer [1, 2, 3, 4, 5]), who seems to be leading the EFF off focus. Well, lawyers being lawyers, they approach this subject from a point of view where patents are taken for granted. Just watch this latest article from Colleen Chien, which is posted in Wired (almost all the articles on patents there are written by lawyers).

“That’s the difference between organisations such as the EFF and organisations like FFII. The latter is run and managed by technical people.”This is not the first time that we point out and gently chastise EFF action for not being strong enough. The EFF ran a Web site to call for the end of software patents, but ever since it grabbed all the attention we see EFF staff actually working along the lines of the OIN, more or less. Well, just take a look at what Samuels is said to be: “Mark Cuban Chair to Eliminate Stupid Patents” (like the term “bad” patents).

To quote the professional summary, “Julie Samuels, a Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents at EFF, focuses on intellectual property issues. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C. She was also an intern at the National Center for Supercomputing Applications. Julie earned her J.D. from Vanderbilt University and her B.S. in journalism from the University of Illinois at Urbana-Champaign.”

So she is a patent/copyright lawyer, not a technical professional to whom patents are potentially assigned, or to whom patents are a threat. That’s the difference between organisations such as the San Francisco-based Electronic Frontier Foundation and European organisations like FFII. The latter is run and managed by technical people.

As a big supporter of the EFF, yours truly worries that there there is an internal battle between those in the EFF who genuinely want to see software patents eliminated and those who get tugged along with contra-reformists, notably lawyers. Other European activists have spotted the same pattern and became outspoken about it. If we don’t name the culprits, nothing will be done to overcome this impasse. █

Source: Original from John S. and James L. Knight Foundation, modified by Techrights

Summary: Reality check required and some ‘house cleaning’ too amid serious reputation harm to the W3C

Tim Berners-Lee created the World Wide Web to help him, a CERN researcher, share his physics papers. I can relate to that personally. He and I were both inspired by Richard Stallman, who had led a movement a decade earlier, advocating free sharing (free of restrictions, not related to cost or business models). It was not about monetary gain and Berners-Lee antagonised patents all along [1, 2, 3]. Sadly, however, the W3C shares none of those same interests and principles. Recently, it got as bad as DRM advocacy (owing/due to Microsoft and a buddy), which is not shocking given who runs the W3C. I exchanged some words with Berners-Lee about patents. His views contradict those of the increasingly corporations-run W3C, e.g. on patents (the W3C CEO is a software patents proponent and the man behind the Microsoft/Novell patent deal).

The FSF and now the EFF are calling on the W3C to get its head together. So far, the subject has been mostly relegated to daily links, but it can no longer be treated as a low-priority issue. Tim Berners-Lee seems to be ignoring and dismissing the obvious calls from public interest groups. He discredits himself and does himself a disservice here.

“A few decades ago Tim Berners-Lee followed the example of Richard Stallman and now it is Richard Stallman’s group which chastises Berners-Lee’s. “Here is the latest protest against the W3C’s action on DRM and further coverage of the original announcement in some FOSS-oriented news sites. For the W3C to facilitate DRM is like facilitating TiVoisation in GPLv2 or Linux and ‘secure’ boot in UEFI. It leads to bad practices that harm a lot of people.

A few decades ago Tim Berners-Lee followed the example of Richard Stallman and now it is Richard Stallman’s group which chastises Berners-Lee’s. There is something to be learned from all this. Berners-Lee should have power over the group (W3C) he created, it should not be the other way around. █

Summary: Hostility towards the practice of patenting software is seen in a nonprofit organisation, a corporation, and a government branch responsible for patenting

Dr. Glyn Moody says that “at last [the] EFF contemplates software patents abolition,” citing EFF positions in the essay “What’s At Stake in CLS Bank—Do Software Patents Hold Up The Sky?”

“Remember that i4i is a Canadian company best known for its lawsuit against Microsoft.”The essay comes from Mr. Nazer, whose positions we wrote about in [1, 2]. Earlier on he was targeting just trolls, not software patents. In his latest essay he says: “It is important to realize that software patents and the software industry are not the same thing. As Judge Moore’s own scholarship shows, patent issuance is “a poor measure of innovation value.” And there are straightforward economic reasons why patents and software are a bad fit. Far from being an incentive, software patents tend to operate as a barrier to entry and a tax on innovation.”

In other news cited by Moody, Newegg beat what some call a “corporate troll”. One summary says that “Newegg’s policy of not backing down from patent trolls, even ones as large as Alcatel-Lucent, continues to result in victory. Earlier this year, Overstock and Newegg successfully defended themselves with a jury invalidating Alcatel-Lucent’s main patent used to force companies as large as Amazon to settle. ”

Lastly for this week, Moody points out that there are more pushbacks against software patents, this time in Canada. As a short summary puts it: “The Canadian Intellectual Property Office (CIPO) has recently published two notices for patent examiners relating to patent interpretation, and in particular computer-related/business method type patents saying: ‘for example, what appears on its face to be a claim for an “art” or a “process” may, on a proper construction, be a claim for a mathematical formula and therefore not patentable subject matter.’”

Here is the corresponding article. Remember that i4i is a Canadian company best known for its lawsuit against Microsoft. There are other notable examples of patent parasites in Canada and we covered them before. █

Summary: Patent news involving communications tools which either promote surveillance (Microsoft) or impede surveillance (FOSS and standards); more Microsoft involvement in patent law is seen

Skype is said to be a patent violation (inevitably, all software is a patent violation in a country where software patents are abundant) and a Microsoft friendly site adds that “CopyTele CEO Robert Berman, whose company filed two claims last week against Microsoft’s Skype service, says his case is nuanced.”

Hopefully he can destroy Skype, but the government would never allow that. Skype has been incredibly valuable not just for domestic surveillance but foreign surveillance too. The US records everything and stores it in datacentres with colossal machines that boast high disk capacity. On a per-person basis, this is rather cheap. See our Skype overview page for more information. It’s not the main topic of this particular post, which is really about patent abuses.

Skype’s rival which supports real privacy is SIP-based VOIP, but Microsoft’s partner BT is attacking it with software patents. There is a Slashdot discussion about it and we covered it the other day.

The OSI’s president, who is British, says that “BT mounts awesome visual aid of why standards should be patent free by law” and the FFII’s president writes:

After 20 years we still do not have a free video codec for the web, blame Microsoft, Nokia and other patent trolls.

He adds at a similar time that “BT claim patents on VoIP SIP, a disaster, covered by a minefield of 99 patents. Time to quick swpats out of EU” (swpats as in software patents).

He ridicules the recent “World IP Day” by calling it “World Imaginary Property” and adding that “Microsoft heavily depends on plant variety rights. Monsanto needs software patents”.

He also thinks that the “EFF does not push for abolition of software patents in the US,” calling “for an FFII.us branch” (the EFF has indeed disappointed in that regard).

The USPTO cannot be chastised by US entities as effectively as European entities doing the same thing. Additionally, the EFF is dominated by lawyers (part of the problem), whereas the FFII is dominated by software professionals. The EFF is working against trolls but not against software patents like it once said it would. Google too is adopting this method. The danger is that the USPTO will be expanding towards a global patent system (a subject we covered here many times before), inspired by the US, as usual. The first step is almost complete:

After decades of proposals and debate, a new European-wide single patent, known as the Unitary Patent may well be a reality by the end of 2014.

From the “World IP Day” (notice globalisation nuance) we have this tidbit:

Luke Johnson – too many patents now issued and undermine the value of IP protection (those ‘patent trolls’)

We said this many times before. Anyway, this “IP Day” is just more propaganda opportunism. It’s for lobbying. Microsoft is lobbying too, eternally striving to prevent the patent system from being truly fixed while its lawyers are committing RICA Act violations (racketeering). Here is the latest propaganda from Brad Smith (top Microsoft lawyer), with a British lawyer giving a shoutout:

Brad Smith laments the absence of a well functioning secondary market for patents — and patent lawyers who love their patents

Not so long ago Microsoft brought extortion to China (starting with a producing giant, Foxconn [1, 2]), calling it “licensing” to deceive regulators. This is crime disguised as “honouring the [patent] law.”

There will soon be a panel event involving a prominent opponent of software patent, Judge Posner. To quote this introduction: “A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.”

This panel does not look like it’s completely rigged, unlike the ridiculous "roundtable" (where all sides of the table held the same position/premise). █

Summary: A look at the strategy of prominent GNU/Linux backers (plus the EFF) and criticism for the shortcomings

Oscure blogger Dietrich Schmitz, who is only starting to learn what Linux advocacy is, realises that patents are a major issue for Linux and GNU. Red Hat et al. recently filed a complaint over it and Pamela Jones has some coverage of this. She writes:

Joe Mullin at ars technica has the welcome news that the FTC is thinking about using subpoena powers to investigate patent trolls, such as Intellectual Venture. He mentions that Google, Red Hat, Blackberry and Earthlink just sent some comments [PDF] to the FTC and the Department of Justice asking for an investigation into what they politely call patent assertion entities, or PAEs. So have the Computer and Communications Industry Association [Comments, PDF] and the National Restaurant Association [Comments, PDF] also asked for such scrutiny.

But the most important part of the Google et al. request, to me, hasn’t yet been highlighted in the media reports I’ve seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.

That is something I’ve wondered about for a while — why didn’t regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare — meaning the defendant’s business is at stake, but the outsourcing company’s business isn’t, and the troll has nothing to lose, because it has no business.

Daniel Nazer, writing about “patents for open innovation” (he is a Staff Attorney on the Electronic Frontier Foundation’s intellectual property team, focusing on patent reform) adds his support to Google, which in turn does not go far enough. To quote a new article:

Finally, Google has some other suggestions for improving patent quality. It thinks that prior art needs to be more easily searchable, which it thinks could make things easier for examiners and reduce the number of invalid patent claims from being issued. It also recommends better standardization of terminology, which it thinks will both make it easier to search for prior art and help reduce the amount of litigation by clarifying an invention’s scope. But while it stopped short of supporting the EFF’s position that software patents ought to include working code, it thinks it’s worth discussing a requirement to include pseudo-code, although it warns that the idea could be unwieldy without a standardized format.

Last month, Google made a pledge to refrain from suing developers, distributors, and users of open source software that infringe on its software patents unless it’s attacked first, decrying the roughly $25 billion that patent trolls are gleaning annually with software patent litigation. It’s clear that the Patent and Trademark Office really does want to be seen as a promoter of innovation — now that the deadline has passed for public comment submission, we’ll have to see which, if any, of the many suggestions it will implement.

Google should work to abolish software patents, not large trolls. We said this years ago. What Google is doing about patents could be vastly improved. We said the same about Red Hat, many times in fact. They all do what’s right for their shareholders, but not for society; they don’t deem it their responsibility.

Over the years I have urged Google (also via E-mail to its manager) to start fighting against software patents rather than reform them. Posts on the subject include the following dozen:

• Larry Page Should Start by Abolishing Software Patents
• Tell Google Not to Buy Software Patents
• Why We Need to Pressure Google Into Putting an End to Software Patents
• Dear Google: Please Abolish Software Patents, Don’t ‘Donate’ Patent ‘Protection’
• Wakeup Call to Google, Regarding Software Patents
• Despite Google’s Validation of Patents, the Fight Against Software Patents Carries On
• Google is Looking to Join the Patents Cartel to Defend Android
• Google Patents, Attacks on Android, and Calls for Apple and Microsoft Boycotts
• Google’s IBM Patents Feast: Good or Bad?
• Android/Google Under Patent Attacks, Calls for Other Companies to Stop the Patent Litigation Frenzy
• Google Embraces USPTO and Patent Litigation Rather Than Fight the Broken System

Gérald Sédrati-Dinet, the leading opponent of the Unitary Patent (threat of software patents in Europe), said this morning: “I’m very critical with EFF strategy wrt #swpats [software patents]: they should require their abolition, not bad half-solutions” [anything but abolition].

He is right. The EFF — like Google — has been pursuing the wrong solutions. We gave some examples and constructive criticism of their approach.

Never count on corporations to fix broken law for public interests. Remember CISPA? The law that has just been passed to allow the government to easily acquire private citizens’ data? Well, guess which side Google was on… █

Summary: Many agree that the USPTO fails to promote innovation in the United States, changes are expected to come

The United States has got a system which brings rise to patent trolls by the nature of patents it breeds and legal process which harbors these. Here is a new rant about this system:

We have an incentive system at work in the apps ecosystem. Angry Birds has been downloaded one billion times, Temple Run more than 150 million. Other developers see the potential for great financial reward with their work, which encourages further development, risk taking and invention. This benefits not only developers but also smartphone owners and our economy.

Ideally our patent system would be humming alongside this app freight train, rewarding original and unique ideas, conferring exclusivity on the truly novel. Unfortunately, it has been doing the opposite in many cases, creating undue burdens on this vibrant sector due to a few bad actors. Developers have grown fearful of receiving letters from patent trolls seeking nominal license fees for seemingly unrelated patents, written long ago in many cases.

Our system facilitates, even encourages, the two business models of patent trolls. Some trolls seek overly broad patents and pursue large tech companies for hefty paydays. Other trolls seek similarly weak patents, but choose thousands of small tech companies as their quarry, seeking seemingly small “license” payments. With both types the initial math is simple: convince the target company that fighting in court is hundreds of times more expensive than merely licensing the dubious patent, even if you win.

Here is the EFF’s latest rant about patent trolls and software patents:

Beloved podcasts like the Adam Carolla Show and HowStuffWorks are under attack. They and other podcasts are getting sued for, well, podcasting. And they’re not the only victims—developers are being targeted for building mobile apps, and offices around the nation are being attacked for using ordinary networked scanners. These creators are only a few of the thousands of victims of one of the biggest threats to innovation: patent trolls.

Patent trolls are entities that don’t create products themselves, but instead buy patents and make money from lawsuits. Trolls often make broad claims of infringement based on patents of questionable validity, and most defendants choose to settle because of the outrageous nature of patent litigation. It is risky and expensive—and trolls offer settlement amounts that, although incredibly burdensome, are cheaper than a lawsuit, which can often cost well into the millions of dollars.

More recently the EFF talked about the SHIELD Act, which we wrote about before. It’s one of those suggestions that just don’t go far enough. There is a lot of pseudo-opposition to software patents out there. IBM lobbies for yet more software patenting while OIN, which it helped create, continues its latest PR offensive that helps not the removal of software patents but their perpetuation. “Patent Progress”, another attempt to address the patent issue (with Julie Samuels playing a role), is actually addressing software patents quality rather than existence. Gérald Sédrati-Dinet said, “a good question to Julie Samuels would have been “do you support abolition of #swpats ?” Don’t ya think?” There are other groups that do not go far enough in their campaigning, e.g. Peer 2 Patent, the Patent Busting project of the EFF, Red Hat’s advocacy by people like Tiller.

A lot of government propaganda is based on the fallacy that patents mean innovation, but the reality is that patents can actually reduce and slow down innovation. Here is an observation about China’s changing attitude towards patents:

Techdirt has been writing for a while about China’s policy of providing incentives to file patents — regardless of whether those patents have any worth. That’s led to a naïve celebration of the large numbers now being granted, as if more patents corresponded to more innovation.

Until now, this problem of junk patents has been confined to China, and the companies that operate there. But last year China went even further with its subsidy system, offering to pay the fees for filing overseas, presumably to encourage Chinese companies to build up patent portfolios in foreign markets that can be used for defensive or even offensive purposes. We’re now beginning to see the effects of this further distortion to the patent system, as Australian businesses struggle with the flood of new patents there.

Well, in the US there is this new push for reduction of patent-trolling, but there is nothing about software patents just yet (except lip service).

But in an interview with CNET, one of the bill’s co-sponsors says that this time the political winds are more likely to favor passage.

With this bill in Congress, we are gradually finding out which corporations strongly oppose software patents and which one secretly promote software patents (a controversial view to hold, with immediate PR penalties). IBM, unlike Google, supports software patents and worries more about patent trolls. Google says that the US patent system ‘over-rewards’ ideas while taxing the ‘hard part’ of innovation, so the companies to support in this whole debate ought to include Google now. Google recently opposed software patents as a concept. It is important not to get distracted by 'soft' reformers or lawyers. █