12.05.15
How Patent Lawyers Cover Alice v. CLS Bank (Alice Case/§101)
The Christopher Moncktons of the (patent) world…
Summary: Introducing the notion of Alice denialists in relation to many patent lawyers, who (at risk of over-generalising) make money from patenting software and conveniently deny the consequence of Alice v. CLS Bank, even in the face of strong evidence
IT IS impossible to deny that SCOTUS has had major impact after Alice, more so than after Bilski. Only a chronic denier would say that SCOTUS did not change anything, with factual evidence of even pro-software patents courts like CAFC (where software patents got started) having to invalidate software patents and the USPTO altering guidelines for patent examiners accordingly.
“The denialists profess, as they have for about a year and a half, that nothing has changed and they bamboozle their clients accordingly, in order to protect the flow of money.”Allegedly invoking the Holocaust to strongly denounce people who belittle or deny human impact on the weather, despite strong scientific evidence and often because of a massive PR campaign (like the EPO’s €880,000 reputation laundering campaign) from fossil fuel/coal industry moguls/magnates like the Kochs, some of those who deny the undeniable are now called global warming denialists. Likewise, in the patent lawyers’ circles, we now have Alice denial. The denialists profess, as they have for about a year and a half, that nothing has changed and they bamboozle their clients accordingly, in order to protect the flow of money.
Along the lines of global warming denial, this is a new form of Alice denial (denying the impact on software patents), as just published in IAM.
“They think of what’s more profitable for them (i.e. expensive for the client), not what’s most economic and sensible for the client.”It’s not an isolated example. In another lawyers’ site, the Microsoft-connected patent aggressor Finjan is mentioned by Orrick, Herrington & Sutcliffe LLP. These US-based patent lawyers only ever speak out about Alice when they can defend software patents. It’s cherry-picking of data or selective coverage, much like the data which global warming denialists prefer to rely on. This new article says that “[t]his goes to show that despite the significant shift that has occurred since the Alice decision, all hope is not lost for plaintiffs asserting patents in the software space.”
Tone of positivity in favour of software patents wouldn’t be helpful to their clients. Then again, that’s how a lot of lawyers operate (especially the ones I’ve had displease working with). They think of what’s more profitable for them (i.e. expensive for the client), not what’s most economic and sensible for the client.
“Maybe it’s time for us not just to coin the term but also use the term Alice denialist, meaning one (usually a patent lawyer) who continues to deny the post-Alice reality, often lobbying to change it while misleading clients in the interim.”Samsung has just been forced to pay obscene amounts of money to a super-wealthy company [1, 2] because of patents. What kind of justice is that?
Maybe it’s time for us not just to coin the term but also use the term Alice denialist, meaning one (usually a patent lawyer) who continues to deny the post-Alice reality, often lobbying to change it while misleading clients in the interim. Alice denialists show a lot of the same characteristics of global warning denialists.
In other noteworthy news, the Wall Street media (Bloomberg) now writes about patent monopoly on ‘green’ energy. Here is how Bloomberg put it:
The U.S. is currently experiencing a boom in clean energy patents, but in interviews with Big Law Business, several experts expressed skepticism that this will lead to an increase in frivolous patent litigation.
On the contrary, they said clean energy patents are unlikely to wind up in the hands of patent trolls, also known by their more technical name, non-practicing entities — essentially, companies that amass patents for the purpose of filing infringement lawsuits.
Several such fake companies, trolls and parasites are backed (for profit) by Bill Gates, who at the same time invests a lot of money in fossil fuel companies which sponsor global warming denial (we covered this many times before). These patent trolls actively discourage the use of ‘green’ or sustainable alternatives to fossil fuel. There are some areas where patents are evidently a threat to the planet, not just to human health.
Patent maximalism can, in the long term, undermine the whole system. Patent maximalism is what happens when patent lawyers — not scientists — steer the system and sacrifice quality. Limiting patent scope to what’s rational based on evidence is a way to protect (through reformation) this system. We object to software patents (abstract), not every kind of patents. █
“Your faith is what you believe, not what you know.”
–Mark Twain
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