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01.17.15

Strategy of Litigation With Patents Has Collapsed Since SCOTUS Ruling in Alice v. CLS Bank

Posted in Patents at 4:42 pm by Dr. Roy Schestowitz

“It is difficult to get a man to understand something when his salary depends upon his not understanding it.” ~Upton Sinclair

Two monkeys

Summary: The latest figures from Lex Machina show a massive decrease (-18%) in patent litigation last month; lawyers look for ways to spin the data in their favour

Patent lawyers with their monkey business can lie all they want, but the matter of fact is — and the numbers speak for themselves — patent lawyers would be better off rewriting their resume/curriculum vitae (not the history of software patents and of Alice v. CLS Bank) and seek another type of job. The parasites are on their way out and their business is decreasing, making this space more crowded and more competitive. It will be getting hard to get away with a patent on [action] “over the Internet” or [action] “using a computer” because guidelines are being revised and junior patent examiners will grow into them, applying a stricter test of validity before endorsing something; a lot of applications will be thrown in the bin very quickly. The same goes for judges, who will phase in a better set of standards, potentially scaring everyone who wields patents in the courtroom (and can therefore have them altogether invalidated).

“It will be getting hard to get away with a patent on [action] “over the Internet” or [action] “using a computer” because guidelines are being revised and junior patent examiners will grow into them, applying a stricter test of validity before endorsing something; a lot of applications will be thrown in the bin very quickly.”Lex Machina was mentioned here years ago and Lex Machina continues to do a good job tracking patent litigation from a sceptical eye. The latest Lex Machina report says that “2014 has ended, though perhaps not yet for many court clerks who will continue entering paperwork from their backlog for another week or so, if history is a guide. These numbers are therefore preliminary and can be expected to rise slightly as the backlog is processed.

“441 new patent cases were filed in December, rising 32% from November 2014’s total of 335. These filings brought the total for 2014 to 5,010 new cases, an 18% decrease from the 6,083 new cases filed in 2013.”

In other words, placing some emphasis on the latter figure, for the second month in a row (if not for longer than this), post-Alice v. CLS Bank we see a very statistically-significant decrease in patent litigation. Steph from IP Troll Tracker said that even the pro-patents folks, “Dennis Crouch over at Patently-O and I AM reported the same thing, citing Lex’s numbers because why not? A 40% reduction in patent filings sounds all nice-like.”

Steph adds: “As I pointed out on Twitter, it’s not so much the number of suits that’s problematic, it’s who sues who and what it costs to defend. If there were only three patent troll lawsuits in a single year, but those lawsuits shut down three companies, if those three lawsuits cost hundreds of people their jobs because company owners were forced to deflect funds to lawyers (the only true winners in any litigation), would we be better or worse off?”

Well, all in all, given the size of the sample set (hundreds), it is safe to assert that the decrease is real. One could argue about the exact number and the way litigation is counted, but the statistically-significant figures are enough to support the conclusion and they apply the same definition to 2013 and 2014 litigations. The figures were assembled by a group that is academic (subjected to scrutiny from peers), not a bunch of software patents boosters or opponents. They profit from good research, not from selling an agenda of themselves (or a client).

Matt Levy, a lawyer who likes to focus on patent trolls, decided to spin it the other way, trying to (mis)use the aforementioned study not to compare year-to-year trends (as should be done), but month-to-month over consecutive months that are inherently different (December has holidays). He said: “According to Lex Machina’s data, there were 441 patent litigation filings in December 2014. The previous month, there were 335. That’s an increase of 32%!”

Complete misinterpretation of what was shown. That’s like comparing the sales of Christmas trees in November to the sales of Christmas trees in December. But nice try, Mr. Levy. █

Patent Lawyers Can’t Help Rewriting Alice v. CLS Bank History

Posted in Deception, Patents at 4:12 pm by Dr. Roy Schestowitz

Patent lawyers now behave like lobbyists of the tobacco giants who fought science

No smoking

Summary: The league of patent lawyers — people who profit at the expense of software producers — keeps brainwashing the public about the patentability of software (both the rationale and the potential)

The fight against software patents has been a success in recent years, especially last year. Weeks ago we published a long article bemoaning the propaganda from patent lawyers and their sites, including so-called ‘news’ sites (teaching them a biased, echo chamber-like reality with ‘tricks’ for fooling the patent system). These people wish to tell software companies and programmers something like “thank you for smoking” with a slant; “thank you for hiring us to bamboozle the system into granting another software patent” would be their motto.

“Patent lawyers already lost the battle when it comes to rationalising software patents (even software professionals hate patents), so now they resort to a strategy which portrays software patents as easy to obtain, easy to win legal battles with, and hence worth obtaining.”It may come to some as surprising that many patent lawyers actually follow Techrights and some appreciate it for the unique angle. Some really hate it and leave abusive comments with the word “poo-poo” in them (these comments come from patent firms).

Today we wish to highlight this report about Alice v. CLS Bank being used in an attempt to kill a software patent. As Law 360 put it, “Cloud-storage company Box Inc. urged a California federal judge on Wednesday to rule that certain claims of several Open Text SA collaboration software patents that Box allegedly infringed are invalid under the U.S. Supreme Court’s Alice ruling because they simply computerize an abstract concept.”

Another law-oriented site wrote a pro-software patents analysis. They seem to be missing a lot of the recent cases where software patents were successfully thwarted using Alice v. CLS Bank. Well, the lawyers’ Web sites select only/mostly cases where software patents remain standing. To quote National Law Review : “In another hopeful sign that “the exception won’t swallow the rule”, the Central District of California has refused to apply Alice to invalidate a software patent – U.S. Patent No. 8,393,969 – for player tracking in a gaming establishment. In this case, Ameranth_ Inc. v. Genesis Gaming Solutions_ Inc, case number 8:11-cv-00189, the defendants filed a motion for Summary Judgment of Patent Invalidity of the ’969 Patent. Defendants asked the Court to rule that the asserted claims of the ’969 Patent fail 35 U.S.C.§ 101 because they are directed to the abstract idea of a customer loyalty program directed to poker players, without adding significantly more to that abstract idea.”

The bias (by selection) can be seen not just in pro-patents news sites but also the patent ‘industry’. Some new examples all come from the pro-software patents crowd, i.e. patent lawyers. Consider [1, 2, 3, 4, 5, 6, 7].

We have said it before and it is worth repeating. Do not be misled by the pro-software patents propaganda that floods the press these days. They are squirming to turn back time and return to their oasis of easy patent application and litigation using mere abstract ideas (like some action “on a computer” or “over the Internet”). They are losing the battle because practicing entities have gotten fed up and they are now vocal about it (examples from today).

Proponents of software patents are not software professionals. In fact almost always, perhaps more than 90% of the time, this perverted view is promoted by patent lawyers, not by scientists. So it’s a war between makers and the parasites, to generalise just a little. Patent lawyers already lost the battle when it comes to rationalising software patents (even software professionals hate patents), so now they resort to a strategy which portrays software patents as easy to obtain, easy to win legal battles with, and hence worth obtaining. The very opposite is true, as we shall show in the next post about patents and their decreased potential. █

Myths and Hype About Patents

Posted in IBM, Patents at 3:42 pm by Dr. Roy Schestowitz

Patent hoarders crowned as champions of innovation

Florence

Summary: Distortion of history and fabricated reports about patents in the corporate media leave many people confused and ultimately unable to make rational judgment

PATENT news may not have been the top news as of late. There weren’t many articles about the subject. Instead it was Oracle's copyright case escalated closer to the SCOTUS that made the news and dominated this theme of news. Oracle’s attack on Android depends on it and Android is now the world’s dominant operating system, so it’s a big deal. The subject was very recently covered here, so we won’t elaborate on it; instead we’ll point out one of the earliest reports about it. The news is pretty much everywhere, not only in the West’s Establishment media but also in the East.

“Those who claim that an innovation was made possible because of patents usually rewrite history (revisionism) about cases where there was innovation despite patents.”In addition to the above there was also some media hype about patent statistics from the USPTO, perhaps the world’s most lenient (as in low standards) patent office. Matt Levy took the opportunity to debunk mythology which favours and glorifies patents, even some of the most famous of them (like sewing machines, cars, and other industrial revolution items). Levy said that “with patent reform again on the horizon, we’ll be seeing a lot of articles like this one (promoted by this blog post). The article in question claims that there was no big patent holdup in the early aviation industry, that it’s all just a myth put forth by the U.S. government. As a consequence, you shouldn’t listen to anyone claiming that there are problems in the U.S. patent system.”

We already tackled this piece of propaganda some weeks ago. Those who claim that an innovation was made possible because of patents usually rewrite history (revisionism) about cases where there was innovation despite patents. That’s true when it comes to sewing machines and means of transportation. There’s a history there that’s full of disputes, retardation of innovation and suppression of small players using patents. Edison, one of the myth makers, is not an innovator but a person who used patents to abuse and exploit — at times bankrupt — real innovators. Big business like Edison’s GE love to pretend that patents exist to serve the small people, providing them protection from large corporations. In reality, the very opposite holds true, almost universally.

Last week IBM made the headlines for being the ‘leading’ big corporation when it comes to amassing patents. IBM has a history of bullying other (smaller) companies using patents, so this is worth paying attention to. There were a lot of articles about it and they hail IBM as some kind of a heroic national enterprise because it is pushing pieces of papers, requesting that the government gives them patent monopolies, including software patents, as usual (the USPTO was headed by a man from IBM until not so long ago and he promoted software patents). Protectionism is not the same as innovation and since more than 9 out of 10 applications to the USPTO now end up enshrined as a patent, the total count of patents means little more than eagerness to do paperwork. When one single company can receive up to 10,000 patents in one single year it says quite a lot about how easy it is to obtain a patent in the United States’ USPTO.

Bloomberg was quick to cover this [1, 2] (Bloomberg and IBM are not far apart) and the seminal report said that “IBM Chief Executive Officer Ginni Rometty is still looking to newer areas like cloud computing and data analytics to reverse falling revenue and a projected decline in annual profit this year, the first drop since 2002. Last year, 40 percent of the company’s patents were issued for work relating to the company’s growth initiatives, IBM said in the statement.”

This simply means that IBM is making fewer products but yielding more paperwork. What an utter waste of workforce. Well, later on it was News Corp. and CBS covering that too [1, 2] (we believe they covered it the earliest, except perhaps Bloomberg) and then came the noise. Microsoft spin came from Microsoft propaganda sites and larer came the Korean angle which favours Samsung.

We should also mention some disgraced reports (like this one from Bloomberg) which say that Samsung wants to get BlackBerry’s patents. These patents have been decoupled from the other parts of the company (thus facilitating purchase like that of Motorola’s mobility business). Not much was achieve except bumping a stock (maybe gaming the market for someone’s quick fortune). We looked at these reports and found that they mostly lacked credibility and merit. Samsung already has wonderful hardware (cutting-edge, best bar none in some areas), a lot of patents, and at least 2 Linux-powered platforms. Samsung also hires FOSS and Linux professional these days, so why would it want anything from BlackBerry? Well, BlackBerry denies the rumour (denial not about the patents but about buying the company as a whole). Samsung also denies it, so we have not really covered it ourselves and we don’t intend to; unsubstantiated rumour is what it looked like and given how quickly it received a lot of coverage (even trending in Twitter at one point) before denials it seems possible that someone in Wall Street pulled a profitable stunt at the expense of many other people. Opportunists exist not only where patents grow. █

Large Corporations, Including Microsoft Allies, Call for Abolition of Software Patents

Posted in Patents at 2:56 pm by Dr. Roy Schestowitz

Physical patents are being depreciated

Toyota

Summary: The calls for ending all patents on software are getting louder and patents as a whole are de-emphasised as a business strategy

TECHRIGHTS has fought against software patents for over 8 years. Major progress has been made since we started doing this and thousands of articles published about it here alone. We depended on various voices and other (external) articles, but not always were these prominent. Things have changed. As we are going to show today (a series of 4 posts), the push against patents on software and sometimes patents as a whole is measurably effective.

“They are not Free software enthusiasts or some obscure startups or even opinionated anarchists; these are businesspeople.”An article published this week by Hannah Breeze in the British branch of ChannelWeb says that “Pure Storage’s mission to reform the US patent system has gathered speed today as fellow storage firm Avere Systems calls for software patents to be scrapped altogether.”

“Last week, flash newcomer Pure Storage called on the US government to make sweeping changes to the system of granting patents in the US, claiming the 20-year term stifled innovation among startups.

“Pure called on the government to cut the patent term to just five years and to introduce a “use it or lose it” clause to target so-called patent trolls which buy up patents purely to profit from them through legal challenges.

“Today, Avere Systems’ co-founder and chief technology officer Mike Kazar ramped up the pressure and said software patents in general should be axed.”

This good article contains many direct quotes of the top people. They want software patents dead. They are not Free software enthusiasts or some obscure startups or even opinionated anarchists; these are businesspeople.

Over in India, where software patents are still a hot topic. Infosys Chief Vishal Sikka speaks out unequivocally against all software patents (not a ‘soft’ criticism). This is all over the news in India (leading newspapers too) as a top manager, a CEO of a Microsoft partner (one of the biggest partners if not the biggest), says so. Here is some coverage that we found about it:

This was also mentioned less directly in the following articles about a similar event:

There are other large companies that disown patents as a whole. Tesla neutralised a lot of patents recently and as noted last week, Toyota was following a similar route by releasing 5,680 co-called “Fuel Cell Patents” for inspiration and use without fear of litigation (nothing to do with “open source” as a lot of publications put it). Here is some coverage from the news [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. Given the parallels between Toyota and Microsoft, in addition to Infosys slamming software patents, one might wonder where the anti-FOSS camp is heading. Microsoft’s anti-FOSS strategy that relied on patents largely failed. See where Novell and SUSE are today. █

Links 17/1/2015: Lennart Poettering in Headlines, Mageia 5 Beta 2

Posted in News Roundup at 12:15 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

Leftovers

  • ‘IN DOG WE TRUST,’ Says New Sheriff’s Rugs

    The Pinellas County Sheriff’s Office in Florida has gone to the dogs. Well, at least its rugs have.

    Department spokeswoman Cecilia Barreda said Wednesday that a new, $500 rug at the sheriff’s administration building said “In Dog We Trust” instead of “In God We Trust.”

  • Science

  • Security

    • Friday’s security updates
    • OpenSSL: trust and purpose

      Those following me on various Intarweb Media may have noticed I’ve spent half the week staring at openssl source code and weeping. Here’s one of the results of that.

      OpenSSL has two somewhat different mechanisms for deciding what uses a certificate is good for: trust and purpose. This is quite subtle and not terribly well documented, so I thought I’d write it up here.

  • Defence/Police/Secrecy/Aggression

    • Worried about Russia? Lithuania says ‘Keep calm and read the war manual’

      Lithuania is publishing a manual to advise its citizens on how to survive a war on its soil as concerns grow that Russia’s intervention in Ukraine heralds increased assertiveness in its tiny Baltic neighbors.

      “Keep a sound mind, don’t panic and don’t lose clear thinking,” the manual explains. “Gunshots just outside your window are not the end of the world.”

      The manual, which the Defence Ministry will send to libraries next week and also distribute at army events, says Lithuanians should resist foreign occupation with demonstrations and strikes, “or at least doing your job worse than usual”.

    • Satellite Images Show Ruin Left by Boko Haram, Groups Say

      Thousands of buildings were burned, damaged or destroyed in northern Nigerian towns in recent days when Boko Haram militants stormed through, using scorched-earth tactics against civilians, according to a new analysis of satellite images by human rights groups.

      In a succession of attacks, fighters from Boko Haram, an Islamist insurgent group that has gripped northern Nigeria and battled the government for years, have swept through a cluster of villages along the shores of Lake Chad in a “systematic campaign of arson directed against the civilian population in the area,” according to Human Rights Watch.

    • Musharraf Indicted Over Bugti Murder

      An anti-terror court on Wednesday indicted Pervez Musharraf over the 2006 killing of a separatist leader, the latest legal hurdle facing the former military ruler since his return from self-imposed exile two years ago.

      The charges by the court in Quetta are unlikely to cause any immediate problems for the 71-year-old, who has not attended a single hearing in the case since it began in 2013. He was previously indicted for treason in March last year over his imposition of emergency rule in 2007, but proceedings have stalled since then as the country’s civil authorities and judiciary appear to lack the will to take on the military.

      “The anti-terrorist court has indicted Musharraf along with former interior minister Aftab Ahmad Khan Sherpao and former home minister [of] Balochistan province Shoaib Nosherwani in Nawab Akbar Bugti’s murder case,” said public prosecutor Taimur Shah. He added the court would resume hearings in the case on Feb. 4.

      Baloch nationalist leader Nawab Akbar Bugti was killed in a military operation in 2006, sparking deadly nationwide protests and inflaming a separatist insurgency in resource-rich but impoverished Balochistan.

    • Saudi Arabia Publicly Beheads Burmese Woman by Sword; Woman Shouts ‘I Did Not Kill, I Did Not Kill’

      Reports that emerged on Thursday evening that a Burmese woman was publicly beheaded in Mecca by Saudi authorities for allegedly killing her step-daughter has outraged social media users.

  • Environment/Energy/Wildlife

    • And Now, a Word From Our Climate Denier…

      Is this the right way or the wrong way to cover the news of the record heat? That depends. Is the purpose of an article like this to convey how open-minded the New York Times is? If so, then the piece is a success, managing to give one-third of its quotes to a proponent of a fringe theory without giving any indication that his eccentric views are virtually absent from peer-reviewed science.

    • There is less than a 1-in-27 million chance that Earth’s record hot streak is natural

      Although it may not have been warm where you live, scientists announced Friday that 2014 was the Earth’s hottest year since record-keeping began in 1880. The climate milestone was made possible in large part by exceptionally mild ocean temperatures and above-average temperatures on most continents.

      Remarkably, the warmth came without the assistance of an El Niño event in the tropical Pacific Ocean. These events are naturally occurring ocean and atmospheric cycles that tend to boost global temperatures. Previous El Niños have been responsible in part for the prior warmest years, such as 1998 and 2005, according to data from the National Oceanic and Atmospheric Administration (NOAA).

    • Record! 2014 was Earth’s warmest year

      The planet’s warmest year on record was 2014, federal scientists announced Friday.

      “Humans are literally cooking their planet,” said Jonathan Overpeck, an atmospheric scientist from the University of Arizona.

      The global temperature from 2014 broke the previous record warmest years of 2005 and 2010 since record-keeping began in 1880.

      Two separate data sets of global temperature — from NASA and the National Oceanic and Atmospheric Administration — confirmed the record. Another data set released last week by the Japan Meteorological Agency also found 2014 was the planet’s warmest.

  • Finance

    • Apple, Google give high tech workers an extra $90 million in “no-poach” suit

      On Thursday afternoon Apple, Google, Adobe, and Intel filed a settlement in a class-action lawsuit [PDF] involving former employees of the companies, agreeing to pay them $415 million. The 64,000 employees and former employees who made up the class alleged that their employers had agreed not to cold call or poach each others’ employees, creating artificially low wages for the employees for years.

    • Richard Wolff on the Greek Crisis, Austerity and a Post-Capitalist Future

      In the following interview, New School professor and economist Richard Wolff provides his analysis of the causes of the economic crisis in Greece and in the eurozone, debunks claims that the Greek economy is recovering and offers his proposal for what a post-capitalist future could look like for Greece and the world.

  • PR/AstroTurf/Lobbying

  • Censorship

    • Turkey Tells Twitter To Block Turkish Newspaper’s Feed; Twitter Plans To Push Back

      The Turkish government has been battling with Twitter for quite some time. It’s gone after citizens for comments on Twitter, blamed Twitter for social unrest and even tried (temporarily) banning Twitter entirely in the country. There was even a lawsuit by the Prime Minister, Recep Tayyip Erdogan, filed with the Constitutional Court, over his own government’s “failure” to implement rules for removing content on Twitter.

    • Alabama Legislators Say You Must Be A Salaried Employee Of Old School Media To Get Approved For Press Credentials

      The only people who still feel they can clearly define who is and isn’t a journalist are legislators. They’re almost always wrong. Journalism isn’t a career. It’s an activity. Anyone can do it and, thanks to the internet, anyone can find a publishing platform and readers. But, according to many politicians, it ain’t the press unless it involves one.

    • Wrong Responses to Charlie Hebdo

      Leaders in Europe are justifiably trying to figure out what they should be doing to prevent terrorist attacks like the recent massacre at the satirical French newspaper Charlie Hebdo. Regrettably, some politicians are proposing the kind of Internet censorship and surveillance that would do little to protect their citizens but do a lot to infringe on civil liberties.

      In Paris, a dozen interior ministers from European Union countries including France, Britain and Germany issued a statement earlier this week calling on Internet service providers to identify and take down online content “that aims to incite hatred and terror.” The ministers also want the European Union to start monitoring and storing information about the itineraries of air travelers. And in Britain, Prime Minister David Cameron suggested the country should ban Internet services that did not give the government the ability to monitor all encrypted chats and calls.

    • French Rein In Speech Backing Acts of Terror

      The French authorities are moving aggressively to rein in speech supporting terrorism, employing a new law to mete out tough prison sentences in a crackdown that is stoking a free-speech debate after last week’s attacks in Paris.

    • Why porn is exploding in the Middle East

      More recently, the Saudi Arabian government announced that it had hacked and disabled about 9,000 Twitter accounts associated with the publication of pornography and arrested many of the handles’ owners. The move was organized by the Commission for the Promotion and Prevention of Vice, also known as Haia, the Saudi religious police.

    • Saudi Arabia, Free Raif Badawi

      Raif Badawi was flogged in public 50 times last week. He has 950 lashes and nearly a decade in prison left to serve – simply for blogging about free speech.

    • Governments Around the World are Cracking Down on the Latest Charlie Hebdo Cover

      The latest issue of French satirical magazine Charlie Hebdo has ignited controversy in the Middle East and elsewhere due to a caricature of the prophet Muhammad depicted on its cover.

      Brothers Said and Cherif Kouachi stormed the journal’s central Paris headquarters last week and murdered 12 people, they said to avenge the publication’s regular lampooning of Muhammad. Many Muslims regard depictions of the Prophet as blasphemous and the decision to again publish a cartoon of Muhammed has caused widespread debate.

      The cartoon itself depicts the Prophet shedding a tear while holding a sign that says “Je suis Charlie” — the slogan which has become popular around the world as a declaration of solidarity with the victims of the attack — under a headline that reads “All is forgiven.” It was drawn by the weekly’s cartoonist Luz, who escaped the massacre because he was late arriving for work.

  • Privacy

  • Civil Rights

  • Internet/Net Neutrality

    • Republican net neutrality bill allows ‘reasonable’ network management

      Draft net neutrality legislation released Friday by Republican leaders in the U.S. Congress would prohibit broadband providers from blocking or selectively slowing legal Web content, but it would allow them to engage in “reasonable” network management.

      The proposal would give broadband providers wide latitude to engage in network management, with a management practice deemed reasonable “if it is appropriate and tailored to achieving a legitimate network management purpose.”

      The draft legislation would also prohibit the U.S. Federal Communications Commission from reclassifying broadband as a regulated public utility, and it would stop the agency from creating any new net neutrality rules.

    • Republican net neutrality bill would gut FCC’s authority over broadband

      Net neutrality legislation unveiled by Republicans today would gut the ability of the Federal Communications Commission to regulate the broadband industry.

      As expected, the bill forbids the FCC from reclassifying broadband as a common carrier service, preventing the commission from using authority it has under Title II of the Communications Act of 1934. This is the statute the FCC uses to regulate landline telephone providers.

    • Netflix “refused” to answer encryption allegation, FCC commissioner says

      Ajit Pai, part of the commission’s Republican minority, has clashed with Netflix over its use of technology that is not compatible with “open caching software” used by Internet service providers. Netflix says that it “obscured certain URL structures to protect our members from deep packet inspection tools deployed to gather data about what they watch online,” which apparently had the side effect of forcing ISPs to use different caching systems. Netflix does offer caching appliances to Internet service providers, but the bigger carriers have refused, demanding payment for connections to their networks.

    • Tucows Hopes To Kickstart U.S. Broadband Competition One Town At A Time

      Last month I noted how longtime domain registrar Tucows had decided to try and kick-start stagnant broadband competition by buying a small Virginia ISP by the name of Blue Ridge InternetWorks (BRI). Operating under the Ting brand name, the company said the goal was to bring a “shockingly human experience and fair, honest pricing” to a fixed-line residential broadband market all-too-often dominated by just one or two giant, apathetic players. Ting promised to offer 1 Gbps speeds at a sub-$100 price point, while at the same time promising to respect net neutrality.

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