11.08.10

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Novell Continues to Exploit Broken USPTO and Collect Even More Software Patents

Posted in America, Patents at 10:21 am by Dr. Roy Schestowitz

Troll picks cows

Summary: Novell is still playing along with the ‘Dark Side’ of the software patents debate, taking advantage of a system which seems broken beyond repair

Novell is not shy to admit that it likes software patents and it takes some pride in them too. “Inventive people who write more software patents per capita than anywhere else” is how Novell’s CTO described the company’s staff just under a year ago and before he quit.

People can be easily confused by Novell’s membership in the OIN, which does not make Novell an opposer of software patents. But then again, Novell is a predominantly proprietary software company with interest in blocking rivals in some areas of its operation. Novell is also indirectly sponsoring the BSA, which lobbies in favour of software patents.

Over the years we have given many examples of Novell applying for and receiving new software patents. A few days ago another one was announced as coming from Provo. Here is the summary:

Adaptive method and system for encoding digital images for the internet, patent No. 7,826,616, invented by Kasman Ellis Thomas, of Wilton, Conn., assigned to Novell Inc. of Provo.

The USPTO is suppressing rather than fostering innovation and those who support its continued existence possibly pursue the wrong path/s. Over at O’Reilly Radar (whose editors sometimes promote or defend software patents, notably Andy Oram), there is now an announcement about a patent database which would only make the USPTO stronger, not weaker. “U.S. Patent data that once carried a high access fee is now available for free online,” says the summary. From the post: “Just one year ago, I posted a piece on O’Reilly Radar about an unlikely group working happily together to vastly increase the amount of U.S. Patent information available at no charge on the Internet. I’ve done no heavy lifting whatsoever on this project, so it has been a pleasure to watch the U.S. Patent Office, the White House, and Jon Orwant at Google plow through this rather daunting task.

“What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance.”“The system is now in full production including all the current feeds that were previously only available for big bucks by subscription. Also available for the first time is the Patent Application Information Retrieval (PAIR) data, which is the full “wrapper” for a patent application. PAIR data was only available previously on a rate-limited query-only service.”

How about just showing that the USPTO is doing the wrong type of thing? What is done here is similar to what Peer-to-Patent has been doing, namely complementing the functionality of the USPTO. This would achieve not so much in terms of progress. What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance. We wrote about it several times last week and NPR writes about it too at the moment (notice: NPR has also been promoting patents of companies like Monsanto after Bill Gates, a Monsanto shareholder and major promoter, had paid a lot of money to NPR and received self-praising pieces in return).

Dana Blankenhorn joins this debate of patents on the living as he complains about patents in medicine and names this new patent from Zynx Health. From the press release:

Zynx Health, the market leader in providing evidence-based and experience-based clinical decision support solutions, today announced that the United States Patent and Trademark Office has issued United States Patent 7,822,626 covering their “extensive suite of tools that facilitate and enhance the capability within a healthcare institution to establish and maintain an evidence-based best practice approach to providing patient care.”

Well, here is a new example of a press release boasting a software patent which does not paint itself as “saving lives” or whatever (for PR purposes). The title says: “Guidance Software Secures Search Patent from U.S. Patent and Trademark Office” (USPTO).

“What’s actually making a real difference at the moment is federal intervention regarding patents on genetics for instance.”
      –Slashdot
Writing on behalf of swpat.org, Ciaran tells Slashdot that things are getting worse at the USPTO and it makes the front page with a very misleading headline. The descriptive summary says: “Anyone who feels that patent quality is just far too high nowadays will be glad to hear that the USPTO has decided to ditch four of their seven tests for obviousness. Whereas the 2007 guidelines said that an idea is considered obvious if it consisted of ‘[predictable] variations [...] based on design incentives or other market forces’ or if there was ‘Use of a known technique [prior art] to improve similar devices (methods, or products) in the same way’, the new guidelines do away with those tests. The classic ‘teaching-suggestion-motivation’ test is still there, with two others. For software developers, silly patents are not the main problem, but they certainly aggravate the matter. As described in one patent lawyer’s summary, this change will ‘give applicants greater opportunities to obtain allowance of claims.’”

TechDirt has also just published this criticism of Judge Rader, to whom the problem with the USPTO is not one to be taken too seriously. TechDirt wrote a good and very lengthy post to explain why Rader is wrong:

Law professor Doug Lichtman’s latest “IP Colloquium” podcast is an interview with Judge Randall Rader, who’s the chief Judge of CAFC, the appeals court that handles most patent cases. Rader is known for being outspoken and opinionated (but also very, very smart), so it’s always fascinating to hear what he has to say. The first part of the interview is interesting from a purely procedural standpoint, as Rader goes through the process by which the CAFC makes decisions, including the fact that nearly every case is decided almost immediately after the oral hearings. It sounds like they almost never feel the need to sleep on a decision. However, the latter part of the interview is where things get really interesting. While Lichtman and I tend to disagree over copyright issues, we find a lot more common ground on patent issues, with Lichtman pointing out the harm that patents often seem to do to innovation, as well as questioning why independent invention isn’t a sign of obviousness.

[...]

Rader does admit that there are cases where companies feel compelled to pay up because the cost of “licensing” is more than the cost of fighting the battle in court. He actually calls it “a form of systematic blackmail” — and he says he’s trying, in his role, to decrease the cost of patent litigation. He suggests a plan to limit discovery for this purpose, which he admits would require a big change in policy (and one that I have trouble believing would actually get anywhere). But that only discusses one small part of the problem, and does not cover many, many, many innovation-hindering situations, especially in cases where there’s independent invention or patent thickets. Lichtman pushes back again, even pointing to situations like Intellectual Ventures showing up at your door with tons of patents.

Rader’s response is really bothersome and ignores the reality. He first brushes it off, by calling it “arguing by anecdote,” but this is a very real situation that happens all the time.

The USPTO is still protected by people who benefit from its existence. These people are rarely — if ever — those who invent new products. Some of them are not even scientists as their background is in law. It is time to take power back from the USPTO, which originally was a well-intended institution providing an incentive for publication (and thus dissemination) of applicable ideas.

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A Single Comment

  1. Patrick said,

    November 8, 2010 at 2:49 pm

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    Regarding the criticism of Judge Rader’s comments, his use of the phrase “systematic blackmail” is far more biting than the way I would describe it, but not far from the mark. Because patent licensing ultimately relies on litigation as a default negotiation tool (used both offensively and defensively), even a simple inquiry about licensing a specific patent carries with it the risk of a certain, minimum cost to both parties (i.e. lawyers).

    The result of this is an arbitrary “floor” on the cost of a patent license, which, for some, may be perceived as far exceeding the value of the technology conveyed in the license. Thus, $80,000 is an economically reasonable price to pay for javascript rollover menus, but primarily because of the cost of negotiating the license, not the value added by the functionality. http://gametimeip.wordpress.com/2010/11/08/the-80000-reasonable-website-modification/

    Thenagain, if Judge Rader intends to fix the problem simply by lowering the cost of litigation, I think he has his work cut out for him.

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