Bonum Certa Men Certa

USPTO's Violation of the First Amendment, Competition Laws, and Spirit of Creation

Job cremation

USPTO building



Summary: The USPTO (shown above) comes under more fire as a so-called 'reform' fails to make it harmonious with science, technology, and human rights

THE USPTO IS happily granting software patents/monopolies and processing some patent-pending ones on green energy, demonstrating that it is still dissociated from the betterment of society and instead dedicated to protectionism.



The First Amendment is said to be violated by some particular types of patents, according to TechDirt which argues:

Do Patents On Medical Diagnostics Violate The First Amendment?



We've been following the extremely worrisome Prometheus Laboratories v. Mayo Collaborative Services case for a while now. This is the case in which Prometheus patented some basic medical diagnostics tests, and then sued the Mayo Clinic for daring to do similar diagnostics without paying up. Tragically, CAFC, the court of appeals for the Federal Circuit, has ruled that it's just fine and dandy to patent a diagnostic test. The Supreme Court agreed to hear the appeal on this in the upcoming term, and folks at the Cato Institute have filed a very interesting amicus brief, arguing that such a diagnostic test should not be patentable on two key points. I don't know that it'll convince the court, but they try out the argument that doing so would actually be a First Amendment violation, and even cite the famous Eldred case to make their argument (emphasis mine in the quote here):


As we explained yesterday, antitrust concerns too help shed doubt on the legitimacy of the patent system. Google may have bought some more patents from IBM (mentioned in the context of software patents in [1, 2, 3, 4, 5, 6, 7]), but deterrence does not work when Microsoft uses patent trolls to wage anti-competitive legal wars. This whole systems looks more and more like s sham. Even NPR did a show about it about 3 days ago. To quote a part of it:

BLOCK: What is the broader goal in terms of job creation here?

SYDELL: Well, this is what they say. What they say is if we speed things up and we get that backlog cleared up, then there are all these startups that are just waiting to move to the next phase of financing and get their products to market. And they'll be able to do that and they'll hire people in the process. So that's what they're saying.

BLOCK: And what about those businesses, Laura, or inventors, entrepreneurs - do they think that the law will, in fact, encourage hiring, make them hire more people?

SYDELL: No, I'm not hearing that largely at all. I'm hearing a lot of skepticism about the bill. I think one of the problems that entrepreneurs and startups face is that there are a lot of bad patents that are out there, particularly in the realm of software and business method. And the bill doesn't really do anything to address that.

So one of the problems that you have is you have a lot of these, they call them patent trolls. They're companies that buy up patents, particularly broad patents. They buy them up and they go out and they sue startups and they demand licensing fees. And this has put a lot of startups out of business. And this bill doesn't really do anything to address that problem.

The Patent Office has granted, for example, in 2000, they granted a patent for a method of making toast. Really, seriously.

BLOCK: Laura, what other solutions would there be to this problem of bad patents that you're talking about that wouldn't involve Congress?

SYDELL: The courts could step in. And, in fact, it is the courts who initially pushed to have, for example, software patents and business method patents granted. So they could pull back and there is some evidence they are. But I think it could be a long time before they address it directly. And people are concerned about that.

I think a lot of people wish Congress would revisit this soon. And they're worried that because they just granted and created this new act it'll be a long time before Congress steps in again, which really would be the fastest and most efficient way to address the problem.

BLOCK: NPR's Laura Sydell. We were talking about the new U.S. patent bill that was signed into law by President Obama today.


There are more news articles about it, e.g. [1, 2], but only few mention software patents. The government which signed this ridiculous bill ignores the real issues, spews out a load of nonsense which contradicts research, and one GNU/Linux advocate had this to say on Saturday:





Patent "reform"? Not really.
From: Homer 
Date: Saturday 17 Sep 2011 14:38:53
Groups: comp.os.linux.advocacy






Apparently "patent reform" happened already, and nobody noticed. But what exactly happened, and what effect will it have on patent trolls like Myhrvold, Apple, Microsoft and Oracle, perhaps the biggest threats to Linux, Free Software and innovation in general?

[quote] Late last night the Senate voted 89-9 to pass the America Invents Act that would radically reshape patent laws, and President Obama is expected to sign it without delay. It's the first such significant bill in 60 years, and it has one key component: It moves the onus from merely "inventing" a patentable idea first to becoming the person who actually files for an innovation first.

...

But "first to invent" has some big pitfalls, including the ability of an inventor to totally gut the hopes of someone else with a similar or identical idea, and who then files for a patent--because the original inventor, without necessarily having to make any move toward realizing the innovation, can claim they invented it. A complex legal battle may then ensue, and perhaps the second filer may choose to settle privately, license the idea, or fight the situation in an expensive court case.

This trolling completely destroys the idea that a successful new thing is built on 1% inspiration and 99% perspiration--a troll, perhaps even a rich troll who's made money from previous innovations they've dreamed up (or, more materialistically, bought from someone), can simply keep the legal upper hand by saying they're the real innovator without actually building anything. [/quote]

http://www.fastcompany.com/1779071/first-to-file-a-patently-obvious-reform

Sorry (and excuse the pun) but this is patently wrong. Invention is invention, not manufacturing; it's the idea (strictly - the method) not the implementation. If you're not the first to have a particular idea, then you're not its inventor. Period. This "reform" simply transforms "invention" into a brawl, where being the first to find or create something doesn't necessarily secure ownership - you can be mugged for it by someone more powerful.

Is this really all the "America Invents Act" has to offer? Is this the best "reform" congress could come up with? Pathetic.

/Real reform/ would have been a re-examination and redefinition of what exactly is patentable, a more rigorous patent examination process (or, let's be honest, /any/ patent examination process), and stricter (or again - /any/) remedies against those who persistently file trivial claims.

/Real reform/ would have made patents non-transferable, thus completely solving the problem of patent harvesting by non-practising entities.

/Real reform/ would have made it impossible to patent something as trivial and non-inventive as a "rounded rectangle" or a "record button".

But no, that's not what the "America Invents Act" has done at all. All it's done is make innovation impossible for anyone who lacks the financial means to bribe the USPTO, and allows the wealthy to steal others' ideas. The US patent system was already an abomination, but now, incredibly, it's actually an order of magnitude /worse/.

Apart from anything else, it seems to completely undermine the premise of "prior art", since apparently the only thing that counts now is being the "first to file", regardless of who actually came up with, or even implemented, the idea first.

Consider the case of IP Innovation LLC and the Technology Licensing Company (ex-Microsoft employees, and likely just two of Myhrvold's many shell companies) vs.€ € Red Hat & Novell, where the litigants claimed they'd "invented" multiple workspaces. Of course, their definition of "invented" was "harvested patents from Xerox".

Unfortunately for the patent trolls, those patents were granted in 1991, some 6 years /after/ multiple workspaces ("screens") had already been implemented on the Amiga, and so they lost the case. Indeed Commodore implemented the concept as a commercial product in 1985, a full year before it was even first implemented internally by Xerox PARC, and the Amiga implementation was based on ideas devised by Jay Miner (of the original "Amiga Corporation") as far back as 1982, some two years before it was even first imagined at Xerox PARC.

But that prior art would apparently mean nothing in the new patent regime, since neither Jay Miner nor Commodore thought to patent the concept of multiple workspaces, despite clearly being the inventors and first implementers of the concept. Xerox PARC was the "first to file", and that's all that matters in a gun-slinger economy. Anyone with enough money can now file patents against other people's prior art, use them as weapons to extort money, from anyone - including the /actual/ inventors, then pass those weapons on to other gun-slingers to do likewise.

Meanwhile those same gun-slingers remain free to claim "invention" of every trivial speck of dust in the world, completely unchallenged until they turn up in the "great" troll-friendly State of Texas, and either win on the basis of the corrupt court's pro-patent bias, or bleed their victims dry in the process.

So much for "patent reform".







It's all about inflating the elevating the amount of patents (under the assumption that patents have real value, as legal types wish us to believe), but if the assumption is that this bill will give more jobs to patent lawyers, maybe they have a point. Just creating more and more monopolies is like overprinting money, which devalues the currency but works well for the mint. Watch McKool Smith in the news last week, pulling $391,000,000 from an actual practicing company based on this press release:

Attorneys from McKool Smith have secured a $391 million court judgment in favor of firm client Versata Software Inc., a pioneer in front-office enterprise software, following a successful patent infringement lawsuit against global software giant SAP America Inc. and its German-based parent company SAP AG (NYSE: SAP).


That is some really expensive "patent infringement". Notice that SAP America Inc. is the target. The USPTO really needs to get its act together or go away.

Comments

Recent Techrights' Posts

The Free Software Foundation (FSF) Has Un-cancelled the Best People, Just in Time for the Big 4-0
Mr. Oliva should have been there all along (since 2019)
Most "Modern" Technology Makes You Slower and Dumber
Because proprietary software makes you worse off
"What Comes After Free Software?" Wrongly Insinuates We've Reached the Goal (Prison is Not the Goal)
The oil tycoons use similar tactics against environmentalists, giving them fake "wins"
Making More Work Space
I learned the hard way that less is more in circumstances where more means distraction
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
New Techrights Turns 2
Today starts the third year of the SSG-based Techrights
What Scares Them the Most is Independent News Sites That They Cannot Control and Censor
Wikileaks was a good example of this
If You Don't Control Your Online Platform, Then Someone Else is Controlling You
be (or become) independent
The Solicitors Regulation Authority (SRA) Has a Policy on Racism and Sexism
In then future we'll show the misogyny and racial slurs
Links 22/09/2025: Murdochs Might Join Fentanylware (TikTok) 'Investors' (Masters), United Kingdom Recognises Palestinian Statehood
Links for the day
 
The Complaint About Brett Wilson LLP - Part II - UK SLAPPs for Americans, SLAPPs for Profit
Brett Wilson LLP has a track record of this kind
Mayday: Optus emergency calling crisis
Reprinted with permission from Daniel Pocock
Links 23/09/2025: Massive Data Breach, Slop Versus Productivity, and Vista 11 Update Breaks Things Again
Links for the day
Code of Censorship
Extortion is peace
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
Oracle Started This Year With Slop. Then It Stopped.
Passing fads are like this
Distros That Run on PCs Made 20 Years Ago and Don't Use Systemd
Betas for now
The Complaint About Brett Wilson LLP - Part I - Abusing British Women on Behalf of American Men Who Abuse American Women
Transparency is important to us, so we've decided to make this series
Slopwatch: Google News and the Evident Slopfarm Infestation
This is what people get about Linux when they query Google for Linux
Gemini Links 22/09/2025: Esperanto Music History and Apps For Android
Links for the day
Links 22/09/2025: More American 'Censorship' (Retaliation for Journalism), Cheeto "Might Be Losing His Race Against Time"
Links for the day
The Blob Slop
Give me more words, give me some text
The 50-Pound Note Experiment and the "War on Cash"
Britain is actually seeing a rebound in cash payments, and it's not a temporary phenomenon
Slopwatch: Blaming the Victims for Microsoft's Failures and Plagiarising Phoronix
That's what Google has been reduced to: slop and slopfarms
Links 22/09/2025: Breaches, Windows TCO, and Arrests
Links for the day
Gemini Links 22/09/2025: Rabbit Hole and DeGoogling Fairphone
Links for the day
Links 22/09/2025: Russian War Planes Invade NATO Airspace While Dihydroxyacetone Man Escalates Attack on Free Speech Because of Critics
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 21, 2025
IRC logs for Sunday, September 21, 2025
Links 21/09/2025: "Hey Hi" (Hype) Under Fire, Fakes Identified; Tesla Burns Family
Links for the day
Google's Software is Malware and Malware in Mobile Devices
Originally posted by Rob Musial
Links 20/09/2025: Hegemony Coming to a Close, Luigi Mangione Ruled Not Terrorist
Links for the day
Gemini Links 21/09/2025: "Charlie Kirk Was a Hateful Piece of Shit" and Slop Code Attempted by Microsofter
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 20, 2025
IRC logs for Saturday, September 20, 2025