09.19.11

Gemini version available ♊︎

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

Posted in America, Intellectual Monopoly, Patents at 4:04 am by Dr. Roy Schestowitz

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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

3 Comments

  1. Needs Sunlight said,

    September 19, 2011 at 4:25 am

    Gravatar

    The NPR piece has a bait title, “This Summer, 3-D Ticket Sales Disappoint“, which is completely unrelated to the topic of the patent “reform” bill. Shame they can’t have a more descriptive title.

    Needs Sunlight Reply:

    .

    Dr. Roy Schestowitz Reply:

    I doubt it’s intentional. It is hard to title audio shows that are a pot-pourri of disparate subjects.

    TechBytes has had a similar problem where it might cover a subject thoroughly but this would never be mentioned in the title or even the body. A few weeks ago we started writing down topics to run through minutes before recording, which ought to improve things. Our 1-year anniversary is near too.

DecorWhat Else is New


  1. [Meme] [Teaser] More to Life Than Patents

    Greedy sociopaths oughtn’t be put in charge of patent offices; this is what’s dooming the EPO in recent years (all they think about is money



  2. Microsoft GitHub Exposé — Part II — The Campaign Against GPL Compliance and War on Copyleft Enforcement

    Microsoft contemplated buying GitHub 7.5 years ago; the goal wasn’t to actually support “Open Source” but to crush it from the inside and that’s what Microsoft has been doing over the past 2.5 years (we have some details from the inside)



  3. Links 18/10/2021: Linux 5.15 RC6 and 7 New Stable Kernels

    Links for the day



  4. [Meme] The Austrian School of Friedrich Rude Liar

    With reference to the Austrian School, let’s consider the fact that Friedrich Rude Liar might in fact be standing to personally gain by plundering the EPO‘s staff by demonising them while helping Benoît Battistelli crush them



  5. IRC Proceedings: Sunday, October 17, 2021

    IRC logs for Sunday, October 17, 2021



  6. How (Simple Technical Steps) to Convince Yourself That DuckDuckGo is Just Spyware Connected to Microsoft, Falsely Advertised as 'Privacy'

    In recent days we published or republished some bits and pieces about what DuckDuckGo really is; the above reader dropped by to enlighten us and demonstrate just how easy it is to see what DuckDuckGo does even at the client side (with JavaScript); more people need to confront DuckDuckGo over this and warn colleagues/friends/family (there’s more here)



  7. Austria's Right-Wing Politicians Displaying Their Arrogance to EPO Examiners

    The EPO‘s current regime seems to be serving a money-hungry lobby of corrupt officials and pathological liars; tonight we focus on Austria



  8. [Meme] Friedrich Rödler's Increasingly Incomprehensible Debt Quagmire, Years Before EPO Money Was Trafficked Into the Stock Market

    As it turns out, numerous members of the Administrative Council of the EPO are abundantly corrupt and greedy; They falsely claim or selfishly pretend there’s a financial crisis and then moan about a "gap" that does not exist (unless one counts the illegal gambling, notably EPOTIF, which they approved), in turn recruiting or resorting to scabs that help improve ‘profit margins’



  9. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…

    Prior to the Benoît Battistelli and António Campinos regime the EPO‘s hard-working staff was slandered by a corrupt Austrian official, Mr. Rödler



  10. Links 17/10/2021: Blender 2.93.5, Microsoft Bailouts

    Links for the day



  11. Links 17/10/2021: GhostBSD 21.10.16 and Mattermost 6.0

    Links for the day



  12. IRC Proceedings: Saturday, October 16, 2021

    IRC logs for Saturday, October 16, 2021



  13. [Meme] First Illegally Banning Strikes, Then Illegally Taking Over Courts

    The vision of Team Battistelli/Campinos is a hostile takeover of the entire patent system, not just patent offices like the EPO; they’d stop at nothing to get there



  14. Portuguese Network of Enablers

    Instead of serving Portuguese people or serving thousands of EPO workers (including many who are Portuguese) the delegation from Portugal served the network of Campinos



  15. In Picture: After Billions Spent on Marketing, With Vista 11 Hype and Vapourware, No Real Gains for Windows

    The very latest figures from Web usage show that it’s hardly even a blip on the radar; Windows continues bleeding to death, not only in servers



  16. [Meme] [Teaser] Double-Dipping Friedrich Rödler

    As we shall see tomorrow night, the EPO regime was supported by a fair share of corrupt officials inside the Administrative Council



  17. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli's Iberian Facilitators - Portugal

    How illegal “Strike Regulations” and regressive ‘reforms’ at the EPO, empowering Benoît Battistelli to the detriment of the Rule of Law, were ushered in by António Campinos and by Portugal 5 years before Campinos took Battistelli’s seat (and power he had given himself)



  18. Links 16/10/2021: SparkyLinux Turns 10 and Sculpt OS 21.10

    Links for the day



  19. “Facebook Whistleblowers” Aside, It Has Been a Dying Platform for Years, and It's Mentally Perverting the Older Generation

    Guest post by Ryan, reprinted with permission



  20. [Meme] Microsoft Has Always Been About Control Over Others

    Hosting by Microsoft means subjugation or a slavery-like relationship; contrary to the current media narrative, Microsoft has long been censoring LinkedIn for China’s autocratic regime; and over at GitHub, as we shall show for months to come, there’s a war on information, a war on women, and gross violations of the law



  21. EFF Pushes for Users to Install DuckDuckGo Software After Being Paid to Kill HTTPS Everywhere

    Guest post by Ryan, reprinted with permission



  22. The Reign in Spain

    Discussion about the role of Spain in the EPO‘s autocratic regime which violates the rights of EPO staff, including Spanish workers



  23. [Meme] Spanish Inquisition

    Let it be widely known that Spain played a role in crushing the basic rights of all EPO workers, including hundreds of Spaniards



  24. Why You Shouldn’t Use SteamOS, a Really Incompetent GNU/Linux Distribution With Security Pitfalls (Lutris is a Great Alternative)

    Guest post by Ryan, reprinted with permission



  25. IRC Proceedings: Friday, October 15, 2021

    IRC logs for Friday, October 15, 2021



  26. Links 16/10/2021: Xubuntu 21.10 and DearPyGui 1.0.0

    Links for the day



  27. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  28. Post About Whether Vivaldi is a GPL violation Was Quietly Knifed by the Mods of /r/uBlockOrigin in Reddit

    Guest post by Ryan, reprinted with permission



  29. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli's Iberian Facilitators - Spain

    The EPO‘s António Campinos is an ‘Academy’ of overt nepotism; what Benoît Battistelli did mostly in France Campinos does in Spain and Portugal, severely harming the international image of these countries



  30. From Competitive (Top-Level, High-Calibre, Well-Paid) Jobs to 2,000 Euros a Month -- How the EPO is Becoming a Sweatshop by Patent Examiners' Standards

    A longish video about the dreadful situation at the EPO, where staff is being ‘robbed’ and EPO funds get funnelled into some dodgy stock market investments (a clear violation of the institution’s charter)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts