01.01.13

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Groups of Lawyers Will Not Solve the Patent Problem

Posted in Patents at 2:05 pm by Dr. Roy Schestowitz

Quentin Massys painting
16th century painting of a civil law notary

Summary: Scientists, engineers, programmers, technologists etc. — not government bodies — will help the rest of the public abolish government-granted monopolies

The European Commission doesn't get FRAND, or maybe it pretends not to, or perhaps it was bribed or deceived by Apple and Microsoft lobbyists. Either way, this recent event proved some malice in today’s Commission, which also ushered in the unitary patent. Glyn Moody writes on the subject:

There was – of course – disagreement on the place of FRAND, since those in the open source world know that it has none if the object is to produce a level playing-field for all to compete on equally. And for that very reason those in the world of proprietary software want FRAND baked into standards since it excludes nearly all of the key open source licences and the projects using them. It’s the perfect solution for those who are afraid to compete fairly: skew the rules so that open source is excluded, and then claim victory when it doesn’t offer solutions.

Also worth noting in the above statement from the report is the claim that “the distinction between software and hardware is increasingly artificial”. I think if we decode this, what it means is that in the old world of hardware – for example, in telecommunications or codecs – FRAND standards were common, and that’s perfectly true. But in the world of software, the key modern forums for standards such as W3C or OASIS require RF, not FRAND. So this is a crude attempt to force old-fashioned hardware approaches on modern software, because once again the convenient result is that open source is excluded.

Indeed, given the manifestly greater success of the modern approach – as demonstrated by the unprecedented rate of growth of the Internet ecosystem compared to earlier technologies – the move to implementing hardware features in software is a strong argument for making older hardware standards RF instead of FRAND; that would allow them to enjoy the same kind of accelerated deployment the software world has experienced in the last two decades.

Thus there is no “dilemma” that needs resolving, and no need for stakeholder dialogue – another code term for “opportunity for wealthy US software companies to spend huge sums lobbying for what they want in the corridors of Brussels,” since “stakeholders” never seems to include groups representing the public interest, who were similarly excluded from the ACTA negotiations until they took to the streets across Europe.

Even Kroes lost her way when it comes to patents as she gave implicit consent to FRAND [1, 2, 3]. These career politicians are typically lawyers by trade, so the poor comprehension of scientists’ desire is not surprising. See what IBM’s Kappos says to provide ammo to a lawyers’ firm after he had joined the USPTO and later announced that he would leave amid public scolding [1, 2, 3]:

USPTO Director Discusses Software “Patent Wars” By: Sheldon Mak & Anderson http://www.eyeonip.net/David Kappos, the Director of the U.S. Patent and Trademark Office, recently addressed the socalled “patent wars” impacting the software industry. Although he acknowledged several concerns about patent quality, he also highlighted the importance of IP rights to the software industry. “Patent protection is every bit as well-deserved for software-implemented innovation as for the innovations that enabled man to fly, and before that for the innovations that enabled man to light the dark with electricity, and before that for the innovations that enabled the industrial revolution,” Kappos stated. However, he also acknowledged that patent protection must be “properly tailored in scope, so that programmers can write code and engineers can design devices without fear of unfounded accusations of infringement.” Kappos also debunked reports that the “patent wars” between companies like Samsung and Apple signal that the system is broken. He cited a USPTO study that found that in over 80 percent of the smartphone lawsuits, the courts have construed the software patents at issue as valid. He further noted that rejections in software patent applications taken to the USPTO appeals board are upheld at a slightly higher rate than for the office as a whole, and those few decisions appealed to the Federal Circuit are affirmed 95 percent of the time. Kappos also noted that the changes implemented under the America Invents Act should improve the quality of software patents. He specifically listed new procedures, such as post-grant opposition, inter partes review, and covered business method patents review. He also noted that additional changes are forthcoming as the USPTO completes the rollout of the AIA. “So to the commentators declaring the system is “broken” I say: give it a rest already, and give the AIA a chance to work. Give it a chance to even get started. But we’re not done. Not nearly,” Kappos stated.

We already shared some rebuttals to this. The conclusion we can reach is that too many government bodies are occupied by lawyers who represent corporations (not people) and it shows. Groups that are led by lawyers do not want to solve the problem from which they profit.

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