01.23.13

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USPTO ‘Debate’ Already Rigged by Patent Lawyers

Posted in Patents at 4:41 pm by Dr. Roy Schestowitz

Software patents protest in India

Summary: Software patents are assumed to be OK and software developers of this world do not participate in debates about it, perhaps because of the way these debates are designed

The problem caused by patent trolls probably receives more coverage than software patents, which are the trolls’ weapon of choice. A trolls tracker spots a trend:

US federal courts are divided into 94 districts. When patent-holders file a lawsuit against a product that’s sold nationwide, they have pretty wide leeway as to where to file their case. That’s allowed for quite a bit of “venue shopping” in patent cases, and several years ago the remote and rural Eastern District of Texas started to become surprisingly popular.

Over time, East Texas became known as a place very friendly to patent plaintiffs and unfriendly to patent defendants, particularly out-of-state or foreign tech companies. Judges there were reluctant to let cases be transferred out of their district, and some patent-holding companies began setting up Texas LLCs in order to better argue that Texas was the right venue for them.

The trends as seen by so-called ‘IP’ lawyers are different. These lawyers would rather focus on legitimising software patents, which help them make money irrespective of the holder (troll or not). One law firm writes:

In a recent blog entry, Director David Kappos of the United States Patent and Trademark Office (USPTO) gave something of a three-month status update after the implementation of several mechanisms of the AIA, including third party prior art submission. As of December 17, 2012, the USPTO has received 270 prior art submissions, which Director Kappos calls “in line with expectations.” Notably, the leading art group for such submissions was Technology Center 3700, which, according to Kappos, “includes many software-related inventions such as those found in electronic gaming devices and medical equipment.”

The debates on software patents in the USPTO are regularly infiltrated by lawyers. We gave many examples in 2012. While programmers are busy writing code lawyers are busy ensuring they keep their middleman role. Law sites prepare to stack the consultation. Here is another example. Where are the software engineers in all this? Here is another example:

Suffice it to say, the patent attorneys disagreed with Mulligan, though they did so earnestly, out of a genuine belief that one can separate out patents covering trivial or commonplace activities from other software patents in a coherent, justiciable way. What I found most striking is that none of the patent attorneys present defended the status quo. Rather, they agreed that the scope of software patents should be radically narrowed. That seems like a good baseline for discussion.

So the author demonises abolition (of software patents) proponents and then takes the side of lawyers by legitimising software patents, the “baseline” as he calls it. It’s as if the only position that’s permissible is that some software patents are “good” and others are “bad”.

Over in Europe we have a similar issue because of the example USPTO sets. The corporate press in the US plays along with the lie that more patents mean more innovation. The source of the claim is one that profits from patents:

The U.S. Patent Office and Trademark Office awards hundreds of thousands of patents each year. This week, IFI Claims Patent Services, a producer of patent databases, released its top 50 ranking of companies awarded the most U.S. patents in 2012.

The Irish press too glamourises software patents this month:

http://www.iriHe joined Microsoft in 1999 as a software developer in Seattle and registered more than 20 patents for inventions in computer security.

In his last role at Microsoft, leading the PM team for the forthcoming Windows 8 Store, he felt the entrepreneurial urge, and left to start app development firm…

Rex Djere has this suggestion for the USPTO:

TLWIR 53: Transforming the Broken U.S. Patent System with Free Software-Style Reforms

In The Linux Week In Review 52, I talked about the need for a Linux Reference System, a GNU/Linux computer guaranteed to work with the latest free software and drivers. In TLWIR 53, I will present some ideas on how to fix the broken U.S. patent system.

Innovation comes from freedom, not restrictions such as patents. It’s common sense for developers. For others it is an unspeakable truth. They want us to believe — by repeating their propaganda line — that more restrictions make greater innovation.

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