05.27.13

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Patent Lawyers Want to Further Expand the Scope of Patenting in the US, Use Trolls (Scale-based Criterion) to Distract From Scope-based Reform

Posted in America, Patents at 3:43 am by Dr. Roy Schestowitz

Hijacking opposition and popular unrest, rewriting/overriding them as opposing small pools rather than a conspiracy of large companies operating large pools (or thickets) of software patents

Law and order

Summary: An analysis of patterns in covering the patent issue in the United States; a principal finding continues to be that lawyers don’t want to strike at the root of this issue

TAKING into account the money motive, it has become very clear why patent lawyers lobby so hard to maintain the broken system and furthermore make it worse (for everyone but lawyers, to whom the societal cost of a broken system is relayed as revenue). The ACLU intervenes in the big case where a decision on “whether human genes can be patented” is at stake. Using the cult of celebrities in the LA Times Angelina Jolie too seems to be getting involved and “maybe she is trying to subtly influence the U.S. Supreme Court, which is expected to rule later this year on a case challenging a Utah company’s patent of the BRCA1 and BRCA2 genes.

“The ACLU intervenes in the big case where “whether human genes can be patented” is at stake.”“The company, Myriad Genetics, developed the “BRCAnalysis” test that determines whether women have the dangerous gene mutation. No other company may develop such a test as long as Myriad owns the patent on the genes.”

The USPTO is a mess and it is not surprising. It’s guarded by wolves. One lobby comes up with ridiculous claims like “US$300 billion worth of intellectual property is stolen from the US every year” (IP being a meaningless term).

“The USPTO is a mess and it is not surprising. It’s guarded by wolves.”Well, putting aside the misuse of the term “steal”, those behind those figures don’t grok economics, but this is not supposed to be factual or evidence-based anyway. The USPTO memo to the examiners regarding CLS Bank helps show that the USPTO is just trying to guard its own existence and growth, it is not a public service. They should redirect from the .gov domain to a .com domain. Pamela Jones wrote: “The USPTO says it has no plans to alter their wicked ways. : D

“Not yet, anyway. It’s not really surprising, given the unusual split and the CLS Bank decision regarding the particular patents before the court. Nobody knows now what is and isn’t patentable, which is actually better than the situation before CLS Bank, in my view. They used to think they had it right. Not so much now. So stay tuned.”

Lawyers capitalise on ambiguity and lack of clarify. They always try to write de facto law themselves,using the press or at least their own self-serving (promotional) Web sites. We should stop paying much attention to them regarding the CAFC decision, which they try to warp for their own agenda. We oughtn’t be asking judges, i.e. glorified lawyers, either. They are part of the same system and in this recent discussion of federal judges Posner was the only judge who we know is against software patents [1, 2, 3, 4, 5].

“The USPTO memo to the examiners regarding CLS Bank helps show that the USPTO is just trying to guard its own existence and growth, it is not a public service.”Over at NPR, it is estimated that software patents have become a very major component of all US patents. NPR says “[r]oughly 40,000 software patents are issued every year,” which would make it infeasible for any developer or even large development company to survey code for patent infringement. It is clear that those patents have no room in society. Even the examiners fail to survey prior art, so what is the point of it all?

The New Legal Review is preaching to the converted (lawyers) when it calls for expansion of patent scope, not reduction. It starts by stating: “Questions of what subject matter should or should not be patentable have once again seized the agenda – and the much-litigated field of software has provided the springboard. In March, the District Court for the Eastern District of Texas, a venue that usually supports patent owners, struck down a software patent held by non-practising entity (NPE) Uniloc, following proceedings that Uniloc itself had brought in June 2012. In its complaint, Uniloc alleged that web-hosting company Rackspace had infringed its patent for a means of processing ‘floating point’ numbers in computer programs – that is, decimal numbers.”

One lawyer, Julie Samuels [1, 2, 3, 4], is now writing for the EFF on the subject of parents. Just like another such EFF lawyer (Mr. Nazer [1, 2]), she targets players, not scope. She wrote: “Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll.”

“Even the examiners fail to survey prior art, so what is the point of it all?”She writes about patent trolls repeatedly but not about patent scope. What she is pursuing is not the solution really, but then again, she is a lawyer. Here is another lawyers’ site speaking about the misdirected reform.

This problem of misdirection (from grassroots to corporate) is not entirely new. Several years ago a Cisco lawyer created an anonymous blog focusing just on patent trolls (not scope) and now we find this entertaining blog about patent trolls, with a unique style. It is called IP Troll Tracker and it too focused on players and not scope. The aforementioned patent lawyers’ blog continues to hammer on trolls when it says: “As Congress considers the SHIELD Act, it is helpful to review some of the empirical evidence on the economics Patent Assertion Entities (PAEs). Following up on Colleen Chien’s recent post (Patent Trolls by the Numbers), this post looks briefly at data on the 10 publicly listed firms that were predominantly in the patent assertion business during the period from 2005 to 2010 (Acacia, Asure, Interdigital, Mosaid, Network-1, OPTi, Rambus, Tessera, Virnetx, and Wi-Lan). These companies accounted for about one sixth of all PAE lawsuits filed during this period. Although these companies might not represent the entire universe of PAEs, the greater amount of available financial information helps paint a rich picture of their business.”

“Lawyers-run sites don’t want us to limit the scope of patenting (their bread and butter).”David Balto (another lawyer [PDF]), writing for Patent Progress, also focuses on trolls by saying: “Patent trolls have started to target end-users, especially small companies, because they typically lack the expertise, experience and ability to fight questionable claims. Litigation costs can quickly mount up to $250,000 to $500,000, and reach millions if the case goes all the way through trial (not to mention appeals). End-users also have to deal with disruptions to their business from discovery requests and managing the litigation. Often companies are forced to divulge secret financial and technical information as well as divert key personnel from their work to participate in depositions and give testimony. Patent trolls, on the other hand, have few costs in pursuing a suit because they do not operate in any market. The lawsuit has no disruptive effect on the patent troll’s business because it is the patent troll’s
business.”

The key problem is not the trolls but the patents themselves. Lawyers-run sites don’t want us to limit the scope of patenting (their bread and butter). It has become rather evident and it is worth demonstrating in order to recover grassroots activism on patents; currently, all the efforts are being hijacked by businesses, mostly those of lawyers and their clients (large corporations with many patents).

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