Bonum Certa Men Certa

Arguments Persist Over Whether Software Patents Died in the US Whilst European Patent Law is Quietly Assimilated to US

Keep clean



Summary: Continued discussion about the meaning of the US Supreme Court (SCOTUS) ruling and what it means to programmers all around the world, not just patent lawyers who seek to monopolise and tax software development

THE recent SCOTUS ruling on patents ended software patent scope where it reaches "abstract ideas" (whatever exactly it means, as no criteria were specified or even a test). The ruling left room for patent lawyers to exploit (pretending nothing has actually changed). We have demonstrated, based on dozens of analyses from patent lawyers, that lawyers' responses are quite consistent, ensuring only that people still come to them to patent algorithms.



Here is another new analysis from Dykema Gossett PLLC, saying that "Litigants involved in current or future litigation over software patents will want to study the claims at issue to assess their vulnerability under the framework laid out in Alice Corp. While patent eligibility of any particular software claim will remain a case-by-case, fact specific inquiry, at least now there is some guidance by which to conduct that inquiry."

"Basically, the corporate media is now a platform by which lawyers 'report' to the public on a decision in which they have vested interests."Dr. Glyn Moody looks at the glass as half full, celebrating the fact that the SCOTUS is at least recognising that there are limits to software patents. He also, however, bemoans Europe moving in the opposite direction. To quote Moody: "I've written a number of times about the curse of the "as such" clause in Article 52 of the European Patent Convention, which has allowed software patents to creep in to Europe by the backdoor. In the US, which has a far more liberal attitude to patenting everything under the sun, there has been a cognate problem, whereby patent applications have been made on a abstract/trivial idea simply by appending "using a computer" to make it novel. At long last, the US Supreme Court has addressed this issue."

"European Unitary Patent system will work means that there is no independent court to which appeals can be made - only an appeal court within the new patent system itself. That lack of an external check is an extremely dangerous feature - and one that the European Union may well come to regret."

The European angle is interesting as the EU's position on software patents has been gradually morphing/assimilating to the US position.

Here is America Online (AOL) giving a 'report' (not analysis) about the SCOTUS ruling. Guess who wrote it. That's right, AOL treats 'IP' groups as journalists now, boosting their position, which is what we foresaw and worried about. The article begins with the following promotion: "Michael Gulliford is the Founder and Managing Principal of the Soryn IP Group,a new breed of patent management and advisory company that provides a host of patent-centric services to a select group of innovators."

"The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope."Basically, the corporate media is now a platform by which lawyers 'report' to the public on a decision in which they have vested interests.

Here is an analysis from Davies Collison Cave, separate from the press (legal sites host these). It says: "To be eligible for a patent in the US, a computer implemented invention will probably now need to provide a technological improvement, solve a technical problem or effect some improvement in technology or a technical field. It will certainly need to involve more than simply implementing an abstract idea on a generic computer.

"Whether it was intentional or not, the US Supreme Court may have introduced into US law technical contribution requirements similar to those of European patent law."

Yes, so the US is moving closer to EU patent law while EU patent law is moving closer to US patent law, which includes software patents. There seems to be some kind of dangerous convergence here. We need to fight hard to stop it.

Here is another new analysis from Stinson Leonard Street LLP (another patents firm):

Software patents vulnerable: use of a computer is "not enough"



[...]

This decision will likely be cheered by technology companies with patent portfolios directed to more sophisticated inventions that go beyond computer-implemented business methods. However, software patents directed to general business processes, such as those that involve the performance of well-known financial transactions on a computer, may be in jeopardy of being invalidated.


That basically sounds like the "as such" nonsense that we have in Europe and to some degree in New Zealand as well. This is not good. This might mean that spurious patent litigation (over software patents) can soon break out of places like the Eastern District of Texas, where stories like this one are being reported by the patent trolls-obsessed:

A controversial patent that has been used to wring millions of dollars in settlements from hundreds of companies is on the verge of getting shut down.

US Circuit Judge William Bryson, sitting "by designation" in the Eastern District of Texas, has found in a summary judgment ruling (PDF) that the patent, owned by TQP Development, is not infringed by the two defendants remaining in the case, Intuit Corp. and Hertz Corp. In a separate ruling (PDF), Bryson rejected Intuit's arguments that the patent was invalid.


Notice the type of patents they are using. The great majority of patent trolls use software patents, so rather than speak about stopping trolls we need to concentrate on patent scope. Here is Steven W. Lundberg (highly vocal proponent of software patents [1, 2, 3]) boosting software patents again (as if nothing has changed) and several other patent boosters like Fenwick & West LLP and Stroock & Stroock & Lavan LLP. Perhaps they view all this as an opportunity (in the long run) to file their patents in yet more continents, making even more money by taking away from society and tying the hands of programmers.

Timothy B. Lee is a little more optimistic than us. He says that "the Supreme Court might kill software patents" and here is why:

Last week I argued that the Supreme Court's widely anticipated ruling in the case of CLS v. Alice wasn't the knockout blow software patent opponents had been hoping for. The Supreme Court struck down the specific patent at issue in the case, but it was vague about when, if ever, other software patents were allowed.

Reading commentary on the case has made me more convinced that software patent owners should be worried.

In a nutshell, the Supreme Court said two things: you can't patent abstract ideas, and merely implementing an abstract idea on a generic computer isn't enough to turn it into a patentable invention. The big question is: what's an abstract idea?

The patents the Supreme Court struck down last week and in a 2010 case called Bilski v. Kappos were extremely abstract. In essence, both patents took an abstract business strategy — like holding money in escrow to prevent either party to a deal from backing out — and claimed the concept of implementing it on a computer. In both 2010 and 2014, the Supreme Court said that wasn't enough for a patent.

Some software patent supporters, like former Patent Office director David Kappos, have concluded that the decision leaves most software patents unscathed. But the respected patent scholar Robert Merges, a software patent supporter himself, is not so sure.


David Kappos is not credible because he worked both for the patents-greedy USPTO and for IBM, one of the most aggressive patent-rattling companies and leading lobbyist for software patents, even in Europe. The argument we made some days ago is that all software patents are -- by definition almost -- abstract. Unless there is a working implementation to be patented, all that the application allude to are ideas, barely any function at all.

What it boils down to is this; if a judge was competent enough to tell the difference between pseudo code, programming, UML etc. (which is unlikely, especially in clueless, biased and corrupt courts like CAFC), then every software patent would be deemed "abstract", hence invalid. To construct a legally-cohesive argument along those lines might require a lawyer. Are there any "good" patent lawyers out there?

Recent Techrights' Posts

SoylentNews Grows Up, Registers as a Business, Site Traffic Reportedly Grows
More people realise that social control media may in fact be a passing fad
 
Garden Season Starts Today
Outdoor time, officially...
More Information About Public Talks That Richard Stallman Gave This Week in Europe
Two talks in Switzerland
Engadget is Still a Spamfarm, It's Just an Amazon Catalogue (SPAM/SEO), a Sea of Junk Disguised as "Articles" With Few 'Fillers' (Real Articles) in Between
Engadget writes for bots now, not for humans
Richard Stallman's Talks in Switzerland This Week
We need to put an end to 'cancer culture'; it's trying to kill people and it is even swatting people
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 28, 2024
IRC logs for Thursday, March 28, 2024
[Meme] EPO's New Ways of Working (NWoW), a.k.a. You Don't Even Get a Desk at Work and Cannot be Near Known Colleagues
Seems more like union-busting (divide and rule)
Hiding Microsoft's Culpability in Security Breaches and Other Major Blunders (in the United Kingdom, This May Mean You Can't Get Food)
Total Cost of Ownership (TCO) is vast
Giving back to the community
Reprinted with permission from Daniel Pocock
Links 28/03/2024: Sega, Nintendo, and Bell Layoffs
Links for the day
Open letter to the ACM regarding Codes of Conduct impersonating the Code of Ethics
Reprinted with permission from Daniel Pocock
With 9 Mentions of Azure In Its Latest Blog Post, Canonical is Again Promoting Microsoft and Intel Vendor Lock-in, Surveillance, Back Doors, Considerable Power Waste, and Defects That Cannot be Fixed
Microsoft did not even have to buy Canonical (for Canonical to act like it happened)
Links 28/03/2024: GAFAM Replacing Full-Time Workers With Interns Now
Links for the day
Consent & Debian's illegitimate constitution
Reprinted with permission from Daniel Pocock
The Time Our Server Host Died in a Car Accident
If Debian has internal problems, then they need to be illuminated and then tackled, at the very least in order to ensure we do not end up with "Deadian"
China's New 'IT' Rules Are a Massive Headache for Microsoft
On the issue of China we're neutral except when it comes to human rights issues
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 27, 2024
IRC logs for Wednesday, March 27, 2024
WeMakeFedora.org: harassment decision, victory for volunteers and Fedora Foundations
Reprinted with permission from Daniel Pocock
Links 27/03/2024: Terrorism Grows in Africa, Unemployment in Finland Rose Sharply in a Year, Chinese Aggression Escalates
Links for the day
Links 27/03/2024: Ericsson and Tencent Layoffs
Links for the day
Amid Online Reports of XBox Sales Collapsing, Mass Layoffs in More Teams, and Windows Making Things Worse (Admission of Losses, Rumours About XBox Canceled as a Hardware Unit)...
Windows has loads of issues, also as a gaming platform
Links 27/03/2024: BBC Resorts to CG Cruft, Akamai Blocking Blunders in Piracy Shield
Links for the day
Android Approaches 90% of the Operating Systems Market in Chad (Windows Down From 99.5% 15 Years Ago to Just 2.5% Right Now)
Windows is down to about 2% on the Web-connected client side as measured by statCounter
Sainsbury's: Let Them Eat Yoghurts (and Microsoft Downtimes When They Need Proper Food)
a social control media 'scandal' this week
IRC Proceedings: Tuesday, March 26, 2024
IRC logs for Tuesday, March 26, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Windows/Client at Microsoft Falling Sharply (Well Over 10% Decline Every Quarter), So For His Next Trick the Ponzi in Chief Merges Units, Spices Everything Up With "AI"
Hiding the steep decline of Windows/Client at Microsoft?
Free technology in housing and construction
Reprinted with permission from Daniel Pocock
We Need Open Standards With Free Software Implementations, Not "Interoperability" Alone
Sadly we're confronting misguided managers and a bunch of clowns trying to herd us all - sometimes without consent - into "clown computing"
Microsoft's Collapse in the Web Server Space Continued This Month
Microsoft is the "2%", just like Windows in some countries