01.10.16

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Patent Lawyers and Judges Don’t Understand Software Development and It Harms Programmers, Practicing Software Companies

Posted in America, Europe, Patents at 7:27 am by Dr. Roy Schestowitz

Metaswitch logoSummary: Europeans, including European companies such as Metaswitch (British), continue to suffer from software patents in the United States and from British patent lawyers to whom the whole notion of software development is elusive, grossly misunderstood (they profit from the misunderstanding)

HAVING written literally thousands of articles on this subject, it often feels like repetition even when it isn’t. It’s never repetitive because new cases and new observations come to light. The other day, Patent Buddy fished out this recent court’s decision [PDF] (originally OOXML) and said that “TX [Texas] Magistrate Report Rejecting Alice101 Ineligibility Argument Against a Firewall Patent” (used against Metaswitch Networks, a British company). We have looked at this 18-page decision and found Alice mentioned in page 3 as follows: “The Supreme Court has held that there are three specific exceptions to patent eligibility under § 101: laws of nature, natural phenomena, and abstract ideas. Bilski v. Kappos, 561 U.S. 593, 601 (2010). In Mayo, the Supreme Court set out a two-step test for “distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97 (2012)).”

“So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company).”Alice is also mentioned many times in page 4, then 14-15 and in page 17 it says: “Metaswitch is likewise wrong to characterize “an application proxy” and “a packet filter” as inherently abstract components because they refer to “broad ‘types’ or ‘classes’ of firewall components and do not require or connote any specific structure.” (Dkt. No. 255 at 24). A hypothetical claim limitation directed to “a cup” might encompass an extensive class of objects of varying shapes, sizes, materials, and functions (a coffee mug, a champagne flute, a disposable paper cup), and thus the word “cup” is abstract in the sense that it spans many different structures. But a cup is not an “abstract idea” in the sense meant by Alice, and neither are the “application proxy” and “packet filter” components recited in the claims. These components are not “building blocks of human ingenuity,” “a method of organizing human activity,” a “fundamental truth,” an “idea of itself,” or the like. See Alice, 134 S. Ct. at 2354–56. The “application proxy” and “packet filter” terms refer to specific components that have been construed to perform specific functions within a network. See (Dkt. No. 310 at 7–13). The fact that these components can be implemented in the form of “hardware and/or software” does not change their concrete, network-specific nature.”

So here we have a British company sued in the capital of patent trolls, by a company called Genband LLC, which is based in Frisco, Texas, the United States (where the lawsuit is also being poorly assessed, determined and ultimately ruled against a foreign company). In page 18 it says: “For the foregoing reasons, Claim 12 of the ’561 Patent is patent-eligible under § 101. The Court agrees with Metaswitch that Claim 12 is representative for purposes of the § 101 analysis; the other asserted claims of the ’561 Patent are likewise patent-eligible.”

Here is the court’s conclusion: “For the reasons stated above, summary judgment of no willful infringement should be GRANTED. Partial summary judgment of no indirect infringement prior to April 14, 2014 should be GRANTED. Partial summary judgment of no indirect infringement after April 14, 2014 should be DENIED. Summary judgment of invalidity under 35 U.S.C. § 101 should be DENIED.”

“Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents?”This is a classic case where software is being described as non-abstract by trying to tie it to “network” and the likes of that. There is a whole infamous class of “over the Internet” patents and this one too resembles that. The decision cites a case of the world’s largest patent troll, Intellectual Ventures v. Capital One Bank, in page 4 along with Alice and Bilski.

How clueless could the judge be? Did the judge ever write a computer program? Was a degree in some scientific discipline earned/acquired? Was the judge bamboozled by mumbo-jumbo from lawyers? Why is a British company on the receiving end of software patents when British law clearly does not include but preclude such patents? Does US law dominate globally? Well, rhetorical question actually. This is similar to the cases of Finjan, which is a patent aggressor in a similar field of technology.

As a British programmer myself, I cannot help but worry that the Texan courts now threaten the British industry as well. The UPC would make things even worse and there are already signs of that happening with patent trolls that come to Europe and attack from London (Unwired Planet). Apple too is attacking companies from inside Europe, with help from ridiculous software patents that are found invalid by European courts after EPO negligently issues them. Recall the case of Wi-Lan v. Apple, which pro-software patents sites are writing about these days. Why is the industry tolerating this? How can anyone wrongly deduce that this is good for innovation, or in other words, encourages the creation of better computer products, programmes, etc. available in the market?

“Developers of software don’t brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms.”When patent lawyers, who don’t actually create anything, speak of (or hijack the word) “innovation” we end up with clueless blog posts such as this new one from IP Kat. While EPO coverage from IP Kat has been rather good, much of the rest constitutes UPC promotion, patent maximalism, and clueless prose such as this: “Second is the recurring assertion that the patent system is intended to encourage innovation. There are various implications that flow from this, most notably that any patent that does not further the innovation interest is at odds with the patent system. Weak patents, patent trolls, patent thickets, patent hold-up and other patent undesirables all derive from the underlying assumption that patents are the hand-maiden of innovation. As such, at least in the US, a material driver of proposed patent legislation is to better align the patent system with the needs of innovation. The only problem with this view is that it is not correct. Patents are about encouraging invention and not impeding competition in a manner consistent with the patent grant, where the legal system has developed tools to define invention. Some forms of innovation (however defined) can be expected to flow from improving the manner by which we encourage and protect invention, but innovation is not a surrogate for invention. Introducing innovation as a construct within the patent system, parallel to invention, novelty and inventive step, is simply inappropriate.”

“Software developers don’t “invent”. They write code, and some code may be better than other.”The above says “innovation is not a surrogate for invention”, but these are just clueless repetitions (regurgitations) or rather meaningless/vague terms, none of which actually alludes to or pertains to programming (these words predate computer programs). Developers of software don’t brainstorm or innovate, they typically take existing building blocks (either Free/Open Source software or proprietary with compartmentalised modules/layers/standards) and combine these to form bug-free and increasingly efficient algorithms. Everything is being reused and built on top of existing work. One should expect people who never saw or wrote a computer program to actually grasp this. The comments from readers, who are mostly patent lawyers, are equally clueless or weak. One says regarding “Innovation vs. Invention”: ”

If innovation = ‘new’
Then innovation is one prong of a three-prong test for invention.
The other two prongs are ‘useful’ and ‘non-obvious’

Software developers don’t “invent”. They write code, and some code may be better than other. Lawyers using terms like “innovation” are clueless. They’re reusing terms from centuries ago and another one says

One has to focus on the fact that the patent system is about disclosure of inventions. Although such disclosure may impact innovation, invention and innovation are not the same thing. One looks at various comments distinguishing the two.

What needs to be assessed is whether more (or less) code is generated which is solid and reliable in the presence of 100,000-1,000,000 software patents. Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don’t even bother reading patent applications (it’s infeasible). They just get sued, often by trolls that produce nothing at all.

“Evidence suggests that patents have done virtually nothing to provide an incentive to write better (or more) algorithms; programmers don’t even bother reading patent applications (it’s infeasible).”It should be noted that several people sent us links to the above article and several programmers expressed annoyance at this level of ignorance. Why is a system that presents itself as “protecting inventors” (or whatever) run by non-inventors? When will it be geeks and computer science professors running such courts* (if any courts “as such” are necessary at all)? The system, as is, became besieged by parasites preying on software developers, rather than people with the required skills and knowledge. It’s a form of takeover or coup. Programmers need to unite so as to fight to regain control.
___
* I myself have been writing software since I was 14 and it’s what I currently do for a living in many languages and paradigms, as well as (peer) reviewing papers about software for international journals, so the opinions above don’t come from a position of cluelessness but from genuine concern for a scientific discipline which multinational conglomerates want to monopolise as a matter of law.

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