04.19.16

Gemini version available ♊︎

Software Patents Decreasingly a Threat in the United States, But IBM and Microsoft Lobby for a Rebound

Posted in IBM, Microsoft, Patents at 8:11 am by Dr. Roy Schestowitz

David Kappos as lobbyist
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us

Summary: Software patents are not as scary as they used to be (because many are effectively found to be of no value, or ruled invalid by US courts), but patent aggressors including IBM and Microsoft work towards a software patents comeback, aided by well-connected officials such as David Kappos (above)

THE reality behind software patents in the United States (or patent policy in general) isn’t just shaped by the USPTO, which grants patents too sparingly, but also by the courts, which increasingly demonstrate that the USPTO isn't doing its job (which should be examination and thus elimination of weak applications).

“Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all).”According to this new examination of upcoming SCOTUS cases, there is no imminent challenge to Alice. Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all). “Following its April 15 Conference,” wrote Patently-O, “the Supreme Court denied certiorari in a set of cases, including Vermont v. MPHJ; Limelight v. Akamai; Hemopet v. Hill’s Pet Nutrition; and Tas v. Beachy. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2).”

It seems like very good news, unless you’re some patent lawyer or patent aggressor such IBM or Microsoft (they both pay the former Director of the USPTO to discredit SCOTUS rulings and restore the fangs of software patents by altering § 101). Over in Texas (capital of patent trolls, see yesterday's article to that effect) the press now bemoans Alice, i.e. the death of many software patents in the United States. The article was composed by patent lawyers (surprise surprise!) and it says:

Yes, we’re being a bit dramatic here but Alice has been killing patents, and especially software patents, at an impressive clip. In this case, Alice refers to the 2014 U.S. Supreme Court opinion Alice Corp. v. CLS Bank. In that opinion, the Court announced a new two-step process to determine whether an idea is patentable and, ever since, this two-step process has been applied by courts and the Patent Office to disallow patents at an unprecedented rate. Law360 calculated that courts are granting around 70 percent of Alice motions. In raw numbers, there were more patents killed in the 14 months after Alice than in the five years before it.

It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas. Decline in proactive activity which invalidates software patents in the US has just been reported by MIP. To quote: “A total of 118 petitions were filed at the Patent Trial and Appeal Board (PTAB) in March, down from 150 in February but up on the 99 in January. In contrast, 145 petitions were filed in March 2015.”

“It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas.”Perhaps — and we are only guessing here — after Alice-led challenges (which ultimately killed patents at the knock of a gavel) more companies realise that software patents would not survive the courts anyway. It means that there’s less incentive to sue at all. Suing can lead to loss of patents. As MIP put it in another article, “Patent Trial and Appeal Board (PTAB) petition filing in the first three months of 2016 fell to its lowest quarterly figure for two years.”

What matters, however, is rate/ratio of invalidation.

So less than two years after PTAB’s formation it seems to have become less necessary because the core issue, which is patent scope (or quality), is being addressed/tackled by Alice.

FOSS Force, a site which deals with Free/Open Source software (FOSS) matters, has just run a poll about software patents and here is what it came up with (see charts in page). To quote the author: “In recent years software patents haven’t been nearly as much in the news as they once were. This is partly due to the Supreme Court’s ruling in Alice Corp. vs. CLS Bank which took a slew of patents off the table. Also, thanks to the efforts of companies such as Newegg to duke it out in court instead of rolling over and settling, many patents that had been successfully leveraged by the trolls for years have been invalidated.”

“Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.”It sure seems like things are improving in the US, but don’t take that for granted. Companies like IBM and Microsoft (or more recently Apple) hire lobbyists in an effort to restore the old state of affairs, enabling more patent extortion against small companies. Recall what Microsoft is still doing against FOSS distributors (using patents on software for coercion and taxation) and then consider IBM's controversial joining. Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.

As we noted here some days ago, having maliciously destroyed Yahoo, Microsoft might now go after Yahoo’s patents, which MIP says aren’t that expensive anyway. To quote: “It identified 2,000 US patents currently assigned to Yahoo that are active and in-force. Yahoo’s 2015 10-K reveals the company reported almost $300 million in gains related to patent sales between 2013 and 2015.”

As for IBM, there’s some new patent propaganda (just published for IBM marketing), femmewashing its patents and wrongly equating them with “invention”.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. EPO Has No F-ing Oversight

    Earlier today SUEPO mentioned this new article demonstrating that EPO President António Campinos can very obviously and blatantly violate the Code of Conduct of the Office without facing any consequences; there are translations too, so the report is now available in four languages



  2. [Meme] Linux-Rejecting Foundation

    The Linux Foundation never really leads by example; by default, it uses proprietary software



  3. Linux Foundation Almost Never uses Open Source

    The Linux Foundation uses proprietary software (look where they hire and take money from) and be sure they're probably not even aware of it



  4. Links 17/05/2022: Many More Games on GNU/Linux, YaST Development Report

    Links for the day



  5. Links 17/05/2022: Rocky Linux 8.6 and Budgie Desktop in Fedora

    Links for the day



  6. Patent Examiners Rising Up Against EPO Abuse

    Unhappy with the law-breaking autocracy (the EPO‘s management breaks the law as a matter of routine), fast-deteriorating working conditions and rapidly-decreasing quality of work (or lack of compliance with the law), workers have escalated further, topping off strikes and industrial actions with a large-scale petition



  7. [Meme] What Managers (Really) Mean by Acting Professionally

    The myth of 'professionalism' needs to die along with the façade of conformity as prerequisite for employment (Linus Torvalds can work just fine in a bathrobe in his own home)



  8. Internal Poll: 93% of European Patent Office (EPO) Workers Are Unhappy With the EPO

    On top of strike/s and industrial action/s there are now also petitions; at the EPO, almost all staff is "disgruntled" because of utterly corrupt and defunct leadership



  9. Links 17/05/2022: OpenSUSE Leap 15.4 Release Candidate

    Links for the day



  10. IRC Proceedings: Monday, May 16, 2022

    IRC logs for Monday, May 16, 2022



  11. Links 16/05/2022: FreeBSD 13.1 and Inkscape 1.2 Released

    Links for the day



  12. Archiving Latest Posts in Geminispace (Like a Dated Web Directory But for Gemini)

    Earlier today we saw several more people crossing over from the World Wide Web to Gemini; we're trying to make a decent aggregator and archive for the rapidly-expanding Geminispace, which will soon have 2,500 capsules that are known to Lupa alone



  13. Microsoft Vidal Does Not Want to Listen (USPTO is Just for Megacorporations)

    Microsoft Vidal knows her real bosses. They’re international corporations (multinationals like Microsoft), not American people.



  14. Links 16/05/2022: China Advances on GNU/Linux and Maui 2.1.2 is Out

    Links for the day



  15. Jim Zemlin: Chief Revenue Officer in 'Linux' Seat-Selling Foundation

    Board seats in the Linux Foundation are basically a product on sale, based internal documents



  16. Reminder: Linux Foundation's Last IRS Filing is Very Old (Same Year the CFO Left)

    People really need to ask the Linux Foundation, directly, why its filings are years behind; this seems like a sensitive subject



  17. Linux Foundation Does Not Speak for GNU/Linux Users

    There's a serious problem in the "Linux" world as the so-called 'Linux' Foundation claims to speak for us (the GNU/Linux community) while in fact speaking against us (on the payroll of those looking to extinguish us)



  18. IBM's Lennart Poettering on Breaking Software for Pseudo Novelty

    Recently-uploaded ELCE 2011 clip shows a panel with Linus Torvalds, Alan Cox, Thomas Gleixner, Paul McKenney, and Lennart Poettering (relevant to novelty or perceived novelty that mostly degrades the experience of longtime users, e.g. Wayland and systemd)



  19. IRC Proceedings: Sunday, May 15, 2022

    IRC logs for Sunday, May 15, 2022



  20. Links 15/05/2022: Linux 5.18 RC7 and Calls for More Mass Surveillance

    Links for the day



  21. Audio: Mark Shuttleworth Marketed to Young Males, With Sexy Pictures

    The Web is rotting away, old links become broken links within months or years, so I’ve decided to encode a 3-minute segment of the whole as Ogg



  22. What a Difference Half a Decade Makes (When Linux Foundation is 'Having Fun')

    Media shaming campaigns may have taken their toll on the founder of Linux, who is now bossed by someone who rejects Linux and is married to a Microsoft booster. Like Richard Stallman under FSF guidance (and conditions for return, mostly for fear of further media assaults and attack dogs), he has become a more publicity-shy and private person. The Linux Foundation has in effect reduced the founder of what it’s called after (Linux) into a weekly release manager and mascot, whose brand it is gradually diluting/cheapening.



  23. Links 15/05/2022: GNU libiconv 1.17

    Links for the day



  24. [Meme] Unitary Patent and Unified Patent Court (UPC) Cannot Be Reconciled With the Law

    Unitary Patent and Unified Patent Court (UPC)? Impossible. But Team UPC counts on an endless torrent of fake news managing to convince you (and more importantly politicians) otherwise.



  25. Even Team Battistelli is Sometimes Admitting -- Out in Public! -- That Unified Patent Court (UPC) is Neither Legal Nor Desirable

    Daniel X. Thomas and other people who are “too old to punish” (consequences to their career profoundly minimised owing to seniority) are among those who push back against the Unitary Patent or Unified Patent Court (UPC); any sane person — not a career-climbing litigation zealot — can identify the pertinent facts and realise that what’s going on here is an injustice of unprecedented proportions in the patent discipline



  26. [Meme] Common Sense at EPO

    The European examiners who deal with patents prefer a system that works for science, for Europe, not for foreign megacorporations that amass millions of low-quality patents and weaponise these to discourage competition



  27. Patent Granting at the EPO Has Collapsed by 24% Owing to Much-Needed Industrial Action

    Seeing that the EPO’s management routinely violates the law and even the very legal basis of the EPO’s existence (it is a monopoly in Europe; no body has the authority to compete against it), the EPO’s examiners have embarked on a ‘Work-to-Rule’ campaign — working in compliance with the rules as defined 49 years ago and revised over the decades — and the European Patent Convention (EPC) takes priority over unlawful demands from middle and upper management; this is proving highly effective so far and it will carry on until demands are met, i.e. until the law is obeyed and staff is treated with respect/dignity



  28. [Meme] Milan is a Suburb in London

    As long as Italy is not the UK and London means London “proper” (not the French town called London) the UPCA is invalid and no matter how much Team UPC (and its puppets in EPO management) may plead, this whole system is bound to implode



  29. The Latest Propaganda Tactics of Team UPC: Pretending Unified Patent Court Already Exists and Unitary Patents Are Default When If Fact None Even Exists

    8 years ago Benoît Battistelli said that the UPC was imminent; now, after 4 years of António Campinos, it’s still not here and Team UPC speculators say it won’t happen this year, either; just like the EPO constantly lies (both to the public and to its very own staff) Team UPC continues to lie to itself (self-delusion) and to us; both also routinely break the law, engage in deliberate violations of longstanding conventions, and scrap constitutions, which in turn becomes a breaking point for the EU’s credibility and the legal profession



  30. Links 15/05/2022: More Azure Shutdowns and Windows Security Blunders Aplenty

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts