01.12.17

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Patent Maximalism — Like Copyright Maximalism — Relies on Misconceptions and Mass Deception

Posted in America, Asia, Patents at 10:53 am by Dr. Roy Schestowitz

Summary: The latest examples of discussions about patent scope, courtesy of those looking to benefit financially by pushing such monopolies to the max

PATENT scope is key to success of a nation’s economy. Unrestricted scope is a recipe for disaster everywhere and it makes an economy less competitive at the international context/stage. One cautionary tale is the Eastern District of Texas, which we shall deal with separately when we write about patent trolls. After Alice (and possibly quite soon TC Heartland LLC) at SCOTUS a lot has changed for the better in the US. But it should not be taken for granted. Some people are trying to undo progress.

Joseph A. Capraro Jr., a Partner at Proskauer (the misleading cherry-pickers), is going to speak for patent maximalism at this upcoming event whose synopsis says: “Since the 2014 US Supreme Court decision on Alice Corp. v. CLS Bank, the U.S. Patent and Trademark Office (USPTO) has become much more strict when evaluating patent eligibility for certain types of computer-implemented inventions. The Alice decision severely affected software patent applications, such that the USPTO began issuing Section 101 rejections based upon Alice where no previous subject matter eligibility rejection had been raised–and the USPTO even withdrew allowances for some applications. The Alice decision created an alarming landscape for the larger patent world as well, calling into question the validity of many existing software-based patents.”

Patent law firms just can’t help promoting software patents. To them it’s just business, irrespective of the effect on sellers and buyers (of actual goods, not patents). At IAM, for example, the patent microcosm of India now bemoans the exclusion of patents on “computer-related inventions” — whatever that actually means. Software patents are not permitted in India and as the microcosm puts it:

The first step has clearly been borrowed from the first two steps established in the UK Aerotel v Macrossan case. Further, if the term ‘only’ is to be read as ‘solely’, the second step can be said to be based on step three of that case. However, step four of the Aerotel test was not considered; rather an entirely different step three pertaining solely to computer programs has been prescribed. This third step focuses only on “a contribution” made by novel hardware, without specifying the nature of the contribution expected.

Nothing associated with “computer programs” is patentable in India (nor should it be). This is what makes India’s patent system more effective and more in harmony with the local economy, which thrives in software development. Consider this new short post from Patently-O, which basically parrots a new paper about strength of patent systems. “G.Dolin is correct in many ways,” Patently-O says. “The major problem with his analysis is the way that he focuses solely on the patent system motivating individual inventors. Although such motivation exists, in the US and around the world, the patent system is primarily used by corporate entities with few inventors receiving substantial upside value of their inventions. Rather, as in Russia, invention is part of the job description of many engineers and those engineers usually receive only a token for their successes rather than a share of the resulting profits.”

Like those who are using "China" and "Russia" to make their case for patent maximalism, here we have those who conveniently treat “Russia” (or “USSR”) as a model failure, then deduce from that all sorts of nonsense. Right now in China, which traditionally was quite lenient, the patent system is becoming overly aggressive and strict in the litigation sense while granting patents on everything under the sun. That itself is a recipe for disaster and it would quite likely damage the Chinese economy. It’s surprising that their economists fail to foresee the effect of all the patent trolls they have begun to attract.

Using “Russia” or “China” to make a case for patent maximalism is misleading. Likewise, telling India to adopt Westernised patent law is asking India to shoot itself in the foot. Patent systems are not constructed purely for the purpose of “creating jobs” like patent lawyers and judges. They are, at the core, intended to foster innovation and progress. Its sad to see Dennis Crouch, a Law Professor at the University of Missouri, resorting to that kind of stuff.

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