03.04.17

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Using “China!” and Distortion of Data From Lex Machina, the Litigation Lobby Promotes Software Patents

Posted in Africa, Asia, Deception, Patents at 11:45 am by Dr. Roy Schestowitz

“The Chinese Are Coming!” (British Empire’s national broadcaster on the weak — and obviously hypocritical — narrative of Chinese ‘imperialism’)

The Chinese Are Coming

Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)

China seems to have become almost a role model or a poster child to Battistelli’s EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don’t matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can’t stop talking about “China!”). It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).

Their argument in a nutshell is, if we don’t allow algorithms be to patented, China will “win” — a loose term for simple-minded and careless people like Donald Trump (there are many reports like “Donald Trump stokes foreign policy fears in China”).

“It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).”“Good to see that SIPO aligns with the EPO’s “any hardware approach” when it comes to patent-eligibility,” said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That’s the same man who had also linked to Steve Lundberg’s “patents4software” blog (non-developer speaking ‘on behalf’ of developers [1, 2]). Lundberg says “Kudos to China on Software Patents,” alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.

Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled “China relaxes rules on software patentability – and the United States loses more ground”.

Front groups like IAM are using shame tactics against the USPTO. It’s part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).

“Front groups like IAM are using shame tactics against the USPTO.”Ellis says “United States loses more ground,” as if it’s a bad thing to control quality. Ar they really losing by improving their system? IAM’s lobbyists just can’t help but show what they really are. It’s not a news site and it’s just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of ‘journalism’.

Watchtroll was of course all over this too, pushing for software patents under the headline “China relaxing barriers to software, business method patents with revised patent guidelines,” which added business methods to it.

IAM didn’t stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled “Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts” and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.

“IAM is lying/distorting things again, but that’s just its business model.”The core of their argument is CAFC, where it says: “The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect.”

There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that’s just its business model. That’s what many firms are paying it for. It’s their propaganda mill, it’s tasked with perception management, e.g. softening the image of patent trolls.

Writing about the same data as above — albeit without the lobbying (or pseudo-activist) slant — Law 360 said that Lex Machina “tallied the number of patents that courts have invalidated under Alice.” To quote the opening paragraph (most of it is behind paywall anyway):

The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.

We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM’s conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that’s what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.

“We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills.”Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have ‘teeth’. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained “Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter,” but if one looks at all the other CAFC cases, then it’s abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse — not something that IAM would touch even with a 5-foot bargepole (bias by omission).

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