09.06.17

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“Software Patents Are Evil,” But the Patent Microcosm Keeps Attacking the US Legal System for Disallowing These

Posted in America, Courtroom, Law, Patents at 6:07 pm by Dr. Roy Schestowitz

What’s more evil than software patents are people who constantly attack those who rule against software patents

The Devil

Summary: The reality that software patents are a passing fad in the US is being challenged by those who profit from software patents (hint: they’re not at all developing any software)

EARLIER this week Benjamin Henrion alerted people to the publication of this new article which says “[t]he real enemy is software patents” in relation to an ongoing Facebook controversy. “I hope that Facebook and other multinational companies pool their resources to lobby for an end to software patents,” Henrion added. Here is what the article said:

Software patents are evil, but BSD+Patents is probably not the solution

[...]

Many open source software (OSS) projects led by industry giants use the Apache License 2.0 (henceforth the ASL2.0), compared with the MIT or BSD licenses which also enjoy popularity amongst many other OSS projects. This is the license used by projects in the Apache Software Foundation, but you can use the license without being part of the ASF. TensorFlow and many other important non-ASF projects use this license.

The ASL2.0 has appeal for enterprises for a few reasons. One obvious reason is being a redistribution-friendly, permissive license (like MIT / BSD), so you can include such code in closed source products that you sell. Another reason is that it makes patent grant rights explicit. In other words, the license grants users unrestricted use of any patented IP in the codebase in perpetuity. This patent grant applies transitively to any projects that use or redistribute the project in question.

Having code that is both permissively licensed and patented might seem a bit strange. Some companies may seek patents for IP created in OSS projects to try to protect themselves in future IP litigation . They have no intent of selling or profiting from the patents, but they want the IP distributed in their OSS projects to stay free and commercial friendly.

This is where the ASL2.0′s patent grant is so important; it protects both the OSS authors’ and users’ redistribution rights. Without this, a patent troll could start a lawsuit and potentially force code in an established OSS project to be removed, which would wreak all kinds of havoc on developers and users alike.

In my opinion, software patents are evil because they stifle innovation achieved through incrementalism, and software engineering consists of a lot of this.

[...]

The real enemy is software patents. I feel Facebook’s stance on this is ideological, and it seems unjust to make OSS developers pay the price for software patents’ continued legality in the United States. BSD+Patents may stop certain kinds of patent trolls, but the only real solution is to bring about an end to software patents altogether.

Bottom line is that I agree with the ASF’s stance on the BSD+Patents issue, and I hope that React will change its license. Further, I hope that Facebook and other highly profitable multinational companies pool their resources to lobby for an end to software patents.

We have already included nearly a dozen links about this controversy (BSD+patents) in our daily links. It has been going on for months if not a year (it’s only this summer when the subject resurfaced again and the arguments intensified).

“People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents.”For the sake of concision, we wish to focus on the patents aspect and generally obsess over the text in bold above (it’s not us who added the bold faces).

People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents. They need only copyrights. But the patent ‘industry’ profits not from innovation but from litigation; that’s why it keeps pushing for software patenting.

Earlier today we found this new publication from Nick Shipp (Kilburn & Strode LLP). It’s nonsense; this is based on a lie we debunked here before. This Court of Appeals for the Federal Circuit (CAFC) decision wasn’t about Alice or software patents. In fact, it wasn’t about software at all. As we said at the time, patent maximalists would attempt to spin the decision as a defeat to Alice. And we were right. These patent maximalists continue to twist this even a month later. From Nick Shipp:

The Federal Circuit’s Visual Memory decision continues to accentuate the need for technical advantages in patent specifications to avoid eligibility issues in the US and could emphasise the advantages of US attorneys drafting more detailed patent specifications. As we explore, these two points could have knock-on positive effects around the world, especially in Europe.

[...]

While it often takes years before changes in practices in US drafting take effect amongst US practitioners and those patent applications finally find their way into Europe, as European practitioners we see the slow shift in US practice post-Alice with a generally warm glow because it should help to mitigate some of the fundamental problems European attorneys face relating to patent eligibility before the EPO. Positively, for patentees, applying these changes in drafting practice should not only improve chances of avoiding Alice rejections in the US but also bring down prosecution costs in Europe, which can only be a good thing.

What he fails to note is that this case wasn’t about software; watch how he proceeded to spinning it in regards to the EPO. Despicable!

Nick Shipp wasn’t alone this week. Another patent maximalist did his usual PTAB bashing. It’s almost the only thing he does these days. Here are some of his latest tweets:

  • “patent atty https://www.linkedin.com/in/domenico-ippolito-10b9498/ … beats PTO on ALICE 101 rejection at PTAB for Ebay client, rare feat nowadays: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016002985-08-24-2017-1″ (source; “Question is,” I responded to him, “was it a software patent in the first place? Sometimes they are not.”)
  • “PTO withdraws all 103 rejections, continues to rely on 101 bc PTAB will rubber stamp any “abstract idea” rejections https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007918-08-24-2017-1″ (source; also covered today by Dennis Crouch, another PTAB basher)
  • “Goldman Sachs learns $ can’t buy #patent happiness, loses on 101 at PTAB like the rest of us 99%ers https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007788-08-24-2017-1″ (source)
  • “IBM loses another #patent app decision under 101 at PTAB bc Wikipedia says “crowdsourcing” been around since 1714 https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007667-08-23-2017-1 …” (source)

“Another patent maximalist did his usual PTAB bashing.”We could go on and on. PTAB bashing is high on the agenda right now, also in Dennis Crouch’s blog, which has become a PTAB bashing/lobbying blog trying to influence the Supreme Court into ‘abolishing’ PTAB (because there’s a window of opportunity soon). Watch what Crouch published earlier today: Alice bashing too. Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?

A few days ago Crouch wrote about USPTO patents, unintentionally revealing that such patents have devolved into a template full of cruft that overwhelms examiners for fast-and-loose grants. “To be clear,” he wrote, “I’m not demonizing patentees who submit lots of references. What I’m working toward is whether the large number of references creates any special difficulty or benefits for the examination process and whether examiners receive any special assistance in considering the large number of references submitted.”

“Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?”It’s an old strategy; in examination (in schools) too. Write lots and lots of stuff, especially references (which cannot be conceivably checked exhaustively), then make a rejection (based on the evidence) harder. It’s hard for an examiner to justify rejection without reading every single reference. When there are strict time limits and unrealistic expectations, as is (notoriously) the case in the EPO, what’s an examiner to do? Reject because there are “too many references”?

Incidentally, there is this new article today which says that CAFC is going to deal with the USPTO more directly, not just the patents granted by it but the “expenses of the proceedings…”

“We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office).”As Managing IP put it this afternoon: “Parties have been asked to brief on the issue of whether Section 145’s “[a]ll the expenses of the proceedings” provision authorises an award of the USPTO’s attorneys’ fees, after Federal Circuit ordered a sua sponte rehearing en banc of Nantkwest v Matal” (yes, Matal is still in charge).

We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office).

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