04.08.18

Gemini version available ♊︎

IAM Encourages Patent Aggression, CCIA Highlights Cost of Being Accused of Infringement, Professor Tun-Jen Chiang Explores Free Speech Aspects of Patents

Posted in America, Law, Patents at 12:01 am by Dr. Roy Schestowitz

The First Amendment in the United States is contradictory to the notion of code patents (decision from the Court of Appeals for the Federal Circuit, CAFC)

Opinion on IV

Opinion on IV

Summary: A few items of interest which pertain to patent litigation and shakedown, in effect highlighting lesser-explored aspects of legal landscapes wherein being accused alone can cost one dearly

THE patent litigation culture that had become so prevalent in the US before the courts (and to a lesser degree the USPTO) put the brakes on it cost the economy many billions of dollars. Lawyers, trolls and few failing companies had made a lot of money but produced nothing of value. We risk seeing the same thing happening in Europe if EPO management gets its way.

“Software developers do not need patents. It’s an improper and truly unnecessary instrument of law.”IAM spent well over a decade promoting a patent litigation culture everywhere in the world. This is IAM’s bread and butter. What IAM meant by “webinar” the other day is marketing/lobbying. The word “licensing” refers to blackmail, extortion, and coercion with patents (otherwise a lawsuit gets filed). By contrast, the CCIA (Josh Landau in this case) bemoaned the situation, insisting that “[i]n Defending Against Patent Litigation, Even A Win Is A Loss” (except for the lawyers).

To quote:

So what we have is a lawsuit where, based on the statements in the complaint, the patent may not be valid, and where public information strongly suggests that the patent isn’t infringed.

Nonetheless, the Big Ten Network will have to spend money defending themselves from the lawsuit. And baseless patent assertions don’t just hurt large tech companies—they hit everyone, from entertainment companies like the BTN or Disney, to retailers and restaurants like Walmart and White Castle.

These suits, even if the defendant is successful in defending themselves, cost money. According to AIPLA’s 2017 survey, the median cost just to start defending a case with less than $1,000,000 at stake is around $25,000, and the median cost to get through the motions stage is around $250,000. If there’s more at stake? A case with more than $25,000,000 at risk might cost you around $140,000 just to get started, with the cost through the motions stage on the order of $1,700,000. That’s not even to get to trial.

All to defend yourself against a lawsuit that never should have occurred, based on a patent that never should have issued.

Tun-Jen Chiang has just outed/promoted “Patents and Free Speech,” a paper which discusses how patents affect the First Amendment in the United States. It’s no secret that computer code (in the case of software patents) is akin to poetry or speech and thus invokes questions pertaining to the First Amendment. CAFC ruled so specifically (about 2 years ago) while rejecting Microsoft’s patent troll, Intellectual Ventures. From this new introduction to Professor Chiang’s paper:

Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.

Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”

Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.

When it comes to copyright law, one’s ability to speak freely depends on one’s originality. But rephrasing things can help dodge plagiarism/infringement claims, whereas with patents that is not quite possible. This means that when it comes to patents the risk to one’s free speech, e.g. in the code sense, is seriously jeopardised. Code is already covered by copyright law, so for the most part plagiarism is a problem that’s sufficiently tackled without patents. Software developers do not need patents. It’s an improper and truly unnecessary instrument of law.

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. Links 19/1/2022: XWayland 22.1 RC1 and OnlyOffice 7.0 Release

    Links for the day



  2. Links 19/1/2022: ArchLabs 2022.01.18 and KDE's 15-Minute Bug Initiative

    Links for the day



  3. When Twitter Protects Abusers and Abuse (and Twitter's Sponsors)

    Twitter is an out-of-control censorship machine and it should be treated accordingly even by those who merely "read" or "follow" Twitter accounts; Twitter is a filter, not a news/media platform or even means of communication



  4. IRC Proceedings: Tuesday, January 18, 2022

    IRC logs for Tuesday, January 18, 2022



  5. Links 19/1/2022: Wine 7.x Era Begins and Istio 1.12.2 is Out

    Links for the day



  6. Another Video IBM Does Not Want You to Watch

    It seems very much possible that IBM (or someone close to IBM) is trying to purge me from Twitter, so let’s examine what they may be trying to distract from. As we put it 2 years ago, "Watson" is a lot more offensive than those supposedly offensive words IBM is working to purge; think about those hundreds of Red Hat workers who are black and were never told about ethnic purges of blacks facilitated by IBM (their new boss).



  7. What IBM Does Not Want You to Watch

    Let's 'Streisand it'...



  8. Good News, Bad News (and Back to Normal)

    When many services are reliant on the integrity of a single, very tiny MicroSD card you're only moments away from 2 days of intensive labour (recovery, investigation, migration, and further coding); we've learned our lessons and took advantage of this incident to upgrade the operating system, double the storage space, even improve the code slightly (for compatibility with newer systems)



  9. Someone Is Very Desperate to Knock My Account Off Twitter

    Many reports against me — some successful — are putting my free speech (and factual statements) at risk



  10. Links 18/1/2022: Deepin 20.4 and Qubes OS 4.1.0 RC4

    Links for the day



  11. Links 18/1/2022: GNOME 42 Alpha and KStars 3.5.7

    Links for the day



  12. IRC Proceedings: Monday, January 17, 2022

    IRC logs for Monday, January 17, 2022



  13. Links 17/1/2022: More Microsoft-Connected FUD Against Linux as Its Share Continues to Fall

    Links for the day



  14. The GUI Challenge

    The latest article from Andy concerns the Command Line Challenge



  15. Links 17/1/2022: digiKam 7.5.0 and GhostBSD 22.01.12 Released

    Links for the day



  16. IRC Proceedings: Sunday, January 16, 2022

    IRC logs for Sunday, January 16, 2022



  17. Links 17/1/2022: postmarketOS 21.12 Service Pack 1 and Mumble 1.4 Released

    Links for the day



  18. [Meme] Gemini Space (or Geminispace): From 441 Working Capsules to 1,600 Working Capsules in Just 12 Months

    Gemini space now boasts 1,600 working capsules, a massive growth compared to last January, as we noted the other day (1,600 is now official)



  19. [Meme] European Patent Office Space

    The EPO maintains a culture of illegal surveillance, inherited from Benoît Battistelli and taken to a whole new level by António Campinos



  20. Gemini Rings (Like Webrings) and Shared Spaces in Geminspace

    Much like the Web of 20+ years ago, Gemini lets online communities — real communities (not abused tenants, groomed to be ‘monetised’ like in Facebook or Flickr) — form networks, guilds, and rings



  21. Links 16/1/2022: Latte Dock 0.11 and librest 0.9.0

    Links for the day



  22. The Corporate Cabal (and Spy Agencies-Enabled Monopolies) Engages in Raiding of the Free Software Community and Hacker Culture

    In an overt attack on the people who actually did all the work — the geeks who built excellent software to be gradually privatised through the Linux Foundation (a sort of price-fixing and openwashing cartel for shared interests of proprietary software firms) — is receiving more widespread condemnation; even the OSI has been bribed to become a part-time Microsoft outsourcer as organisations are easier to corrupt than communities



  23. EPO's Web Site Constantly Spammed by Lies About Privacy While EPO Breaks the Law and Outsources Data to the United States

    The António Campinos-led EPO works for imperialism, it not only protects the rich; sadly, António’s father isn’t alive anymore and surely he would blast his son for doing what he does to progress his career while lying to staff and European citizens



  24. Links 16/1/2022: Tsunami and Patents

    Links for the day



  25. IRC Proceedings: Saturday, January 15, 2022

    IRC logs for Saturday, January 15, 2022



  26. Links 16/1/2022: Year of the GNU/Linux Desktop and Catch-up With Patent Misinformation

    Links for the day



  27. Patrick Breyer, Unlike Most German Politicians, Highlights the Fact That Unified Patent Court (UPC) and Unitary Patent Are Incompatible With EU Law

    A longtime critic of EPO abuses (under both Benoît Battistelli and António Campinos leadership), as well as a vocal critic of software patents, steps in to point out the very obvious



  28. Links 15/1/2022: Flameshot 11.0 and Libvirt 8.0

    Links for the day



  29. Blogging and Microblogging in Geminispace With Gemini Protocol

    Writing one’s thoughts and other things in Geminispace — even without setting up a Gemini server — is totally possible; gateways and services do exist for this purpose



  30. Links 15/1/2022: Raspberry Pi in Business

    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