02.28.19

Gemini version available ♊︎

The US Supreme Court (SCOTUS) Will Waste No Time on Section 101. It Will, However, Waste Its Time on Obvious Patent Trolls.

Posted in America, Courtroom, Law, Patents at 6:59 am by Dr. Roy Schestowitz

The future looks bright for software development in the US because software patents have perished

The green shirt

Summary: A roundup of American patent affairs; in short, nothing is really changing on the patent (scope) front and that’s a positive thing

THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world — including the US, Australia and Canada — are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.

Deplorable patent lawyers from north America will never rest. They will never give up. Bereskin & Parr LLP’s Cameron Gale, for instance, has just willfully given bad advice to businesses in spite of knowing software patents are worthless; these people even blast the law itself (or the policy of the Canadian Intellectual Property Office (CIPO)). Pure greed. But we have gotten accustomed to that. As it turns out, based on LWN’s article “Patent exhaustion and open source” (it was freed from the paywall on Thursday morning, or about 10 hours ago), lawyers have even entered Free/Open Source software events. This one is about Lindberg and it mentions Alice:

A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.

There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg’s words, as soon as the patent holder puts something “into the stream of commerce”, the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice’s patent interest in that widget was exhausted by that first sale to Bob.

[...]

We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.

At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.

That Microsoft part is neither funny nor worthy of the applause. It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment. Maybe one day it will use the same tactics to push all code — private code too — into GitHub (for a fee).

While it seems unlikely that Alice is going away (any time soon), it’s worth keeping vigilant. The CCIA‘s Joshua Landau wrote on Twitter [1, 2] about Iancu’s attitude towards patent trolls and Alice: “This quote is a problem. American *patents* don’t treat anyone; progress does. Might need patents to make that progress, but as @PatentScholar, @colleen_chien, etc., argue, we don’t know for sure. Iancu could pursue the policy experiments to prove it. Not his priority. [...] The quote is symbolic of the misconception held by far too many – apparently including the @uspto director – that patents have inherent value, as opposed to being an instrument to drive progress and only being valuable insofar as they do so.”

“It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment.”Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It’s good news to everybody but lawyers (remember where Iancu came from).

Seeing that there’s no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. § 101). It’s a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry’s section of Bloomberg wrote some days ago:

House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.

Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.

“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.

This “Bloomberg Law” thing is just a litigation lobby in “news” clothing; we wrote about it before. We’re not surprised that they try to give rather than clip wings of this zombie legislation, which can be safely ignored for now (there are more such bills and they too have vanished).

“The person in question is an Internet troll, not just a patent troll.”It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the
Federal Circuit‘s stance.

It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.

Speaking of SCOTUS, mind last night’s article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. “Calling a company a patent troll is not defamatory,” Masnick asserted. Here’s the introduction:

Over the years, there have been a few attempts — usually by companies that most of us would call patent trolls — to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the “patent troll” name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.

The person in question is an Internet troll, not just a patent troll. He has been trolling me in Twitter even though I ignored him. A long time ago I came to consider that person to be borderline insane or a stalker and I was rather shocked to learn that the Supreme Court will give him even a minute of its time. Who next in SCOTUS? David Ike?

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. IRC Proceedings: Tuesday, October 19, 2021

    IRC logs for Tuesday, October 19, 2021



  2. Links 19/10/2021: Karanbir Singh Leaves CentOS Board, GPL Violations at Vizio

    Links for the day



  3. [Meme] Giving the Knee

    The 'knee' champion Kratochvìl and 'kneel' champion Erlingsdóttir are simply crushing the law; they’re ignoring the trouble of EPO staff and abuses of the Office, facilitated by the Council itself (i.e. facilitated by themselves)



  4. Josef Kratochvìl Rewarded Again for Covering Up EPO Corruption and the EPO Bribes the Press for Lies Whilst Also Lying About Its Colossal Privacy Violations

    Corrupt officials and officials who actively enable the crimes still control the Office and also the body which was supposed to oversee it; it's pretty evident and clear judging by this week's press statements at the EPO's official Web site



  5. [Meme] Sorry, Wrong Country (Or: Slovenia isn't Great Britain)

    Team UPC is trying to go ahead with a total hoax which a high-level European court would certainly put an end to (if or when a referral is initiated)



  6. How Denmark, Iceland, Finland, Norway and Sweden Voted on Patently Unlawful Regulations at the EPO

    We look back and examine what happened 8 years ago when oppressed staff was subjected to unlawful new “regulations” (long enjoyed by António Campinos, the current EPO autocrat)



  7. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc

    We start our investigation of how countries in northern Europe ended up voting on the unlawful “Strike Regulations” at the EPO and why



  8. Proof That Windows “11” is a Hoax

    Guest post by Ryan, reprinted with permission



  9. Firefox Becomes as Morally Reprehensible as Apple, Facebook, or Uber

    Guest post by Ryan, reprinted with permission



  10. Links 19/10/2021: GNU dbm 1.22 and Godot 3.4 RC 1

    Links for the day



  11. [Meme] [Teaser] GitHub an Expensive and Dangerous Trap (Also: Misogyny Hub)

    The ongoing Microsoft GitHub exposé will give people compelling reasons to avoid GitHub, which is basically just a subsidised (at a loss) trap



  12. Norway Should Have Voted Against Benoît Battistelli's Illegal (Anti-)'Strike Regulations' at the European Patent Office

    Benoît Battistelli‘s EPO faced no real and potent opposition from Norwegian delegates, who chose to abstain from the vote on the notorious and illegal so-called ‘Strike Regulations’ (they’re just an attack on strikes, an assault on basic rights of labourers)



  13. Links 19/10/2021: Sequoia PGP LGPL 2.0+, Open RAN Adoption

    Links for the day



  14. [Meme] [Teaser] Benoît Battistelli, King of Iceland

    Later today we shall see how the current deputy of the head of the EPO‘s overseeing body was in fact likely rewarded for her complicity in Benoît Battistelli‘s abuses against EPO staff, including staff from Iceland



  15. IRC Proceedings: Monday, October 18, 2021

    IRC logs for Monday, October 18, 2021



  16. Links 19/10/2021: MyGNUHealth 1.0.5 and Ubuntu 22.04 Now Developed

    Links for the day



  17. [Meme] [Teaser] Thrown Under the Bus

    Tomorrow we shall look at Danish enablers of unlawful EPO regulations, Jesper Kongstad and Anne Rejnhold Jørgensen



  18. The World Needs to Know What Many Austrians Already Know About Rude Liar, the Notorious 'Double-Dipper'

    Today we publish many translations (from German) about the Austrian double-dipper, who already became the subject of unfavourable press coverage in his home country; he’s partly responsible for crushing fundamental rights at the EPO under Benoît Battistelli‘s regime



  19. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper

    Friedrich ‘Rude Liar’ Rödler is notorious in the eyes of EPO staff, whom he was slandering and scandalising for ages while he himself was the real scandal



  20. Links 18/10/2021: Porteus Kiosk 5.3 and Ventoy 1.0.55

    Links for the day



  21. [Meme] [Teaser] More to Life Than Patents

    Greedy sociopaths oughtn’t be put in charge of patent offices; this is what’s dooming the EPO in recent years (all they think about is money



  22. Microsoft GitHub Exposé — Part II — The Campaign Against GPL Compliance and War on Copyleft Enforcement

    Microsoft contemplated buying GitHub 7.5 years ago; the goal wasn’t to actually support “Open Source” but to crush it from the inside and that’s what Microsoft has been doing over the past 2.5 years (we have some details from the inside)



  23. Links 18/10/2021: Linux 5.15 RC6 and 7 New Stable Kernels

    Links for the day



  24. [Meme] The Austrian School of Friedrich Rude Liar

    With reference to the Austrian School, let’s consider the fact that Friedrich Rude Liar might in fact be standing to personally gain by plundering the EPO‘s staff by demonising them while helping Benoît Battistelli crush them



  25. IRC Proceedings: Sunday, October 17, 2021

    IRC logs for Sunday, October 17, 2021



  26. How (Simple Technical Steps) to Convince Yourself That DuckDuckGo is Just Spyware Connected to Microsoft, Falsely Advertised as 'Privacy'

    In recent days we published or republished some bits and pieces about what DuckDuckGo really is; the above reader dropped by to enlighten us and demonstrate just how easy it is to see what DuckDuckGo does even at the client side (with JavaScript); more people need to confront DuckDuckGo over this and warn colleagues/friends/family (there’s more here)



  27. Austria's Right-Wing Politicians Displaying Their Arrogance to EPO Examiners

    The EPO‘s current regime seems to be serving a money-hungry lobby of corrupt officials and pathological liars; tonight we focus on Austria



  28. [Meme] Friedrich Rödler's Increasingly Incomprehensible Debt Quagmire, Years Before EPO Money Was Trafficked Into the Stock Market

    As it turns out, numerous members of the Administrative Council of the EPO are abundantly corrupt and greedy; They falsely claim or selfishly pretend there’s a financial crisis and then moan about a "gap" that does not exist (unless one counts the illegal gambling, notably EPOTIF, which they approved), in turn recruiting or resorting to scabs that help improve ‘profit margins’



  29. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…

    Prior to the Benoît Battistelli and António Campinos regime the EPO‘s hard-working staff was slandered by a corrupt Austrian official, Mr. Rödler



  30. Links 17/10/2021: Blender 2.93.5, Microsoft Bailouts

    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