Bonum Certa Men Certa

USPTO's Violation of the First Amendment, Competition Laws, and Spirit of Creation

Job cremation

USPTO building



Summary: The USPTO (shown above) comes under more fire as a so-called 'reform' fails to make it harmonious with science, technology, and human rights

THE USPTO IS happily granting software patents/monopolies and processing some patent-pending ones on green energy, demonstrating that it is still dissociated from the betterment of society and instead dedicated to protectionism.



The First Amendment is said to be violated by some particular types of patents, according to TechDirt which argues:

Do Patents On Medical Diagnostics Violate The First Amendment?



We've been following the extremely worrisome Prometheus Laboratories v. Mayo Collaborative Services case for a while now. This is the case in which Prometheus patented some basic medical diagnostics tests, and then sued the Mayo Clinic for daring to do similar diagnostics without paying up. Tragically, CAFC, the court of appeals for the Federal Circuit, has ruled that it's just fine and dandy to patent a diagnostic test. The Supreme Court agreed to hear the appeal on this in the upcoming term, and folks at the Cato Institute have filed a very interesting amicus brief, arguing that such a diagnostic test should not be patentable on two key points. I don't know that it'll convince the court, but they try out the argument that doing so would actually be a First Amendment violation, and even cite the famous Eldred case to make their argument (emphasis mine in the quote here):


As we explained yesterday, antitrust concerns too help shed doubt on the legitimacy of the patent system. Google may have bought some more patents from IBM (mentioned in the context of software patents in [1, 2, 3, 4, 5, 6, 7]), but deterrence does not work when Microsoft uses patent trolls to wage anti-competitive legal wars. This whole systems looks more and more like s sham. Even NPR did a show about it about 3 days ago. To quote a part of it:

BLOCK: What is the broader goal in terms of job creation here?

SYDELL: Well, this is what they say. What they say is if we speed things up and we get that backlog cleared up, then there are all these startups that are just waiting to move to the next phase of financing and get their products to market. And they'll be able to do that and they'll hire people in the process. So that's what they're saying.

BLOCK: And what about those businesses, Laura, or inventors, entrepreneurs - do they think that the law will, in fact, encourage hiring, make them hire more people?

SYDELL: No, I'm not hearing that largely at all. I'm hearing a lot of skepticism about the bill. I think one of the problems that entrepreneurs and startups face is that there are a lot of bad patents that are out there, particularly in the realm of software and business method. And the bill doesn't really do anything to address that.

So one of the problems that you have is you have a lot of these, they call them patent trolls. They're companies that buy up patents, particularly broad patents. They buy them up and they go out and they sue startups and they demand licensing fees. And this has put a lot of startups out of business. And this bill doesn't really do anything to address that problem.

The Patent Office has granted, for example, in 2000, they granted a patent for a method of making toast. Really, seriously.

BLOCK: Laura, what other solutions would there be to this problem of bad patents that you're talking about that wouldn't involve Congress?

SYDELL: The courts could step in. And, in fact, it is the courts who initially pushed to have, for example, software patents and business method patents granted. So they could pull back and there is some evidence they are. But I think it could be a long time before they address it directly. And people are concerned about that.

I think a lot of people wish Congress would revisit this soon. And they're worried that because they just granted and created this new act it'll be a long time before Congress steps in again, which really would be the fastest and most efficient way to address the problem.

BLOCK: NPR's Laura Sydell. We were talking about the new U.S. patent bill that was signed into law by President Obama today.


There are more news articles about it, e.g. [1, 2], but only few mention software patents. The government which signed this ridiculous bill ignores the real issues, spews out a load of nonsense which contradicts research, and one GNU/Linux advocate had this to say on Saturday:





Patent "reform"? Not really.
From: Homer 
Date: Saturday 17 Sep 2011 14:38:53
Groups: comp.os.linux.advocacy






Apparently "patent reform" happened already, and nobody noticed. But what exactly happened, and what effect will it have on patent trolls like Myhrvold, Apple, Microsoft and Oracle, perhaps the biggest threats to Linux, Free Software and innovation in general?

[quote] Late last night the Senate voted 89-9 to pass the America Invents Act that would radically reshape patent laws, and President Obama is expected to sign it without delay. It's the first such significant bill in 60 years, and it has one key component: It moves the onus from merely "inventing" a patentable idea first to becoming the person who actually files for an innovation first.

...

But "first to invent" has some big pitfalls, including the ability of an inventor to totally gut the hopes of someone else with a similar or identical idea, and who then files for a patent--because the original inventor, without necessarily having to make any move toward realizing the innovation, can claim they invented it. A complex legal battle may then ensue, and perhaps the second filer may choose to settle privately, license the idea, or fight the situation in an expensive court case.

This trolling completely destroys the idea that a successful new thing is built on 1% inspiration and 99% perspiration--a troll, perhaps even a rich troll who's made money from previous innovations they've dreamed up (or, more materialistically, bought from someone), can simply keep the legal upper hand by saying they're the real innovator without actually building anything. [/quote]

http://www.fastcompany.com/1779071/first-to-file-a-patently-obvious-reform

Sorry (and excuse the pun) but this is patently wrong. Invention is invention, not manufacturing; it's the idea (strictly - the method) not the implementation. If you're not the first to have a particular idea, then you're not its inventor. Period. This "reform" simply transforms "invention" into a brawl, where being the first to find or create something doesn't necessarily secure ownership - you can be mugged for it by someone more powerful.

Is this really all the "America Invents Act" has to offer? Is this the best "reform" congress could come up with? Pathetic.

/Real reform/ would have been a re-examination and redefinition of what exactly is patentable, a more rigorous patent examination process (or, let's be honest, /any/ patent examination process), and stricter (or again - /any/) remedies against those who persistently file trivial claims.

/Real reform/ would have made patents non-transferable, thus completely solving the problem of patent harvesting by non-practising entities.

/Real reform/ would have made it impossible to patent something as trivial and non-inventive as a "rounded rectangle" or a "record button".

But no, that's not what the "America Invents Act" has done at all. All it's done is make innovation impossible for anyone who lacks the financial means to bribe the USPTO, and allows the wealthy to steal others' ideas. The US patent system was already an abomination, but now, incredibly, it's actually an order of magnitude /worse/.

Apart from anything else, it seems to completely undermine the premise of "prior art", since apparently the only thing that counts now is being the "first to file", regardless of who actually came up with, or even implemented, the idea first.

Consider the case of IP Innovation LLC and the Technology Licensing Company (ex-Microsoft employees, and likely just two of Myhrvold's many shell companies) vs.€ € Red Hat & Novell, where the litigants claimed they'd "invented" multiple workspaces. Of course, their definition of "invented" was "harvested patents from Xerox".

Unfortunately for the patent trolls, those patents were granted in 1991, some 6 years /after/ multiple workspaces ("screens") had already been implemented on the Amiga, and so they lost the case. Indeed Commodore implemented the concept as a commercial product in 1985, a full year before it was even first implemented internally by Xerox PARC, and the Amiga implementation was based on ideas devised by Jay Miner (of the original "Amiga Corporation") as far back as 1982, some two years before it was even first imagined at Xerox PARC.

But that prior art would apparently mean nothing in the new patent regime, since neither Jay Miner nor Commodore thought to patent the concept of multiple workspaces, despite clearly being the inventors and first implementers of the concept. Xerox PARC was the "first to file", and that's all that matters in a gun-slinger economy. Anyone with enough money can now file patents against other people's prior art, use them as weapons to extort money, from anyone - including the /actual/ inventors, then pass those weapons on to other gun-slingers to do likewise.

Meanwhile those same gun-slingers remain free to claim "invention" of every trivial speck of dust in the world, completely unchallenged until they turn up in the "great" troll-friendly State of Texas, and either win on the basis of the corrupt court's pro-patent bias, or bleed their victims dry in the process.

So much for "patent reform".







It's all about inflating the elevating the amount of patents (under the assumption that patents have real value, as legal types wish us to believe), but if the assumption is that this bill will give more jobs to patent lawyers, maybe they have a point. Just creating more and more monopolies is like overprinting money, which devalues the currency but works well for the mint. Watch McKool Smith in the news last week, pulling $391,000,000 from an actual practicing company based on this press release:

Attorneys from McKool Smith have secured a $391 million court judgment in favor of firm client Versata Software Inc., a pioneer in front-office enterprise software, following a successful patent infringement lawsuit against global software giant SAP America Inc. and its German-based parent company SAP AG (NYSE: SAP).


That is some really expensive "patent infringement". Notice that SAP America Inc. is the target. The USPTO really needs to get its act together or go away.

Comments

Recent Techrights' Posts

Free Software Foundation Subpoenaed by Serial GPL Infringers
These attacks on software freedom are subsidised by serial GPL infringers
Publicly Posting in Social Control Media About Oneself Makes It Public Information
sheer hypocrisy on privacy is evident in the Debian mailing lists
 
IBM Culling Workers or Pushing Them Out (So That It's Not Framed as Layoffs), Red Hat Mentioned Repeatedly Only Hours Ago
We all know what "reorg" means in the C-suite
IBM Raleigh Layoffs (Home of Red Hat)
The former CEO left the company exactly a month ago
Paul R. Tagliamonte, the Pentagon and backstabbing Jacob Appelbaum, part B
Reprinted with permission from disguised.work
Links 01/05/2024: Surveillance and Hadopi, Russia Clones Wikipedia
Links for the day
Links 01/05/2024: FCC Takes on Illegal Data Sharing, Google Layoffs Expand
Links for the day
Links 01/05/2024: Calendaring, Spring Idleness, and Ads
Links for the day
Paul Tagliamonte & Debian: White House, Pentagon, USDS and anti-RMS mob ringleader
Reprinted with permission from disguised.work
Jacob Appelbaum character assassination was pushed from the White House
Reprinted with permission from disguised.work
Why We Revisit the Jacob Appelbaum Story (Demonised and Punished Behind the Scenes by Pentagon Contractor Inside Debian)
If people who got raped are reporting to Twitter instead of reporting to cops, then there's something deeply flawed
Red Hat's Official Web Site is Promoting Microsoft
we're seeing similar things at Canonical's Ubuntu.com
Enrico Zini & Debian: falsified harassment claims
Reprinted with permission from disguised.work
European Parliament Elections 2024: Daniel Pocock Running as an Independent Candidate
I became aware that Daniel Pocock had decided to enter politics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 30, 2024
IRC logs for Tuesday, April 30, 2024
[Meme] Sometimes Torvalds and RMS Agree on Things
hype around chatbots
[Video] Linus Torvalds on 'Hilarious' AI Hype: "I Hate the Hype" and "I Don't Want to be Part of the Hype", "You Need to Be a Bit Cynical About This Whole Hype Cycle"
Linus Torvalds on LLMs
Colin Watson, Steve McIntyre & Debian, Ubuntu cover-up mission after Frans Pop suicide
Reprinted with permission from disguised.work
Links 30/04/2024: Wireless Carriers Selling Customer Location Data, Facebook Posts Causing Trouble
Links for the day
Frans Pop suicide and Ubuntu grievances
Reprinted with permission from disguised.work
Links 30/04/2024: More Google Layoffs (Wide-Ranging)
Links for the day
Fresh Rumours of Impending Mass Layoffs at IBM Red Hat
"IBM filed a W.A.R.N with the state of North Carolina. That only means one thing."
Workers' Right to Disconnect Won't Matter If Such a Right Isn't Properly Enforced
I was always "on-call" and my main role or function was being "on-call" in case of incidents
Mark Shuttleworth's (MS's) Canonical is Promoting Microsoft This Week (Surveillance Slanted as 'Confidential')
Who runs Canonical these days? Why does Canonical help sell Windows?
A Discussion About Suicides in Science and Technology (Including Debian and the European Patent Office)
In Debian, there is a long history of deaths, suicides, and mysterious disappearances
Federal News Network is Corrupt, It Runs Propaganda Pieces for Microsoft
Federal News Network used to be OK some years ago
What Mark Shuttleworth and Canonical Can to Remedy the Damage Done to Frans Pop's Family
Mr. Shuttleworth and Canonical as a company can at the very least apologise for putting undue pressure
Amnesty International & Debian Day suicides comparison
Reprinted with permission from disguised.work
[Meme] A Way to Get No Real Work Done
Walter White looking at phone: Your changes could not be saved to device
Modern Measures of 'Productivity' Boil Down to Time Wasting and Misguided Measurements/Yardsticks
People are forgetting the value of nature and other human beings
Countries That Beat the United States at RSF's World Press Freedom Index (After US Plunged Some More)
The United States (US) was 17 when these rankings started in 2002
Record Productivity and Preserving People's Past on the Net
We're very productive these days, partly owing to online news slowing down (less time spent on curating Daily Links)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 29, 2024
IRC logs for Monday, April 29, 2024
Links 30/04/2024: Malaysian and Russian Governments Crack Down on Journalists
Links for the day
Frans Pop Debian Day suicide, Ubuntu, Google and the DEP-5 machine-readable copyright file
Reprinted with permission from disguised.work
Axel Beckert (ETH Zurich), the mentality of sexual violence on campus
Reprinted with permission from Daniel Pocock
[Meme] Russian Reversal
Mark Shuttleworth: In Soviet Russia's spacecraft... Man exploits peasants
Frans Pop & Debian suicide denial
Reprinted with permission from disguised.work
Hard Evidence Reinforces Suspicion That Mark Shuttleworth May Have Worked Volunteers to Death
Today we start re-publishing articles that contain unaltered E-mails
The Real Threats to Society Include Software Patents and the Corporations That Promote Them
The OIN issue isn't a new one and many recognise this by now
Links 30/04/2024: OpenBSD and Enterprise Cloaking Device
Links for the day
Microsoft Still Owes Over 100 Billion Dollars and It Cannot be Paid Back Using 'Goodwill'
Meanwhile, Microsoft's cash at hand (in the bank) nearly halved in the past year.
[Teaser] Ubuntu Cover-up After Death
Attack the messenger
The Cyber Show Explains What CCTV is About
CCTV does not typically resolve crime
[Video] Ignore Buzzwords and Pay Attention to Attacks on Software Developers
AI in the Machine Learning sense is nothing new
Outline of Themes to Cover in the Coming Weeks
We're accelerating coverage and increasing focus on suppressed topics
[Video] Not Everyone Claiming to Protect the Vulnerable is Being Honest
"Diversity" bursaries aren't always what they seem to be
[Video] Enshittification of the Media, of the Web, and of Computing in General
It manifests itself in altered conditions and expectations
[Meme] Write Code 100% of the Time
IBM: Produce code for us till we buy the community... And never use "bad words" like "master" and "slave" (pioneered by IBM itself in the computing context)
[Video] How Much Will It Take for Most People to Realise "Open Source" Became Just Openwashing (Proprietary Giants Exploiting Cost-Free or Unpaid 'Human Resources')?
turning "Open Source" into proprietary software
Freedom of Speech... Let's Ban All Software Freedom Speeches?
There's a moral panic over people trying to actually control their computing
Richard Stallman's Talk in Spain Canceled (at Short Notice)
So it seems to have been canceled very fast
Links 29/04/2024: "AI" Hype Deflated, Economies Slow Down Further
Links for the day
Gemini Links 29/04/2024: Gopher Experiment and Profectus Alpha 0.9
Links for the day
[Video] Why Microsoft is by Far the Biggest Foe of Computer Security (Clue: It Profits From Security Failings)
Microsoft is infiltrating policy-making bodies, ensuring real security is never pursued
Debian 'Cabal' (via SPI) Tried to Silence or 'Cancel' Daniel Pocock at DNS Level. It Didn't Work. It Backfired as the Material Received Even More Visibility.
know the truth about modern slavery
Lucas Nussbaum & Debian attempted exploit of OVH Hosting insider
Reprinted with permission from disguised.work
Software in the Public Interest (SPI) is Not a Friend of Freedom
We'll shortly reproduce two older articles from disguised.work
Harassment Against My Wife Continues
Drug addict versus family of Techrights authors
Syria, John Lennon & Debian WIPO panel appointed
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 28, 2024
IRC logs for Sunday, April 28, 2024
[Video] GNU and Linux Everywhere (Except by Name)
In a sense, Linux already has over 50% of the world's "OS" market