Bonum Certa Men Certa

PATENT Act a 'Reform' for Big Corporations, Hence Does Not Address the Core Issues, Including Patent Scope and Massive Patent Aggressors

Chuck Grassley
Chuck Grassley's 1979 congressional photo



Summary: Big corporations, including some of the biggest patent aggressors out there, successfully lobbied for what has essentially become a bipartisan bill to eliminate the thorn in their side

"TROLLS" has become the dominant term in today's news about patents. It has been like this for at least a couple of years. It's all about trolls, trolls, trolls. The EFF, which sometimes speaks about software patents (especially this year), is still obsessing over "patent trolls". In one of its recent articles it said: "Suppose you get sued by a patent troll. You then learn that the troll has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the troll."



To rephrase the above text, suppose you get sued by a large corporation. You then learn that the corporation has been sitting on its patent for years without giving you any warning. If you’d known about the risk, you might have been able to design your product differently to avoid infringement. Even worse, when you try to prove that the patent covers an obvious invention, all of the best evidence (such as websites or code repositories) has disappeared because of the passage of time. Instead of winning the case, you must pay years worth of damages to the corporation.

"Busting one patent at a time is not a practical approach to solving the overall issue."The point here is simple; it makes no difference if the plaintiff is some corporation or a troll, but large corporations want to only eliminate the trolls, not themselves. Watch the ongoing AP obsession with trolls, this time too courtesy of Anne Flaherty. The Associated Press has almost literally flooded news houses and newspapers with articles that only focus on trolls, as we showed last week (dozens if not hundreds of large papers reposted/reprinted AP). This looks like propaganda. It's a form of lobbying through media. AP's obsession with trolls is exceptional mostly in the sense of impact, it's not necessarily unique. AP is embedded or put in hundreds of Web sites around the world, shifting all focus to one misdirected 'reform' effort [1, 2, 3, 4, 5, 6]. The headlines vary a little, but the storyline is always the same.

Here is a better article from the EFF, focusing on a patent it squashed quite recently. The site says "EFF recently won our challenge to invalidate claims of the “podcasting patent” using a procedure at the Patent Office called inter partes review. This procedure allowed us to challenge a patent that was being used to demand licenses from individual podcasters, even though EFF itself had never been threatened by the patent owner. EFF’s ability to file this petition was important because many of those targeted by the patent owner—small podcasters—would be unable to afford the $22,000 filing fees to challenge the patent, let alone the attorneys’ fees that would come along with it. Also, if an individual podcaster had filed an inter partes review it would have faced a risk of retaliation in the form of a district court lawsuit from Personal Audio. Instead, EFF was able to defend the public interest on behalf of the community as a whole."

The word "troll" is not even mentioned. Compare that to related coverage from "IP Troll Tracker", which wrote: "Let’s just come right out with my point…the “podcasting patent” is no more. I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here). Why? Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process. You know, like Intellectual Ventures does. Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets."

Busting one patent at a time is not a practical approach to solving the overall issue. It is impractical and expensive to do this a million times. The only proper solution is to eliminate software patents, which obviously would invalidate this “podcasting patent” (along with hundreds of thousands -- if not over a million -- other US patents).

So, now there's this relatively new talk about some 'reform' with a new name. It's not really reform for the people but reform for the nation's largest corporations (to better suit large corporations' interests). The New York Times used a misleading headline: "With Patent Litigation Surging, Creators Turn to Washington for Help" (by "Creators" they don't mean individuals). We quickly found a lot more coverage of this (usually following trend-setting media) and it kept mentioning this thing called "PATENT Act", which is fairly new. Lawyers' sites covered it [1, 2, 3] and so did a lot of corporate news sites [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]. Mike Masnick wrote about this thing called "PATENT Act" a few days ago, highlighting early signs that this is just another "act" with gimmicks and branding rather than substance, just like "Freedom" Act and "Patriot" Act. He said that the "Patent Reform Bill [is] A Good Step, But Still Falls Way Short Of Fixing A Broken System", explaining that: "As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done."

It looks like it will really become law (based on dozens of articles we saw), but what will this achieve? "2015 could be the year Congress takes action on patent trolls," wrote Timothy B. Lee, noting that it's all about trolls.

"There's a growing problem with patent trolls," he wrote, "the companies that create no products of their own but earn money threatening other companies with patent lawsuits. The problem has become so widespread that even low-tech companies like restaurants and grocery stores have begun lobbying Congress to do something about it.

"It's not really reform for the people but reform for corporations (to better suit large corporations' interests).""Now Congress could be on the verge of taking action. On Friday, a Senate aide close to the negotiations told me that a bipartisan group of senators is "very close" to introducing legislation with broad support in the Senate.

"Supporters of the legislation have good reason to be optimistic, as the coalition supporting the legislation is broader and more unified than in the past. But given Congress's penchant for gridlock, it's far from a sure thing."

We wrote about Grassley before (in relation to Microsoft) and mentioned some of the other supporters of this bill. They are not necessarily corrupt, they are probably just misled by the lobbying. Our conjecture is that to make the bill passable they don't really want a proper and complete reform, they just amend it based on input from corporations (lobbying). A slightly later (and very good compared to the rest) article from Timothy B. Lee explains "how big companies are stopping Congress from fixing the patent system". He hits the nail on the head when he says that "the problem of large companies exploiting the patent system hasn't gone away. If anything, it's gotten worse as the courts made it easier to get broad, vague patents in the 1990s and early 2000s.

"A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That's not because Google was caught copying Microsoft's Windows Phone software (which has never been very popular with consumers). Rather, it's because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft's patent arsenal has become so huge that it's effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.

"The proliferation of software patents has triggered an arms race. Google, for example, spent $12.5 billion for Motorola, largely for access to its large patent portfolio. A consortium of technology companies including Microsoft and Apple spent another $4.5 billion on patents from the defunct technology company Nortel. Their vast patent libraries help protect them from each other — but they could also help them crush potential future competitors."

Grassley, we venture to guess, is not trying to tackle abuse by large corporations, he is just listening to some abusive large corporations (and the corporate media). As The Hill put it not so long ago: "Bipartisan senators on the Judiciary Committee are close to unveiling legislation to fight so-called patent trolls.

"Judiciary Chairman Chuck Grassley (R-Iowa) told reporters at the National Press Club that negotiators are "close to getting a final agreement," with his office later saying it could come as soon as this week. Another aide familiar with the talks said senators are close to a bill.

"The proposal is not expected to look like the House's Innovation Act but will include some of the same provisions. It will have provisions on discovery and pleading requirements that are less strict than the House version, according to Grassley."

Call it "PATENT Act" or "Innovation Act", these are just labels. What it's really about is tackling trolls, but not promoting innovation or even improving patents. The bill targets the plaintiff type, not the patent type. These are just an opportunist's methods for promoting oneself without really serving the public. Recall the patent 'reform' from the GOP and watch this latest publicity stunt for Rick Santorum (disgraced GOP candidate who never gained traction).

As with many giant corporations that support Linux (IBM or Google), there's no chance of them tackling software patents as a whole. They are not Free software communities. Their problems are different. "Google collects patents while lobbying against them," wrote one vocal proponent of software patents. It is a correct observation actually, exploited by proponents of overly broad patents in this case. Here are the British lawyers from IP Kat taunting Google as well in their article "Google says 'We want your patent. Maybe.'"

Never expect large corporations to do the right thing unless their interests somehow coincide with the interests of people (which is rare). Patent reform will require popular action and pressure from the public, not from the likes of IBM and Google, not even Red Hat. This is why the effort to stop software patents must regain some momentum (lost several years ago).

Recent Techrights' Posts

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day
LWN (Earlier This Week) is GAFAM Openwashing Amplified
Such propaganda and openwashing make one wonder...
Open Source Initiative (OSI) Blog: Microsoft Operatives Promoting Proprietary Software for Microsoft
This is corruption
Libre-SOC Insiders Explain How Libre-SOC and Funding for Libre-SOC (From NLNet) Got 'Hijacked' or Seized
One worked alongside my colleagues and I in 2011
Why We're Revealing the Ugly Story of What Happened at Libre-SOC
Aside from the fact that some details are public already
Removing the Lid Off of 'Cancel Culture' (in Tech) and Shutting It Down by Illuminating the Tactics and Key Perpetrators
Corporate militants disguised as "good manners"
FSF, Which Pioneered GNU/Linux Development, Needs 32 More New Members in 2.5 Days
To meet the goal of a roughly month-long campaign
Lupa Statistics, Based on Crawling Geminispace, Will Soon Exceed Scope of 4,000 Capsules
Capsules or unique capsules or online capsules are in the thousands and growing
Links 24/07/2024: Many New Attacks on Journalists, "Private Companies Own The Law"
Links for the day
Gemini Links 24/07/2024: Face à Gaïa, Emacs Timers for Weekly Event, Chromebook Survives Water Torture
Links for the day
Why Virtually All the Wikileaks Copycats, Forks, and Rivals Basically Perished
Cryptome is like the "grandpa" of them all
A Total Lack of Transparency: Open and Free Technology Community (OFTC) Fails to Explain Why Over 60% of Users Are Gone (Since a Week Ago)
IRC giants have fallen
In the United Kingdom Google Search Rises to All-Time High, Microsoft Fell Nearly 1.5% Since the LLM Hype Began
Microsoft is going to need actual products or it will gradually vanish from the market
Trying to Put Out the Fire at Microsoft
Microsoft is drowning in debt while laying off loads of staff, hoping it can turn things around
GNU/Linux Growing at Vista 11's Expense
it's tempting to deduce many people who got PCs with Vista 11 preinstalled are deleting it, only to replace it with GNU/Linux
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 23, 2024
IRC logs for Tuesday, July 23, 2024