Bonum Certa Men Certa

Patent Policy is a Mess and It's Not Hard to See Why

Corruption and greed have become embedded in this whole system

CAFC corruption
Composition of [1, 2, 3, 4]



Summary: A critique of some patent injustices and the reasons why scientists are sacrificed for the benefit of revenue-maximising managers and their lawyers/lobbyists

Cory Doctorow, citing his EFF colleague, says what an Australian Commission has found regarding software patents. It's strongly against them. It's a subject which we covered here before [1, 2]. "The report," Doctorow writes, "which was commissioned in part to investigation the codification of fair use in Australian copyright law, condemns virtually the whole edifice of Australian IP law. It calls for shorter copyright terms, more flexibility for copyright users, stricter criteria for granting patents, tightened rules and shorter terms for software and business-method patents, and more."



"It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad."The EFF's post says they "wrote about a discredited industry report that spread misinformation about the supposed costs of Australia adopting fair use into its copyright law. That document, commissioned by media and entertainment giants, had been written in anticipation of a recommendation for the adoption of fair use by the Australian Productivity Commission, a government agency tasked with improving Australia's capacity for production and innovation."

Further down it says: "Restricting the availability of patents for software and business method inventions, which are an impediment to further innovation. As regards software, the Commission notes that software development cycles of around 5 years are far shorter than the 20 year term of protection granted by patents, and that other incentives for software development (among them copyright) also exist."

It seems as though each time there is evidence-based research into this subject the outcome says software patents are bad. Europe came to the same conclusion a very long time ago, but the EPO conveniently (for its own gain) ignores the law. There is now a new software patents loophole in the EU, as Dr. Glyn Moody showed last month. Yesterday he had more to say about that:

A couple of weeks ago, I wrote about a disturbing aspect of the European Commission's proposed Digital Single Market: the fact that "ICT standardisation requires a balanced IPR [intellectual property rights] policy, based on FRAND licensing terms." That's a problem, because FRAND licensing is inherently incompatible with open source.

As well as generating a fair amount of interest here on Ars, the article seems to have provoked some discussions in the wider open source community, and inside the European Commission too. Given that interest, and the absolutely key nature of this issue, I thought it would be worth exploring it a little more deeply, not least because there have been some important developments in the last two weeks, including a way for Ars readers to help stop open source being locked out of EU standards.

First, it's probably a good idea to summarise why FRAND, which stands for "fair, reasonable, and non-discriminatory," is a problem for open source. Put at its simplest, licensing terms can be totally fair, quite reasonable, and absolutely non-discriminatory and yet impossible to implement in free software.

For example, a patentholder might think they are being super-kind by requiring a per-copy licence payment of just €0.001. And for traditional software, that might indeed be generous. But consider what happens with open source code, which by definition can be copied and shared freely as many times as you like. Since there is no way of knowing how many copies have been made, it's impossible to pay even that "reasonable" €0.001 per copy. The only licensing fee that works in this context is zero—and even then, it's not guaranteed that the licence will be compatible with free software. For example, there may be some other limitations on use, which aren't allowed for open source.

What is needed is not just "royalty-free" licensing, but "restriction-free."

[...]

The other case concerns the open source giant Red Hat, and how it settled a patent dispute with a company called Firestar. What is remarkable about this deal is that Red Hat not only acquired a licence for itself, it obtained it for everyone else in the open source community, upstream and downstream from Red Hat. In other words, it effectively took out a patent licence for the open source world.

Again, some have pointed to this as an example that proves that paying patent licences is perfectly compatible with open source; and once more, that's not true. First, this solution was only possible because Firestar agreed to provide this blanket licence for the open source community: the fact that it had never been done before shows how exceptional that was. For companies that offer FRAND licensing, there is no reason at all why they would have to follow Firestar's example.


"This is IAM doing its usual routine trying to urge companies -- even in China -- to pursue more and more patents/patenting obsession."It is not too shocking that lobbyists for software patents get their way in spite of what scientists and programmers are saying. The lobbyists never grow tired and they are backed by wealthy corporations like IBM. There is now a push for new taxes in the embedded Linux space (increasingly characterised using the silly buzzword, "IoT"). "If demand for connected devices does prove durable," IAM wrote, "then Chinese appliance makers could be big winners – and so could patent licensors. But the big Chinese players are likely not finished spending money to beef up their patent positions in the hopes of easing their royalty burdens." This is IAM doing its usual routine trying to urge companies -- even in China -- to pursue more and more patents/patenting obsession. In Europe they encourage companies to pursue patents even in domains that are out of reach, e.g. software, as in the US patent system it is growingly a challenge (inevitably, they cannot just snub the courts eternally). This new article from Robert Sachs says: "On May 4, the USPTO issued a new memorandum for patent examiners, “Formulating a Subject Matter Eligibility Rejection and Evaluating the Applicant's Response to a Subject Matter Eligibility Rejection” (“Examiner Instructions”) along with a new set of five example claims, this time in the life sciences and chemistry arts. The Examiner Instructions are a positive step forward in refining the examination process, but leave open many questions."

A notoriously corrupt court, CAFC, is where software patents came from in the first place (several decades ago) and it has just been brought up by Patently-O in relation to the Patent Act. "The Federal Circuit created the rule of automatic assignment through agreement without any basis in the Patent Act," Patently-O says and to quote some bits: "The core problem is that the court has ignored the Erie doctrine. Under the Supreme Court’s 1937 decision in Erie v. Tompkins, a federal court ruling on a matter of state law under its diversity jurisdiction must apply the law of the state from which the dispute arose. Which state law to apply is a matter of choice of law principles. What the federal court cannot do is create its own federal common law in lieu of the state statutory or common law. As the Court affirmed in Butner v. United States, 440 U.S. 48 (1979), the Erie doctrine applies to a court’s supplemental jurisdiction over state law claims attendant to a federal question. By creating its own federal common law of contracts, the Federal Circuit reveals a fundamental error in its understanding of the federal court system. [...] The case of conflicting patent assignments bears some similarity to the law on intangible future interests in creditor-debtor law. Both entail rights in property that has yet to come into being. The main lesson from creditor-debtor law, which is largely a matter of state law, is that many interests are implicated and therefore simple rules are not satisfactory. The Federal Circuit has arguably adopted too simple and misguided a rule in the Filmtec. The Supreme Court has confounded the error in the Stanford decision by ignoring the issue of automatic assignments. One way to correct course is by granting Shukh’s petition for certiori and restore the proper balance between federal patent law and state commercial law."

"We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption."This may seem like an injustice because it is. A lot of patent law in the US is completely unhinged from sanity, evidence, facts, and justice. The other day we wrote about how NASA had hoarded a lot of patents; it should not have patents at all (taxpayers pay NASA to explore space, not to acquire patent monopolies) and it gets worse when NASA gives these to private hands and sells them to trolls. Yesterday we found 31 articles about NASA's latest patent PR, but not a single decent article which actually put claims to scrutiny and did an actual investigation [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31].

We regret to say that a lot of laws, practices, policies etc. around patents are still corrosive and this is caused by systemic corruption. Many countries are negatively affected by this.

Recent Techrights' Posts

European Patent Office (EPO) Series: Legal Concerns and Suspicions of Irregularities
complaints submitted to OLAF
GAFAM and IBM Dying in Massive Debt, Hence the Mass Layoffs (Increasingly Silent Layoffs That the Media Fails to Mention)
the integrity of this economy is only as good as its leaders or those who govern the market
SLAPP Censorship - Part 134 Out of 200: What "Majority Rules" Tell Us About the Litigant
we press on with this series
Overshoot Day Sites That Contribute to the Problem
Some of these are not even accessible (at all) without JavaScript
As Expected, Facebook Collapses, Microsoft Hides Massive Debt
GAFAM is a giant mountain of debt
Staff of EPO Cautions Against Unlawful Weaponisation of PIPs Against Industrial Actions That Protest Corruption
PIP-like sanctions against anybody who does not toe the line of Cocaine King?
 
Links 30/07/2026: Smol Document Server and More PalmOS-ing
Links for the day
Links 30/07/2026: Microsoft Refuting Its Own Slop Hype and "Amazon Is Gutting Its Hey Hi (AI) Division" (GAFAM Bubble)
Links for the day
Today The Register MS Published "AI" Spam and Fake Article by "Senior Technical Marketing Engineer"
unethical practices
Cult inquiry parliament leak fallout
Reprinted with permission from Daniel Pocock
Techrights Will Always Protect Sources
Our #1 priority is sources
The Era of Silence
So stay silent, remain hidden
TheLayoff.com Deletes Comment That Called IBM's Previous CEO, Ginni Rometty, "Gin 'n Tonic"
It is hard to believe the comment was deleted for being a duplicate (in another thread)
The Mainstream Media Continues to Overlook or Intentionally Ignore Hundreds of Billions in Hidden/Secret Microsoft Debt
the issue is that Microsoft's crisis is a lot greater and broader than this
Microsoft May Have Gotten Rid of 8% of Its Workforce This Month
It's hard to know what's really going on because there's no transparency due to NDAs
Links 30/07/2026: "Age of Irrationality", Google Losing Money, and "House of Ellison is on the Brink"
Links for the day
Gemini Links 30/07/2026: Homeworlds Notes and Manuscript Submitted
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 29, 2026
IRC logs for Wednesday, July 29, 2026
At The Register MS "PARTNER CONTENT" Means Company Writing Fake Articles About Itself and Its Own Products
At The Register MS, content-farming has become a thing
IBM, Running Out of Things It Can Sell, is Selling Software Patents
IBM is not just pathetic; it's actively harmful because it lobbies for software patents and spreads software patents around
Gemini Links 29/07/2026: Star Trek, Retirement, and ODEs in GNU Octave
Links for the day
Links 29/07/2026: "BuzzFeed Lays Off 33 Percent of Remaining Staff" (Trying LLM Slop Some More), Scam Altman Mocked by the Media
Links for the day
GNOME Curated and Censored by IBM (Under the Guise of "Code of Conduct")
Felipe Borges (IBM) has just posted a follow-up
Digital Mass Surveillance as a Hallmark of Failed Societies
"small leap forward in tech ethics"
I Found a Typo, Don't Vote!
Social control media isn't good at adding any meaningful signal
Jeremy Sands Explained the Harms of Codes of Conduct
next week the 500th show milestone [is reached]
Tonight's Earnings Report From Microsoft and Facebook ('Meta') Will be Faked Because They Hide Almost a Trillion Dollars in Debt
The US economic system is only as honest as the people who govern it
The Vacuum Syndrome
Parables help
The Only Old People Who Can Survive IBM Are the CEO and His Circle of Enablers
very similar to what's happening at the EPO
The 'Church' of Moglen/Stallman
'reunion' with Eben Moglen
Microsoft Layoffs Aren't Done Ahead of the Need to Tell Shareholders About "Efficiency" (Tonight)
Microsoft layoffs won't be "Done" until what's left of Microsoft is "None"
Microsoft Lacks Growth. Ahead of 'Results' The UK's Competition and Markets Authority (CMA) Finds Merit in Allegations Slop is Microsoft's Excuse for Price Hikes (Piggybacking Vendor Lock-in).
At this stage it's not hard to see why many nations gravitate away from Microsoft
Parliament leaks confidential cult inquiry witness contact list (COFG Victoria)
Reprinted with permission from Daniel Pocock
Troll-Feeding is Time-Wasting
in social control media
WordPress is Technical Debt
There are a number of technical tasks underway and maybe some testing (this coming weekend or later)
Will Red Hat Still Exist in 2027 or Just Become a "Brand" at IBM?
Whistleblowers told us IBM was laying off about 500 Red Hat engineers earlier this year
Call for IBM Whistleblowers
If you work for IBM and have something material (like balance sheets) to prove financial misconduct, please try to 'touch base' and establish a secure communication channel we can both use
EPO Series on EU and Pan-European Corruption, Vote-Rigging, Extending Beyond the EPO Itself
By Saturday it will be August already, so we'll start preparing for Rianne's birthday
SLAPP Censorship - Part 133 Out of 200: Lies by Omission
As usual, the other side wants people to ignore how much they lost
European Patent Office (EPO) Series: Streamlining the Decision-Making Process
Negrão was one of 17 applicants for the position but he somehow managed to end up as the sole candidate on the shortlist prepared by the Management Board in June 2020
Links 29/07/2026: "Hugging Face Has a Deepfake Nudes Problem" and "$1.5B Anthropic Copyright Infringement Ruling" (Plagiarism is Not "Training")
Links for the day
Comments on Today's Judgment
It hopefully helps clarify what actually happened
Microsoft Has Fallen to #3 in Singapore
There are many technically talented people in Singapore or overseas workers who lodge in Singapore
Thank You, Andy
Burnham and "Tech Rights"
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part II - 77 Messages Sent, Did Not Even Investigate or Examine Any of the Actual Evidence (British Taxpayers' Money Wasted)
SRA has become known (even notorious) for inaction
Inevitable Politics
In technology, provided the work you do has growing impact (we served almost 2 million requests yesterday), things will inevitably become more political - whether you like it or not does not matter
Not Only "Loonies Take on Farage"
pretending that the opposition to the right wing is "Loonies"
Brigading Against Women - Part I - Bypassing the Legal System by Threatening Companies in Another Continent
In the next part we'll begin to connect Lozza's online activities (and court activities) to those of Garrett
IBM is Trying to Turn Debt (Borrowed Money) Into Fake Growth and It'll Worsen Matters
they put in their balance sheets a fake "growth" in something that does not even exist
Microsoft Relies on Misleading Narrative of Studios Going 'Independent'; in Reality There Are Mass Layoffs in Them
This is not a good narrative for Microsoft
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 28, 2026
IRC logs for Tuesday, July 28, 2026
Gemini Links 29/07/2026: Arosa, Tired Tuesday, and Constellation Browser
Links for the day
In IBM, PIPs and RAs (Layoffs) Have Become Almost the Same Thing, Workers 'Expire' With Age (Seniority, Experience) and Empathy is Punishable by Termination
IBM does seem like a dead company
At Microsoft, PIPs Are Sometimes Known as "LITE" (a Silent Layoffs Legal Hack or a Shrewd Workaround to Skirt WARN Act)
Zero "layoffs" to report
Gemini Links 28/07/2026: “Strategies Against Algorithms” and DIYers
Links for the day
"Social Dialogue" With the Man Who Never Faced Real Competition at the European Patent Office (EPO), He Buys the Voters and Eliminates Rivals
Will the "Pretender" write back?
Digital Restrictions (DRM) and Microsoft: What Kills XBox Will Kill Windows Next
Microsoft wrongly and very arrogantly assumed that users would tolerate everything it throws their way
GNU/Linux in Afghanistan Reaches 7%
For many years it was stuck at less than 1%
Greenwashing Corruption With a "Chief Sustainability Officer", Who Infamously Defended Battisetelli's Crimes at the EPO and Petitioned for Him
She was rewarded for conspiring against EPO staff, as usual
What I Explained to Police About Blackmail and Death Threats via Burner Accounts (a Practice Which Generally Constitutes a Crime)
Today I've communicated several times with police
Links 28/07/2026: "People’s Claude Chats Are Publicly Accessible Online" and SpaceX Stock Crashes Like Its Products
Links for the day
UK tech sector missing from democratic process
Reprinted with permission from Daniel Pocock
How Not to Cover Elections (Democracy Relies on Reliable, Complete Information)
Misinformed voters are a recipe for disaster
Microsoft E.E.E. (and "Bait and Switch") Going Exactly According to Plan
That is what they are trying to tell us and the companies that employ us
IBM: An Old Company That Hates Old People
Remember that's coming to Red Hat workers in 2 months
Strict Policy on Violence and Violent Language
This matter is now being escalated to law firms
Avoiding Discrimination Against People With Disabilities
work underway to improve the system which runs the sites
Links 28/07/2026: XBox DRM Doomed Everyone (Cannot Play Anything), Slop (Ponzi Scheme) Being Pinkwashed Now
Links for the day
Gemini Links 28/07/2026: Ethics, GIMP Script-Fu, SMTP Versus Gemini, and Proposal for Better TOFU
Links for the day
To a Sociopath, Ethical People Are Bad People. Don't Fall for It.
If you put sociopaths on a pedestal, the pedestal will break
Improving the Static Site Generator
Our system has fixes triaged
Diversity in Debian
bringing up the topic is the real problem, diversity itself is a taboo subject
GNU/Linux in Brazil. The B in BRIC(S).
the "market share" is assessed to be around 5%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 27, 2026
IRC logs for Monday, July 27, 2026