Bonum Certa Men Certa

Microsoft and Patent Law Firms in the United States Can't Stop Writing About McRo in a Coordinated Push to Resurrect Software Patents

Although not centrally orchestrated (top-down/peer coordination), the patent microcosm in the US knows what it is trying to accomplish

A grave's stone



Summary: Microsoft is pursuing more Linux 'patent tax' (using software patents) and patent law firms are preoccupied flooding the media with their shameless self-promotion which is also software patents promotion

OVER the past week we repeatedly wrote about our expectation which turned out to be true. McRO has truly become the latest go-to case when a patent law firm tries to fool software developers into pursuing patents on algorithms, even in a climate that is so hostile towards them. One aspect of it which we mentioned here twice before was Microsoft's role. Here is a direct link to what Microsoft said in its lobbying blog (later cited by numerous Microsoft advocacy sites, in order to give it the veneer of "news" or "report"). From the company that brought us patent lawsuits against Linux, e.g. Microsoft v TomTom comes yet more advocacy of software patents. And they tell us that they "love Linux"? This may mean that Microsoft would be happy also with the CAFC case that it lost to Enfish, as this outcome was desirable for software patents in general. In other related news, this new report from the Microsoft-friendly IAM, citing another report from Korea, reminds us that Microsoft wants more money from patents, now in terms of a refund of tax. This probably alludes to taxation on money from LG and Samsung, which both surrendered to Microsoft nearly a decade ago. Microsoft signed patent deals specifically covering their use of Linux (we covered this in 2007) and Microsoft now wants more money from this extortion (using software patents which are probably not even valid) and is suing the Korean authorities for it. What a bunch of thugs. 'New' Microsoft they say? Loves Linux? What a load of nonsense. To quote IAM: "Korean newswire Pulse recently reported that Microsoft had filed a claim with the country’s internal revenue services requesting the return of 600 billion won ($533.1 million) in corporate taxes it had been charged on patent licence fees and royalties paid to it by Korean businesses. The US company argued that it had been taxed on licences relating to patents covering jurisdictions other than South Korea, when the government of that country should only be able to collect revenue on patents applied for and issued domestically."

Put in very simple terms, Microsoft, which is openly calling for more software patents, continues to use these to tax Linux and wants even a higher share of the money squeezed out of successful companies. Microsoft has attacked Linux users with software patents for about a decade (raising the costs of everything) and now it sues the Korean tax authorities to get additional extortion money. Coming from one of the world's biggest tax evaders, which also got caught engaging in financial fraud, surely this takes some nerve and audacity. One can only hope Microsoft layoffs will accelerate fast enough to remove it from the planet (there have been Microsoft layoffs for a while and this month there are Microsoft layoffs in the UK). Recall that Microsoft also pays David Kappos to help resurrect software patents, in his capacity as former Director of the USPTO. It may not be classic bribery but lobbying. He is one of the fiends responsible for the biggest software patents push right now; he is a malicious, greedy man. Software patents remain a key issue that determines success/failure of FOSS; Section 101 is a possible solution and they try to put an end to it. We need to work against a huge patent microcosm which plays dirty behind closed doors. Unpatent is “fighting the smoke rather than the base of the flames,” told me one person yesterday and the President of the FFII thinks so too. Unpatent has good intentions, no doubt (I spoke to its founder several times), but it won’t ever work towards resolving big issues like this massive lobbying push which targets or strives for purely legislative changes (system-wide).

So who else is promoting McRO this week? Pretty much everyone who would be profiting from an upswing in software patents. Here is Watchtroll promoting software patents again (in the form of a "Free Webinar") and here are some so-called 'analyses' or articles from today and yesterday. To quote just the headlines, "Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible", "McRo v. Bandai: Evidence related to claimed improvement is key to whether claims are directed to an abstract idea", "Important Federal Circuit Decision Provides More Clues On Software Eligibility", "Important Federal Circuit Decision Provides More Clues On Software Eligibility", "Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis", "What the Federal Circuit's Decision in McRO v. Bandai Could Mean for Computer-Based Inventions and Other Innovations", "McRO v. Bandai: Latest Federal Circuit €§ 101 Decision Breathes New Life into Software Patents", "McRO v. Namco – Fed. Cir. Reverses s. 101 Invalidation of Animation Method Patents", "Important Federal Circuit Decision Provides More Clues On Software Eligibility", "Federal Circuit is In Sync with Patent’s Validity Under Section 101", "Gone Enfishing: Software Patentees Reel in Another Huge Win at the Federal Circuit", and "Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible". Every single one of these was published by a patent law firm and they effectively flood news feeds with these (the signal, or actual journalism covering this case, has been washed away by now). These people are just trying to attract clients and we are still seeing lots of these patent law firms piggybacking McRO to promote software patents and make their sales pitch. Judging by what happened after Enfish, this can carry on for weeks to come. Utterly misleading and self-serving -- that's what it all about. This perturbs public understanding of the case. There is hardly even any pretense of balance when it comes to software patents whenever patent law firms just try to sell us more lawsuits.

The patent laws we have typically get written by politicians who are lawyers and lobbyists, not scientists like software developers, hence the sordid state of affairs. Watch how Bilski Blog is attempting to discredit courts for not understanding science, as if patent law firms are that much better at it. From the latest part of "Bad Science Makes Bad Patent Law":

The Supreme Court in Mayo acknowledged that "Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature." Indeed. And it is precisely because the courts cannot make such distinctions, that the Supreme Court needs to correct the problem it created by adopting a more scientifically coherent approach to laws of nature.

It's been argued that it's too soon for the Court to take up another patent eligibility case, having only recently decided Alice. But it's been just over four years since the Mayo decision. The Supreme Court "corrected" Parker v. Flook (1978) only three years later in Diamond v. Diehr (1981). And fixing this problem is necessary before more patents (and patent applications) are improperly invalidated for important inventions in diagnostics and treatments.

The Court had that opportunity in Ariosa but it denied Sequenom's cert. petition. Now the Court has the opportunity again. Genetic Technologies has filed for certiorari. The Court should take up the case for the reasons I've articulated in these posts.

More specifically, the Court can address two issues. First, the Court can articulate a more complete and "patently" useful definition of a law of nature. In the past, the Court has expressed a particular distaste for bright line rules in the patent law, preferring instead flexible standards. Consider the Court's rejection of the "machine-or-transformation" test in Bilski, and the rejection of the "teaching-suggestion-motivation" test in KSR. However, the Court's current definition is such a bright-line rule, by making any natural relationship a de jure law of nature. A revised definition need not be perfect, only more in concert with current scientific theory and practice.


Australia, which still has issues with software patenting (developers of software oppose these, but they have little or no impact on the law), inherits a lot of the ills of the US patent system. One patent law firm from Australia asks, "Does Australia Have a (US-Style) Two-Step Test for Patent-Eligibility?" These systems are inherently different, but proponents of software patents (like the author in this case) try to assimilate them. To quote:

In its Mayo/Myriad/Alice series of cases, the US Supreme Court has established a two-step test in order to determine whether a claimed invention defines patent-eligible subject matter or not. In the first step, the claims are examined to determine whether they are ‘directed to’ a patent-ineligible concept, i.e. an abstract idea, law of nature or natural phenomenon. If not, then the subject matter of the invention is eligible for patenting. Otherwise, the analysis proceeds to step two, in which the claims are further analysed to determine whether or not they comprise some additional element, or combination of elements, that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’


That latter part alludes to the loophole often used inside the EPO or even in New Zealand. it often seems as though the USPTO gets more similar to what used to be the EPO while the EPO becomes more like the USPTO pre-Alice. In fact, some people theorise that Battistelli is trying to attract the bottom of the barrel by welcoming all the worst patent applications which even the USPTO would reject. This is a recipe for disaster.

As an aside, there is pressure to impose software patents on countries that don't formally have them. For instance, the media in Taiwan says that the ITC "launches probe into alleged patent infringement by Advantech," noting that based on "the complaint filed by Rockwell in August, the three accused firms violated the U.S. law by importing into the U.S. market and selling industrial control system software, systems using the same, and components that infringe upon patents..."

These are software patents by the sound of it. These threaten to embargo physical products from Taiwan, where some of the best products are made (in several sectors). So much for innovation...

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