Bonum Certa Men Certa

Software Patents Are Dying, But 'Cloudwashing' of Patents Lets Some Slip in and Marks & Clerk Offers Bad Advice

Marks & Clerk



Summary: In spite of the gradual death of software patents, those who profit from them maintain the illusion that everything is alright, IBM hoard them and attacks with them, law firms mislead small and vulnerable businesses to entice them into these worthless 'assets'

A LOT of time has passed since we last covered the USPTO, but it doesn't mean that it's all good news. The other day, for example, we warned that a terrible person, Randall Rader, wants to become the Director of the USPTO (still a self-serving hopeful, in spite of the widely-covered scandals) and software patents, which have been stubbornly pushed forward by Mr. Rader, are now dying, more so -- or a lot faster -- since he got the boot (or resigned in disgrace from CAFC).

What's Up is Down?



On a couple of occasions in recent days the article "Software Patents Get Struck Down After Alice" got bumped up. To quote one copy of this new article:

Many software-oriented patents are being struck down as a result of Alice and Section 101. Some people say this leaves legal departments with more budgets to sue competitors more than they have in the past.


This is bizarre 'logic' and facts do not support it. First of all, the demise of software patents has led to far fewer lawsuits, as has been repeatedly proven by several different data sources (we covered these). Secondly, if your existing patents (never mind new ones that are harder to be granted) are less potent, what is the point or motivation for suing?

One large firm that continues to be aggressive with software patents is IBM. It not only applies for a lot of patents but it also attacks with them (by "attack" we mean suing small rivals that can barely defend themselves, unlike the patent microcosm which describes invalidation of bogus patents as an "attack" -- inverting the narrative).

"Cloudwashing"



As we noted here a month ago, IBM is now cloudwashing all sorts of dubious patents (trying to pass them off as novel using buzzwords like "cloud" -- a word which in itself does not make them eligible). IBM is basically a thug company; it's a company that collects these (hoarding) for the purpose of litigation and shakedown in bulk (Microsoft does the same thing and targets vulnerable companies like TomTom amid deep financial issues). IAM, which fancies litigation and bullying (proudly so), called it "Big Blue’s new groove" in its latest issue, but we just call it anything but "groove" or groovy. It's despicable and it makes IBM look fiendish.

Citing the Gartner Group (a dubious firm), the following new article mentions patent trolls but calls them "NPEs", just as it cloudwashes software patents. Have a look:

Cloud Computing: Software Patent Claims and the Risks to Service Availability



[...]

As the public cloud services market continues to mature and grow – up from $178bn in 2015 to $209bn in 2016 according to research company Gartner[1] – the concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation. At a time when data security and privacy risks are front of mind for cloud service providers (CSPs) and their users, the intellectual property (IP) risks to cloud service availability posed by NPE patent claims are rising up the business agenda.

NPEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold. NPEs are uniquely well placed to monetise their patents at each stage of the litigation cycle. They have access to capital and all necessary forensic and legal resources; and an NPE doesn’t practise its patents so is immune to a counterclaim that a defendant might otherwise be able to bring against a competitor, or a cross-licence that the defendant could otherwise offer.


The term "cloud" is meaningless rubbish that alludes to particular server arrangements. It's not a growing market; not necessarily; it's just an exercise in rebranding and liars for hire (Gartner) exploit this kind of nonsense to make their false predictions a self-fulfilling prophecy (by merely redefining what "cloud" means as they go along). The second part alludes to "cross-licence"; this is what IBM is trying to accomplish, with a money flow going into IBM's coffers without them lifting a finger. One might therefore start to describe IBM as somewhat of a large patent troll, akin in fact to Microsoft's (more on that in a separate post, scheduled for later today).

Insulting the Intelligence of SMEs



It is troubling to see that IBM's patent aggression is making a comeback (it's not entirely new) and it's saddening to see that using all sorts of buzzwords attorneys and their clients are hoping to receive new software patents. Marks & Clerk, a proponent of software patents (obviously, as they profit from it!), recently said that the EPO now makes it easier to get software patents (than at the USPTO). The other day the firm advised small companies to pursue patents and it alluded even to software patents. To quote the relevant part (with our remarks in square brackets]: "An invention doesn’t even need to be a product to be considered patentable [in other words, a troll too can pursue patents]. Many people think that software is unpatentable. That is incorrect [depends where]. If software achieves a technical effect and is new and inventive, it is patentable. The most famous example of a software patent is the patent that covers Google’s “Page Rank” algorithm (i.e. the algorithm which powers Google’s search engine and which transformed the company into a tech unicorn) [but that's an old patent predating Alice]. You or your business might have developed exciting software which does something that no one else has thought of. A patent might be just what’s needed to convince investors that your concept is the “next big thing” or alternatively provide you with an asset that can be sold or licenced for additional revenue [or waste of money, paid to lawyers at Marks & Clerk who cannot even win a case over software patents]."

That's putting aside the fact that a small (practicing) firm's chances of successfully suing a giant like IBM are slim, unless getting sued by IBM (in retaliation) is something it thinks it can afford.

Recent Techrights' Posts

[Meme] Plagiarism Does Not Eliminate Jobs by Replacing Humans, It Replaces Human Knowledge With False Cruft
We need to boycott sites that fake their output
[Meme] Doing Dog's Job (Not God's Job)
The FSF did not advertise the talk by RMS (its founder), who spoke in France almost exactly 23 hours ago
[Meme] Free Software and Socially-Engineered Groupthink (to Serve Big Sponsors Like Google and Microsoft)
They do this to RMS all the time
 
Red Hat Offers DRM, TPM, and Backed Doored 'Confidential' Containers (CoCo) for Microsoft (Proprietary Spyware)
No kidding!
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 21, 2025
IRC logs for Tuesday, January 21, 2025
Gemini Links 21/01/2025: Media Provocations and Nazis Not Tolerated
Links for the day
Slopwatch: BetaNews Plagiarism and LLM Slop by UNIXMen
"state-of-the-art" plagiarism
What Fedora, OpenSUSE, and Debian Elections Teach Us About the State of Weak (or Fake) Communities
They show a total lack of trust in these communities
Links 21/01/2025: Mass Layoffs in "Security" at Microsoft (Despite Microsoft Promising It Would Improve After Many Megabreaches), Skype is Dead (Quietly)
Links for the day
Alternate Version of Daniel Pocock's 2024 Talk, "Technology in European Parliament Election Campaign"
There's loud ovation at the end of the talk
Gemini Links 21/01/2025: London Library, Kobo Sage, and Beyerdynamic DT 48 E
Links for the day
The January 20 Public Talk by Richard Stallman (Around Midday ET), Livestream 'Assassinated' by Google's YouTube
our guess is that the 'cancel mob' sabotaged it, possibly by making a lot of false reports to YouTube
[Video] Daniel Pocock's Public Talk About Free Software Politics, Social Engineering, Debian Deaths and Suicides, Coercion and Exploitation of Women
took many months to get
BetaNews Cannot Survive If Its Fake Articles Are Just SPAM for Companies Like AOHi and Aren't Even Composed by Humans
This is what domains or former "news" sites do when they die and look very desperately for "another way"
Pocock shot in the face, shot in the back, shot on Hitler's birthday saving France, Belgium and FOSDEM
Reprinted with permission from Daniel Pocock
Dr Richard Stallman in Montpellier, Robert Edward Ernest Pocock in France
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 20, 2025
IRC logs for Monday, January 20, 2025
Links 20/01/2025: Conflict, Climate, and More
Links for the day
Gemini Links 20/01/2025: Conflicted Feelings and Politics
Links for the day
Daniel Pocock's ClueCon 2024 Presentation Was Also Streamed Live in YouTube and Later Removed by Google, Citing "Copyrights". Now It's Back.
The talk covers social control media, Debian, politics, and more
Google 'Cancels' RMS
Is the talk happening?
Microsoft Revisionism Debunked by Microsoft's Own Words About “the Failure of OS/2”
The Register on “the failure of OS/2”
Improving Daily Links by Culling Spam, Chaff, and LLM Slop
the Web is getting worse
Links 20/01/2025: Indonesia to Prevents Kids' Access to Social Control Media (Addiction and Worse), Climate News Catchuo
Links for the day
[Meme] EPO Targets
Targets mean nothing if or when you measure the wrong thing
EPO Union Says Monopoly-Granting Targets at EPO "Difficult to Achieve Without Compromising [Staff] Health, Personal Time or the Quality of the Final Products" (Products as in Monopolies, Not Real Products)
To those of us (over 99.999% of people impacted by this) who do not work at the EPO the misuse of words like "products" (monopolies are not products) should be disturbing
The EPO is Nowadays Trying to Trick Staff Into Settling Instead of Solving the Underlying Problems of Corruption and Injustice
This seems like a classic case of "divide-and-rule" or using misled/weak people to harm the whole group (or "the village")
Links 20/01/2025: More PR Stunts by ByteDance and MLK’s Legacy Disrespected
Links for the day
Gemini Links 20/01/2025: Magnetic Fields, NixOS, and Pleroma
Links for the day
BetaNews Spreads Donald Trump Propaganda, Promotes Scams, and Publishes Fake 'Articles' About "Linux"
This is typical BetaNews
Richard Stallman 'Unveils' His January 20 Talk in Montpellier, France
It's free (gratis)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 19, 2025
IRC logs for Sunday, January 19, 2025