Bonum Certa Men Certa

Patent Misconceptions Promoted by the Patent Meta-Industry

To a carpenter, for example, every problem looks a nail

Law of the instrument Reference: Law of the instrument



Summary: Cherry-picking one's way into the perception of patent eligibility for software and the misguided belief that without patents there will be no innovation

CHERRY-PICKING is somewhat of an art form in legal blogs. They so often altogether ignore cases/decisions that don't bolster the narrative which they promote and simply act as a megaphone when the exceptions occur.



Such was the case with this CAFC decision -- one of those truly unusual cases (happened about 20% of the time last year) where PTAB is sort of 'vetoed' (overruled) by CAFC. This was reported on by Patently-O the other day and now there's more, including from MIP:

A Patent Trial and Appeal Board finding of unpatentability for obviousness based on two prior-art references in Personal Web Technologies v Apple has been remanded because “the Board did not adequately support its findings”


This is about software patents and we wrote about that some days ago, around the same time we highlighted Mintz Levin's bad/misleading advice. People from this firm are still spreading their misinformation, e.g. in another domain or with slight variations in the same domain. They want to make is appear as though software patents are alive and well because of a few, cherry-picked decisions. They just want more business from poorly informed clients whose patents would turn out to be worse than worthless (costly if litigation is even attempted).

Another site, Banana IP (more like banana republic), offers tips for workarounds where software patents are simply disallowed (as a matter of law).

Patents: Understanding Software Inventions in India and US



[...]

The Indian patent law does not provide a proper definition of the term ‘software’ or ‘computer program’. But, under the section 2 of the Copyright Act, 1957 a computer program is defined as “a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”. Section 3 of the Indian Patent Act, 1970 summarizes about the inventions that are not patentable. In particular, Section 3(k) of the Patents Act excludes mathematical methods, business methods, computer program per se and algorithms from the patentable subject matter. According to the Computer Related Inventions (CRI) guidelines issued by the Office of the Controller General of Patents, Designs and Trademarks on 19th February, 2016, the computer program in itself is never patentable. The Examiners are advised to deny the claims if the contribution lies only in mathematical method, business method or algorithm. However, software can be patented in India if the software is in conjunction with a new hardware. In other words, the software must be in relation to a specific hardware (a device or apparatus) and the claims will include the device or apparatus used in conjunction with the software. Inventions that are combined with hardware and software features that are inventive, novel and hold industrial applicability are patentable.


Misconceptions around potency of software patents would do a disservice to everyone, including their proponents. What it all boils down to is a lie by omission, much like the lie just published in this article, disseminated under numerous headlines including "America’s always had black inventors – even when the patent system explicitly excluded them".

This is a decent article (not much like the propaganda one finds in lawyers' sites who market their services) as it clarifies that inventorship does not require patents. In software we count lines and quality of code rather than assess something silly such as patents. People can invent with or without expensive papers to 'prove' merit. From the article:

One group of prolific innovators, however, has been largely ignored by history: black inventors born or forced into American slavery. Though U.S. patent law was created with color-blind language to foster innovation, the patent system consistently excluded these inventors from recognition.

As a law professor and a licensed patent attorney, I understand both the importance of protecting inventions and the negative impact of being unable to use the law to do so. But despite patents being largely out of reach to them throughout early U.S. history, both slaves and free African-Americans did invent and innovate.


We are often being told by the patent microcosm that patents are necessary for innovation or are a measure (or surrogate) of innovation. Basing one's worldview on such a belief leads to claims that rich nations like Switzerland innovate the most rather than rich nations being able to patent (expensive) the most -- a subject which we tackled here last year.

Recent Techrights' Posts

[Meme] Community of People to be Exploited, Then Thrown Away, Left Behind or Even Slandered
Debian.org front page
Alexandre Oliva's FSF disposition
During my recent trip for LibrePlanet, I was fortunate to have, or at least start, long conversations with nearly everyone in FSF staff
One More (Failed) Attempt to Deplatform the Sites by Harassing and Threatening Webhosts
What we're seeing here is a person who abuses the system in Canada at Canadian taxpayers' expense trying to do the same in the UK, at British taxpayers' expense
12 Days Have Passed Since the Edward Brocklesby Revelations and Debian Project Has Said Absolutely Nothing About That
One must therefore assume they have nothing to say in their defence (covering up severe security failings)
 
Six on the Beach: After Losing Six Continents Microsoft is Losing Oceania Too
Based on the 6- or 7-continent view of the world
Links 17/06/2024: Mass Layoffs Accelerating in Tech, Concerns About Impact of the Net
Links for the day
Gemini Links 17/06/2024: Hyprland Analysed and No Use for Betrusted
Links for the day
Microsoft Can Never Make a Comeback Anymore, the Community is Shutting It Out
We're relying on the real community, not fake ones or coopted ones
The World is Becoming (or Has Already Become) Linux
An intercontinental success story
Georgia: Bing Share Fell by Half Since 'Bing Chat' (LLM Hype), Fell Behind Yandex As Well
Georgia's situation is interesting
[Meme] SPI and 'FSFE': Sponsored by Microsoft to...
women's instincts do not matter to these strongmen
[Meme] Shitburger of an LLM
IBM and the Hololens
Links 17/06/2024: Chatbot Nonsense Thrown Under the Bus (Severe Failure, Pure Hype), How to Finance Free Software 'Hackers'
Links for the day
Debian's Personal Attacks Are Upsetting Women, Too
Female Debian Developer: "I Believe Daniel [Pocock] is On the Right Track."
Microsoft's Bing is So Irrelevant in Moldova (1%) That Russia's Yandex is About 5 Times Bigger
How much longer before Microsoft throws in the towel?
Yes, You Can
Unless you live somewhere like Russia...
[Meme] Listen to the Experts
Bill Gates didn't even finish university]
Roy and Rianne's Righteously Royalty-free RSS Reader (R.R.R.R.R.R.) and the Front-End Interfaces
As the Web deteriorates the availability, quality and prevalence of RSS feeds is not improving, to put it mildly
Algeria Shows High GNU/Linux and Android Adoption, All-Time High and Almost Three-Quarters of Web Requests
GNU/Linux was below 3%, now it is above 3%
Mass Layoffs at Microsoft-owned GitHub (About 80 Percent of the Staff in India Laid Off)
It's not just in India
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 16, 2024
IRC logs for Sunday, June 16, 2024
Gemini Links 16/06/2024: Scarecrows, Moles, Ham Radio, and No IPs
Links for the day
Africa is Android and Green (Chrome, Not Just Android Logo)
In Africa Firefox is almost below 1% now
Coercion From the "Consent" and "CoC" Crowd is a Self-Defeating Tactic
Freedom of the press; Nothing less
Covering Abuses and Corruption
We'll never surrender to blackmail
According to statCounter, GNU/Linux Increased From 3.77% to 3.89% This Month (Worldwide), Windows Now Below 20% in 78 Nations, Below 10% in 27 Nations
Highest since March (for GNU/Linux)
Ubuntu Running Out of Energy
Its planet too is deteriorating
Links 16/06/2024: In Defence of Email and Why Recycling Symbol Lost All Meaning
Links for the day
Gemini Links 16/06/2024: Computer Science Course Union and Potentiometer
Links for the day
Cross border crime: sale of Swiss insurance in France and European Union without authorisation
Reprinted with permission from Daniel Pocock
Letting Microsoft systemd Manage /home Was a Terrible Idea All Along
systemd-tmpfiles, deleting /home
Patriotism is OK, But We Need Facts and Reason, Not Blind Obedience to Authority
Very seldom in the history of human civilisation has groupthink proven to be of real merit
When You Touch One of Us You Touch All of Us
We have a principled, uncompromising stance on this matter
Links 16/06/2024: New Sanctions Against Russia, Fentanylware (TikTok) Causing More Problems
Links for the day
Social Control Media in Japan: Twitter (X) Has Collapsed, YouTube Rising (Apparently)
What a genius Mr. Musk is!
Windows Cleansed in South Africa (Already Hovering Around 10% Market Share)
Plus Microsoft's mass layoffs in Africa
[Meme] Satya Nadella's Windows PC RECALLS Not What He Did
Satya got lucky
Usage of Let's Encrypt in Geminispace Has Collapsed (That's a Good Thing!)
Ideally, or eventually, all capsules will sign their own certificates or have their own CA
North Macedonia: Windows Down From 99.2% to 28.5%
Last year it was even measured at 26%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 15, 2024
IRC logs for Saturday, June 15, 2024
Gemini Links 16/06/2024: Hand Held Maneuvering Unit and Hugo Static Files
Links for the day
Removing the Tumour From IRC
looking back
[Meme] The Free(dom) Software Engineer in European Elections
“When the debate is lost, slander becomes the tool of the loser.”
Vista 11 Was 'Leaked' Exactly 3 Years Ago and This One Picture Says It All
how 'well' Vista 11 has done
A Smokescreen for Brad Smith
Maybe the key point was to say "Linux is not secure either" or "Windows and Linux are equally vulnerable", so don't bother dumping Microsoft
Windows Sinking Below 13% Market Share in the Island of Jamaica
Microsoft's decline continues and will mostly likely continue indefinitely in Jamaica and its neighbours
Links 15/06/2024: Microsoft's Intellectual Ventures Attacks Kubernetes With Software Patents, More Layoff Waves
Links for the day
Gemini Links 15/06/2024: On Lagrange and on YouTube Getting Worse
Links for the day
Edward Brocklesby: hacker received advance notice of zero-day vulnerabilities in MH and NMH email software
Reprinted with permission from Daniel Pocock
[Meme] Code Liberates Kids
Matthias Kirschner: I can't code, but I can write a book
In Armenia, Bing is Measured at 0.6%, About Ten Times Less Than Yandex
Bing will probably get mothballed in the coming years
[Meme] A Pack and Pact (Collusion Against Computer Users)
They never really cared about users, no more than drug dealers care about drug users...
GNU/Linux in Azerbaijan: From ~0.1% to 7%
Azerbaijan is around the same size as Portugal
Women in Free Software (FOSS) Need Action, Not Mere Words
the men who are loudest about women's rights are some of the very worst offenders
Embrace, Extend, Extinguish Minecraft
These folks should check out Minetest
Techrights Statement on Men Who Viciously Attack Women in Free Software
history shows women will win
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 14, 2024
IRC logs for Friday, June 14, 2024
[Meme] People Who Cannot Find Gainful Employment Because of Their Poor Behaviour Online (Not the People Who Merely Call Them Out on It)
Imagine trying to become a lecturer while talking like this in public
You Too Would Get Nervous
countries where Windows is down to 2%
[Meme] The Two Phases (and Faces) of Microsofters
Microsofters: stalk IRC, then troll IRC
The 'Nobody Reads Techrights Anyway' Crowd
Send In the Clowns
Books in the Making
I intend to spend a considerable amount of time explaining what my family and I were subjected to for the 'crime' of promoting/covering Free software
Microsoft is Still Losing Malta
And GNU/Linux is doing well on laptops and desktops
Tux Machines: Third Party Impending
There will be more next week