Bonum Certa Men Certa

Using “China!” and Distortion of Data From Lex Machina, the Litigation Lobby Promotes Software Patents

"The Chinese Are Coming!" (British Empire's national broadcaster on the weak -- and obviously hypocritical -- narrative of Chinese 'imperialism')

The Chinese Are Coming



Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)

China seems to have become almost a role model or a poster child to Battistelli's EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don't matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can't stop talking about "China!"). It's troubling because it's incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).



Their argument in a nutshell is, if we don't allow algorithms be to patented, China will "win" -- a loose term for simple-minded and careless people like Donald Trump (there are many reports like "Donald Trump stokes foreign policy fears in China").

"It's troubling because it's incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).""Good to see that SIPO aligns with the EPO's "any hardware approach" when it comes to patent-eligibility," said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That's the same man who had also linked to Steve Lundberg's "patents4software" blog (non-developer speaking 'on behalf' of developers [1, 2]). Lundberg says "Kudos to China on Software Patents," alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.

Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled "China relaxes rules on software patentability – and the United States loses more ground".

Front groups like IAM are using shame tactics against the USPTO. It's part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).

"Front groups like IAM are using shame tactics against the USPTO."Ellis says "United States loses more ground," as if it's a bad thing to control quality. Ar they really losing by improving their system? IAM's lobbyists just can't help but show what they really are. It's not a news site and it's just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of 'journalism'.

Watchtroll was of course all over this too, pushing for software patents under the headline "China relaxing barriers to software, business method patents with revised patent guidelines," which added business methods to it.

IAM didn't stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled "Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts" and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.

"IAM is lying/distorting things again, but that's just its business model."The core of their argument is CAFC, where it says: "The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect."

There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that's just its business model. That's what many firms are paying it for. It's their propaganda mill, it's tasked with perception management, e.g. softening the image of patent trolls.

Writing about the same data as above -- albeit without the lobbying (or pseudo-activist) slant -- Law 360 said that Lex Machina "tallied the number of patents that courts have invalidated under Alice." To quote the opening paragraph (most of it is behind paywall anyway):

The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.


We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM's conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that's what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.

"We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills."Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have 'teeth'. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained "Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter," but if one looks at all the other CAFC cases, then it's abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse -- not something that IAM would touch even with a 5-foot bargepole (bias by omission).

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