Last fall, we wrote about how the BSA, the Business Software Alliance, famous for being basically a Microsoft-front organization whose main job is to publish absolutely, hilariously misleading
"piracy" numbers each year, had been taking on the issue of the so called "covered business method (CBM) patent" program that was being pushed in patent reform. The covered business method patent program is pretty straightforward. It allows certain types of patents -- currently financial patents -- to undergo a faster review, allowing the USPTO to dump bad patents faster. Senator Chuck Schumer, who had put the original CBM tool into the last round
of patent reform, is now championing expanding it
to cover software patents as well. While very heavy
lobbying from Microsoft (and some from IBM) convinced the House to drop
the plan from its patent reform bill, there's still a battle in the Senate, and Schumer doesn't show any interest in giving it up.
And there's no reason for him to do so. As he's noted, the use of the CBM program has already shown that this works
. It has helped dump some bad patents and hasn't created any massive damaging consequences anywhere else. But you wouldn't know that to read the latest
laughable BSA letter on this program
, as they kick off their attempt to get the Senate to drop the CBM program as well. According to the BSA, since the original CBM program was just a test, it must always remain that way:
During Congressional consideration of the AIA, proponents of Section 18
argued that it was a necessary and temporary measure to review a very narrow class of
financial-services-related patents. However, recently-introduced legislation proposes to
make the transitional proceedings of Section 18 permanent and expand the definition of
“covered business method patent” to include data processing patents used in any “enterprise,
product, or service.” This means that any party sued for or charged with infringement can
always challenge an extremely broad range of patents at the USPTO. The request for a
proceeding need not be related to financial products or services and can be submitted any
time over the life of the patent. This proposal would eviscerate the delicate balance that was
struck with the other new post grant review programs in the AIA to ensure that patents would
not be devalued by limiting serial challenges during the patent’s life.
Got that? The BSA (really: Microsoft pulling the puppet strings) is claiming that because Schumer agreed to use the CBM program as a test in the last round of patent reform (the AIA), that going beyond that would "eviscerate the delicate balance." Uh, no. The purpose of the test was to see if this program worked. And now that we see it has worked, it should absolutely be expanded. But, no, no, no says the BSA letter. If patents could be challenged, companies wouldn't make software any more and that would destroy pretty much the entire economy. And put us all in danger.
This would have far-reaching implications, because data processing is integral
to everything from cutting-edge cancer therapies to safety systems that allow cars to respond
to road conditions in real time to prevent crashes. Subjecting data processing patents to the
CBM program would thus create uncertainty and risk that discourage investment in any
number of fields where we should be trying to spur continued innovation.
Got that? If you actually review our patents to make sure they're not shit, you might die in a car crash. This is the most asinine argument I've seen from patent lovers in a long time -- and I've seen an awful lot of asinine arguments. First off, the idea that someone won't invest in writing a piece of software because of the possibility that (1) they might get a patent and (2) at a later date that patent might be challenged and (3) if that patent is crappy, that it might get thrown out, is so stupid that it doesn't pass the most basic laugh test.
And, of course, this leaves out the most important point: if the patents are valid, the CBM program will quickly find them to be valid and they're no worse for wear. The only
time CBM will have a serious negative impact on a company is if that company has a ton of really, really shitty patents that they want to use to shake down innovators
. So, go ahead and take a look at the list of companies who signed onto this letter, and you've got a list of companies looking to abuse the patent system to shake down innovators with their own crappy patents. And they're basically admitting that their patents are so bad
that they can't survive a basic review by the Patent Office.
Then we move on to historical revisionism:
The US patent system for more than 200 years has succeeded spectacularly in
promoting “the progress of science and useful arts,” as the Founders intended, in part
because it has always provided the same incentives for all types of inventions. To expand
and make permanent the CBM program would be to turn ill-advisedly and irrevocably in a
new direction — discriminating against an entire class of technology innovation.
This is hilarious. First of all, anyone who is intellectually honest (note: the BSA has never been even remotely intellectually honest) has to admit the nature of the patent system has changed drastically in the past few decades, in particular with how it deals with software. And if there's a "discrimination against an entire class of technology innovation" it's clearly with the current patent system that has pretty much guaranteed that no company can innovate successfully without facing threats from patent holders demanding cash over bogus patents.
Frankly this whole letter is pretty disgusting. It's clearly the work of Microsoft, via the BSA as its sock puppet, and the argument makes absolutely no sense except if you have a ton of crappy patents. Hopefully the Senate won't give in the way the House folded.