by Mike Masnick
Tue, Apr 21st 2015 9:03pm
by Leigh Beadon
Tue, Apr 21st 2015 12:30pm
from the (assuming-it-can-be) dept
Last week, podcast co-host and patent attorney Hersh Reddy helped us navigate the many ways in which the patent system is broken. This week, we turn our attentions to the ways in which it might be fixed, whether by small changes or sweeping reforms. For music, we've got more of Destroy All Patent Trolls by Jonathan Mann (CC-BY).
from the beyond-repair? dept
Hersh Reddy, co-host of the Techdirt Podcast who has been away the past few weeks, is a patent attorney with a computer science degree and a long history of working in the tech industry. In this first half of a double episode, he discusses the many ways in which the patent system is broken, and how it got that way. This week's music is Destroy All Patent Trolls by Jonathan Mann (CC-BY).
by Mike Masnick
Fri, Apr 10th 2015 7:39pm
from the nice-work dept
Most of those settlements were for no money, but the company did win its lawsuit against CBS (in Eastern Texas, of course). However, the EFF's initial effort to invalidate the patent at the USPTO (which is a separate process from the lawsuits) has now resulted in the Patent Office invalidating the key claims in the patent. You can read the USPTO's decision, in which it notes that the key parts of the claim were clearly obvious to practitioners skilled in the art at the time of the patent and that the prior art invalidates the patent as well.
We are persuaded by a preponderance of the evidence that Petitioner’s rationale for obviousness is supported by rational underpinnings.Kudos to the team at EFF, who have been doing some great work on patents lately (contrary to one of our grumpy commenters who insists that the EFF lawyers will never be seen as "serious professionals" by the US Patent Office, and will remain "marginal players at best"). Can't wait to see what patent projects they take on next...
by Tim Cushing
Fri, Apr 10th 2015 9:43am
from the I-WANT-TO-BELIEVE dept
If you've read Techdirt for any length of time, you'll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a "duty" to protect their interests.
It's not an assertion borne of data or extensive research. It's a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they'll often declare this is only because we're not doing the things that aren't working hard enough or often enough or with enough severity.
Mark Lemley, whose work -- especially that focused on the broken patent system -- has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.
Lemley opens by noting that we supposedly live in an "age of reason," with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.
This isn't just a post-file sharing phenomenon. This dates back more than a half-century.
Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.There's more evidence available now than there was 60 years ago, but nothing's improved.
The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation... This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy... Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn't let up. When the available data doesn't support held beliefs, there are options.
Shoot the messenger:
A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.Someone can be paid to produce data that agrees with held views.
A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.Or, you know, 'find God," as it were...
Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.Lemley quotes Berkely's Rob Merges, a leading patent scholar -- one who turned to faith when the data didn't support his predispositions.
After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who "feel" or "believe" in the fundamental "rightness" of their arguments. Data need not apply.
The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.There's a reason why religions and governments shouldn't be allowed to intermingle. This adherence to the "moral" rights of creators plays hell with the system.
It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.When the faithful guide the creation of legislation, bad things happen -- things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like "fair use" give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don't want it fixed.
Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs -- no matter how much data is provided.
If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed "industry killers" have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.
by Mike Masnick
Fri, Apr 10th 2015 8:13am
from the looks-like-it dept
So, if you're wondering if patent 9,000,000 is a bad, trollish patent, you'll be happy to note that it's not a software or business method patent, but rather a kind of windshield washer system. Not only that, but there's a real company behind it that appears to be making a real product. Well, phew. The USPTO must be happy about that... Or, actually, the USPTO probably went through all the damn patents scheduled to issue on Tuesday to find one that wasn't controversial and magically named it number 9,000,000, though in any other week it would have been in a different batch. As patent blog 1201 Tuesday notes:
One of these patents is not like all those others... and it just so happens to be patent 9,000,000. Oh, and in case you're wondering, there were a bunch of other patents from class 210 "Liquid purification or separation" issued on Tuesday as well -- it's just that they're patents 8,999,153 to 8,999,176, all in a row. So it looks like the USPTO found that one nice, non-controversial patent and plucked it out of the 8,99,160ish range and plopped it directly in the middle of all of those "drug, bio-affecting and body treating compositions" and declared it, magically, 9 million, knowing that it might get a bit of attention.
Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it's for both.)
Patent 9,000,000 today is in class 210, “Liquid purification or separation”. Yet, it interrupts a block of patents from class 514, “Drug, bio-affecting and body treating compositions”:
by Mike Masnick
Fri, Apr 3rd 2015 7:39pm
from the check-the-footnotes dept
Plenty of folks did comment, including the EFF. However, the USPTO apparently was offended at parts of the EFF's comment submission, claiming that it was an "improper protest." In response, the EFF refiled the comment, but redacted the part that the USPTO didn't like. Here's what page 5 of the document on the USPTO site looks like:
On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf.And, of course, if you go to that link, you get the full, unredacted version of the EFF's filing.
As you can see by the full filing, the EFF filing isn't some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF's comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn't want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF's complete dismantling of the USPTO's guidelines will now get that much more attention...
Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?
by Glyn Moody
Wed, Apr 1st 2015 1:37pm
from the as-such dept
That trick worked so well, it seems that the European Patent Office (EPO) has decided to apply it to another area: plants. Once more, the European Patent Convention states quite clearly:
European patents shall not be granted in respect of:
Despite that, we have the following news reported by Intellectual Property Watch:
plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof.
The highest court of the European Patent Office has declared that plants or seeds obtained through conventional breeding methods are patentable.
That's pretty close to the "as such" trick. Of course, it's not so surprising that a specialist patent court at the EPO should hand down a judgment in favor of granting more patents, just as has occurred in the US. What's troubling is that if and when the completely independent Unified Patent Court system is introduced in Europe, there will be no way to rein in the patent courts as has finally started to happen in the US.
The Board of Appeal found that the exclusion of essentially biological processes for the production of plants does not extent to a patent claim for a product that is directly obtained from or defined by such a breeding process, the EPO said.
by Vera Ranieri
Tue, Mar 31st 2015 3:47pm
from the stupid-patent-of-the-month dept
GPS technology has been around for a while. Wikipedia puts the start of development at 1973. But it wasn't until the 1990s that it became available for consumer use. And even then, it took some time before the government removed restrictions on accuracy that it had on its use by civilians. (The government had added an intentional error to the signal that made GPS variably inaccurate up to 50 meters.)
With the loosening of restrictions on GPS came furious development in consumer applications—and a flurry of patents.
Which brings us to this month's Stupid Patent of the Month. The dubious honor goes to U.S. Patent No. 6,442,485, "Method and apparatus for an automatic vehicle location, collision notification, and synthetic voice," filed in 1999. The "Background of the Invention" talks about a need for an automatic voice system that could speak for a driver involved in a collision and transmit location details to 911. For example, the patent says that "[i]t would be desirable to have an automatic vehicle location and collision notification system that would ascertain if a vehicular collision had occurred and communicate directly with an emergency facility."
But after this background, the patent devolves into a wilderness of made-up words and technobabble. The patent includes fabricated phrases such as "Location Comparator-Indicator Module" and "Automatic Speed Controlled Location Detection Module." (Google searches of these phrases turns up nothing other than results related to the patent.) Reading the patent to try to figure out what it means becomes an exercise in cross-referencing and guesswork. Even worse, key terms in the claims (this is the part of the patent that is supposed to clearly explain what that patent covers) don't even appear in the description of the purported invention. This means that it is very difficult, if not impossible, to understand what the claims mean and to guess how a court might interpret them.
This sort of made-up gobbledygook is likely what has allowed NovelPoint Tracking LLP, the owner of this month's Stupid Patent, to sue over 90 companies for infringement. The latest round of lawsuits, filed on March 27, 2015, includes companies such as Subway (the sandwich artists, not a company related to transportation), McDonald's, and Burger King.
And what do these fast food franchises have to do with vehicle location, collisions, and synthetic voices? With respect to Subway, NovelPoint claims that Subway's Windows phone mobile application infringes NovelPoint's patent.
Here's the description of Subway's app from Microsoft's website:
Don't know where to find a local Subway? We're here to help. This app will display a list of local Subway locations along with the ability to get directions and let your friends know where to meet you.
We don't know what, exactly, NovelPoint thinks it owns, but it looks like it is accusing Subway of infringing because it has an app that shows a map with directions. And given the incomprehensibility of its patent, it can get away with this, at least enough to secure a quick settlement and get out before a court rules that no, in fact, it doesn't own a map with directions.
And indeed that is what appears to have happened. Of the almost 100 cases NovelPoint has filed, exactly none of the cases has had a decision on the merits of NovelPoint's claims. From what we can see, all of the cases have settled very quickly, most likely for small nuisance sums.
Patent owners shouldn't be able to get away with this. Patents should be clear and understandable. If new words are used, they should be defined. And if words already exist in the relevant art, they should be used. NovelPoint's patent is a great example of how using fake terms can be used to obfuscate what the patent actually claims, and then used to claim infringement by something no one would have considered the patent owner to have invented. We have laws that should prevent this sort of gaming. The Patent Office and courts need to start actually enforcing them.
Reposted from the Electronic Frontier Foundation's Deeplinks blog
by Glyn Moody
Mon, Mar 23rd 2015 9:29am
from the nope,-not-really dept
Patent trolls -- sometimes known more politely as "Non-Practising Entities" (NPEs) -- probably have few fans among Techdirt readers, but there are some who try to justify their activities. Here's how the argument usually goes:
Defenders of patent trolls ... argue that they serve as business intermediaries between inventors and commercializers. While the traditional theory of the patent system is that patents encourage innovation by allowing inventors to exclude competitors from the market and therefore earn supracompetitive returns, a number of scholars have argued that the patent system can encourage commercialization of inventions once they are made by allowing the inventor to control who can develop the technology.
That comes from an interesting new paper from Robin Feldman and Mark A. Lemley, which explores whether patent trolls really do fulfill this theoretical function in practice. It's long and detailed, but its results are pretty clear-cut:
Based on our preliminary evidence, the theory that NPEs facilitate innovation either through the creation of new products or by delivering actual technical know-how from inventors to implementers doesn’t hold water. NPEs almost never actually provide any valuable information to their licensees, and they rarely, if ever, prompt the development of any new products. Licensees are paying for freedom to operate -- the right not to be sued for implementing technology they developed on their own but which someone has asserted will fit within their patent rights. Thus,
does not support the efficient middleman hypothesis for characterizing the role of NPEs.
That's a valuable contribution to the debate about patent trolls, but the paper offers other insights. For example, it finds that not only do patent trolls not bring about much technology transfer with their patent licensing, neither does anyone else, either:
That doesn’t mean technology transfer doesn’t happen; it does. But it may mean that technology transfer happens early in the life of a technology, and that secrets, collaborations, and informal know-how, not patents, are the primary focus of real technology licensing agreements.
That's an important point. The paper also provides yet more evidence that the 1980 Bayh-Dole Act, designed to encourage the commercialization of research results through licensing, actually turns universities into patent trolls -- something that Techdirt has discussed before. Although the authors suggest that further research is needed to confirm their results, it already seems pretty clear that both patent trolls and Bayh-Dole need to go.