Bonum Certa Men Certa

Mobile Patent Wars Merely a Symptom of a Broken Patent System

Broken home



Summary: An accumulation of the latest articles about the USPTO, its so-called 'reform', and the reality of patent aggression and trolls

JUST when the SCO case was coming to its very end, we were seeing a rise in patent attacks on Linux, not just copyright attacks. It was also when Linux became a leader in mobile platforms that the attacks truly soared, just as the attack from SCO started when GNU/Linux had gained rapidly on servers. The timing made sense because if someone claims 'damages' and demands royalties, it is reasonable to make sure the return is greater than litigation expenses.



Currently, Apple becomes a bit like SCO, as did Microsoft a few years ago. Apple is not invincible at all as it recently lost its main brand, Steve Jobs. Jay from the 451 Group speaks of lessons of SCO in his latest fine article which the editor summarised as follows:

SCO showed that convoluted contract, IP and other courtroom claims make for long, convoluted courtroom processes. Considering the SCO case in its totality, it seems the more the company relied on legal means to compete or limit other competitors, the further it strayed from users, consumers and its core business.


Yes, that sounds just like Apple and Microsoft. Apple is too busy trying to block the competition, so people can lose sight of Apple's future products; as for Microsoft, just watch what happened in the mobile arena. Microsoft was too busy filing patents; not much real work got done. Linux leapt ahead in the mean time and it is reported that Android does to Apple in tablets what it already did to it in phones. Fantastic! But we must not lose sight of the constant attacks on mobile Linux.

"But we must not lose sight of the constant attacks on mobile Linux."Red Hat's Open Source site features an article by Keith Bergelt and it focuses on the mobile patent wars that affect Linux. There are several platforms affected by this and they include MeeGo and WebOS, both of which were weakened recently. Patents had a little to do with it, based on numerous reports. "RIM Patents Rotating Keyboard Keys" we learn from a new article, so there is clearly quite a maze of patents being created not just by Microsoft's and Apple's cartel. It affects not only the United States because some of the patents are design related, not purely software (which is controversial too). The FSFE writes about software patents in Europe this week, deciphering the situation in Germany where Apple has most prominently been attacking Android.

There is an analysis from patent maximalists regarding the ruling that may weaken or eliminate a lot of software patents rather than one at a time (reexamination). To quote the part freely accessible to the public:

August 16, 2011, the Court of Appeals for the Federal Circuit (CAFC) issued its decision in CyberSource Corp. v. Retail Decisions, Inc., affirming patent-ineligibility of a reexamined software patent. The patent-in-dispute, U.S. Patent 6,029,154, is directed to detecting credit card fraud on the Internet and claims 2 and 3 were at issue. The court's reasoning recognized that software is still patent-eligible after Bilski, but held that the bar has been raised – which has important implications for the software industry.


Well, based on further analysis in the Oracle vs. Google case, even Google has started working towards the weakening of software patents. It's very important. Quoting Pogson:

Google has moved for summary judgment that using Java APIs is not copyright violation. Oracle has replied. Oracle is trying to persuade the court that APIs are protectable despite much legal precedent as far back as 1879:” the Supreme Court made clear that publication of a book that explains a particular accounting system gives the author no rights under the copyright laws to prevent others from using the system, as long as no protectable expression from the book is copied. Baker v. Selden, 101 U.S. 99 (1879); see also 17 U.S.C. €§ 102(b) (“In no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). Oracle’s Java language books and API specifications give Oracle no greater rights to prevent implementation by others of the APIs using original code.”


Google is now in a position where the low cost advantage of its main operating system (RHEL, Chrome OS and Goobuntu aside) is in jeopardy. Even CNN has a new article on the subject, stating initially that:

If you feel like you've been seeing more news about patents than ever before, you have. In July, a consortium that included Apple, RIM and Microsoft made a move on Nortel's patent portfolio, outflanking Google. In August, Google hit back by proposing to acquire Motorola Mobility in a $12.5 billion deal, largely for its massive cache of patents. HTC and Apple continue to spar in court over patent infringements. And now, Kodak and InterDigital are being eyed for their intellectual assets. Patent lawsuits in the U.S. rose to 2,833 in 2010, up nearly 25% from a decade earlier, according to IP litigation research firm Lex Machina. The 2011 total will almost certainly be higher.

What exactly is going on? How did a seemingly sleepy subject like patents suddenly become an active fault line in American business?


Adding to this the presence of patent trolls like Acacia, it sure seems like the system has become a mess. According to this new article, this massive troll has just extorted yet another company. To quote:



Newport Beach-based Acacia Research Corp., which licenses patents for companies, reached a settlement and licensing agreement with Salt Lake City-based Internet retailer Overstock.com, the company announced Tuesday.

The agreement resolves litigation that was pending in the United States District Court for the Eastern District of Texas.


Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University, spoke to Tim Lee on the subject of today's patent 'reform'. No real reform has yet been implemented, just a bogus one. The article "How Congress Just Failed to Fix America's Broken Patent System" has just been published in a reputable site which put forth the following idea:

The second thing you need to know is that the U.S. Patent and Trademark Office has been so neglected for so many years -- literally robbed of funds by Congress, which re-appropriated portions of the agency's budget for other purposes -- that the organization tasked with protecting America's technological and scientific assets labors with too few staff and a "20-year old technology infrastructure that does not even remotely enable it to take advantage of modern information technology."


Maybe this is why it has granted a monopoly to almost any patent applicant, which aided the patent trolls, helped patent lawyers make more money, and gave the mere illusion that innovation was on the rise. The latest reform does almost nothing to change this, so the mobile patent wars are probably here to stay for a while longer. We predict a growing level of backlash against the USPTO in years to come. It might suffer the same PR problem as the Federal Reserve.

Looking at Law.com, Ben Henrion finds this article titled "Patent Law's Passage Spurs Flood of New Complaints". It quotes Chaikovsky as saying: "At least in the short term, there's going to be a lot more patent litigation. That means litigators will be busy."

This new Patently-O Blog about "the International Harmonization of Patent Laws" led Henrion to warning about the "Combination of an English respect for precedent with a Germanic desire for consistency and uniformity" as "EPO 'caselaw".' To quote:

International harmonization has always been seen as a major purpose of the Leahy-Smith America Invents Act. Every country has its own patent structure as does the European Patent Office. Ongoing differences between the various countries add substantial transaction costs to the process of obtaining and enforcing patents. Many US companies would like European patents, but the prospect is often cost prohibitive.

Although disputed, most would agree that the Leahy-Smith's new filing-date focus moves the US closer an international patentability norm. Still, a number of important differences remain between US law and the laws in other major patent centers. As a result, the US law has not been internationally harmonized, but it has been shifted in that direction.


See our post about the ambitions to establish the interpol of patent systems. Microsoft craves it.

Comments

Recent Techrights' Posts

Bruce Perens & Debian public domain trademark promise
Reprinted with permission from disguised.work
Links 28/04/2024: Shareholders Worry "AI" Hype Brings No Income, Money Down the Drain
Links for the day
Lawyer won't lie for Molly de Blanc & Chris Lamb (mollamby)
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 27, 2024
IRC logs for Saturday, April 27, 2024
Links 27/04/2024: Spying Under Fire, Intel in Trouble Again
Links for the day
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day