Patent News: reform

Myhrvold throws a party and surprise: the press was invited!
Somehow I can imagine Richard Vines sitting there eating thinking "Must not mention Lodsys, must not mention Lodsys". After all he wouldn't want to upset Microsoft's "Guru", he might not get invited back to the next party! Despite Vines groveling Myhrvold can't help but think we're all scum, except him of course. After all he's a famous inventor...the patent troll "protection" business.

Businesses split on merits of overhauling patent process
The Myth That Software Startups Need Or Want Patents

Eight MILLION Patents! | TacticalIP.com

Groklaw - Post-Bilski: The Federal Circuit Further Refines Patentable Process Claim Subject Matter

J udge’s Mind not Changed by Reexamination Outcome : Reexamination Alert™

Pending Reexamination has Major Effect on Injunction Decision : Reexamination Alert™

First to File in the Unpredictable Arts: Change in Law Requires Balancing of Competing Interests

Leave Patent Licensing To The Professionals « Gametime IP

Warning: Patent Analyst Shouts At The Rain « Gametime IP

So How Do We Fix The Patent System? | Techdirt

The Economist Notices That The Patent System Is Hindering Innovation And Needs To Be Fixed | Techdirt

The Economist Disagrees With The Economist: Argues We Need More Patents, Approved Faster | Techdirt

Specialist Patent Courts Are Part Of The Problem - Forbes

Patent-filing changes may give big firms an advantage - press of AtlanticCity.com: Business

An Overview of the PCT International Patent Process | IPWatchdog.com | Patents & Patent Law

One step closer to a Single European Patent System

Stupidest article I read all week: China’s Innovation Capacities May be Over-hyped. Because you know the best way to judge a country's innovation is to count the number of patents they file! What a ridiculous metric.

China Update 20 August 2011 from IP Think Tank

Censorship

Cisco Sued By Chinese Political Prisoners Over 'Golden Shield'
Baidu may face tougher rules after state media criticism | Reuters

As Governments Get Censorship Happy, New Technologies Popping Up To Route Around That

Oh Look, The Publishing Industry Is Growing In The Digital Age As Well | Techdirt

Pharmaceutically Speaking, Part 5.5: Stem Cell Patent Update | TacticalIP.com

Upcoming training events:

Patent Docs: IPO Program on Compulsory Licensing

Patent Docs: USPTO Announces Agenda for Next BCP Customer Partnership Meeting

Patent Docs: Webinar on AMP v. USPTO

August 17, 2011

One step closer to a Single #European #Patent

Once a pipe dream, now potentially only two years from coming to fruition, the
prospects of a Single European Patent are more realistic than ever before.

The Single European Patent is essentially exactly what it says, a single patent
covering Europe. Specifically, a single patent application will confer patent
protection in 25 of the 27 member states making up the European Economic Area
(EEA). This includes the key European markets of the UK, France and Germany but
notably does not include Spain or Italy who have opted out at this time.

August 16, 2011

Businesses split on merits of overhauling #patent process

But even as the office passed that milestone, by its own estimate 700,000 patent applications lay awaiting review.

The U.S. patent system has changed little since 1952, and supporters of legislation to overhaul it say that the measure could create high-paying jobs and protect U.S. businesses' advantage in high-tech and other industries. Both houses of Congress back versions of the America Invents Act, which would bring the U.S. patent system closer in line with other countries, and President Barack Obama has held up patent restructuring as a bipartisan issue, an increasingly rare creature in Washington.

But with the Senate expected to hold a final vote on the bill early next month, many inventors and small businesses worry that it would give big companies an unfair leg up.

Patenting Computer Software

The issue of #Software #Patents is an area of Intellectual Property Law that legal practitioners have traditionally struggled with. It is commonly perceived that
if an invention is computer software related then it will not be patentable.

In many cases this is true but as rules regarding patentability of computer software vary from country to country, it would be a mistake to simply write off your
chances of obtaining meaningful patent protection. In Europe, computer software and computer implemented inventions are patentable but only they involve a technical
effect beyond the necessary interaction between hardware and software. Some examples of technical effect are:

Editing a photo within computer software;

Using computer software to optimise fuel efficiency in a vehicle;

Communicating with a satellite to pinpoint a location;

Allocating resources within a computer to prioritise specific tasks;

Innovation and #Google ’s Attack on the #Patent System

An online debate has exploded around Google’s complaint that patent-owners are attempting to limit Google’s ability to innovate by unfairly limiting Google’s use of other companies’ intellectual property. Google does not appear to be disputing who owns the patents, but appears to be arguing that these patents, and the patent system more broadly, may be harming innovation and therefore harming consumers beyond any value that the patent system creates.

Patent Baristas » Intellectual Property & Antitrust Issues: Market Power

So how does one bridge the gap between antitrust laws and patent laws? Is one to understand that patent laws are inherently monopolistic in nature? In which case, the Congressional intent in enacting the Sherman, Clayton and FTC Acts is questionable. Is it that patent laws are divest from the purview of antitrust laws or can they be viewed as two sides of the same coin- aiding and abetting one another in enhancing consumer welfare and promoting innovation? “[T]he aims and objectives of patent and antitrust laws may seem, at first glance, wholly at odds. However, the two bodies of law are actually complementary, as both are aimed at encouraging innovation, industry and competition.” Atari Games Corp. v. Nintendo of America, Inc., 897 F.2d 1572, 1576. One may seek recourse to case laws, old and new, in addition to the various FTC reports in order to make sense of this conundrum.

Manila Standard Today -- The future of Ubuntu

“The patent system is... sold as a way of giving the little guy an opportunity to create something big … when in fact patents don’t really work that way at all,” he says.

“What they do very well is keep the big guys entrenched and the little guys out. For example, it’s very common in established industries for all of the majors to buy up or file as many patents as they can covering a particular area. They know and accept that the other majors are all in the same industry and essentially cross-license each other to keep the peace within that defined market. But they use that arsenal to stop new entrants coming in and disrupting the market.

“That’s almost the exact opposite of the way people think about the patent system.”

In the mobile market, he says, Google is trying to disrupt the ecosystem with Android and the resulting lawsuits are all aimed at keeping it from doing so.

“None of it is particularly constructive and it’s hugely expensive, often at the cost of end users who don’t have the real range of choice they should have,” Shuttleworth adds.

How the US patent mess affects European Tech and Startups

It’s a situation that has added weight to the argument that software patents shouldn’t exist. VC Fred Wilson, for example, wrote in June this year:

I believe that software patents should not exist. They a tax on innovation. And software is closer to media than it is to hardware. Patenting software is like patenting music.

The mess around the Lodsys patents should be a wake up call to everyone involved in the patent business (government bureaucrats, legislators, lawyers, investors, entrepreneurs, etc) that the system is totally broken and we can’t continue to go on like this.

Well-known developer Mike Lee (who spoke at this year’s The Next Web conference – dressed as a pirate no less) has announced a legal team and fund to help developers fight back against “patent trolls” like Lodsys. He takes a balanced view on software patents and tells me, “One can make purely theoretical arguments either way. We have to look at reality, how software patents are actually used. The reality is, the same patent system that has failed to keep Apple from being ripped off wholesale is being used to harass its developers. You cannot look at that and honestly say this is a system that works.”

August 15, 2011

Last week in #patents: #Apple, #Android and trolls oh my!

In the fluid smartphone market, this week it was reported that Apple became the top vendor for the first time claiming 19.1% in the second quarter of 2011 with Samsung claiming 16.2%. It was also reported that the iPhone had, indirectly, come to dominate not only the private consumer market but enterprise IT.

Android continues its astronomical growth, last week it was reported that Android accounted for 53% of all ad impressions and claiming 43% of the market share in the second quarter of 2011. Oracle asked the courts to force Google to reveal its Android revenue. Scott Daniels discussed Google's attempts to invalidate Oracle's patents being used in their Android battle. Google accused Microsoft of releasing its proprietary code.

Apple was sued by a possible LG shell company in Florida over the fast booting used in OSX. Florian Mueller suspects it's a preemptive strike in the patent proxy war surrounding Android, which has thus far spared LG but only because of their smaller market share.

Apple was granted additional important patents regarding its touch-screens, no doubt there will be little wait in their use in litigation against its competitors.

Following its success in Australia, Apple succeeded in blocking the release of Samsung's Galaxy Tab 10.1 in the European Union except the Netherlands where a different lawsuit is underway. Samsung is of course, appealing with a date set for August 25th. It was also reported that Apple is also targeting Motorola's Xoom tablet, escalating the the already chaotic Android legal battle.

With Apple and Microsofts success in impeding competitors products through litigation and licensing fees, it's not surprising that Motorola may be joining them in extracting such fees from other Android makers.

For a great overview of the Android battle with Microsoft I suggest the SeattlePI article Microsoft’s biggest mobile failure and success: Android.

HTC is opening to negotiating a deal with Apple, it all comes down to just how much Apple is going to charge in order to settle their numerous lawsuits and what if any, cross-licensing arrangements can be made. HTC continues its acquisitions, buying Beats Electronics, a high-end speaker and headphone maker cofounded by Dr. Dre and will begin using Beats' audio technology in its handsets.

Huawei Technologies accused rival Inter Digital of filing infringement claims against it to boost the value of its patents while courting bids from Google, Apple, and Samsung for them.

Android was also updated to allow its phones to rent movies.

Rovio and EA are urging the federal court to allow Apple to directly intervene in the patent-infringement case targeting iOS developers by Lodsys. Meanwhile Google's response, whose Android developers have also become a Lodsys target, is to seek the invalidation of Lodsys's patents, much to the consternation of Florian Mueller: Google risks alienating its Android developer community if it doesn't do more and quickly, to clear up all the litigation surrounding Android.

Cisco and Twitter joined a Linux patent protection pool, hopefully it's not as devious as Intellectual Ventures which announced a licences deal with LCD maker Chunghwa. Intellectual Ventures is also suing 100+ media companies.

Sony and LG settled their 3 year patent dispute over TV and Blu-ray technology with a cross-licensing arrangement.

Speculation about the iPhone5 and an iOS 5 powered iPad3 release date were abound, meanwhile rumors were spread that Windows Phone "Mango" will be released September 1st and Android's "Ice Cream Sandwich" will likely come at the end of 2011.

With the debt deal past them, Congress looks ready to pass some form of patent reform, whether it will do any good remains to be seen, but Mike Elgan is skeptical. News surfaced of possible legislation to curb the lawsuits generated by non-practicing entities or patent trolls.

Tim Richardson defended NPEs, explaining that software patents were just as sellable as anything else. Timothy Lee continued making the case for invalidating software patents and conducted a very enlightening discussion with Julian Sanchez on topics ranging from NPEs, software patents, and the charges against Aaron Swartz, if you've got 35 minutes I strongly suggest listening to it. Brad Feld, Martin Fowler, and Brian Kahin also make the case against software patents. Meanwhile, Nilay Patel defends the software patent system.

Pantently-O's Dennis Crouch got to the heart of patent reform: the statistics behind filings, litigation and the USPTO's budget and stats on patents and litigation.

Lawrence Higgins also has a great roundup of other patent news not covered here.

August 14, 2011

Are software patents the "scaffolding of the tech industry"?

So it's obvious that patents are good for the people who get them. The key question is whether patents have a net effect of encouraging innovation. And there's no reason to believe this is the case. To start with, a big chunk of patent revenues simply flows to patent lawyers. The rest goes disproportionately to huge incumbents like Microsoft (18,000 patents) and IBM (more than 50,000). These companies have as many patents as they do not because they are hundreds of times more innovative than smaller companies like Google (754 patents) and Facebook (11 patents), but because it takes time to build the massive legal bureaucracy required to file thousands of applications every year.

This point is most obvious in a case where a failed company's patents are put up for auction. It can be sad when a company goes out of business, and a company's investors understandably want their money back. But the reason the auctioned patents are valuable is usually because the winning bidder will turn around and demand licensing fees from the failed company's more-successful competitors, effectively punishing success.

August 12, 2011

For the Good of Tech: Fix Our Broken #Patent System Now!

I have this long-held belief that our patent system is broken. Maybe even unfixable. These days, there's a growing Greek chorus pointing out the same problems.

#Software code is often used as an offensive weapon (in every sense of 'offensive'), or as a shield against patent attacks. But I don't think you should be able to patent an algorithm or a problem-solving idea, any more than you can patent the phrase 'More tacos, please' or the idea of brushing your teeth exactly twice a day.

#Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers.

Brian Kahin: The Age of Disablement (#patent, #Android, #Oracle)

Too many companies are now embracing legal weapons on large-scale -- and social capital is suffering. Times change. When hearings were held on software patents in 1994, Oracle was vehemently opposed to software patents:

Our engineers and patent counsel have advised me that it may be virtually impossible to develop a complicated software product today without infringing numerous broad existing patents.

That was in 1994. The number of software patents issued annually went up five-fold in the next 15 years to nearly 40,000/year. The number of lawsuits over software patents has gone up eight-fold. Having recently acquired Sun and its vast portfolio of patents, Oracle is suing Google over Android's implementation of Java. Yet when Google adopted Java for Android four years ago, Sun's CEO Jonathan Schwartz blogged about how delighted he was. Oracle recently deleted the posting. And Schwartz's entire blog...

August 11, 2011

#Software Is Just Math. Really.

First, Patel makes the common argument that the #patent system’s value comes from the way it encourages disclosure of useful technologies. This seems like an argument for software patents that could only be made by someone who’s never developed software (which Patel concedes he hasn’t). I’ve known and worked with a lot of computer programmers over the years in a lot of different parts of the software industry, and I’ve never met a computer programmer who finds patent filings a useful source of technical information.

#USPTO ’s Future Budget

Fee-Retention Unlikely: The #Senate and #House of Representatives have each passed #patent reform measures, and the two bills are remarkably similar. The arguably greatest difference between the two is that the Senate Bill (S. 23) includes a substantial guarantee that the USPTO will be able to actually spend the money that it collects in user-fees. The House Bill (H.R. 1249) does not include that guarantee. At this point, it appears most likely that the House Bill will be accepted in the Senate and that the PTO will be left without any budgetary protections from the congressional appropriations process.

The #patent system isn’t broken — we are

There is a fundamental problem with patents in the United States.

It is us.

By that I mean all of us: the companies and people who directly interact with the patent system, the media that reports on those interactions, the analysts and experts who inform the media, and finally the large, active, and vocal readership that we try and service with our reporting. As a group, we have accepted and let lie the lazy conventional wisdom that the patent system is broken beyond repair, a relic of a previous time that has been obsoleted by the rapid pace of technical innovation, particularly in software, and that it should perhaps be scrapped altogether.

Blame #Congress, Not #Apple, for Patent Woes

Apple is mixed up in all kinds of patent issues. As a result, the company has been accused of unfairly trying to kill Google’s #Android platform, and of being a “patent troll.”

But such criticism is misplaced. First, the accusations are false. Second, the real blame should be reserved for the US Congress, which has the power to fix our broken patent system, but year after year fails to do so.

Intellectual property: #Patents against prosperity

This is apparently a patent on streaming music over the internet. Naturally, you are familiar with #PacketVideo 's popular music streaming service. Oh, you're not? I guess that's because they don't offer one. So, #Spotify is trying to make money offering a service that will make consumers happy. (I'm using it right now. I think it's terrific.) PacketVideo is trying to make money doing what? Shaking down Spotify?

Here's where Mr Myhrvold's Intellectual Ventures comes in. Intellectual Ventures owns a huge portfolio of patents. Quite possibly they also have some sort of patent that covers streaming music over the internet. Intellectual Ventures makes money through a sort of protection racket that helps Spotify defend themselves against companies like PacketVideo. For a considerable fee, a company can access Intellectual Venture's storehouse of patents and use them defensively against companies claiming patent infringement.

Board of #Patent AppeaIs Backlog: Only Growth

Operating at this rate, it will take 3 1/2 years for the BPAI to dispose of the cases already in its docket. Thus, assuming that the BPAI takes appeals in-turn, an appeal docketed today will not be decided until the year 2015.

http://www.patentlyo.com/patent/2011/08/bpai-backlog-only-growth.html

Patent News

August 21, 2011

Last week in patent news (August 20-27)