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Software Patent Reform Stalls Thanks To IBM and Microsoft Lobbying 239

Posted by Soulskill
from the politics-is-awesome dept.
An anonymous reader writes "The Washington post reports on the progress of a piece of legislation many hoped would address the glut of meaningless software patents used as weapons by patent trolls. Unfortunately, the provision that would have helped the USPTO nix these patents has been nixed itself. The article credits IBM, Microsoft, and other companies with huge patent portfolios for the change, citing an 'aggressive lobbying campaign' that apparently succeeded. Quoting: 'A September letter signed by IBM, Microsoft and several dozen other firms made the case against expanding the program. The proposal, they wrote, "could harm U.S. innovators by unnecessarily undermining the rights of patent holders. Subjecting data processing patents to the CBM program would create uncertainty and risk that discourage investment in any number of fields where we should be trying to spur continued innovation." ... Last week, IBM escalated its campaign against expanding the CBM program. An IBM spokesman told Politico, "While we support what Mr. Goodlatte's trying to do on trolls, if the CBM is included, we'd be forced to oppose the bill." Insiders say the campaign against the CBM provisions of the Goodlatte bill has succeeded. The House Judiciary Committee is scheduled to hold a markup of the legislation Wednesday, and Goodlatte will introduce a "manager's amendment" to remove the CBM language from his own bill. IBM hailed that change in a Monday letter to Goodlatte.'"
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Software Patent Reform Stalls Thanks To IBM and Microsoft Lobbying

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  • Money again... (Score:5, Insightful)

    by Joce640k (829181) on Wednesday November 20, 2013 @03:10PM (#45474837) Homepage

    FTA: An IBM spokesman told Politico, "While we support what Mr. Goodlatte's trying to do on trolls, if the CBM is included, we'd be forced to oppose the bill."

    What about the hundreds of thousands of small developers who support it?

    Do they get a "vote", too ... or is it only the people who are rich enough to bribe senators?

    • Re:Money again... (Score:5, Insightful)

      by MickyTheIdiot (1032226) on Wednesday November 20, 2013 @03:12PM (#45474863) Homepage Journal

      If money is equal to speech then guess who as more speech than you.

      • Re:Money again... (Score:5, Informative)

        by Anonymous Coward on Wednesday November 20, 2013 @03:36PM (#45475067)

        If money is equal to speech then guess who as more speech than you.

        Now now, all Americans are equal. Some are just more equal than others

      • by kbolino (920292)

        Don't like money in politics? Don't vote for politicians who are easily bribed.

    • I'd suggest that the hundreds of thousands should stop being cynical about their ability to get positive change in washington and should contribute to a coalition that surely already exists instead.
    • One of the comments below the main article is rather insightful in this regard:

      LittleOlMe 12:51 PM EST What actually killed it, and most every other good idea, is a lack of public funding for all federal elections.

    • Amazing, IBM. I've got an idea for a Watson project; Patent Troll Analysis.
    • by Jorgensen (313325)

      Surely you know the Golden Rule?

      The Golden Rule: The ones with the Gold make the Rules.

      Simple, really.

    • by Livius (318358)

      is it only the people who are rich enough to bribe senators?

      Rhetorical question, right?

    • by rtb61 (674572)

      What about hundreds of millions of consumers. They ultimately pay every cent of those junk patent fees, they pay the inflated prices on products as a result of anti-competitive junk patents and they pay for low quality product because high quality products are kept out of the market by junk patents. What is truly sick, is the money is being stolen out of consumers pockets to pay for the political campaign corruption, in order to steal more money out of consumers pockets. We are the ones paying to make it e

  • My guess (Score:5, Funny)

    by Lost Penguin (636359) on Wednesday November 20, 2013 @03:10PM (#45474843) Homepage
    Doesn't IBM hold a patent on patent reform?
  • by Anonymous Coward on Wednesday November 20, 2013 @03:15PM (#45474881)

    ... that's owned by Jeff "One Click" Bezos?

    • I don't think the One Click patent is the problem here. That one is at least clearly written and actually used by the company. It's the intentionally obfuscated and overly general patents that serve no practical purpose to the holder that bog the economy down.

  • Where the guilt is (Score:4, Insightful)

    by gmuslera (3436) on Wednesday November 20, 2013 @03:20PM (#45474925) Homepage Journal
    If you use the word "bribing" instead of "lobbying" it becomes more clear who are the ones that screwed all there. Being governed by people that not only accept bribes, but is also not worried about that being known is almost as bad as citizens taking that as something normal.
    • by Nerdfest (867930)

      The good part about this is that it makes a very nice list of who not to buy from. Of course, that doesn't help us with organizations like "Patent Office Professional Association", although I'm sure there's no conflict of interest there.

  • by symbolset (646467) * on Wednesday November 20, 2013 @03:21PM (#45474939) Journal
    Protecting you from the future since 1976.
  • by sconeu (64226) on Wednesday November 20, 2013 @03:24PM (#45474967) Homepage Journal

    CBM means "Covered Business Method (patent)"

  • by Dega704 (1454673) on Wednesday November 20, 2013 @03:27PM (#45475001)
    Translation: "We love the absurd and unfair amount of power that the broken patent system gives us over any and all future start-ups and rivals, and will oppose any legislation that doesn't maintain the status quo."
    • by JWW (79176)

      Ok, then, if IBM and Microsoft want to do that, fine.

      But I'm not going to have any sympathy when a patent troll takes them for $4 billion on a clearly bogus patent because the system is broken.

    • All or nothing? (Score:5, Insightful)

      by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Wednesday November 20, 2013 @03:53PM (#45475225) Homepage Journal

      Translation: "We love the absurd and unfair amount of power that the broken patent system gives us over any and all future start-ups and rivals, and will oppose any legislation that doesn't maintain the status quo."

      No - see the summary:

      An IBM spokesman told Politico, "While we support what Mr. Goodlatte's trying to do on trolls, if the CBM is included, we'd be forced to oppose the bill."

      The proper translation is "yes, we want to stop the troll problem, but this nuclear option you've got goes too far. We like all of your other proposals." Just because you don't like 5% of a proposal doesn't mean you necessarily hate 100% of the proposal.

  • A company is, in theory, like a person so it should not have more power than a normal citizen : Lobbying should be considered the same as bribing : ILLEGAL.

    • Congress shall make no law [...] abridging [...] the right of the people [...] to petition the Government for a redress of grievances.

      People in companies have as much right to ask the government to do things differently, to make things better for their own interests, as everybody else does.

      How would you make lobbying illegal? Throw people in jail for talking to their congressman?

  • by GameboyRMH (1153867) <gameboyrmhNO@SPAMgmail.com> on Wednesday November 20, 2013 @03:39PM (#45475089) Journal

    The whole world being held back for the benefit of the few. It will be the defining characteristic of this period in history.

  • by WillAffleckUW (858324) on Wednesday November 20, 2013 @03:41PM (#45475099) Homepage Journal

    Welcome to serfdom, comrade!

  • by zaroastra (676615) on Wednesday November 20, 2013 @03:41PM (#45475101)

    Most people on this forum are IT related, and I do not need to explain how software patents in particular hinder the ability to innovate in the field.
    Only the US has terror histories regarding patent trolls and patent dicksizing contests between software companies, which in no way help you be better, faster, and, I would even say more profitable (Lawyers being the only ones profiting out of this)
    There is no room for software start ups because of this. Everything that could be patented already is (and a lot that shouldn't is too).
    Here, in software patent free world, it's so much better. Whatever you can think of you can do it, and even if you cannot find a solution, you can google for it, code it, and that's it. No lawyers or burocracies needed.
    This is a clear situation of the big fish creating rules to eat the small fish. Is that the world you want to live in?

    (the same could be applied to the rest of patents, and even things outside patents like equality and justice, but I will stay out of it to keep on topic)

  • by argStyopa (232550) on Wednesday November 20, 2013 @03:44PM (#45475131) Journal

    So, our choices are apparently either:
    - an overbearing nanny state in which the government makes all the decisions, or
    - a weak state in which the corporations make all the decisions.

    Great. That really illustrates why frustrated people turn to Caesarism, and faith in a single strong personality given despotic powers to "fix the mess".

    Unfortunately, while you might get lucky and ACTUALLY get a Gaius Marius or someone genuinely interested in the general well-being of the people and nation, *rarely* is that ever sustainable to whomever inherits (earns/steals/etc) that power next....(Marius himself - in pursuit of very-much-needed reforms - could arguably be blamed for turning the Republic into the Empire)

  • by Spazmania (174582) on Wednesday November 20, 2013 @04:14PM (#45475421) Homepage

    I'm strongly in favor of patent reform, but CBM is not the answer. CBM allows a subset of patents to be challenged administratively on a fast-track, without having to go to court. That hurts the patent trolls, but it hurts anybody without a phalanx of lawyers even more.

    Real patent reform has three key parts:

    1. Fix "obviousness." The courts didn't like the examiner affirmatively finding that something was obvious so turn it around and require the applicant to justify why anyone of average skill seeking the same result would not have found the same method. Require the examiner to affirmatively find that it isn't obvious. No justification = no patent.

    If anybody asked to do X would have tried your approach and X itself doesn't supply the genius either then no patent should be granted. Nor should a minor tweak on something you or somebody else already invented receive a patent. There are too many "routine inventions" receiving patents.

    2. A person of average skill in the art should be able to implement the technology from the contents in the patent. Start rejecting packets where that isn't true. Vague or stilted language in the application = no patent.

    3. Patent duration should be from application, not from the grant. Effective protection starts with the application. You can't sue anybody until after the grant, but no one dares use the tech unless they're sure the patent won't be granted. That's been abused by delaying the final grant for years or even a decade.

    • Real patent reform has three key parts:

      1. Fix "obviousness." The courts didn't like the examiner affirmatively finding that something was obvious so turn it around and require the applicant to justify why anyone of average skill seeking the same result would not have found the same method. Require the examiner to affirmatively find that it isn't obvious. No justification = no patent.

      Unfortunately, I think you're asking someone to prove a logical negative: the applicant has to prove that something isn't obvious by showing... what, exactly? Definitive proof that no one has ever thought of the something?

      2. A person of average skill in the art should be able to implement the technology from the contents in the patent. Start rejecting packets where that isn't true. Vague or stilted language in the application = no patent.

      3. Patent duration should be from application, not from the grant. Effective protection starts with the application. You can't sue anybody until after the grant, but no one dares use the tech unless they're sure the patent won't be granted. That's been abused by delaying the final grant for years or even a decade.

      These are both good suggestions, and, of course, they're already in the statutes. 35 USC 112 requires that the patent have a written description that enables one of ordinary skill in the art to make and use the invention. And patent term is calculated as 20 years from filing (or 20 years f

      • by Animats (122034) on Wednesday November 20, 2013 @06:09PM (#45476721) Homepage

        1. Fix "obviousness."

        Unfortunately, I think you're asking someone to prove a logical negative: the applicant has to prove that something isn't obvious by showing... what, exactly?

        I hold six patents, and a few times I've had to prove obviousness to an examiner. The gold standard of obviousness is showing that others tried hard to solve the problem and failed. Sometimes, on problems where others have beaten their heads against the wall and there are failed products and projects in the field, you can point the examiner at prior art which shows obviousness. I was the first person to build a ragdoll physics system which could handle the hard cases. Back in the 1990s, early ragdoll systems tended to have characters flying off in random directions, sometimes with the body parts detaching. (Some physics engines still do that, which is lame, because, fifteen years later, several solutions besides mine are known now.) By pointing to previous failures that extended up to and past my patent application date, I was able to demonstrate non-obviousness.

        "Obvious" does not mean "obvious in hindsight".

      • by Spazmania (174582)

        I've read some of the software patents. I have better than average skill in the art and I couldn't implement the software described from *any* of them. Not. A. Single. One.

        • I've read some of the software patents. I have better than average skill in the art and I couldn't implement the software described from *any* of them. Not. A. Single. One.

          They all include flow charts... Are you saying you couldn't write a program if you were given a flow chart?

      • by Spazmania (174582)

        That's why I used the word "justify" and not the word "prove."

        Right now the presumption is that if a half-hearted and formulaic search turns up no prior art then the invention is novel. I want to turn that on its head: the invention is presumed obvious until you explain why it isn't in terms folks in your field agree with. Who are the people in your field and why aren't they half a step behind you?

        • That's why I used the word "justify" and not the word "prove."

          Right now the presumption is that if a half-hearted and formulaic search turns up no prior art then the invention is novel. I want to turn that on its head: the invention is presumed obvious until you explain why it isn't in terms folks in your field agree with. Who are the people in your field and why aren't they half a step behind you?

          Most applications will have something like that in the background and summary - the background says "here's what most folks in the field think, and here's a problem they've run into" and the summary is "here's how we solved it and why we're so cool".

          Now, you can (and rightfully should) be skeptical of such an explanation, since the applicant is going to be biased in their own favor, but if you're not just going to plug your ears and say "I'm not going to believe you", you have to have some sort of objectiv

  • IBM throws off its inhbitions.

  • by Animats (122034) on Wednesday November 20, 2013 @06:22PM (#45476831) Homepage

    The patent troll industry exists because, in the last decade, it's become much tougher for inventors to enforce patent rights. Four changes in law did this:

    • (2006) "eBay v. MercExchange " The patent holder can't get an injunction against infringement any more, except in extreme cases. This destroyed the concept of a patent as property that only the patent holder could use.
    • (2007) "In re Seagate" The patent holder can't get triple damages unless there is "reckless infringement", which means the worst that can happen to an infringer is that they have to pay a royalty, the same royalty they might have negotiated. So infringement by a big company is risk-free.
    • (2007) MedImmune, Inc. v. Genentech, Inc. If a patent holder writes to an infringer asking them to pay royalties, they can be sued for a judgement that the patent is invalid, in a court of the infringer's choosing. So, as a patent holder, you have to file suit before you can negotiate. This is why "patent trolling" became necessary.
    • (2011) The "America Invents Act" The "America Invents Act" added "post-grant opposition" proceedings, so now infringers can harass patent owners and stall infringement claims in multiple forums. Note that one of the "features" of HR 3309 is to limit estoppel so that similar issues can be raised once in a post-grant opposition and then re-raised in an infringement case. This makes it clear it's all about raising the cost of enforcing a patent by wearing down the patent holder.

    Because of those changes, enforcing a single patent is no longer financially feasible in most cases. A big patent portfolio is needed. You either have to be a big patent holder like IBM or Google, or you have to deal with a company that aggregates patents to monetize them. This created the "patent troll" industry.

    HR 3309 is an anti-inventor act, designed to make it more expensive to enforce a patent. After the removal of the "covered business method" patent section, patents are as strong as ever. You just have to be richer to enforce them. That's why this is supported by Google, Facebook, etc.

    The current Senate bill on patent trolls, S.1720, the "Patent Transparency and Improvements Act of 2013" is much more narrowly focused than HR 3309. It has most of the anti-trolling provisions, but not loser-pays fee shifting. (Loser-pays means if a little guy sues a big company, they can get stuck with the big guy's big-law legal bills. That's a killer.) Instead, S.1720 has a study for a patent small claims court for small patent cases to get litigation costs down. That could work.

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