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Changing the Software Patent Landscape in the U.S. - What won't work (and what might)
Thursday, November 03 2011 @ 09:05 AM EDT

The White House has launched a new citizen input process that allows citizens to propose and post petitions to the White House suggesting government action on issues of interest. One such petition calls for the Administration to direct the U.S. Patent and Trademark Office to cease issuing software patents. The White House has issued a response to the petition, and you will note that it barely responds to what the petitioners are requesting. Why? Because the White House has no direct power to do what the petition asks.

So what has the public reaction to that response been? Why, another petition screaming even louder for the White House to do something. Right idea; wrong forum.

We have software patents in the U.S. because Congress has essentially said that "anything under the sun made by man" is patentable. This well worn quote was provided during testimony in the consideration and adoption of the Patent Reform Act of 1952, and since then the U.S. court system has done its best to embrace that concept, giving us patents on software, business method, and the human genome. The administrative branch of our federal government had no hand in either legislating or interpreting legislation. Those activities are the purview of Congress and the Courts. The Administration can only enforce the law of the land (and on occasion, influence legislation or file an amicus brief in a court case), so our right-headed petitioners who want to rid the U.S. of software patents need to shift targets. They need to focus on Congress and the Courts.

So what are the odds that Congress will actually ever act to revoke software patents? Democrats, Republicans, Libertarians, Greens, etc., would all probably peg those odds at less than one in a googol, since Congress appears to only answer to those who fund their campaigns with massive contributions beyond the reach of average voters. It is no secret that the largest players in the information technology sector all hold large patent portfolios, and it's a bit hard to imagine them walking away from the investment in patents willingly.

But that doesn't mean folks shouldn't try. Why not start a petition aimed at Congress, rather than the White House (although Congress doesn't give you a nifty little app to generate that petition), and why not aim for enough signatures to really get their attention. Say, a million. That would be a critical mass they would ignore at their peril. Apart from Congress, the single best hope for narrowing the scope of or eliminating software patents in the U.S. will have to come through the court system, ala Bilski. But it will take just the right case at just the right time, and it will require a tremendous amount of fortitude on the part of the Supreme Court justices who could face wiping away billions of dollars of book value from corporate balance sheets in one fell swoop. If you want to understand a bit more about the arguments that can be made along these lines, read the amicus brief filed by Red Hat in the case.

And let's not let the Administration off the hook altogether. The Justice Department is responsible for enforcing U.S. antitrust (competition) law, and it has previously taken some steps to protect free and open source software where patents are concerned. (See, DOJ and German Antitrust Body Order Changes to CPTN Patent Purchase) If you want to petition the White House, petition them to look at every large software patent sale to assess its impact on FOSS. Or petition the White House to study the impact of software patents on the information technology industry. You can make a strong case that software patents were of no utility in the development of the information technology industry in the U.S.

So that's the software patent landscape in the U.S. in a nutshell, and as a result, my first take on the petition was that it served no particular purpose since, in my opinion, what it requested couldn't be done. That's the glass half empty.

As for the glass half full, we need look no further than the White House response provided by Quentin Palfrey. Now, not surprisingly, the White House didn't come out and call the petitioners a bunch of dunderheads unfamiliar with how the U.S. government works. The response was pleasant and upbeat and avoided directly answering the petition. Palfrey's response also contains the normal level of political hyperbole when it goes on about all the great things the America Invents Act is going to do for patent quality and saving our economy. Skip that part. In fact, skip all the way down to the last paragraph of Palfrey's response because that is where the really important stuff is.

In that last paragraph Palfrey talks about the extensive use of open source software throughout the U.S. government and how open source is spurring innovation.:

We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions. For example, the U.S. Open Government National Action Plan recently announced that the source code for We the People and Data.gov would be open sourced for the entire world. Federal agencies are likewise spurring innovation through open source energy. For example, the Department of Defense issued clarifying guidance on the use of open software at the Department. And, the Department of Health and Human Services has become a leader in standards-based, open sourced policy to power innovations in health care quality and enable research into efficient care delivery. The tremendous growth of the open source and open data communities over the years, for delivery of both commercial and non-commercial services, shows that innovation can flourish in both the proprietary and open source software environments.
Imagine that! And why is this acknowledgment of open source so important? Because it is the first time I can recall this White House (or any predecessor White House) publicly embracing open source. That's huge!

So while our anti-software patent petitioners may have been a bit off the mark (not in their goal, but only in how to achieve it), the petition has certainly served one useful purpose - to demonstrate that open works, whether in software or standards, and that patents are not the be all and end all in innovation.

*****************

The Petition Against Software Patents


The White House Response

Official White House Response to
Direct the Patent Office to Cease Issuing Software Patents

Promoting Innovation and Competitive Markets through Quality Patents

By Quentin Palfrey

Thank you for your petition asking the Obama Administration to direct the U.S. Patent and Trademark Office (USPTO) to stop issuing software patents and to void existing software patents. We are committed to reforming the patent system in a way that puts patent quality first and promotes innovation and competitive markets.

On September 16, 2011, President Obama signed the America Invents Act, which will help American entrepreneurs and businesses get their inventions to the marketplace sooner so that they can turn their ideas into new products and new jobs. The America Invents Act was passed with President Obama's strong leadership after nearly a decade of effort to reform the Nation's outdated patent laws. It will help companies and inventors avoid costly delays and unnecessary litigation, and let them focus instead on innovation and job creation. Congress recognized that more needs to be done to review and weed out overly-broad patents that have been issued in the past, and the recently enacted legislation provides important tools to invalidate certain overly-broad patents that might inhibit innovation, including those involving software. For example, the new transitional post-grant review program will help the USPTO take a closer look at certain business method patents, including a number of software patents. Other tools for cost-effective and speedy in-house review of granted patents will also become available in less than a year under the new law.

The America Invents Act directly addresses certain categories of patents, like patents involving tax strategies, but it did not change the law regarding the patentability of software-related inventions. There's a lot we can do through the new law to improve patent quality and to ensure that only true inventions are given patent protection. But it's important to note that the executive branch doesn't set the boundaries of what is patentable all by itself. Congress has set forth broad categories of inventions that are eligible for patent protection. The courts, including the U.S. Supreme Court, have interpreted the statute to include some software-related inventions. Even before the legislation passed, the Administration took other important steps to ensure that only high-quality patents are issued, and that we curb or invalidate overly-broad software patents. For example, the USPTO recently issued guidance to its examiners that tighten up the requirements that inventors fully describe, specify, and distinctly claim their inventions so that vague patents are not issued. We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.

As we begin to implement the new law, patent quality will be at the top of our minds. As Director Kappos recently explained, "[w]hile speed is essential to a well-functioning USPTO, patent quality is the sine qua non of our success, and we are all deeply committed to ensuring patent quality." We will tackle a number of important questions in the coming months, and we invite you to work with us to implement the new law in the most effective way possible. To help facilitate that dialogue, we have set up a public implementation website at http://www.uspto.gov/aia_implementation, and we'd love to hear your comments by email, postal mail or in person at a number of public events that are listed on the implementation site. Through that process, you can help us work through important questions on how to implement provisions of the new law, like inter partes review, post grant review, and covered business method patents. We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions. For example, the U.S. Open Government National Action Plan recently announced that the source code for We the People and Data.gov would be open sourced for the entire world. Federal agencies are likewise spurring innovation through open source energy. For example, the Department of Defense issued clarifying guidance on the use of open software at the Department. And, the Department of Health and Human Services has become a leader in standards-based, open sourced policy to power innovations in health care quality and enable research into efficient care delivery. The tremendous growth of the open source and open data communities over the years, for delivery of both commercial and non-commercial services, shows that innovation can flourish in both the proprietary and open source software environments.

Quentin Palfrey is Senior Advisor to CTO for Jobs and Competitiveness at the White House Office of Science amp; Technology Policy



  


Changing the Software Patent Landscape in the U.S. - What won't work (and what might) | 163 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Kevin on Thursday, November 03 2011 @ 09:56 AM EDT
If any.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Comments on News Picks go here
Authored by: Kevin on Thursday, November 03 2011 @ 09:58 AM EDT
You can pick your friends, and you can pick your news.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Off-topic goes here
Authored by: Kevin on Thursday, November 03 2011 @ 10:00 AM EDT
If off-topic is on-topic, is on-topic off-topic?

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Comes comes here
Authored by: Kevin on Thursday, November 03 2011 @ 10:02 AM EDT
Let's keep plugging on transcribing the Comes exhibits. Go to http://www.groklaw.net/staticpages/index.php?page=ComesBooking to sign up for one.

---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

What could be done
Authored by: Anonymous on Thursday, November 03 2011 @ 11:10 AM EDT
Mostly, I think you have it right. I'm not really sure that
it is proper to place this mess completely with Congress,
however. Reading the current patent law, I, and many
others, are convinced that process patents and software
patents are *not* legal. The real problem is that the
judges on the CAFC have an ideological view and they are
willing to legislate from the bench, making new law, to
force their vision onto the entire country. Conservative
judicial activism at its worst.

I am also not sure that the President is as powerless as you
say. Suppose he were to spend one hour every week with a
public lecture on the evils of patents. He could berate
trolls and blame them for destroying jobs. He could swear
at Oracle and others for clogging the courts and explain why
their lawsuits are nonsense. If he did this in a big way,
don't you think it would have a massive effect?

Granted, though, nothing will ever happen and you have the
reason for that exactly correct. We do not live in a
democracy. We live in a dictatorship where the government
answers only to the powerful interests that fund campaigns
with their massive bribes. All is corruption. We, the
people, mean nothing to them.

[ Reply to This | # ]

Modify the White House app...?
Authored by: mtew on Thursday, November 03 2011 @ 01:10 PM EDT
Would it be politically feasible (i.e., could it be done
without stepping on too many toes) for the White House to
put together a variant of their petition generating
application that could generate petitions to congress?

They have apparently done quite a bit of work on the human
interface and legal requirements, which would mean that they
have a lead over some other agency trying to create something
similar.

---
MTEW

[ Reply to This | # ]

Value of a letter
Authored by: ailuromancy on Thursday, November 03 2011 @ 01:20 PM EDT

There is quote along the lines of one hand written letter is worth 100 typed letters, which are worth 10,000 signatures on a petition which are worth 1,000,000 clicks on a web site. By all means, petition, but polite letters to your congressmen explaining some of the problems with patents are good too.

One idea tried in Europe was "Bribe your MEP". The website was probably illegal here, but some variant of it might be legal in the US. The plan was that people could commit funds to bribing the European parliament. No-one knew how much it would take, so the current total was displayed on the web site. MEP's could decide for themselves when the bribe was big enough. On that day they could make software even more explicitly unpatentable and collect their bribe.

I would much prefer to explain why patents should be scrapped and let politicians do the right thing by themselves. If that is no longer possible in the US, then you must decide for yourselves how to proceed.

Criminalising patents might wipe billions off the value of some trolls, but it will put those billions back in the hands of people and companies that innovate.

[ Reply to This | # ]

Poor Quentin Palfrey
Authored by: artp on Thursday, November 03 2011 @ 01:25 PM EDT
I'm sure that he will be looking for a new job shortly. I
remember that at the Inaugural Ball, Bill Gates was standing
very close to the stage, looking like he owned the place. I
don't expect any changes on the software patent front in my
lifetime. Not that it will affect my opposition, I just
don't think that the people have enough money to buy the
government back.

BTW, I signed the petition, even though it was aimed at the
wrong place. Publicity is still publicity. A voice ignored
can still be heard.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Changing the Software Patent Landscape in the U.S. - What won't work (and what might)
Authored by: Anonymous on Thursday, November 03 2011 @ 01:39 PM EDT
It's too bad the president doesn't know anyone in congress he could talk to
about introducing a bill to reform software patents, or even form a
congressional committee or something, instead of just completely blowing off the
petition.

[ Reply to This | # ]

legal opinions...
Authored by: Marc Mengel on Thursday, November 03 2011 @ 03:49 PM EDT

If the U.S. Attorney gave a well researched opinion that
software was mathematics, and unpatentable, would that not
give the Patent office grounds to cease issuing patents,
and review and reject existing software patents on those
grounds? Especially given that court rulings that led to software patents were
based on errors of fact.

Just asking...

[ Reply to This | # ]

Who will spearhead this US effort?
Authored by: dwheeler on Thursday, November 03 2011 @ 04:19 PM EDT

It seems to me that there needs to be someone who says, "I will spearhead the effort to eliminate software patents in the US, including getting the message to Congress." So, who is doing that? Who's the leader?

This is not a small job. For example, a real petition would need to clearly state exactly what the change would be, explain why in a way non-lawyers can understand, and be general enough that a lot of people will agree to it. It'd be useful to have a nation-wide petition to Congress, even though voting isn't done that way, to make it clear that lots of people feel this way. But then many other things need to happen. People also need to contact their Congresscritters directly, and make it clear that they will vote based on this criteria. People need to find out who stands where. Someone needs to organize things to keep up the heat.

I signed the petition to the president, and encouraged others to do so, not because I thought the president would actually do much directly, but because it was an easy way to raise awareness. I'd love to see REAL change, but I just don't have the time to lead this kind of effort.

So who will lead this effort?

End Software Patents (http://endsoftpatents.org) is a plausible organization, but as far as I know, they haven't worked hard to press for legal change in the US through the US Congress. ESP is more an organization that helps OTHER people work against software patents, by providing information and such, instead of leading the charge directly in legislatures.

[ Reply to This | # ]

Apple is getting eviler
Authored by: kawabago on Thursday, November 03 2011 @ 06:29 PM EDT
Apple going after a restaurant. I think these intellectual
property laws should also have a large penalty for falsely
accusing someone of infringement. Neither the name AppleADay
Restaurant nor their apple logo looks anything like Apple
Computer. I think $100,000 penalty against Apple would be
appropriate in this instance. That should be enough to get
their lawyers attention and maybe, just maybe, get them to
think before they act next time. It's a big maybe.

[ Reply to This | # ]

Obama's biggest donor in 2011: Microsoft
Authored by: Anonymous on Thursday, November 03 2011 @ 09:55 PM EDT
Nov. 3 (Bloomberg) -- The high technology Internet industry and trial lawyers are helping President Barack Obama avoid a potential fundraising liability caused in part by a drop in support from his biggest 2008 industry backer: Wall Street.

Microsoft Corp. employees rank first among Obama’s business givers, taking the spot investors at Goldman Sachs Group Inc. held in the 2008 presidential cycle, according to the Center for Responsive Politics, a Washington-based research group.

clicky

[ Reply to This | # ]

What Next
Authored by: sproggit on Friday, November 04 2011 @ 02:46 AM EDT
I am a little surprised and rather disappointed that Canonical and Red Hat (and
I have been an Ubuntu user since Breezy) have taken such a stance. Appeasement
in the face of aggression has been tried before and it never works.

I believe that most Groklawrians would harbour the suspicion that this latest
Microsoft strategy is designed at least in part to 'lock out' the PC platform
from GNU/Linux and other free Operating Systems by making it harder or
impossible to install non-Windows software.

Microsoft are taking this decision for at least 3 reasons:-

1. They believe it will reduce piracy of their software.
2. They are getting considerable backing from the RIAA and MPAA who believe [I
have seen no hard evidence to support the view] that users of non-Windows
systems are pre-disposed to copyright theft.
3. It helps Microsoft shut out the FOSS movement - a competitor against which
they have been unable to compete fairly.

Thus, much of this discussion revolves around these three topics.

However, the full implications of Microsoft's strategy could prove to be
infinitely more damaging for our personal freedoms, if allowed to pay out.

For example, once a machine's BIOS is controlled by a remote authority in this
way, with an OS controlled in this way, it will make it much easier for such
remote authorities to be able to enter your computer without your knowledge.
Pretty soon, other hardware developers will join this movement and we will see
keyboards with swipe slots capable of reading credit cards. Banks will fund this
'to cut credit card fraud', but then subsequently the readers will be adapted to
accept National Identity Cards. Then you will be required to swipe your ID card
before you can submit a post to a forum like Groklaw, and freedom of speech will
depart the internet. All of this will be done to a chorus of vested interests
clamouring that "something must be done", typically in response to
some perceived or conjured ill.

There is an urban legend that if you put a frog in a pot of boiling water, it
will jump out to save itself. But if you put a frog in a pot of cool water and
then slowly turn up the heat, it will sit there until it dies of heat
exhaustion, just before it is poached.

We're in the pot, and the water's just starting to get warm.

[ Reply to This | # ]

Changing the Software Patent Landscape in the U.S. - What won't work (and what might)
Authored by: Anonymous on Friday, November 04 2011 @ 03:05 AM EDT
They just need to ask the right question.

"We request this administration propose legislation banning patents on
software. We also request this administration put the full weight of the White
House behind the passage of this bill"

No room for weaseling, a direct request for a remedy.

[ Reply to This | # ]

A reasonable solution: shorter terms for software patents
Authored by: Anonymous on Friday, November 04 2011 @ 08:05 AM EDT
The solution is simple.. First, don't allow stupid patents like progress bars..
Then, change the term from 20 years to 4 years and cut the terms on existing
software patents in half. Patents on software are certainly a problem, but if
they only lasted a short period of time, they would give the
"inventor" a little time to hold onto their gem without stopping
technology from moving forward. Also, if the terms were smaller, it would be
harder to justify the expense of patenting the "invention" in the
first place.

[ Reply to This | # ]

  • No - Authored by: cjk fossman on Friday, November 04 2011 @ 09:33 AM EDT
Patent Bubble
Authored by: UncleVom on Friday, November 04 2011 @ 10:10 AM EDT
One has to wonder what would happen if the Government dig pop it.

I figure it would cause some market shake up and money vapor lost for the short term, with a healthy rebound and increased innovation and greater earnings in the long term.

An article from The Register on the "Patent Bubble" follows in the, hopefully working, linky.

A re we in the middle of a PATENT BUBBLE?

[ Reply to This | # ]

  • ROFL - Funny Article - Authored by: Anonymous on Friday, November 04 2011 @ 12:11 PM EDT
  • Patent Bubble - Authored by: Anonymous on Monday, November 07 2011 @ 01:10 AM EST
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