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| BREAKING: Why the Obama Administration’s Actions Against Patent Trolls Should Make a Difference ~ Matt Levy |
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Tuesday, June 04 2013 @ 01:26 PM EDT
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Why the Obama Administration’s Actions Against Patent Trolls Should Make a Difference
by Matt Levy (Cross-Posted on
PatentProgress.org and on DisCo.)
This is a very big day: the Obama Administration has just entered the fray to help deal with patent trolls, and it’s taking steps that have the potential to be a major part of the solution to the patent troll problem.
The early press reports on the Administration’s efforts have missed the real story: the President and the Administration are publicly recognizing that the problem with patent trolls stems from the problems with software patents. You cannot deal with patent trolls without dealing with software patents.
The President’s Executive action to tighten functional claiming does exactly that. It recognizes that in order to stop issuing bad and overbroad patents that wind up in the hands of patent trolls, we need to specifically address software patent applications.
Functional patent claims are the claims that drive us all crazy, where a patent just claims a general idea, like, say, filtering files that might be spam, or scanning documents and sending by email, or backing up your computer over a network.
As an example, suppose I came up with an idea for a car with a gas-electric hybrid engine, but where the battery for the engine is recharged by a passenger pedaling a built-in stationary bicycle. But my patent claim is broader than that; I claim “A motor vehicle with a gas-electric hybrid engine comprising a storage battery, wherein the storage battery is recharged using a mechanically-powered generator.” It’s an accurate description, although it doesn’t include the specifics of what I invented. By describing the invention in terms of its functions, that is, its general features, my patent omits what should be an important limiting detail: my invention is impractically pedal-powered.
As a result, this hypothetical patent would cover nearly all hybrid cars, even though I only invented one (fairly silly) type of hybrid car, because all commercially available hybrids recharge the battery using some sort of mechanical generator. I could make a fortune suing car manufacturers, even though I wasn’t the first to come up with a hybrid car, and my design is totally impractical. That’s because the patent system strongly favors patent owners; once a patent issues, it’s very difficult to prove the patent is invalid. And once a company is sued for patent infringement, it’s nearly impossible to get out of the case quickly and cheaply, no matter how bad the patent is.
The hybrid car patent I described is ridiculous. And yet that’s exactly what has happened with software patents for years.
No more. The Administration is going to work with the PTO to develop guidelines for examiners to make sure that inventors can’t claim more than they invented, focusing on computer-implemented (that is, software) patents. The flow of crazy software patents should stop at last, or at least slow to a trickle.
The Administration deserves huge praise for this — many of us have been pushing for just this change for a long time. Obviously, it will take time to implement, but it is clear that the Administration is committed to making this commonsense reform happen.
We have to work with the Administration and Congress in a bipartisan way to get this done right, because there will be naysayers among certain legacy special interests.
But Wait, There’s More!
If that were the only thing the Administration announced, it would still make my day. But there is also a newly-released study, four more Executive Actions, and legislative proposals, and there’s a lot of good stuff included.
First, the White House has released a study showing patent trolls are a huge problem that wreak damage to the economy. Not a big surprise, but it’s nice to have data backing us up.
In addition to the action on functional claiming, here’s a quick summary of the other four Executive Actions announced today:
- There will be no more hiding who owns a patent from the PTO. The real party of interest will have to be disclosed on every application and when maintenance fees are paid.
- End users, who have been the most vulnerable victims, will get support from the PTO to help deal with demand letters.
- There will be more academic experts brought into the PTO to study and research patent troll litigation.
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And finally, the Administration is going to work to better enforce exclusion orders issued by the International Trade Commission (ITC). The ITC has the power to issue an exclusion order barring importation of goods that infringe a U.S. patent, and Customs and Border Protection (CBP) carries out the order. The problem is that even if a company redesigns its product to get around a patent, exclusion orders can be so broad that CBP bars the redesigned product as well. The Administration is going to work with the ITC and CBP to try to fix this problem.
The President is also calling on Congress to pass legislation to address patent trolls. There are a few proposals he makes that are particularly good:
- Expand the Covered Business Method patent review program — The Administration is proposing to expand the Covered Business Method post grant review. This seems to be along the lines of Senator Schumer’s bill, and it’s a very good idea.
- Protect end users — The Administration is proposing some sort of immunity or reduced liability if a consumer or company buys a product and uses it as intended. There would also be an automatic stay of infringement suits against end users if there’s also an infringement suit against an upstream (e.g., the manufacturer) company. We need to see the details, but this looks promising.
- Fee shifting — Another important piece that CCIA has long supported is shifting the defendant’s legal fees to the plaintiff in troll patent litigations. The Administration is supporting a type of fee-shifting similar to what is done in copyright now; basically, a judge would have the discretion to award fees to the winner. This doesn’t go as far as the
SHIELD ACT, but it is definitely a step in the right direction.
Overall, we are very pleased with the Administration’s announcement. We look forward to continuing to work with the Administration and with Congress on addressing the patent troll problem.
____________________
Matt Levy is Patent Counsel at the Computer and Communications Industry Association, where he handles legal, policy advocacy, and regulatory matters related to patents and is lead blogger for CCIA’s Patent Progress.
© 2013 Computer & Communications Industry Association, All Rights Reserved
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| Authored by: ukjaybrat on Tuesday, June 04 2013 @ 01:33 PM EDT |
Corrections in the title please
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, June 04 2013 @ 01:35 PM EDT |
Anything on topic should go in a separate thread
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, June 04 2013 @ 01:37 PM EDT |
Provide links to said newspick
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IANAL[ Reply to This | # ]
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| Authored by: ukjaybrat on Tuesday, June 04 2013 @ 01:38 PM EDT |
[insert something witty]
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IANAL[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 01:50 PM EDT |
Personally, I'll postpone my celebration. This administration has come up with
many positive ideas, when it comes to implementation their record is not
stellar.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 01:50 PM EDT |
| Where does the truth fit in when dealing with the White House? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 02:08 PM EDT |
I'm shocked.. Never thought I would see the day when real
reform would be discussed.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 02:15 PM EDT |
This is something that the current administration is starting. Now with the
next election, we might get Republicans back into government, and they need to
look different. Since their profile is patriotic (I'll shudder thinking where
we'll end up when trying to beat the patridiocy of the current "Patriot
Act" interpretation but that's a different matter), they'll try getting
behind Apple and Oracle whose innovative records have "suffered" under
the Democratic administration's steps.
And if we have enough of a "lashback" from Obama's attempts to get
bipartisan support, we'll get so far out of sane charters that it won't be
pretty.
The current situation is that if you want Republican policies, you voted Obama,
if you want off-the-chart policies, you voted Republican, and you wanted
Democrat policies, you went abroad till next election.
If the next election does not move back to offering two sides of the political
spectrum, it may well end up sacrificing the middle class anyway. And in that
case, it's entirely possible that the patent system will get rewound to provide
the equivalent of technical middle ages: a few established parties get the royal
means to squander all progress by levying heavy penalties on newcomers.
So I am actually afraid of the current administration making good headway in
anything. The next administration might feel the need to distance itself from
that. Actually even if it turns out Democrat: after all, any president wants to
look like bringing in new impulses in order to be reelected.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 02:28 PM EDT |
Is the problem really that you don't know what the words in the claim mean? I
think you know what the words mean. You just don't like the meaning because its
broad.
I got news for you. Any word that you don't like in the claim that is in a
glossary is going to have that very same broad meaning in the glossary.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 02:40 PM EDT |
"where the battery for the engine is recharged by a passenger pedaling a
built-in stationary bicycle. But my patent claim is broader than that; I claim
“A motor vehicle with a gas-electric hybrid engine comprising a storage battery,
wherein the storage battery is recharged using a mechanically-powered
generator.” It’s an accurate description, although it doesn’t include the
specifics of what I invented. By describing the invention in terms of its
functions, that is, its general features, my patent omits what should be an
important limiting detail: my invention is impractically pedal-powered. "
Just because one embodiment involves the bicycle, that doesn't mean you didn't
invent the whole class of "mechanically-powered" generators. Indeed,
the specification even says, the generator is mechanically powered, FOR EXAMPLE,
by a passenger peddling, gerbil in a wheel, solar powered motor, water wheel
mounted in a cup holder, steam heated by the black vinyl seats in combination
with the green house glass windshield or any other mechanism for generating
generator cranking motion.
The whiners only "feel" the claim is overly broad because you thought
of it first and they want to copy the invention. Too bad, someone beat them to
it.
[ Reply to This | # ]
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- way off base. - Authored by: ukjaybrat on Tuesday, June 04 2013 @ 03:17 PM EDT
- No. - Authored by: Anonymous on Tuesday, June 04 2013 @ 03:34 PM EDT
- you need a cross license for this? - Authored by: Anonymous on Tuesday, June 04 2013 @ 04:05 PM EDT
- No - Authored by: Anonymous on Tuesday, June 04 2013 @ 04:23 PM EDT
- No - Authored by: bugstomper on Tuesday, June 04 2013 @ 05:30 PM EDT
- No? - Authored by: stegu on Tuesday, June 04 2013 @ 05:52 PM EDT
- you need a cross license for this? - Authored by: Anonymous on Tuesday, June 04 2013 @ 10:27 PM EDT
- No. - Authored by: PolR on Tuesday, June 04 2013 @ 04:42 PM EDT
- No. NO. - Authored by: Anonymous on Tuesday, June 04 2013 @ 11:59 PM EDT
- No. - Authored by: Anonymous on Wednesday, June 05 2013 @ 04:24 AM EDT
- No. You invented the broader invention. - Authored by: Doghouse on Tuesday, June 04 2013 @ 05:02 PM EDT
- You completely missed the point! - Authored by: cricketjeff on Tuesday, June 04 2013 @ 06:48 PM EDT
- No. You invented the broader invention. - Authored by: Anonymous on Tuesday, June 04 2013 @ 09:51 PM EDT
- No. You invented the broader invention. - Authored by: Anonymous on Wednesday, June 05 2013 @ 03:11 AM EDT
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| Authored by: albert on Tuesday, June 04 2013 @ 02:56 PM EDT |
Dancing around the issues.
"1. Making “Real Party-in-Interest” the New Default." Whom does this
help? If I'm sued by a troll, what difference does this make? If I want to kill
a competitor, I can sell my patents to a troll. I'm free and clear. Where's the
recommendation for the troll to post a bond for the amount of damages expected?
(Bond refunded, minus costs and defendants legal fees, if they lose.)
"2. Tightening Functional Claiming." Good idea, but the examiners
aren't as stupid as most folks think. There are other reasons for issuing
bogo-patents.
"3. Empowering Downstream Users." Pure rhetoric. It needs to be made
illegal to sue end users. Don't see that idea here.
"4. Expanding Dedicated Outreach and Study." You know, the folks who
are actively involved don't need this. Really, who does?
"5. Strengthen Enforcement Process of Exclusion Orders."
Useless rhetoric. Where's the recommendation to withhold exclusion orders until
the patent(s) in question are validated, and all appeals exhausted?
Not much different than any other Executive Branch dances.
[ Reply to This | # ]
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| Authored by: Stumbles on Tuesday, June 04 2013 @ 03:20 PM EDT |
Its way to early to think that "thrill" your getting up your
leg is due to something that right now sounds positive, this
is after all the government we are talking about; I will
reserve any further comment for now.
---
You can tuna piano but you can't tune a fish.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 03:50 PM EDT |
Too little. It is wallpapering around the fundamental problem.
The problem is this:
Patents do not promote progress. They impede progress in obvious
inventions by creating 20 year monopolies and with them their economic
rents that impede the growth of the economy (i.e. making other discoveries,
feeding people, distributing energy, creating jobs).
Patents go back to the time of Kings when monopolies were assigned to
random people of "good fortune"; i.e. "I am a friend of the King
so he gave me
this land with you surfs." Or "My Great Great Great Uncle helped the
King cut
off the head of the Old King, so I get to extract monopoly rents from you
Surfs".
Or today: "I thought up this great obvious idea, like Icons on a Hand Held
Portable Computer Device that was similar to a science fiction book I read
from the 1950's, so the King has randomly let me extract monopoly rents
from you surfs".
Patents on information technology, or on most biology are brain-dead wrong
public policy.
Obama's administration is too stupid to recognize this. But then so are all the
politicians who are extracting monopoly rents to stay in office from the earlier
generation of random "Kings" like Bill Gates and the Koch Brothers.
Some political economy. Who invented this?
Was this what our founding fathers envisioned when they used their
Enlightenment Values to push back the "Devine Rights of Kings".
-An Unhappy Anonymous Person[ Reply to This | # ]
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| Authored by: thorpie on Tuesday, June 04 2013 @ 04:58 PM EDT |
Discussion about the recent Federal Circuit, en banc, decision regarding the
CLS bank case indicated that the decision seemed to nullify many existing
software patents.
Exten
sive Groklaw discussion here
One hang over question with the decision
was what action would the administration/patent office/congress take. Would
they try to overturn the Federal Court decision to re-validate the patents
already issued.
Hopefully it seems that the answer is in. Hopefully this
indicates that the Obama administration will do nothing to shore up the
enforcability of existing software patents.
However, I will remain
waiting for the sting in the tail. I hope the outcome is not the re-validation
of existing patents in exchange for more sensible laws going forward!
Sleazier
tricks have been tried ---
The memories of a man in his old age are the
deeds of a man in his prime - Floyd, Pink [ Reply to This | # ]
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| Authored by: tknarr on Tuesday, June 04 2013 @ 05:07 PM EDT |
One thing that's needed is, in addition to the stay of suits against end
users while a suit against the manufacturer proceeds, is for suits against end
users to be barred until a suit is filed against the manufacturer,
and is also barred if the patent-holder has sued the manufacturer and not
prevailed. Until the patent-holder sues the actual manufacturer, or if they sue
and lose, any end user is entitled to an instant and automatic dismissal on the
grounds that the suit is barred by law. No need to argue whether the end user
infringed or not, no need for any defense against infringement, any end-user can
end the suit with a single filing. There's little the patent-holder can do to
prolong things, because the dismissal turns merely on the existence of an action
or the ruling in an action. The most the patent-holder could argue is that their
appeal of a loss should count for a suit being in progress, which saves them
from dismissal but instantly stays the suit against the end user so it's not a
big win for the patent-holder. [ Reply to This | # ]
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| Authored by: Wol on Tuesday, June 04 2013 @ 05:51 PM EDT |
It should be a near-absolute (not absolute, there are valid reasons why not)
requirement for a court to inspect the working prototype of the invention at the
markman hearing.
If the plaintiff can't produce the invention, then either the invention is
deemed not to exist, or the court is obliged to give more deference to the
defendant's version of the meanings.
Cheers,
Wol[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 08:05 PM EDT |
In pondering the implications of eliminating functional claims, I tried to
imagine whether I could describe some of my own programs in a patent application
in such a fashion as to avoid ending up with simply a list of algorithms. Having
so reflected, my preliminary conclusion is that it would be difficult to do so.
If that really is the case, then perhaps the elimination of functional claims
would in itself put an end to software patents. My reasoning goes like
this:
If I say only what the progam does, then the claim is
merely functional.
To avoid that, I have to describe how the
program does it, and here is where problems begin to arise. Let's say it obtains
data from a remote computer, via HTTP requests. Is it sufficient to say only
that much? All it does is prescribe the use of an existing communications
protocol, which seems pretty much functional, to me.
One way to be more
specific would be to describe the HTTP requests themselves. The problem here is
that I can't give the exact requests, since URLs and data paramters are likely
to vary; the best I can do is give prototypes of them, such as
http://{remote-system-url}?id={object-identifier}. That turns out to be
not much of an improvement, being little more than a description of a typical
HTTP GET request.
The only other method be being more specific that I
can think of is to provide the source code that makes the HTTP request. The
problem here is that the code is really nothing more than the implementation of
one or more algorithms.
Further, even if I were able to come up with a
non-algorithmic claim that passed muster as not being functional, there is the
problem (for the inventor) that the more specific a claim is, the more it has
the intended effect of limiting the scope of the patent. For example wouldn't
the HTTP specifications posited above allow others to work around my "invention"
simply by using POST requests or another access method, such as
ODBC?
Whatever the case, this has to be a very bad prospect for the
trolls.
-Russ
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 08:05 PM EDT |
The only way to fix stupid software and design patents - outlaw them entirely.
Rectangular tablet with rounded corners? come on, 3000+ year old design - who
gets to patent something that old? Apple of course - time for all of Apple's
stolen ideas that they patented to be invalidated - that means Apple would have
zero patents - they are not original thinkers.[ Reply to This | # ]
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| Authored by: Gringo_ on Tuesday, June 04 2013 @ 08:36 PM EDT |
The follwing are quotes from PATENT ASSERTION
AND U.S. INNOVATION - Executive Office of the
President
This document, which you should read, discusses the
patent troll problem, while very carefully pussy-footing
around "Some firms
that own patents but do not make products
with them, [but who] play an
important role in U.S.
innovation ecosystem."
While that in itself
could be a topic for discussion,
that is not what I wish to discuss at this
time. My issue is
trying to parse the meaning of all of the following, which
begins at the bottom of page 10 and ends at the top of page
12...
Aggressive litigation tactics have also been
adopted
by some firms that practice their patents. The
recent spate of patent
litigation among large technology
companies—termed the "smartphone patent wars"
by the press —
typifies this behavior...
Ok - the Executive
Office of the President recognizes
there are smartphone patent wars going on.
They recognize
some firms that practice their patents adopted aggressive
litigation tactics, the source of much discussion here on
Groklaw. This is
encouraging. What does the Executive Office
of the President have to say about
this?
...which also involves companies purchasing
massive
numbers of patents as a defense against of
litigation, or as leverage in
negotiating licenses with
competitors.
Hmm... of all the
things they could have said about
companies like Apple and Microsoft trolling,
they have
chosen to look at how companies defend themselves from
aggressive
litigation tactics, rather than the aggressors.
Ok - let's see what else they
have to say...
Between $15-20 billion was spent on
patent
litigation and patent purchases in the smartphone industry
from 2010-
2012. And in 2011, spending by Apple and
Google on patent litigation and patent
acquisitions exceeded
spending on research and development of new products,
according to public filings.
Ok so far. The Executive
Office of the President
recognizes that these patent wars are so serious
companies
such as Google & Apple are now spending more on patent
litigation and patent purchases then on R&D. So now feeling
encouraged by
this flash of insight by the Executive Office
of the President let us
continue...
Indeed, Google’s $12.5 billion purchase of
Motorola, according to its own statements, was undertaken in
large part to
prevent patent suits from competitors.
Ok. They see the
lengths Google feels it had to go to
defend itself. Let us
continue...
"Defensive" purchase of patents has come
under
scrutiny by the Federal Trade Commission and the
Department of Justice for
potentially anti-competitive
behavior.
Hey - wait a
minute! Suddenly we are questioning
defensive moves??? They are implying
"Defensive" purchase of
patents is potentially anti-competitive behavior?? But
what
about the aggressor?
In one illustrative case, Apple
and Motorola
engaged in protracted legal wrangling over whether
Motorola’s
royalty requests were reasonable given that the
technology was "standard
essential", i.e. required for a
standardized technology to
function.
Yea - we know all about that one. Apple has been
using
Motorola's patent for years, but doesn't want to pay up.
Instead they go
on attacking Android all over the world. Now
Motorola is Google, perhaps
Motorola's pursuit of payment
for its SEP could help with peace negotiations
with Apple.
So what does the Executive Office of the President have to
say
about all this? I'll give you a hint. They begin by
taking an aside to explain
what SEPs are to us. Ok, let's
hear it, though we already
know...
In some technical standards-setting
situations in
which a patented technology is being
considered for inclusion in a standard
(such as Wi-Fi), a
patent-holder may agree to offer licenses for the technology
on “fair, reasonable, and non-discriminatory” (FRAND) terms,
in return for
gaining access to the broad market that having
a standard potentially creates.
When standards incorporate
patented technologies, owners of those patents
benefit from
expanded marketing and licensing opportunities, while the
public
benefits from products embodying the best technical
solutions. However, a
product that complies with such a
standard will necessarily read on these
patents, creating a
potential incentive for patent owners to raise the price of
a license after the standard is set.
Ok - we got that. Now
back to whatever point they are
trying to make here...
In
early 2013, the Department of Justice and
Patent and Trademark Office issued a
joint policy statement
on the implications of this phenomenon for enforcement
at
the International Trade Commission (ITC). Also in 2013, the
FTC settled
with Google, issuing a consent decree in which
Google agreed to honor
Motorola’s prior commitments to
license standard essential technologies on
FRAND terms.
Hmm... seems to be a bit of preoccupation
about SEPs.
There is also an implication that there was concern Google
might
have used Motorola's SEPs in some uncompetitive
manner, because the FTC felt it
necessary to extract a
consent decree from Google to honor Motorola’s prior
commitments to license standard essential technologies on
FRAND
terms.
Gee - I'm confused now. First they talked about the
smartphone
patent wars. They notice aggressive litigation
tactics have been used by some
firms. They recognize the
situation is getting out of hand and patent &
legal costs
are exceeding R&D. Then they go on to talk about the company
that is under attack from both Apple and Microsoft at the
same time, the same
that felt so threatened they had to buy
Motorola mainly for the "defensive"
patents, which happen to
include SEPs. Are they implying this is an "Aggressive
litigation tactic?" - because they don't mention Apple's
ridiculous suites
with patents of rectangles with rounded
corners or Microsoft's troll tax on
Android OEMs, so we can
only speculate they are talking about Google when they
say
"aggressive litigation tactics".
And that's it! The article then
moves on to the next
section, "Conclusion". The above is all they have to say
about the smartphone patent wars. It seems to be all
Google's fault for
defending itself with Motorola's SEPs.
Nothing about Apple's behaviour or
Microsoft's. Do you
suppose these two got to Obama? [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 04 2013 @ 11:16 PM EDT |
Just curious, I thought drastic spending cuts are coming. The US
government
is
running out of money, etc.
How will this be paid for? Aren't there
people going hungry while money is put
into this? Or is there always money for
the well-to-do whose worst troubles are
whether their patent is going to be
granted or not?
[ Reply to This | # ]
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- How to pay? - Authored by: Anonymous on Wednesday, June 05 2013 @ 07:16 AM EDT
- How to pay? - Authored by: Wol on Wednesday, June 05 2013 @ 07:59 AM EDT
- How to pay? - Authored by: Anonymous on Wednesday, June 05 2013 @ 12:01 PM EDT
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| Authored by: Anonymous on Wednesday, June 05 2013 @ 09:31 AM EDT |
BREAKING: Why the Obama Administration’s Actions Against
Patent Trolls Should NOT MAKE ANY Difference ~ Me
WHY because until you start on his friends at the copyright
area , this is moot.
ALL he is gonna do is hammer a few low flying fruit so his big
buds that carry on the insane copyright laws get a pass.[ Reply to This | # ]
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| Authored by: th80 on Wednesday, June 05 2013 @ 01:07 PM EDT |
| PJ, would this law help put the kibosh on SCO and SCO-look-a-like litigation? [ Reply to This | # ]
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