Microsoft And IBM: If Patent Office Can Do A Quick Review Of Our Crappy Patents, You'll All Die In A Car Crash

from the scared-of-something? dept

Fri, Jan 31st 2014 8:53am — Mike Masnick

Last fall, we wrote about how the BSA, the Business Software Alliance, famous for being basically a Microsoft-front organization whose main job is to publish absolutely, hilariously misleading "piracy" numbers each year, had been taking on the issue of the so called "covered business method (CBM) patent" program that was being pushed in patent reform. The covered business method patent program is pretty straightforward. It allows certain types of patents -- currently financial patents -- to undergo a faster review, allowing the USPTO to dump bad patents faster. Senator Chuck Schumer, who had put the original CBM tool into the last round of patent reform, is now championing expanding it to cover software patents as well. While very heavy lobbying from Microsoft (and some from IBM) convinced the House to drop the plan from its patent reform bill, there's still a battle in the Senate, and Schumer doesn't show any interest in giving it up.

And there's no reason for him to do so. As he's noted, the use of the CBM program has already shown that this works. It has helped dump some bad patents and hasn't created any massive damaging consequences anywhere else. But you wouldn't know that to read the latest laughable BSA letter on this program, as they kick off their attempt to get the Senate to drop the CBM program as well. According to the BSA, since the original CBM program was just a test, it must always remain that way:

During Congressional consideration of the AIA, proponents of Section 18 argued that it was a necessary and temporary measure to review a very narrow class of financial-services-related patents. However, recently-introduced legislation proposes to make the transitional proceedings of Section 18 permanent and expand the definition of “covered business method patent” to include data processing patents used in any “enterprise, product, or service.” This means that any party sued for or charged with infringement can always challenge an extremely broad range of patents at the USPTO. The request for a proceeding need not be related to financial products or services and can be submitted any time over the life of the patent. This proposal would eviscerate the delicate balance that was struck with the other new post grant review programs in the AIA to ensure that patents would not be devalued by limiting serial challenges during the patent’s life.

Got that? The BSA (really: Microsoft pulling the puppet strings) is claiming that because Schumer agreed to use the CBM program as a test in the last round of patent reform (the AIA), that going beyond that would "eviscerate the delicate balance." Uh, no. The purpose of the test was to see if this program worked. And now that we see it has worked, it should absolutely be expanded. But, no, no, no says the BSA letter. If patents could be challenged, companies wouldn't make software any more and that would destroy pretty much the entire economy. And put us all in danger.

This would have far-reaching implications, because data processing is integral to everything from cutting-edge cancer therapies to safety systems that allow cars to respond to road conditions in real time to prevent crashes. Subjecting data processing patents to the CBM program would thus create uncertainty and risk that discourage investment in any number of fields where we should be trying to spur continued innovation.

Got that? If you actually review our patents to make sure they're not shit, you might die in a car crash. This is the most asinine argument I've seen from patent lovers in a long time -- and I've seen an awful lot of asinine arguments. First off, the idea that someone won't invest in writing a piece of software because of the possibility that (1) they might get a patent and (2) at a later date that patent might be challenged and (3) if that patent is crappy, that it might get thrown out, is so stupid that it doesn't pass the most basic laugh test.

And, of course, this leaves out the most important point: if the patents are valid, the CBM program will quickly find them to be valid and they're no worse for wear. The only time CBM will have a serious negative impact on a company is if that company has a ton of really, really shitty patents that they want to use to shake down innovators. So, go ahead and take a look at the list of companies who signed onto this letter, and you've got a list of companies looking to abuse the patent system to shake down innovators with their own crappy patents. And they're basically admitting that their patents are so bad that they can't survive a basic review by the Patent Office.

Then we move on to historical revisionism:

The US patent system for more than 200 years has succeeded spectacularly in promoting “the progress of science and useful arts,” as the Founders intended, in part because it has always provided the same incentives for all types of inventions. To expand and make permanent the CBM program would be to turn ill-advisedly and irrevocably in a new direction — discriminating against an entire class of technology innovation.

This is hilarious. First of all, anyone who is intellectually honest (note: the BSA has never been even remotely intellectually honest) has to admit the nature of the patent system has changed drastically in the past few decades, in particular with how it deals with software. And if there's a "discrimination against an entire class of technology innovation" it's clearly with the current patent system that has pretty much guaranteed that no company can innovate successfully without facing threats from patent holders demanding cash over bogus patents.

Frankly this whole letter is pretty disgusting. It's clearly the work of Microsoft, via the BSA as its sock puppet, and the argument makes absolutely no sense except if you have a ton of crappy patents. Hopefully the Senate won't give in the way the House folded.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: bad patents, business method patents, chuck schumer, covered business methods, patent reform, patents, post grant review, software patents
Companies: bsa, ibm, microsoft

36 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

silverscarcat (profile), 31 Jan 2014 @ 7:30am

Um...
You mean if the patent offices does NOT quick review, right?
[ link to this | view in thread ]
Bad Luck Brian, 31 Jan 2014 @ 9:03am

Reviews all of Microsoft's patents to make sure they aren't crappy troll patents
Actually dies in car crash
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 31 Jan 2014 @ 9:05am

inb4 ootb shoots his mouth off about Microsoft being evil because it's rich.
[ link to this | view in thread ]
John Fenderson (profile), 31 Jan 2014 @ 9:07am

Shut down software innovation? Just the opposite.
It's funny -- the companies the BSA represents are almost entirely of the Microsoft sort -- major software firms. The thing is that major software firms don't actually do much innovation at all. Their role is entirely different -- their major skill is the ability to serve very large markets.

All of the real innovation, with very, very few exceptions (of which Microsoft is not one), is done by small outfits ranging from one-man shops to those with just a handful of employees. And it's exactly these companies that are harmed by software patents right now.

If the goal is to actually encourage innovation, then you need to remove that serious obstacle -- which is exactly what the CBM program is trying to do.

The BSA is straight-up lying here. What they want is maintain the status quo and to suppress innovation (innovation harms their business model). But that doesn't make a compelling argument, so they pretend the opposite.
[ link to this | view in thread ]
crade (profile), 31 Jan 2014 @ 9:07am

We are supposed to buy that someone somewhere actually believes that patents are the tiniest bit helpful to making software? Common, you think we were born yesterday?
[ link to this | view in thread ]
sorrykb (profile), 31 Jan 2014 @ 9:08am

In a logical world...
Microsoft should be in favor of quicker review. It would encourage real innovation by more quickly validating good patents and thus removing the lingering uncertainty of a strong challenge to the patent. Or am I misreading this?

And regardless...

This proposal would eviscerate the delicate balance...

That sentence is painful. Can a balance have bowels, even metaphorically?
[ link to this | view in thread ]
crade (profile), 31 Jan 2014 @ 9:11am

Re: Shut down software innovation? Just the opposite.
All those big software firms are good at is leveraging their past success and using licensing schemes, protected proprietary formats and other lock ins to ensure that their customers have no choice but to continue to pay them.
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:12am

If patents spur so much innovation, I wonder why Free Open Source Software is giving Microsoft such a run for their money. I hear Linux is now used in more cars than Windows.

Which is probably a good thing, because the last thing you want to happen during a car crash, is for your car to 'blue screen of death', on you.
[ link to this | view in thread ]
Glen, 31 Jan 2014 @ 9:15am

Re:
Naw.....He will contort it to the point of defying the laws of physics to reflect on the EVIL EMPIRE of Google.
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:16am

"to ensure that patents would not be devalued"

The purpose of having a patent system isn't to increase the 'value' of a patent. The purpose is to serve the public interest.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 31 Jan 2014 @ 9:17am

Mike relapsed back to vulgarisms.
Vulgarisms don't promote your case with either professionals or even your fanboys, who surely expect you to be better than them, else why read you? -- And I think it certain that serious people object to egregious and unnecessary vulgarism. It's just plain offensive on sight and greatly distracts without ANY benefit. So drop the potty mouth, frat boy.

Anyhoo, my take is that this shows the weakness of the "But, innovation will be lowered!" level of argument that Mike is so fond of elsewhere when suits his purposes. It's just trivial and vague assertion, any baboon can use it.

The real weakness here is "same incentives for all types of inventions" -- as that relies on definition of "invention": my position is that software is specific solution of operations to achieve a goal, much like any writing, but an actual "invention" in this context requires working physical model, so particularly after invoking the times of the "Founders", the rest is hooey.

Mike just dismisses the paragraph in three words: "This is hilarious." Not all that incisive or illuminating, just something any baboon could say. I'd like to expect more from someone who claim and Ivy League degree, but...
Microsoft sticks to its bad ideas only because can't come up with worse. (92 of 193)

05:16:23[g-257-5]
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:18am

People don't write software to get patents. People write software to solve problems. If the software is good and effective at solving those problems then they can market it and make money off of it. That is how it works. Patents have nothing to do with that. Software was being written long before software patents existed. To say that good software won't be written without the protection of a software patent is ridiculous beyond belief. In fact if software patents had existed when Microsoft first started they likely would have been sued out of existence over the way they reverse engineered CPM to make DOS and thus would not be around today.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 31 Jan 2014 @ 9:21am

Re: @ "inb4 ootb shoots his mouth off about Microsoft being evil because it's rich."
Thanks for helping me! -- Though, Microsoft was evil BEFORE it got rich TOO. Basically ripped off a small company that had a CPM-86 clone already written, changed a few text strings, and that's the extent of Bill's "innovation". To get filthy stinking RICH off so little effort is indeed evil.
The Microsoft Multiplier: Infect one computer with crap and charge to remove it, you're hunted as a criminal; infect a billion computers with crap that automatically installs malware and you're lauded on Wall Street. (163 of 193)

05:20:53[g-401-8]
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:21am

Re: In a logical world...
Yeah the whole concept of software patents and how they are used... uh I mean abused in and of itself is pretty shitty.
[ link to this | view in thread ]
lucidrenegade (profile), 31 Jan 2014 @ 9:23am

BSA = BullShit Artists
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 31 Jan 2014 @ 9:25am

Re: Re: @ Naw.....[out_of_the_blue] will contort it to the point of defying the laws of physics to reflect on the EVIL EMPIRE of Google.
Not true, but THANKS for letting me know how large I loom in your tiny imagination, and how little else than me is in your mind, not even a wisp to say on topic.
Where the fanboys LIE about me in advance! (63 of 193)

05:25:43[g-626-7]
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:26am

why is it that when any company or industry could be subjected to change, either legally, technologically or both, apart from anything else, the change(s) will 'put us all in danger'? there is never anything said about the true reason(s), that it may mean a little more work to ensure things are as they should be or that the 'income may fall a little'!
but then, as usual, i supposed bullshit will baffle brains. it normally does!
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:26am

Re: Re: @ "inb4 ootb shoots his mouth off about Microsoft being evil because it's rich."
Microsoft didn't rip off CPM. They PAID someone $50,000 to do it for them. And no that wasn't the extent of Bill's innovation either. They wrote the machine language themselves. They needed an OS or the deal they were trying to make with IBM would fall through. They first had referred IBM to the people who made CPM but he didn't take them seriously and turned them away. blue, your really need to learn a little more about the subjects you comment on before you open your mouth.
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:30am

Re:
I wouldn't use the word "artists" at all in reference to them. More like BullShit Assholes.
[ link to this | view in thread ]
Ninja (profile), 31 Jan 2014 @ 9:39am

If you actually review our patents to make sure they're not shit, you might die in a car crash. This is the most asinine argument I've seen from patent lovers in a long time -- and I've seen an awful lot of asinine arguments.

Argument or death threat? /conspiracyhat
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 9:42am

Re: Re: Shut down software innovation? Just the opposite.
crade (profile), Jan 31st, 2014 @ 9:11am

Re: Shut down software innovation? Just the opposite.
All those big software firms are good at is leveraging their past success and using licensing schemes, protected proprietary formats and other lock ins to ensure that their customers have no choice but to continue to pay them.

And buying up smaller organizations that can still innovate and adding them to their portfolio.
[ link to this | view in thread ]
Mason Wheeler (profile), 31 Jan 2014 @ 9:57am

Re:
Back when I was in high school, there was this joke going around: if GM built cars the way Microsoft builds software, today we'd all be driving a $100 car that gets 1000 MPG, but it would crash twice a day.

And now today I drive a Ford, with Sync built in, a useful collection of electronics and car-related "apps" (GPS, phone synchronization, climate control, etc) powered by a touchscreen and developed at... Microsoft.

How times have changed!
[ link to this | view in thread ]
Imaginary, 31 Jan 2014 @ 10:26am

"to ensure that patents would not be devalued by limiting serial challenges during the patent�s life."

First I have not read the law so I might be wrong on the details but I think BSA have a small point here.

If the proposal does not limit the number of times a patent can be challenged, then they would be stuck defending a patent over and over again (assuming it is found valid). What is the use of a valid patent if the cost of defending it is unlimited.

Without fixing that issue we may as well ban data processing patents completely.
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 10:53am

Re:
Except that with every unsuccessful challenge to a valid patent, the decision entered makes it easier and easier to dump cases future cases challenging it's validity on various grounds due to the legal precedents set for it. If you try to challenge the validity of a patent with the same argument that had already been rejected by the courts in a prior attempt, it's pretty easy for the company to get the case dismissed early on by simply pointing to the prior judgement.
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 11:03am

Re:
If the proposal does not limit the number of times a patent owner can sue over an invalid patent (presuming it would be found invalid if it was reviewed), then many unsuspecting litigants would be stuck defending against an invalid patent over and over again. What is the use of an invalid patent if the company owning it can't extract excessive resources from the multitude of companies being persecuted.

FTFY....
[ link to this | view in thread ]
Anonymous Coward, 31 Jan 2014 @ 11:17am

If the proposal does not limit the number of times a patent owner can merely THREATEN to sue over an invalid patent (presuming it would be found invalid if it was reviewed), then many unsuspecting litigants would be stuck defending against an invalid patent over and over again. What is the use of an invalid patent if the company owning it can't extract excessive resources from the multitude of companies being persecuted.

FTFY...
[ link to this | view in thread ]
Nick (profile), 31 Jan 2014 @ 12:24pm

"According to the BSA, since the original CBM program was just a test, it must always remain that way"

Huh, well, that explains why Microsoft's Windows platforms always feel like beta tests after release.
[ link to this | view in thread ]
John Fenderson (profile), 31 Jan 2014 @ 12:37pm

Re:
we may as well ban data processing patents completely

This is a notion I advocate and believe in 100%. Software patents are bad news, period.

Further, by my reading of patent law, it's really hard to explain why they're allowed in the first place. All of the software patents I've seen are actually patenting algorithms, and algorithms are specifically named as one of the things you can't patent.
[ link to this | view in thread ]
ColinCowpat (profile), 31 Jan 2014 @ 1:12pm

Oh dear
This on the same day that it was announced that IBM had successfully executed their patent related shakedown on Twitter, having pounced on them the day before their IPO.

Don't IBM realise they are bringing their widely respected brand into disrepute by doing this?
[ link to this | view in thread ]
niiwe (profile), 1 Feb 2014 @ 12:51am

Can there be any better proof that the wolf is applying to become a shepherd, than a letter like this?
[ link to this | view in thread ]
Sheogorath (profile), 1 Feb 2014 @ 12:50pm

Okay, fine
If Patent Office Can Do A Quick Review Of Our Crappy Patents, You'll All Die In A Car Crash
If it means less children die of undernutrition as they try to survive on foodbank handouts after their parents lost their jobs because their companies went bankrupt after fighting 'patents' that aren't worth the paper they're printed on, then I will happily die in a car crash. At least it will be a quicker death than if I die in hospital after the crash.
[ link to this | view in thread ]
Anonymous Coward, 2 Feb 2014 @ 1:33am

The Patent Trap
That's apparently because, as Microsoft alleges, Linux infringes on 235 unnamed patents. They won't tell you what they are but insist you need a licensing agreement. Boogey boogey boogey!
http://en.swpat.org/wiki/Microsoft

Interesting to note that in 1990 Microsoft had revenues of $1.2b with just 5 patents filed.

The problem with the system of software patents is that armament (to ensure mutual destruction should "war" break out) is *very* expensive and, once armed, there's a multi-billion dollar incentive to maintain the effectiveness of your arsenal (through lobbying) to use against those pesky innovative game-changer startups.
[ link to this | view in thread ]
Anonymous Coward, 2 Feb 2014 @ 7:42am

My recollection is that during Microsoft's formative years the eligibility and acceptance of "software" for patents was not well established. Thus, it is not at all particularly surprising that prior to 1990 Microsoft's "stable" of patents was meager (which is not to imply that large is better).
[ link to this | view in thread ]
Anonymous Coward, 2 Feb 2014 @ 4:00pm

Re: Mike relapsed back to vulgarisms.
You have no idea what a potty mouth is you dumb fucking whore
[ link to this | view in thread ]
Bergman (profile), 2 Feb 2014 @ 4:27pm

E
This is a nice government you have here.
[ link to this | view in thread ]
Bergman (profile), 2 Feb 2014 @ 4:28pm

EVERYONE involved will die in a car crash?
That puts me in mind of an old mafia movie...

This is a nice government you have here. It'd be a shame if something happened to it.
[ link to this | view in thread ]