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

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.

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

Microsoft Front Group Struggles To Find App Developers To Sign Letter Against Ditching Bad Patents

from the nice-try,-act dept

A few months back, we wrote about how two different groups had sent letters concerning a key part of Rep. Bob Goodlatte's proposed patent reform bill: the "covered business methods" program (CBM), which allows for a much faster process for challenging and rejecting bad patents. A very narrow version of this program was introduced in the 2011 America Invents Act, but only for financial services patents. One of the ideas that many people support is expanding this program to software and other business method patents. It's difficult to think of a reason to be against this unless you have a ton of really bad patents. As we noted in that original article, the App Developer's Alliance -- a trade group representing an awful lot of app developers (and, it should be noted, a sponsor of our site), sent a letter signed by hundreds of app developers asking Congress to expand this program. On the flip side, there was a bunch of old stodgy companies that have seen their innovative days disappear into the past: Microsoft, IBM, Qualcomm. Companies that have become reliant on abusing the patent system to keep out competition, rather than continuing to innovate.

That letter was actually put together by the BSA (the "Business Software Alliance"), a trade group that pretends it represents "the business software industry," but which everyone knows takes its marching orders from Microsoft. In a recent interview with a BSA official, Tim Lee at the Washington Post pointed out that Microsoft seems very opposed to the expansion of CBM, and suggests that Microsoft is driving the BSA's position against this. He also points out that there's an obvious reason for this: Microsoft has a ton of low-quality patents that it doesn't want to lose. The BSA official tries to tap dance around the whole thing, but doesn't make much sense. Basically, they don't like CBM because there are other ways to deal with bad patents -- even though those aren't working.

Of course, Microsoft is not exactly known for attacking on a single front. Another well-known Microsoft front group is a group called ACT, the Association for Competitive Technology, which calls itself a "grassroots advocacy organization" representing "small and mid-size app developers," despite the fact that the organization only seems to reflect Microsoft's interests. ACT has also set up a related organization specifically for app developers, called "ACT 4 APPS" which looks like it's trying to be what the App Developer's Alliance actually is, but without actually caring what actual app developers want. For example, last week, it sent a letter to Goodlatte arguing against CBM, just like the BSA, but in complete contrast to the App Developer's Alliance. The App Developer's Alliance has hundreds of names signed onto their letter in favor of expanding CBM and being able to knock out bad patents quickly.

In contrast, ACT 4 APPS' letter could only turn up 14 signatures. And almost all of them appear to have some sort of close connection to... (you guessed it)... Microsoft. One of the signatures is from a former ACT employee, who appears to have just left a few months ago. And with at least ten of the other signatures, they appear to be Microsoft partners. Hell, the CEO of District Computers is involved in so many Microsoft efforts it's tough to keep track of them all:

Steve is currently is one of Microsoft's 21 Worldwide SMB Partner Area Leads (PAL); one of the three in the North American Region, representing the United States. He sits on the Microsoft US Small Business Specialist Community Partner Advisory Council (PAC). Also Steve is active on the U.S. Board of the International Association of Microsoft Channel Partners (IAMCP), while maintainting the role of the president of the DC Chapter of the same organization.

Also, most of the companies on the list appear to be IT shops, helping companies set up (of course) Microsoft software and systems, rather than what most people think of as actual "app developers." And many of them are based in DC, rather than around the country. Real "grassroots."

When you look at the letters from the BSA and from ACT, it seems pretty clear that Microsoft is deathly afraid of this accelerated review of crappy patents, and it's getting various groups to "front" that effort with letters to Congress. But when you dig deeper into those letters and look, it's pretty clear this is just Microsoft knowing that an awful lot of its patents are likely to be of very low quality, and easily challenged under such a program. Next time, perhaps Microsoft should focus on actually innovating, rather than betting so much of its strategy on shaking down companies with weak patents.

Filed Under: app developers, covered business methods, patent reform, patents, startups
Companies: act, act 4 apps, app developer's alliance, bsa, microsoft