Public Knowledge Deflates Another Dubious Software Patent By Reducing It To Seven Lines Of BASIC

from the GOTO-patent-invalidation dept

Public Knowledge is back at it, carving holes in dubious software patent claims by distilling supposedly "complex" ideas into a minimal amount of code. Late last year, Public Knowledge filed an amicus brief in a lawsuit involving Ultramercial, whose disputed patent basically involved appending "on the internet" to a very basic idea.

In that case, "watching a video on the internet" had been turned into a 349-word, 11-step process that convinced the patent reviewer the process was somehow protectable. Charles Duan of Public Knowledge took that word salad and converted it into 16 lines of code, poking rather large holes in Ultramercial's inflated description.

Duan has done it again. In an amicus brief filed on behalf of CLS Bank, Public Knowledge explains that Alice Corp.'s patent claims cover a very general and obvious abstract idea: the exchange of funds via a third party.

Alice Corporation Pty. Ltd. v. CLS Bank International concerns a group of patents on third-party escrow, an age-old technique where two people exchange money through a third party. It’s what most people use to buy a house. It’s PayPal.

Obviously, no one can get a patent on escrow. Abstract ideas (like escrow) can’t be patented. Why not? Because ideas are the starting point for every new business, technology, and product. Patents on ideas would squash innovation. As the Supreme Court explained in another recent case, ideas are the “basic tools of scientific and technological work,” and a patent on an idea “might tend to impede innovation more than it would tend to promote it.”

So, how did Alice Corp. get this patent? By adding a few words to the idea: "done by a computer." Of course, to get protection for an abstract (and simple) idea, you have to use considerably more words than that. Here's the description, which makes it sound much more impressive than it actually is.

a computer, coupled to said data storage unit and said communications controller, that is configured to…

(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively.

Here's Charles Duan's reduction of that process, in BASIC no less:

10 LET account1 = 200.00
20 LET account3 = 300.00
30 INPUT “Value to exchange for transaction”; exchange
40 IF account1 < exchange THEN PRINT “Inadequate value”: STOP
50 account1 = account1 – exchange
60 account3 = account3 + exchange
70 PRINT “Instruction to 1st institution: adjust 2nd account by ”; -exchange

Now, extremely efficient code isn't always the sign of a simple process, but patenting an age-old abstract idea like escrow is, first of all, something that (theoretically) isn't allowed by our patent process. Adding "with a computer" doesn't suddenly turn a non-patentable idea into protectable IP… or at least it shouldn't. But as Ultramercial proved, abstract ideas can and do become prime patent troll properties. As Anna Sallstrom of Public Knowledge notes, granting dressed-up ideas patent protection is nothing more than "trading progress for abstract patents." Hopefully, the Supreme Court will see Alice Corp.'s claims for what they are: escrow + a computer.

Filed Under: basic, public knowledge, software patent
Companies: ultramercial

USTR Needs To Reread Both The Constitution & The Definition Of Transparency

from the this-is-a-joke dept

As there is increasing pressure on the USTR over its total lack of transparency in the TPP negotiations (unless, of course, you're a special interest, in which case you get full access) it has now released what it calls a "fact sheet" about its "transparency" efforts. Of course, the only thing truly "transparent" here is just how hard the USTR worked to hide how opaque it has been in these negotiations. The "fact sheet" is chock full of things that aren't remotely factual.

Let's focus in on the big one:

Under the U.S. Constitution, the President is responsible for conducting U.S. foreign relations, including by negotiating and concluding trade and investment agreements with other governments.

That's only partially true -- and as with all sorts of "truthy" arguments, the real truth is in what the USTR conveniently leaves out. As you all know from your pocket copies of the Constitution, in Article II, Section 2, the executive branch is granted a specific power: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such. When it comes to commerce... er, nope. That's Congress' mandate alone. Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations."

The second big problem is one we've discussed repeatedly. The USTR continues to pretend that letting people speak their concerns to the USTR is a form of transparency. That's ridiculous. Listening to concerned parties is not transparency. It may be "access" and it could certainly be worthwhile and influence the agreement, but it's not transparent. Transparency is about sharing information in the other direction. And, as the "fact sheet" makes clear, that only happens if you're a special interest.

Amazingly, the USTR claims that these special interest groups having access is a form of "transparency." Once again, I think it needs to better understand what transparency means. Only providing access to a select number of groups whose key interests don't align with the public's is not "transparency." It's cronyism and corruption. How does "the public" get onto a "trade advisory committee?" How many internet startups are on a "trade advisory committee?"

The USTR also, once again, trots out its bogus line about how it is transparent with Congress about the TPP -- leaving out the fact that they only allow elected officials to view the document in a special room, where they're not allowed to make copies, take notes or (most importantly) bring along staffers who are experts in trade. Even worse, the USTR has directly refused to provide access to the staff director of the Senate Subcommittee on International Trade. Let's think about that. The supposedly "transparent" USTR is refusing to allow the staff director of the Senate subcommittee in charge of international trade -- which, once again, is an issue that the Constitution mandates solely to Congress and not the Executive branch. This is transparency?

Oh, also, apparently the USTR thinks "transparency" involves taking quotes totally out of context. This is really pretty obnoxious. This "fact sheet" has a sidebar that includes two quotes strategically chosen from "critics" of the USTR, which the USTR positions as if to show that both groups agree that that it has been transparent. Nothing is further from the truth. If you put the very selectively quoted text back into context you discover that both come from statements raising concerns about the transparency -- but providing boilerplate praise for the fact that they're allowed to speak their mind to the USTR (which, again, is one way traffic in the wrong direction). First up, we have a quote from Celeste Drake of the AFL-CIO. This is how the USTR shows it:

"This Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels...

...the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy..."

I'm actually a little surprised that they left in that "has concerns" line, since they removed lots of other things. You can see Drake's entire testimony (pdf) if you'd like. Nearly everything in there is a slam on the USTR for what it's likely putting into the TPP. Even the section selectively quoted here leaves out the preamble, which notes that the AFL-CIO is not happy. Here's the text with a little bit more context (but feel free to read the full thing for much greater context and the fact that it's almost entirely against the USTR's practices with the TPP):

Without addressing the still-secret text of the TPP, I will discuss a few of our concerns and recommendations with regard to some of the most pressing topics of the agreement. Before I do, I would note that this Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels. Of course, access does not equal influence, and it remains to be seen just how many of our suggestions will be incorporated into the final text. Moreover, the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy—particularly when compared to the prior Administration.

See? Seems a lot less positive. The AFL-CIO is basically saying that just letting them show up and speak their mind is no excuse for the lack of actual transparency -- and that one-way form of communication is, once again, not transparent at all. Elsewhere in the same report, Drake slams the USTR's process of negotiating in secret:

Unfortunately, it has not been the practice of U.S. trade policy to engage in such economic evaluations until after an agreement is finished. Only when the text is complete do we learn of its potential to harm particular industries and their employees or to increase our global trade deficit. As a result, the United States Trade Representative (USTR) is typically flying blind in the agreements, unsure exactly how the agreement would help our domestic economy or bolster American workers, but secure in the belief that free trade will always do so.

This is not someone who is happy with the USTR process. Trotting them out as an example of greater transparency isn't particularly smart.

The second quote comes from Public Knowledge's Jodie Griffin. Here's how the USTR presents the quote:

"The USTR's stakeholder engagement website includes instructions both for registering for a stakeholder tables event and for making arrangements to make more formal presentations to negotiators. It's encouraging to see the USTR respond to stakeholder feedback so quickly and become more open to accommodating the needs of a variety of stakeholders.

... Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public. That said, the USTR's efforts to help stakeholders engage with negotiators and make their case before the negotiating countries is promising."

For reasons I can only guess, the USTR does not provide a link to where that quote comes from, but I will. It's from a recent blogpost by Griffin, in which she does, in fact, praise the USTR for something very specific: agreeing to PK's suggestion that the upcoming negotiating round allow for both presentations by public interest stakeholders and a tabletop "fair" setup -- rather than having one or the other, as in past rounds. But... if you read the full blog post, you see that Griffin completely slams the "shocking lack of transparency" from the USTR:

The Elephant in the Room: Transparency

Of course, it must be said that all of the stakeholder engagement events in the world cannot make up for the shocking lack of transparency surrounding the substance of the negotiations and the TPP's text. Stakeholder events also cannot truly be effective if the negotiators are obviously not interested in hearing from public interest groups.

Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public.

In other words, neither of these quotes are actually saying that they appreciate the USTR's efforts on transparency. They are talking about how the USTR is willing to let them speak, occasionally, and under specific and planned circumstances -- but not about transparency.

Once again, it appears that the USTR is working with a different definition of "transparency" than the rest of the world and... also a different edition of the Constitution.

Filed Under: afl-cio, celeste drake, jodie griffin, public knowledge, ron kirk, tpp, transparency, ustr

How TPP Would Put Massive Burdens On Those Accused Of Infringement

from the flipping-the-equation dept

Due to massive secrecy and a near total lack of transparency by the US Trade Representative Ron Kirk, we don't know for sure what the US is negotiating "in our name" as it advances through the negotiation stages of the Trans Pacific Partnership agreement. What little we do know comes from a leaked version of the US's IP proposal from last year. While this might be out of date, we really don't know what's changed because of the USTR's obnoxious refusal to let the public know what it is pitching in their name.

Thus, it's reasonable to look at what was in the original pitch. And, what we see is not good. Jodie Griffin from Public Knowledge is highlighting some of the problems with the proposal, including the fact that it appears to flip the burden on a number of things in copyright from the copyright holder having to prove the basics (that they hold the copyright, that the copyright is valid, etc.) to the reverse: that the accused has to prove that the other side does not hold the copyright or that the copyright is invalid. And this is for both civil and criminal infringement. That is, TPP takes the very basics of a system in which you are innocent until proven guilty, and effectively says that the courts should assume that the plaintiff doing the accusing is correct, and the entire burden falls on the accused to prove it did not infringe. That seems like a pretty massive change, and one that would severely alter current US law on the subject.

You would think that if the US was negotiating for such a massive change in US law it would be open to a public discussion about the matter. However, as we've noted repeatedly, for whatever reason the Obama administration and the USTR in particular, seem to have no interest in letting the public in on this little game. Instead, it huddles with Congress (the same Congress who for years has done the entertainment industry's bidding whenever possible) and directly with industry lobbyists -- and then declares that it is being "transparent." This is crony capitalism at its finest, and the public continues to suffer.

Filed Under: public knowledge, ron kirk, secrecy, tpp, ustr

Time To Change (Or Ditch) The USTR Special 301 Process That Pressures Other Countries To Adapt US IP Laws

from the get-rid-of-it dept

A few days ago, you may remember, I posted the comments I submitted to the USTR on the Special 301 report, where I pointed out the value of allowing countries to set their own intellectual property policy, rather than forcing everyone to follow US faith-based intellectual property policy. Traditionally, the Special 301 process was a way for industry lobbyists to get the US gov't to put countries they didn't like on a special "watch list," that would lead US diplomats, who didn't even understand the lack of factual basis for the report, to start putting pressure on other countries to change their intellectual property policies to make them more draconian (funny, isn't it, that they only went in one direction?). Basically, lobbyists would submit the details of countries whose IP policies they didn't like, and the USTR would basically turn around and put out a list based on what was submitted, with little effort to actually look at the situation. This year, at least, the public was able to submit comments (such as mine, linked above), but it's unclear how much of an impact that will have.

In the meantime, EFF and Public Knowledge have teamed up to ask the USTR to change the process and, at the very least, stop taking the word of industry lobbyists as if it were gospel. They also suggested that the USTR be more flexible in allowing countries to set their own IP policy -- noting, amusingly, that the US itself famously didn't implement its "international obligations" in the Berne Treaty for decades, because the country felt differently about certain aspects of copyright law. Hell, even today we're not in full compliance with Berne. But for some reason the USTR acts as if other countries need to fall in line with US IP policy, even as we've chosen to go in a different direction when we felt it was warranted.

Of course, the best thing to do isn't to change the Special 301 process, but to ditch it entirely. It serves no reasonable purpose and has been abused by industry representatives for years. It puts a strain on US relations with other countries, and harms the ability for other countries to craft IP policy in the way that they feel will best serve culture and innovation.

Filed Under: copyright, eff, public knowledge, special 301, ustr
Companies: eff, public knowledge