Unified Patents, Microsoft, the Linux Foundation, and Open Invention Network are beating back open-source patent trolls.

Patent trolls, aka Patent Assertion Entities (PAE)s, have plagued open-source software for ages. Over the years though, other groups have risen up to keep them from stealing from the companies and organizations that actually use patents' intellectual property (IP). One such group, Unified Patents, an international organization of over 200 businesses, has been winning for the last two years. This is their story to date.

“(Abraham) Lincoln called the introduction of patent laws one of the three most important developments ‘in the world’s history,’ along with the discovery of America and the perfection of printing.”

Supreme Court Says Over 200 Patent Judges Were Improperly Appointed:

“The Supreme Court ruled on Monday that more than 200 administrative judges who hear patent disputes, some of them over billions of dollars, had been appointed in violation of the Constitution.”

These judges are indeed unconstitutional. Because they are judges — in the Executive Branch. Which means the Executive Branch is pretending to be the Judicial Branch. And that’s a bit of a Separation of Powers problem.

These alleged judges preside over the Patent Trial and Appeal Board (PTAB) — about which we’ve been warning for more than a while.

Do you want a PET scan from a machine with unauthorized adjustments?

Not long ago, a shade-tree mechanic with average skills could fix whatever was wrong with your car. These days, cars are far more advanced. On-board computers allow cars to diagnose themselves for most common problems and make engines run more efficiently while squeezing out more power than ever before.

All this advanced technology has put the shade-tree mechanic pretty much out of business. Working on a car today requires advanced training and technical ability. The technology inside and outside the car consists of patented software, chip designs and proprietary systems. But the benefit to consumers has been enormous. These inventions are covered by patents to encourage and reward innovation.

American innovation is dependent on the protection of intellectual property. It encourages innovation by discouraging theft. But there are those who are philosophically opposed to intellectual property protection. Left-leaning public interest law firms and activist groups led by U.S. PIRG, an association of public-interest law firms, have been trying for years to undermine intellectual-property protection through “right to repair” campaigns in state legislatures. During this legislative session they are pushing their anti-innovation agenda in the guise of a “right to repair” advanced medical devices.

In my state, Texas, Rep. Thresa Meza has introduced a bill this session titled the Medical Device Right to Repair Act. This bill would require manufacturers of highly advanced medical devices like MRI machines, CT scanners and PE-scan systems to disclose confidential and patented design and service information.

A “right to repair” sounds reasonable, but forcing manufacturers to disclose their proprietary technologies would erode the incentive for innovation and endanger patients. Today the Food and Drug Administration regulates and monitors medical-device safety. The FDA demands that original equipment manufacturers follow its guidelines regarding software updates, patches and more-comprehensive repair jobs. The uncertified third-party service providers who would conduct repairs if these bills pass aren’t regulated by the FDA. There’s no assurance they will follow FDA standards. //

Barclays and the TD Bank Group have joined the Open Invention Network's Linux and open-source protection consortium. //

When it comes to defending the intellectual property (IP) rights of Linux and open-source software, global leading banks aren't the first businesses to come to mind. Things have changed. Barclays, the London-based global corporate and investment bank, and the TD Bank Group, with its 26-million global customers, have joined the leading open-source IP defense group, the Open Invention Network (OIN)

For years, the OIN, the largest patent non-aggression consortium, has protected Linux from patent attacks and patent trolls. Recently, it expanded its scope from core Linux programs and adjacent open-source code by expanding its Linux System Definition. In particular, that means patents relating to the Android Open Source Project (AOSP) 10 and the Extended File Allocation Table exFAT file system are now protected.

As important as this is, why would banks, no matter how big, care? It's because even banks care about opposing the abuse of IP rights by patent assertion entities (PAE), better known to most of us as "patent trolls." Even banks are subject to patent troll attacks these days.

For the Wright brothers, the patent struggle was a series of Pyrrhic victories. They wanted justice and credit, and ideally the freedom to pursue their research further. Instead they found themselves consumed by litigation, and forced to watch others catch up with and overtake their technical lead, particularly in Europe, where areonautical research had strong state support. The endless legal battle over the airplane patent may even have contributed to Wilbur Wright's early death - he came down with typhoid at an especially rough patch in the legal proceedings, and died at age 45. His brother Orville lived long enough to see the Wright company taken over by Curtiss in 1929, in the most bitter of ironies. Neither brother made any substantive contribution to aviation after 1908.

The United States government finally put an end to the patent strife in 1917. Mindful of the impending war, it insisted that the rival parties form a patent pool - in effect, removing patent barriers to creating new airplane designs. Together with the war, the patent pool inspired a golden age of American aviation. The pool stayed in effect until 1975; companies who wanted to preserve a competitive advantage did so using trade secrets (such as Boeing's secret recipe for hanging jet engines under an airliner wing).

I believe that the Wright patent story drives home the intellectual bankruptcy of our patent system. The whole point of patents is supposed to be to encourage innovation, reward entrepreneurship, and make sure useful inventions get widely disseminated. But in this case (and in countless others, in other fields), the practical effect of patents turned out to be to hinder innovation - a patent war erupts, and ends up hamstringing truly innovative technologies, all without doing much for the inventors, who weren't motivated by money in the first place.

It's illuminating to point out that all three transformative technologies of the twentieth century - aviation, the automobile, and the digital computer - started off in patent battles and required a voluntary suspension of hostilities (a collective decision to ignore patents) before the technology could truly take hold.

The Wright brothers won every patent case they fought, and it did them absolutely no good. The prospect of a fortune wasn't what motivated them to build an airplane, but ironically enough they could have made a fortune had they just passed on the litigation. In 1905, the Wrights were five years ahead of any potential competitor, and posessed a priceless body of practical knowledge. Their trade secrets and accumulated experience alone would have made them the leaders in the field, especially if they had teamed up with Curtiss. Instead, they got to watch heavily government-subsidized programs in Europe take the technical lead in airplane design as American aviation stagnated. //

more patents are being granted than ever before, for broader claims, and with an almost complete disregard for prior art. Entire companies - and not just legal firms - are basing business models on extracting money from the patent system without actually creating any products. And the boundaries of patent law are expanding. For the first time in history, it's possible to patent pure mathematical ideas (in the form of software patents), or even biological entities. The SARS virus was patented shortly after being isolated for the first time.

But if the patent system doesn't even work for the archetypal example - two inventors, working alone, who singlehandedly invent a major new technology - why do we keep it at all? Who really benefits, and who pays?

In this Age of Idiocy, let us revel in a moment of sanity. Unanimously delivered to us by – are you sitting down? – the Ninth Circuit Court of Appeals. Appeals Court Throws Out Antitrust Ruling In the world of judges and Justices – this is exceedingly embarrassing:  “A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a 2019 ruling .... //

Judge Koh pretended a patent is a ‘monopoly’ – and thus an antitrust violation.

“Ummm…a patent is a grant to ‘exclusive Right to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…’ – per the Constitution.

“‘Exclusive right’ – means no one but you has that right. You – all by yourself – is a ‘monopoly.’ Per the Constitution.

“Suing Qualcomm’s patents for being a ‘monopoly’ – is like suing Shaquille O’Neal for being tall. You’re suing something – for being exactly what it is supposed to be.

“The Constitution preempts any antitrust law that follows – if antitrust law contradicts the Constitution. Or at least it’s supposed to do so.

Legal expert calls it "the most tone-deaf IP suit in history." //

Luckily for BioFire—and for patients in need of coronavirus tests—a landmark 2006 Supreme Court ruling raised the bar for granting injunctions in patent cases. Since then, it has been fairly rare for judges to grant this kind of injunction as opposed to just awarding a winning plaintiff cash damages at the end of a case.

I am a huge fan of informed debate.  I have on more than a few occasions been a part of of official, organized panel discussions with representatives of both sides of this issue or that. But I have found two-sided panels to be an endangered species in Washington, D.C.  //

The author finds it offensive that IP creators…want to protect their IP when their employees leave their employ. Just as a tractor manufacturer doesn’t want an outgoing employee driving off the lot with an armada of unpaid-for threshers.

If people are stealing IP – people aren’t paying for IP. Which means rather rapidly – no one will have other jobs to which to go. Because when no one is paid for IP – no one can hire for IP. Rendering “employment mobility” – ancient history. //

“How fundamental are intellectual property rights, i.e. the rights accruing to an inventor or author or company of exclusive ownership of their own work or invention as enshrined in patent and copyright laws?…

“Strong IPR protections, for example, not only incentivize inventors and IP stakeholders,…(t)hose protections…generate a revenue stream of royalties through which companies can fund the next generation of innovation.”