Bonum Certa Men Certa

IAM Encourages Patent Aggression, CCIA Highlights Cost of Being Accused of Infringement, Professor Tun-Jen Chiang Explores Free Speech Aspects of Patents

The First Amendment in the United States is contradictory to the notion of code patents (decision from the Court of Appeals for the Federal Circuit, CAFC)

Opinion on IV



Opinion on IV



Summary: A few items of interest which pertain to patent litigation and shakedown, in effect highlighting lesser-explored aspects of legal landscapes wherein being accused alone can cost one dearly

THE patent litigation culture that had become so prevalent in the US before the courts (and to a lesser degree the USPTO) put the brakes on it cost the economy many billions of dollars. Lawyers, trolls and few failing companies had made a lot of money but produced nothing of value. We risk seeing the same thing happening in Europe if EPO management gets its way.

"Software developers do not need patents. It's an improper and truly unnecessary instrument of law."IAM spent well over a decade promoting a patent litigation culture everywhere in the world. This is IAM's bread and butter. What IAM meant by "webinar" the other day is marketing/lobbying. The word "licensing" refers to blackmail, extortion, and coercion with patents (otherwise a lawsuit gets filed). By contrast, the CCIA (Josh Landau in this case) bemoaned the situation, insisting that "[i]n Defending Against Patent Litigation, Even A Win Is A Loss" (except for the lawyers).

To quote:

So what we have is a lawsuit where, based on the statements in the complaint, the patent may not be valid, and where public information strongly suggests that the patent isn’t infringed.

Nonetheless, the Big Ten Network will have to spend money defending themselves from the lawsuit. And baseless patent assertions don’t just hurt large tech companies—they hit everyone, from entertainment companies like the BTN or Disney, to retailers and restaurants like Walmart and White Castle.

These suits, even if the defendant is successful in defending themselves, cost money. According to AIPLA’s 2017 survey, the median cost just to start defending a case with less than $1,000,000 at stake is around $25,000, and the median cost to get through the motions stage is around $250,000. If there’s more at stake? A case with more than $25,000,000 at risk might cost you around $140,000 just to get started, with the cost through the motions stage on the order of $1,700,000. That’s not even to get to trial.

All to defend yourself against a lawsuit that never should have occurred, based on a patent that never should have issued.


Tun-Jen Chiang has just outed/promoted "Patents and Free Speech," a paper which discusses how patents affect the First Amendment in the United States. It's no secret that computer code (in the case of software patents) is akin to poetry or speech and thus invokes questions pertaining to the First Amendment. CAFC ruled so specifically (about 2 years ago) while rejecting Microsoft's patent troll, Intellectual Ventures. From this new introduction to Professor Chiang's paper:

Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.

Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”

Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.


When it comes to copyright law, one's ability to speak freely depends on one's originality. But rephrasing things can help dodge plagiarism/infringement claims, whereas with patents that is not quite possible. This means that when it comes to patents the risk to one's free speech, e.g. in the code sense, is seriously jeopardised. Code is already covered by copyright law, so for the most part plagiarism is a problem that's sufficiently tackled without patents. Software developers do not need patents. It's an improper and truly unnecessary instrument of law.

Recent Techrights' Posts

An Important Goal Has Been Accomplished Already
Stubborn activists need to insist on a future where computer users actually control the computers they own
GNU/Linux up to 5% in Ireland, Not Counting Chromebooks
statCounter is an Irish
The War on Free Software Reporters - Part III - Doxing and LARPing
LARPing is an issue I've had to deal with for nearly 20 years
 
Gemini Links 03/06/2024: Maturity and Tenstorrent
Links for the day
In the Month of May 2024 the OSI's Blog Was Almost 100% Microsoft Lobbying, Microsoft Staff, Microsoft Proprietary Software, and Microsoft Events
Entryism complete. RIP, OSI.
Gemini Links 02/06/2024: Delayed Disappointment
Links for the day
statCounter: GNU/Linux on More Than 1 in 5 Desktops/Laptops
Desktop Operating System Market Share Norway
Reminder: The First CEO of IBM (Owner of Red Hat) Was "Convicted on Extortion" (According to Edwin Black, Author of "IBM and the Holocaust")
Red Hat is not a liberal company
GNU/Linux Market Share in Turkey Now Exceeds 10%, According to StatCounter
StatCounter (or statCounter) shows considerable increases
GNU/Linux in Germany: The Seven Percent
The historical data shows that it wasn't always like this
Slovenia: Windows Becomes Minority Market Share This Month
It finally happened. Android is now measured as bigger than Windows.
statCounter: Bing Has Lost Market Share Since the Chatbot Hype, in Europe Yandex Nearly Exceeds Bing Now
Bing also had many layoffs (not that the media bothered covering that); we must debunk Microsoft's baseless claims and deliberate lies/hype
Microsoft Windows Falls Below 10% in Africa, Down to About 20% in Asia
The future isn't Windows
Taiwan Can Defend Its Autonomy Better by Avoiding Microsoft (Back Doors)
Maybe it's just a coincidence that GNU/Linux "took off" when Hong Kong lost its perceived independence from China
The War on Free Software Reporters - Part IV - Impersonation and Menacing Behaviour, Defamation Under One's Own Name
Such serial defamation (that went on for a very long time) is coordinated and relentless
Links 02/06/2024: Workers' Strikes and a Warming World
Links for the day
Microsoft Falls to All-Time Low of 25% in Operating Systems
If Android is counted, Windows is in trouble as it's down to all-time low of 25%
Steam Survey: GNU/Linux Up, But Canonical's Ubuntu Declining
big increases for GNU/Linux, Arch Linux gaining at Ubuntu's expense
Guardian Digital, Inc (linuxsecurity.com) Leveraging Microsoft Chatbots to SPAM for Microsoft (Googlebombing "Linux")?
Welcome to the Web in 2024. Search for "Linux" news, get Windows garbage.
Smallest Number of New Debian Developers in More Than 2 Years
Maybe Debian should recognise there's a problem instead of trying to censor - at humongous expense - those who speak about the problem
Slashdot's "Linux" Section is Reposting Press Releases for Red Hat
Is this being paid for?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 01, 2024
IRC logs for Saturday, June 01, 2024
Links 01/06/2024: Microsoft Chaffbot Broken Out of Control
Links for the day
The Media Finally Admits (on a Regular Basis) That LLMs Suck
They could not replace medical doctors, teachers, lawyers etc.
Why We're Taking Things Up a Notch
Expect about 20 articles a day this year
Sites That Cover WSL Are Helping Microsoft's Attack on GNU/Linux
Calling out the typical culprits
Plans for June
We'll try to publish Daily Links every time we have enough of these
Links 01/06/2024: Ukraine Updates, MongoDB Collapses
Links for the day
Gemini Links 01/06/2024: MNT Pocket Reform, Gemini and Content Length
Links for the day
Links 01/06/2024: WeblogPoMo2024, Pentagon’s Increasing Reliance on (i.e. Bailouts to) Microsoft
Links for the day
Twitter is (in Many Ways) Already Dead
Put an 'X' on it
Posts About Free Software, BSD, and GNU/Linux
Focus shifts have occasionally been discussed here over the years
After Softpedia Pushed Out Its Linux News Editor - and Effectively Killed the Linux Section - it Killed the Whole News Section (Altogether)
So they've killed Linux coverage, then their whole "news" section died
Their Goal is Control, Not Security (and Their Staff Advocates Fake Security or Pricey Gimmicks That Disempower the Users)
Those companies just want control, or simply domination over users (and their computers)
[Meme] The Lowest Standards of Security
No need for any qualifications
IRC Proceedings: Friday, May 31, 2024
IRC logs for Friday, May 31, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Cybersecurity is a structural not behavioural problem.
Reprinted with permission from Cyber|Show
Free Software is the Future, Open Source is Just Openwashing (Proprietary With a False Marketing Twist)
Also see postopen.org
Society Has Been Destabilised by Social Control Networks
Is it time to get rid of them, if not by sanctions/bans then simply by popular boycotts?
Gemini Turns 5 This Month
As long as Geminispace exists and is accessed by enough people, Gemini Protocol will continue to matter
Links 01/06/2024: More Crackdowns in Hong Kong, Street Named After Navalny
Links for the day