Thursday, January 29, 2015

Righting copyrights, in concept at least

Guambat has long lamented the abuse of copyrights, for instance these. At long last, something has caused this subject to rise to the U.S. Supreme Court's attention in a manner to clear the err. Whether a bit, or a start, remains to be seen.

The case, Alice Corp. v. CLS Bank Intl, 134 S.Ct. 2347 (2014), can be read here, and an analysis of it here.

A more prosaic article on the situation is this one, which Guambat wishes you would read at the link, because he is an awful case reporter, and because these words are not entirely his own, nor are they reproduced in context (most of the article is left out); and, because you should never, ever take the word of a Guambat:

Business-method and software patents may go through the looking glass after Alice decision
As soon as the court handed down its decision in Alice Corp. v. CLS Bank last June, lower courts and the U.S. Patent and Trademark Office began displaying a new, marked hostility toward software and business-method patents. They are now striking down these patents in record numbers and denying applications that would previously have been granted.

"But what may be more interesting is that business-method patents are going down in droves,” says Rochelle C. Dreyfuss, a law professor at New York University and co-director of the Engelberg Center on Innovation Law & Policy.

The court unanimously declared that in order to be deemed patent-eligible subject matter, an invention must pass a two-step inquiry: First, does the invention consist in significant part of a patent-ineligible concept—for example, a law of nature, natural phenomenon or abstract idea? If so, the invention is patent-eligible only if the remaining parts of the invention have an “inventive concept”—one or more elements that ensure a patent on the invention amounts in practice “to significantly more than a patent upon the ineligible concept itself.”

The invention at issue in Alice was a computerized method to perform electronic escrow for online transactions. The court found the patent on this invention claimed the abstract idea of escrow, which was patent-ineligible. The remainder of the invention, performing the escrow on a general purpose computer, was not sufficient to provide an inventive concept.

There still will be plenty of litigation about what constitutes patent-eligible subject matter. “The Supreme Court is trying to take a consistent view on what is patent-eligible subject matter, but the court’s ruling [in Alice] gives little guidance. District courts are left largely to figure this out on their own,” Hoglund says. “A lot more needs to be answered on how to draw the line between eligible and ineligible subject matter.”

All this is bad news for nonpracticing entities, aka “patent trolls.” They often seek to monetize software or business-method patents; and after Alice, many of these patents could well be struck down. “That gives them a lot less leverage to try to get settlements from defendants,” Corbett says.

One of the trolls’ main sources of power is the discrepancy between litigation and settlement costs.
This article appears in the American Bar Association's ABA Journal. Guambat finds it rather rich,then, that the "bad guys" focused upon in the article are "trolls" who "seek to monetize" patents in a bit of a shake-down act, with threats of litigation. What is the appropriate word for a troll's hired gun?


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