The rule of low, not law

Summary: The USPTO continues to lower the bar for patents' acceptance, but on the other hand, many software patents are increasingly being rejected at the courts

Software patents may be on their way down, but patents as a whole are not going down, only their standard goes down. As a relatively benign patent lawyer put it the other day: "The fight for patent reform isn’t about trying to trample on inventors’ rights. It’s about trying to deal with the reality of thousands of bad patents and trying to prevent people from collecting money (and hindering innovation) based on patents that should never have issued."

On another day he shed light on this troll:

And an Acacia subsidiary was ordered to pay NetApp’s legal fees after suing on patents that turned out to be licensed already.

"Software patents may be on their way down, but patents as a whole are now going down, only their standards go down."The roundup links to this article about Acacia and it says that this "subsidiary of the patent aggregator had brought suit despite already striking a licensing deal with RPX."

RPX is another kind of troll, but not quite the aggressive one. Here is some more coverage:

NetApp sticks biggest “patent troll” with $1.4M fee sanction

This summer, the Supreme Court made it easier for defendants to collect fees when they win patent cases. The decision is starting to have an effect—the nation's largest patent troll just got slapped with an order to pay $1.4 million in attorneys' fees to NetApp, which it sued in 2010.

The case brought by Summit Data Systems, a branch of Acacia Research Corp., hinged on an accusation that NetApp infringed when its server-based software interacted with an end user on a Microsoft operating system. The two patents-in-suit, 7,392,291 and 7,428,581, relate to "block-level storage access over a computer network."

Notice the Microsoft connection. Some consider Acacia to be somewhat of a Microsoft proxy for several reasons that we covered before. This again is a software patent. This patent got defeated. Here is the EEF writing about another software patent, dubbing it "stupid patent of the month":

Blue Spike LLC is a patent litigation factory. At one point, it filed over 45 cases in two weeks. It has sued a who’s who of technology companies, ranging from giants to startups, Adobe to Zeitera. Blue Spike claims not to be a troll, but any legitimate business it has pales in comparison to its patent litigation. It says it owns a “revolutionary technology” it refers to as “signal abstracting.” On close inspection, however, its patents turn out to be nothing more than a nebulous wish list. Blue Spike’s massive litigation campaign is a perfect example of how vague and abstract software patents tax innovation.

EFF is calling out software patents now, not just "stupid patents".

According to some new numbers, the stupidity of patents only gets worse as it gets easier to have them granted:

Dennis Crouch over at Patently-O reports that for Fiscal Year 2014 (which just ended), the USPTO granted a record number of utility patents, over 300,000. Dennis determines that this results in an allowance rate of about 70%.

"Think about that – 70% of patent applications result in a patent," says this article, but the real number may be 92% because some reapply until 'success'. This is ridiculous. A patent lawyers' site says 300,000 patents got granted in one fiscal year. Good luck keeping track of so-called 'infringements'.

Well, only recently we gave many examples of software patents being eliminated by US courts. Steven Seidenberg, writing for Intellectual Property Watch, claims that the "US [is] Cracking Down On Software Patents" and in his own words:

The US courts are aggressively applying the ruling. So is the US Patent and Trademark Office (USPTO). Thanks to their common interpretation of the US Supreme Court’s recent decision in Alice Corp. v. CLS Bank, it is now open season on software patents.

Software patents are definitely suffering a major blow right now, but the overall problem is far from over. As TechDirt put it yesterday, the USPTO's standards are so low that a "Design Patent Granted... On A Toothpick". It's not satire. The EPO is corrupt, but the USPTO may not be much better. They are not providing public service; they are a front for corporations and increasingly trolls too. ⬆