05.22.15

The Patents Production ‘Industry’ (Patent Lawyers) Still Fights Hard to Salvage Software Patents

Posted in America, Law, Patents at 1:03 pm by Dr. Roy Schestowitz

“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”

–IP Watch on Professor Joseph Stiglitz

Summary: A review of recent writings about software patents and patents on business methods in the United States, demonstrating that patent lawyers have gotten very vocal and sneaky (trying to evade the rules)

THE patent landscape in the US is getting a lot better, not because of any reform but because of a SCOTUS ruling in a case widely referred to as Alice. Brian Fung from the trend-setting media says “new patent lawsuits are down for the first time in five years.”

“Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones.”Over the past year (since the Alice precedence was set) we have written a great deal about patent lawyers’ fears and their endless attempts to rewrite the rules or cheat the system (which is basically what their job is often about–finding and exploiting loopholes, sometimes misleading judges).

Corporate Counsel, a site of patent lawyers (as its name reveals if not gently indicates), is trying to tell us that “Software Patents Are Still Valuable”. Written by R. Flynt Strean, Michele M. Glessner and Zachary A. Higbee from Corporate Counsel, the article basically tells patent lawyers what they want to hear. Surely it’s music to their ears.

Another lawyers’ site, Law 360, says that the Court of Appeals for the Federal Circuit‘s “Eon Ruling Offers Map For Clear Software Patents”. To quote: “A recent Federal Circuit decision invalidating an interactive TV patent owned by Eon Corp. IP Holdings LLC is the latest ruling by the appeals court stressing the need to make software patents clear by including an algorithm and provides guidance for writing software claims that can withstand scrutiny, attorneys say.”

This is basically the giving of tips on how to patent software, despite many of prospective patents being ineligible.

Watch sites composed by lawyers (National Law Review in this case) ridiculing critics even of patent trolls as if patent lawyers support patent trolls, not just software patents. This one site wrote this about Alice: “Alice did provide, however, that if the subject matter “improves the functioning of the computer itself” or “any other technology”, such subject matter may be patent-eligible. In this way, one can see this as leaving open the possibility of finding computer software patent-eligible.”

They are reversing the actual outcome as positive. Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones. The way lawyers like to frame it is a way that generally supports software patents, i.e. the opposite of what SCOTUS actually ruled on. These articles are full of lawyers’ tricks for patenting software despite the highest court’s ruling which serves to bar/limit them.

Watch this other lawyers’ site stating about CBM (covered business method): “As a § 101 analysis under Alice Corp. does not require the time and expense necessary to analyze prior art, swiftly launching a CBM petition that relies either solely or primarily on § 101 challenges presents a cost-effective approach with good potential for success. This is especially true in view of the limited estoppel particular to CBM post-grant reviews, which would allow for subsequent challenges under §§ 102, 103 and 112, at the district court. In addition, a CBM, unlike an inter partes review is not required to be filed within one year after a district court patent infringement suit is initiated. Note, however, that upon a final written decision, § 325(e)(1) estoppel will still bar grounds that the petitioner “raised or reasonably could have been raised” in pending or future PTO proceedings, this is true even if the parties settle.”

“To lawyers, everything that reduces the number of permissible patents is evil.”The pattern here is clear and we have omitted nothing that we’ve come across in our research (this month’s news). Lawyers who profit from patents are working very hard to get around the rules and continue to patent software, showing disregard not just for science but also for the highest court.

Here is one statement which we also found mystifying, under the headline “Patent Laws Are Getting Cloudy”: “While the cloud reduces the barrier to entry for innovation, moving from a hardware to a software model makes getting a technology patent more difficult, he added. He attributed this to biases in U.S. and European patent law.”

What biases? Ones that limit patenting of software? And for good reason? To lawyers, everything that reduces the number of permissible patents is evil. They view everything as a nail because they are hammers. All they care about is money and destruction (in courtrooms, where real products can be embargoed or castrated, companies can be driven to bankruptcy, and ideas come to be squashed). Don’t listen to patent lawyers if you want the facts; we know how they make their money. They create nothing but paperwork and court hearings. █

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