Proskauer Rose LLP is Cherry-Picking Cases to Make Software Patents Seem Eligible Despite Alice v. CLS Bank
Agenda disguised as professional advice
Summary: Naming and shaming those who are trying to reshape the consensus despite a rather consistent pattern of software patents being rejected
THE subject of software patents profoundly affects Free software, which is still under attack from software patents. The recent collapse of many software patents (not all) has been catalogued here for quite some time [1, 2, 3, 4, 5] and we continue to see more confirmatory evidence of this trend. The media which is run by or is at least influenced by patent practitioners does not like to cover this subject and it’s truly a shame that activists against software patents have gone so quiet in recent years. The patent lawyers’ press selects (or cherry-picks) cases that are exceptional and help reinforce software patents, even this month, leaving the public with the false impression that nothing has really changed after the Alice case. We oughtn’t let this case go to waste.
“That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court.”Earlier this month we found some of the latest revisionism from lawyers. Proskauer Rose LLP pushed it by apparently paying (as a press release) for coverage, injecting a pro-software patents piece into lots of lawyers’ sites [1, 2, 3], including The National Law Review, which also went with the typical headline: “Job Applicant Software Patents Not Terminated for Invalidity”. These are the publications that a lot of patent lawyers follow and the intent of Proskauer Rose LLP is probably to give them tips on how to game the system (which is basically what they all do, trying to bypass rules using common tricks). Here is a quote from the analysis: “Although the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank, one Massachusetts court recently declined to invalidate a trio of patents directed to job applicant software. Plaintiff Kenexa had asserted infringement claims against three defendants, and two of the defendants—including HireAbility—subsequently moved for judgment on the pleadings that Kenexa’s patents recite unpatentable subject matter under § 101.”
So, they do acknowledge that “the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank,” but then they go on to just covering one exceptional case where software patents managed to survive in court. That’s cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court. It’s subjective by design. That’s just their job. The clients, and hence the lawyers, have an agenda to push. This is the transaction, but clients deserve an honest, objective advice. It’s not journalism but more like advocacy (what the UK calls “barristers” are literally advocates). Just watch Mr. Quinn trying to sell his ‘services’ while advertising for the Patent Trial and Appeal Board (PTAB). These people openly promote as broad a patent scope as possible (inclusive of software patents) for the same reasons arms and surveillance contractors want war and instability. The more problems the world has, the more business these people receive and the more money they make. It’s the broken windows theory. █