EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.07.16

Software Patents Are a Dying Breed in the United States and the EPO Should Take Notice

Posted in America, Europe, Patents at 9:49 am by Dr. Roy Schestowitz

Software patents are rotting away internationally, but will the EPO adapt accordingly?

Fading away

Summary: A roundup of recent news about software patents in the United States and what this means to Europe, where the patent office is now in a state of transition and must quickly restore quality rather than quantity

TECHRIGHTS spent nearly a decade writing about software patents and my activism against software patents predates this Web site. It’s only now, or any time after the 2014 decision on Alice, that considerable headway can be celebrated. The Bilski case (at SCOTUS) just wasn’t enough.

Patently-O has this up-to-date list of “Pending Supreme Court Patent Cases 2016″ and its author recalls SCOTUS Justice Scalia. “Following Justice Scalia’s death,” he notes, “the Supreme Court simplified its docket by denying certiorari to a set of patent cases, including: Arthrex v. Smith and Nephew; STC v. Global Traffic Technologies; ePlus v. Lawson Software, Inc.; Media Rights Technologies v. Capitol One; Alexsam v. The Gap; ULT v. Lighting Ballast Control; and Achates v. Apple.”

“All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality.”Patent Docs, another patents-centric site, says that the “USPTO Issues Performance and Accountability Report for FY 2015″, not quite noting that the USPTO only cares about money, not quality (very much the Battistelli delusion/lunacy).

Patent lawyers, based on this new article from lawyers’ media, still try to figure out how to continue fighting the courts over software patents after Alice. It’s not easy for them to accept deflation in the number of patents. They think of it like a business, which is antithetical to the patent system (as it was originally conceived a long time ago). Does the US still have an open-handed approach when it comes to software patents, or is it becoming just a stretch of imagination prevalent among patent maximalists who give bad advice to potential or existing clients? As one patent attorney put it the other day, “ITC ruled that two Jawbone patents asserted against Fitbit are Ineligible under Alice/ 101: http://assets.law360news.com/0767000/767622/1078594-575628.pdf

So even the overzealous and biased ITC, not just the typical courts, is not antagonising software patents? This may be unprecedented.

Patent maximalists over at IAM said this morning that “Chinese companies see US pendulum swinging back, while validity becomes more of an issue at home”. It’s about PTAB, which is increasingly being used to invalidate software patents even without them being used litigiously. To quote IAM: “Chinese companies may be using PTAB as a handy tool for now, but one defensive risk analyst I spoke to in Shenzhen expressed the views that the prevalence of invalidity challenges in the US is more a temporary opportunity than a ‘new normal’.”

Earlier this year we wrote about how a Chinese company had its products seized at a trade show, only to see the case against it dropped altogether. What is this? It sure made the US patent system blush a bit, as though its victims (not the so-called ‘pirates’ or ‘thieves’) are Chinese. This is not justice. It’s just a bunch of goons storming a trade show because of patents and confiscating actual products.

All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality. There should be no software patents in Europe, for instance, regardless of the spin/wording, e.g. if they’re “as such” or not (whatever that even means!). It puts the EPO‘s reputation at risk. In any patent system, rejection/acceptance rate does not in itself say anything, especially if it wrongly accepts and rejects applications (overworking the examiners means poorer identification of prior art, hence uncertainty, usually resulting in an erroneous grant). Based on sources of ours who are applicants at the EPO (several such people who already have patents in national patent offices), the EPO rejects legitimate patent applications whilst overpatenting e.g. granting patents on software. What message does that send out? What does this mean to the so-called ‘results’ that Battistelli brags about in him awkwardly scripted speech)? And if courts keep finding “EP” patents invalid, wouldn’t that devalue “EP” patents and lead to degradation of confidence? A lot of inventors in Europe are rightly upset at the EPO right now. Their already-granted patents lose value (or perceived value).

The EPO is not a cash cow for Europe if the money comes from Europeans. Ask European patent applicants (not massive corporations from abroad) who spent as much as the value of a whole house how they feel after failing to get even one patent because of EPO misconduct whilst others (massive corporations) receive a fast lane and get "EP" patents in bulk. It’s a sordid mess and a sham.

If Christoph Ernst becomes the EPO’s President some time this spring (or maybe later this month), then he can use his background in economics/law to amend policy so as to better comply with the EPC (i.e. no software patents). Moreover, for Ernst (or another potential president) the first step to take should be to restore/recognise the status of SUEPO and bring back dismissed representatives. They too expressed concerns about patent scope, even many years ago. SUEPO was right all along.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The UPC Scam Part VII: A Fine Mess in the Making, as Nothing Can be Made of It Amid/After Brexit

    The final part in this multi-part series about UPC, which cannot be implemented in the UK as long as Brexit is on the agenda



  2. The UPC Scam Part VI: The Real Story Which People Missed Due to Puff Pieces Seeded by Battistelli-Bribed Media is That UPC Technically Cannot Come to the UK

    Another long installment in a multi-part series about UPC at times of post-truth Battistelli-led EPO, which pays the media to repeat the lies and pretend that the UPC is inevitable so as to compel politicians to welcome it regardless of desirability and practicability



  3. EPO Spiraling Down the Drain as Experienced Examiners and Judges Are Seemingly Being Replaced by Interns

    Implementing yet more of his terrible ideas and so-called 'reforms', Battistelli seems to be racing to the bottom of everything (patent quality, staff experience, labour rights, working conditions, access to justice etc.)



  4. A Lot of News From the Supreme Court (SCOTUS) Today, With Some Important Decisions on Patents Coming Soon

    A roundup of today's outcomes from the US Supreme Court, which intends to review and decide on important patent cases



  5. In Historic Blow to Design Patents, Apple Loses to Samsung at the Supreme Court

    A $399 million judgment against Android devices from Samsung, with potential implications for other Android OEMs, is rejected by SCOTUS



  6. Good Riddance. Ray Niro is Dead.

    The infamous father of patent trolling is dead, so we need to remember his real legacy rather than rewrite his history to appease his rich relatives (enriched by destroying real companies)



  7. EPO Suicides Greater in Number Than is Widely Reported, Unjust System a Contributor to These

    The horrible regime of Benoît Battistelli has an enormous human toll (fatalities), far greater than the Office is willing to publicly acknowledge



  8. Lobbying Disguised as 'Reporting' by the Patent Microcosm, Which Wants More Patents and More Lawsuits (Lawyers Needed)

    A rebuttal to some new articles about patents, especially those that strive to increase patent-related activities (usually for personal gain)



  9. USPTO Echo Chamber That Lacks Actual Software Professionals Deciding on Patentability of Software

    A look at yesterday's "Roundtable on Patent Subject Matter Eligibility," which lacked involvement from those actually affected by patents rather than those who sell, trade, and exploit these



  10. More Examples of Microsoft and Its Patent Trolls Taxing Linux, Even After Microsoft 'Joined' (Paid) the Linux Foundation

    A quick look at the past week's news and clues about Microsoft's (and its broad army of patent trolls) strategy for taxing Linux, or imposing bundling at zero cost (to Microsoft)



  11. Heiko Maas, the SPD “Cash for Access” Affair, and Suspicions of Unwarranted Censorship at IP Kat (Again)

    Unsayable views or just a glitch? Readers of IP Kat express concern about a culture of censorship at IP Kat



  12. Endgame for Battistelli at the European Patent Office (EPO)

    Battistelli turns bad into worse by spitting on the very notion of accepting justice (from the highest court in The Hague or even the UN in this case)



  13. Les Échos Chamber: Having Corrupted the Media (With EPO Money), Battistelli Now Uses It for More UPC Propaganda

    The lies about the Unitary Patent are now being broadcast (Battistelli given the platform) by the publication that Battistelli pays



  14. Rumour: EPO in Berlin the Next Casualty of Battistelli's 'Reform' (Organisational Suicide Plan)

    Months after we learned that a former staff representative in Berlin had been dismissed we come across an anonymous claim that Berlin's 'branch' of the EPO will be folded onto Munich's



  15. Caricature: the Maas App

    The failure of Maas to even bother with regulation of Battistelli (among others) earns him this cartoon



  16. Links 5/12/2016: Linux 4.9 RC 8, DeepMind as FOSS

    Links for the day



  17. Leaked: Battistelli Acknowledges Bunk 'Justice' in About 100 Cases at the Internal Appeals Committee of the EPO

    A look at Battistelli's response to the latest from the International Labour Organisation (ILO), exceptionally delivering two decisions at the very end of last month



  18. The UPC Scam Part V: Unitary Patent Regime a Fantasy of Patent Trolls

    "Good for trolls" is a good way to sum up the Unitary Patent, which would give litigators plenty of business (defendants and plaintiffs, plus commissions on high claims of damages) if it ever became a reality



  19. EPO at a Tipping Point: Battistelli Quarrelling With French Politicians, Administrative Council Urged to Act, Staff Unrest Peaking

    The latest messages about Battistelli's regime at the EPO, which faces growing opposition from more directions than ever before



  20. Quality of Patents at the EPO Dependent on the Appeal Boards When Battistelli Assesses Performance Using the Wrong 'Production' Yardstick

    A look at some recent articles regarding patent quality in the US and in Europe, in particular because of growing trouble at today's EPO, which marginalises the appeal boards



  21. Microsoft's Push for Software Patents Another Reminder That There is No 'New' Microsoft

    Microsoft's continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again



  22. Links 5/12/2016: SparkyLinux 4.5 Released, Kondik Exits Cyanogen (Destroyed After Microsoft Deal)

    Links for the day



  23. Software Patents Continue Their Invalidation Process, But Patent Law Firms Try to Deny This in Order to Attract Misinformed (or Poorly-Informed) Clients

    A roundup of news about software patents and demonstration of the sheer bias in the media, which is mostly controlled or steered by the patent microcosm rather than actual inventors



  24. Patent Trolls of Microsoft and Ericsson Are Trying to Tax Everything, Especially Linux Devices

    An update on Intellectual Ventures and Unwired Planet, whose operations pose a growing problem for Free software and Linux-based products (e.g. Android)



  25. Asia's Patent Litigation Chaos Getting Worse, Reaching Countries in the West, and Sites Like IAM Actively Promote This

    The race to the bottom (of patent quality) in China, the growth of patent trolls in the region, and the ruinous litigation strategy which now spills over even to the US -- through the Eastern District of Texas -- and may inevitably come to Europe (especially if the UPC ever becomes a reality)



  26. More French Politicians Are Complaining That Benoît Battistelli is a Disgrace to France and Urge for Action

    The backlash against Battistelli spills well outside the EPO and is now apparent even at the French National Assembly



  27. Links 3/12/2016: Mageia 5.1 Released, Mozilla Revenue at $421.3M

    Links for the day



  28. Canadian Intellectual Property Office (CIPO) Sees Decline in Patent Applications and It May Actually be a Good Thing

    Challenging the false belief that the more patents society has the better off it will be, citing examples and news from north America



  29. Blockchain Domain Infested With Software Patents, MasterCard Among the Culprits

    Worrying signs that an area of Free/Open Source software innovation is getting impacted by the plague of software patents



  30. Dutch Media Covers Latest EPO Scandals, German Media Totally Absent (a Media Blackout of Convenience)

    Our observations regarding the apparent media disinterest in EPO scandals, especially at the very core of the EPO (principal host country)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts