06.26.16

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Patents Roundup: Bad Quality (USPTO), Bad Analysis (India), Bad Microsoft, Bad Actors (Trolls), Bad Scope (Software Patents), and the Ugly

Posted in America, Law, Patents at 3:36 pm by Dr. Roy Schestowitz

Learning from bad aspects or what has gone awry in the patent world

A bad dog

Summary: A mishmash of news about patents, mostly regarding the United States, and what can be deduced from that at the moment

THIS coming week promises to be rather big and historic, at the very least in Europe. It’s not just because of Brexit and its impact on the UPC but also because of the Administrative Council’s meeting. Big news is definitely afoot. In order to get some less important news out of the way in preparation for tomorrow (I’m getting back home after 3 days’ holiday), below are bits and pieces of relevance. It’s all from outside Europe.

“With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment?”

USPTO’s Neglect of Patent Quality a Bursting Bubble

IAM, which is preaching under the guise of 'journalism', actually bemoans not the quality of USPTO patents being terrible and truly worth of cleanup by PTAB. Instead, it keeps moaning about the ‘worth’ of patents, as if not quality control is the problem but lenience of courts etc. “Judge Newman alone again as she warns of devastating loss of public confidence in US patent system” is the latest headline. IAM being IAM, it’s amusing to see how shallow the agenda is to see.

“It sure looks like pride is harder to derive these days from USPTO employment.”For details about the low quality of today’s USPTO patents, see the new article titled “General Mills Granted A Design Patent On A Tortilla Bowl Because Why Even Pretend Anymore?”

To quote the opening part alone: “While we’ve talked in the past about how absurd design patents can get, it’s worth pointing out that, hey, shit’s not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the “invention” in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple’s design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of “inventions” that barely work up the sweat of an “inventor” should seem absurd to you, as should the frequency with which the public is left wondering where exactly the “invention” is in any of this.”

“Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying.”With patent ‘quality’ like this, why even pretend that the USPTO does legitimate quality (or novelty) assessment? We were recently contracted in relation to someone who works for the USPTO and does not wish to be described as such. It sure looks like pride is harder to derive these days from USPTO employment. Today’s USPTO is not what it used to be; rubber-stamping millions of patent applications for large corporations whose managers become USPTO Directors isn’t so scientific anymore.

Trying to Push Software Patents Into India

Patent lawyers everywhere have been trying to spread software patents to just about everywhere on the planet, irrespective of what software developers are saying. Last week, for example, Germany’s Bastian Best asked: “Targeted advertising is patentable in India if a piece of hardware is claimed?” Software patents are not legal in India, but Kenneth Saldanha, one of those hoping to change that, wrote:

A Software Patent in India is a tricky issue. First of all, let us understand what a Patent is. A patent is essentially a set of rights granted to a person in respect of something new (an invention) created by him. This ‘something new’, under the Indian law i.e. the Patents Act, 1970 is called an ‘invention’ and includes a software as well.

No, not really. India’s Patents Act excludes that and those hoping to change that are the same people who say software patents are possible and legal in Europe (or Germany, which is consistently more lenient on the matter). Even Battistelli’s EPO cannot change that, not without the UPC or some other new loophole.

Microsoft Bought a Patents Dud and Engages in Trolling (Through “Microsoft Tech Licensing”)

“Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll).”“At a glance,” IP Watch wrote some days ago, “Microsoft’s portfolio of US patents currently stands at approximately 50,000, compared to LinkedIn’s US patent portfolio of 1,085. Microsoft is well known for asserting its patent rights and has even created a licensing entity Microsoft Tech Licensing Ltd.”

Put another way, Microsoft acts like a patent troll (Microsoft Tech Licensing is technically a patent troll). We wrote over a thousand posts on this subject alone.

Even Microsoft-connected sites have already explained why “Microsoft’s LinkedIn Acquisition Is a Bad Move”. Compare that to other failing companies (LinkedIn had gotten into serious issues before Microsoft placed a bid) that actually have a lot of patents. As IAM put it the other day: “In terms of IP value creation Blackberry is one operating company worth keeping a close eye on. The Canadian tech giant has a huge portfolio of assets – around 38,000 – and has a brand with global cachet; but it is slowly withering in its legacy handset market and is transitioning away from manufacturing devices.”

“Will software patents ever make a comeback in the US? We sure hope not.”We previously wrote explanatory posts on how BlackBerry (or RIM) was becoming a patent troll. Thankfully, many of their patents would no longer be valid or possible to uphold in a court of law. Not in the US and not even in Canada (home country). See the paper “Patents and the Wealth of Nations” by Stephen Haber from Stanford University, published almost 2 months ago.

The Fight Against Patent Trolls Continues

“There are even uglier aspects inside law firms which focus on/pertain to patents and their clients.”Writing about the pro-patent trolls Halo decision, a comment from someone called Mike at IP Kat says that “influential Senator Orrin Hatch has filed an amendment to a funding bill criticizing the Supreme Court’s decision in Halo. Basically, it states that Congress considered the Seagate test and did not act to change it, thus Congress’ intent is for the Seagate test to govern.”

Destruction of Software Patents Continues

Remember some old news about CAFC ruling against software patents, in this case a “patent infringement claim filed by software company Rosebud.” There have been so many such cases since, including a lot from the court that initially authorised software patents in the US. Will software patents ever make a comeback in the US? We sure hope not.

The Ugly Side of Patent Practice

A few days ago Patently-O wrote about “Sexism in Patent Practice”, taking note of what’s characterised as “stories of appalling sexism. Each had been taken as the assistant for the actual lawyer. Each had been called things like “missy” and the like. And each had experienced this at high levels of practice, in recent years, not at some point long ago.”

“That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.”There are even uglier aspects inside law firms which focus on/pertain to patents and their clients. “Commission finally targets Patent Boxes as tools of fiscal evasion,” Benjamin Henrion wrote, “not sure they cover EU2EU transfers” (reference in europa.eu). Prior to it, Francisco Moreno wrote about this as well, but in Spanish (“Exit taxation en paquete anti-evasión de la Comisión:si sacas patentes fuera de la UE pagarás en función de su valor”), his native language.

This serious subject was covered here before [1, 2, 3, 4, 5, 6]. That’s where particular patents (or patent holders) do not just have ethical issues but also criminal/forensic issues.

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