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07.22.16

Patents Roundup: BlackBerry, Huawei, PTAB, GAO, Aggressive Universities With Patents, and Software Patents in Europe

Posted in America, Europe, Patents at 7:28 am 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: Various bits and pieces of news regarding patents and their fast-changing nature in the United States nowadays

AS WE wish to resume our EPO coverage (there is a lot more material on the way), we have decided to lump together various bits of news from the (primarily US) patent system, subdivided below and split into themes.

BlackBerry Still Dangerous

When Canadian powerhouse BlackBerry introduced not only one but several Android-based phones were were rather relieved, as at one point several years ago it seemed like BlackBerry was slowly transforming to become a patent troll or preparing to sell its very many patents to notorious trolls (or patent assertion firms/entities, PAEs for short). BlackBerry, which is still struggling based on the number of sales, may somehow be bound to become like a patent troll, judging by this new report which makes the company (now run by a Turbolinux executive who previously sold out to Microsoft on the patent front) sound like a PAE. “He also hinted at a future based around brand and technology licensing,” says the summary. Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia). They can always try to blame such aggression on “shareholders!”

China Comes Knocking, Not Knockoffs

“Watch out for BlackBerry because if Android doesn’t give it the success it is looking for, then BlackBerry might simply choose to sue Android OEMs (directly or indirectly, like Ericsson and Nokia).”Yesterday my wife and I had lunch with a businessman who is a distributor of goods from Hong Kong, Taiwan and the Philippines. He warned about Chinese protectionism via SIPO and spoke about unusual restrictions, such as the imperative registration (can take about a year) in order to proceed to the simplest of enforcement inside China (even purely defensive enforcement in the face of counterfeiting or cheap imitations).

Put old stigmas aside for a moment. China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals. It’s not just on the defensive and increasingly it’s on the offensive. “Knocking out Chinese patents may be a lot harder than you think,” IAM wrote the other day and Dr. Glyn Moody, citing his colleague (article from 6 years ago), says “Just As We Warned: A Chinese Tech Giant Goes On The Patent Attack — In East Texas”. So, how is it working out for multinational US companies which relied so much on the USPTO and faithfully (or blindly) trusted it for protectionism? “Techdirt,” Moody explains, “has been warning for years that the West’s repeated demands for China to “respect” patents could backfire badly. In 2010 [before Moody wrote for Techdirt], Mike [Techdirt founder] pointed out that Chinese companies were starting to amass huge patent portfolios, which were soon used as weapons against foreign firms operating in China, most notably Apple.”

“China is not stupid. China is also more than an imitator. It actually brings out some innovations these days and it is willing to go abroad to sue Western rivals.”Based on articles like this new one, not only Huawei is suing; it is also being sued, this time by Samsung (from Korea). Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone. IAM seems to have taken an interest in many east Asian markets recently; one new article is titled “Korea’s antitrust watchdog hints Qualcomm can expect another near $1b fine in patent probe” and another is titled “Transpacific denied Enfish lifeline as Taiwanese companies’ NPE experiment hangs in the balance”. These are IAM’s latest attempts to float software patents because of an old patent case involving Microsoft. To quote: “Sensing a glimmer of hope from the US Federal Circuit’s judgment in Enfish v Microsoft – which went some way towards clawing back patent eligibility for software inventions in the aftermath of the US Supreme Court’s ruling in Alice – Kinglite filed a motion asking that the Central California court to reconsider its decision on the invalidity of the ‘304 patent. However, this was rejected on the basis that Kinglite’s patent does not “disclose any of those mathematical algorithms that actually represent an application of the ‘abstract’ idea of securing the BIOS through authentication, nor a new concrete means of applying those algorithms… [unlike] the patent in Enfish which apparently disclosed a new method of building a database”.”

Enfish does not really change much, but IAM would use anything it can to promote the interests of its paymasters, often unproductive (or counterproductive) patent parasites like this one it has just written about.

USPTO Wants ‘Certainty’

“Samsung and Huawei have become top Android OEMs and there is a lot of money at stake when people pay up to $1,000 per phone.”Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried. Two more articles have been published about the efforts to trigger changes with a new memorandum [1, 2]. The latter says: “The extent to which these disparate analyses can be reconciled will depend, of course, on future case law, leaving the question of subject matter eligibility in its current state of uncertainty.”

When the author (patent maximalist who shamed even a SOCTUS Justice) says “leaving the question of subject matter eligibility in its current state of uncertainty” the simplest translation is “leaving the question of subject matter eligibility in its current state of denying software patents.”

This is a subject which was mentioned here the other day, especially in relation to IBM.

Dying Software Patents

“Certainty (or contrariwise, uncertainty) has become one of those buzzwords that David Kappos and fellow patent maximalists (especially proponents of software patents) use to say that Alice is nasty and needs to be buried.”Upon reassessment most software patents are invalidated these days. There are some exceptions like the BASCOM case and patent lawyers love latching onto those. An article from Jason Rantanen (Patently-O) is an example of this bias among professors as well. He wrote: “Since Alice v. CLS Bank, the Federal Circuit has issued four opinions rejecting a lack of patent eligible subject matter challenge: DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014); Enfish LLC v. Microsoft Corp., 2016 WL 2756255 (Fed. Cir. May 12, 2016); Rapid Litigation Management Ltd. v. Cellzdirect, Inc., 2016 WL 3606624 (Fed. Cir. 2016), and BASCOM v. AT&T, with the latter three coming the last few months.”

Well, still, those are clearly in the minority and they come from a crooked court which is responsible for bringing software patents to the US in the first place.

Another software patent has in fact just died, thanks to Alice again. Patent Buddy wrote that “PTAB Holds Lottery Patent Claims Invalid under 101/ Alice: http://assets.law360news.com/0819000/819445/cbm2015-00105_termination_decision_document_36.pdf …”

“Another software patent has in fact just died, thanks to Alice again.”PTAB is very much dedicated to elimination of such patents because it has no incentive to empower plaintiffs, unlike CAFC. The US needs a lot less of CAFC (or anything like CAFC) and more of PTAB. Don’t be misled by all those spinners who equate PTAB with “death squads”. Patent law firms, for instance, still conveniently cherry-pick cases that support software patents (see “Another Software Patent Survives an Alice Challenge” by Seyfarth Shaw LLP). They put “abstract idea” in quotes (probably scare quotes, depending on style) and even add the word “alleged”, certainly not hiding their bias too well. To quote this latest ‘analysis’ (marketing): “In a rather complex case, Yodlee again focused on the definition of the “abstract idea” by the defendant. Many times, defendants frame the alleged “abstract idea” too broadly to improve their 101 invalidity argument, and courts or the PTAB find the definition is too broad. Other times, defendants frame the abstract idea too narrowly and courts agree with the defendant on the definition of the invention, but find such a narrow definition to not be drawn to an abstract idea. Here, the defendant framed the abstract idea in a manner inconsistent with the claimed invention, and the court found no apples to apples comparison.”

Improving Patent Quality

In our previous post we praised the USPTO (or PTAB by extension) for at least working to improve patent quality somewhat. Professor Crouch says that a new U.S. Government Accountability Office (U.S. GAO) report alluded to patent quality. “Patent Office Must Define and Improve Patent Quality” says the headline and the body of the short article says: “Regarding patent quality, the GAO suggested that the USPTO’s standard of patent quality should focus solely on the basics: defining “a quality patent as one that would meet the statutory requirements for novelty and clarity, among others, and would be upheld if challenged in a lawsuit or other proceeding.” However, patent clarity must be an important element of that definition.”

“For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).”This is good news. Compare that to propaganda sites like IAM where there is a new “REPORT” (i.e. paid-for marketing placement for a firm) titled “International report – Federal Circuit distinguishes between tests for obviousness and patent-eligible subject matter”. For those who don’t know it yet, when IAM precedes something with “REPORT” it’s actually a euphemism for “SPONSORED CONTENT” or “ADVERTISING” (disguised as analysis by some particular firm).

GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.

Using Taxpayers’ Money for Patent Stockpiling

“GAO’s input basically says that the Office must tighten patent scope, whereas the latter (propaganda/marketing) offers ‘tricks’ for getting around scope restrictions.”We quite liked IP Watch‘s article “Patenting By Universities Unhelpful, Paper Says; WIPO Programme To Be Reviewed” [1]. It was published a few days ago, just in time for IAM’s ‘report’ on Harvard University’s use of patents (granted using public money) to sue the private sector. IAM wrote: “Late last month Harvard University took the very unusual step of filing two infringement lawsuits against semiconductor manufacturers Micron and Global Foundries over their alleged infringement of two patents that are owned by the Ivy League institution. That in itself is a pretty rare occurrence – combing the Lex Machina database I found that Harvard has been a co-plaintiff on just one other patent suit since 2011, so it seems that this is the only case in at least the last five years that it has been the sole plaintiff in an action.”

This isn’t the first time that we write about universities getting aggressive with patents, not just selling patents to trolls who become aggressive with these (like Intellectual Ventures). What they do here is extremely unethical and should be grounds or basis for revocation of government grants. When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.

“When universities are becoming like patent trolls (not producing but suing) it’s worse than classic patent trolls because taxpayers fund it and get punished for it, usually for the enrichment of some shady people.”In other IAM propaganda this week, watch this spin on patent litigation decline in the US. So patent trolls, which rely on software patents more than most (and pay IAM), lose momentum. A cause for celebration or for sobbing? Probably for sobbing at IAM. Bezos-owned news site Washington Post meanwhile reports, somewhat contradictorily (in light of the latest figures from Lex Machina), that “Patent lawsuits swell and watchdog says the government is to blame” (they actually decreased year-to-year in the past few months). To quote:

Inventors are filing an exploding number of lawsuits against companies that appropriate their products illegally — and a new report puts the blame for these costly disputes squarely at the feet of the federal government.

The U.S. Patent and Trademark Office is so focused on rewarding its employees for the number of applications they review that the quality of patents they give out is in jeopardy, according to the Government Accountability Office.

The result is that licenses conferring someone’s sole right to an invention are “unclear and overly broad” and vulnerable to infringement by competitors.

“Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less.”Here again we have GAO saying what it has been saying for quite some time. Will anyone listen? Will the advice be taken seriously? See what happened after an Australian (almost) equivalent had said something to the same effect. Local patent law firms got rather aggressive.

Software Patenting in Europe Still Being Attempted

Software patents are not legal in Europe, but the likes of Battistelli don’t obey the rules anyway and more attempts to interject software patents into Europe are made by those who could not care less. According to this article, there’s a Dutch dispute over a patented “superformula” (i.e. algorithm). As the author correctly notes: “Despite the noise being made by Genicap, there’s some question as to whether the company’s patent actually applies to No Man’s Sky. The European Patent Convention says directly that “discoveries, scientific theories, and mathematical methods” are not directly patentable, and US patent law also excepts “disembodied mathematical algorithms and formula” from patentability.”

“The Dutch people don’t need software patents; they’re usually just victims of such patents.”Well, such patents oughtn’t exist in the first place. The last time we heard of software patents in relation to the Netherlands it was Microsoft’s lawsuit against TomTom (Dutch company) and a Dutch developer who had his work killed [1, 2, 3] by a patent aggressor, Shazam. The Dutch people don’t need software patents; they’re usually just victims of such patents.

Related/contextual items from the news:

  1. Patenting By Universities Unhelpful, Paper Says; WIPO Programme To Be Reviewed

    A new publication analysing the relationship between intellectual property and access to science explores ways countries have developed to counter the potential barriers created by IP rights, and says patenting by universities is counterproductive.

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