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08.25.16

PTAB Emerges as Hero of USPTO Because Quality of Patents Improves, Software Patents Are Effectively Dead (or Dying Once Reassessed)

Posted in America, Patents at 2:20 pm by Dr. Roy Schestowitz

A reminder of why the EPO‘s boards of appeal should be broadened, not squashed/scuttled/exiled

David Ruschke

Summary: With help from the Patent Trial and Appeal Board (PTAB) — not just patent courts — software patents drop like flies by the thousands

TECHRIGHTS is gratified to see a decade of activism and long-sought reforms coming to fruition. A decade ago we could probably be called “crazy” for suggesting that software patents would one day be kaput even at the USPTO. But it’s actually happening and proponents of software patents are panicking (even writing “ALICE” in all CAPS or resorting to very old articles that are somehow supportive of their argument). No longer can they make a living by taxing software developers like yours truly and millions of people all around the world. Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.

“Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.”“Reading the Federal Circuit’s tea leaves on software patentability” is a new article whose summary introduces Alice: “In June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea.”

From the body of the article: “Until two years ago, software was generally patentable in the United States. Section 101 of the Patent Act governs what subject matter is patent eligible, excluding among other things abstract ideas from being patented.

“But in June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea. The Court held that that merely requiring “generic computer implementation” failed to transform an otherwise abstract idea into a patent-eligible invention.”

“We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents.”Well, the Court of Appeals for the Federal Circuit (CAFC) has had to obey what the highest possible court said, even begrudgingly. That’s good for software developers, not necessarily FOSS developers but all developers in every country. “If you’re curious,” wrote a person on this new article about FOSS in Android, for lack of features “the reason is software patents.”

We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents. Once they received a lawsuit threat, developers chose an immediate retreat. How does that promote/advance science and technology? It actually accomplishes the very opposite.

Deciding on matters like software patentability without even knowing how programming works and how computers work is outrageous, but it happens all the time. It has in fact become the norm. The following new article, which is behind a paywall, is titled “Patent Judges Should Be Scientists, Too” (Wall Street Journal). It says: “Patents are the lifeblood of biotechnology, the force that motivates companies to develop innovative medical treatments and bring them to market. The trouble is that these patents must be enforced in a court system that isn’t set up to adjudicate highly technical matters—resulting in rulings that seem arbitrary or even scientifically suspect.”

“They can discern or tell apart innovation from junk.”That is often true and applicable when it comes to copyrights in relation to code (see for example Oracle’s case against Google). At PTAB, by contrast, the chiefs are scientists, so no wonder they toss patents in the trash all the time. They can discern or tell apart innovation from junk.

MIP has a new article about PTAB’s chief judge Ruschke. Here is the part which is not behind a paywall:

In a call with reporters, the Patent Trial and Appeal Board chief judge said the number of judges now is enough, praised the impact of submitting expert declarations with preliminary responses, and said the Board was open to going beyond the 12-month statutory deadline for issuing final written decisions

David Ruschke, who took over as chief judge of the Patent Trial and Appeal Board (PTAB) in May, is satisfied with both the number of quality of judges he has at the Board. Ruschke previously managed the intellectual property portfolio of Medtronic’s CSH unit.

“The number of our judges that we have now at 270 is essentially where we are going to be at going forward,” he told reporters on a conference call. “That groups of judges is going to be providing I think a wonderful basis for the PTAB going forward.”

PTAB has been a leading enforcer of Alice (it’s a lot quicker than clueless, technology-illiterate courts) and patent lawyers hate it. They call it a “death squad”. Here is a patent lawyers’ advocacy site, IAM, saying what most recently happened at PTAB: “For the third time in as many post-grant reviews decided by the Patent Trial and Appeal Board (PTAB), the PTAB has declared a patent to be invalid based on the legal framework established in the 2014 Supreme Court decision in Alice Corporation Pty Ltd v CLS Bank International.”

Looking at another patent lawyers’ site, people are visibly upset at Alice. One of them wrote:

You must live in a different universe. The Supreme Court has been down right hostile to the CAFC.

One only has to read the fractured In re Alice decision (prior to the Supreme Court rewriting of law), to see what a mess the Supreme Court has made in its pursuit of power.

These are “captive patent courts,” Benjamin Henrion responded. Here is another comment:

The following link also supports the idea of tensions between the Supreme Court and Federal Circuit: http://www.abajournal.com/magazine/article/tug_of_war_over_interpretations_of_patent_law_continues_between_federal

They seem to be begging for some scandal that can somehow bring software patents back to life. Here is what Patently-O wrote about CAFC a few days ago: “Earlier this year, the Federal Circuit in a 2-1 panel decision in In re Queen’s University held there was a privilege over communications between a patent agent and client with respect to patent prosecution. That decision is here. I gave a talk earlier this year about how I think this case creates some risks even if it is followed, and the powerpoint for that talk is here.”

“In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away.”PowerPoint is Microsoft lock-in, but in another new Patently-O post CAFC got mentioned in relation to OtterBox. To quote: “A substantial portion of the Federal Circuit’s appellate involve customs disputes stemming from the Court of International Trade (CIT). [...] In interpreting the statute, the Federal Circuit has taken the approach of construing HTSUS terms according to “common and commercial meanings, which we presume are the same.” Although not required by the statute, the court has also taken to relying upon the explanatory notes in the World Customs Organization tariff schedule to aid its interpretation. [...] In siding with OtterBox, the federal circuit stepped through Heading 4202 and found, inter alia, that the OtterBox cases would only fit as “similar containers,” but that they were not really similar. The important distinction is that OtterBox cases are designed so that the device is fully functional while in the case – that is not true for any of the cases listed in the heading.”

In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away. This clearly bothers the software patents proponents, who as usual resort to BASCOM and Enfish (the few and rare exceptions]. Alluding to BASCOM and Section 101, Watchtroll writes somewhat of a rant. It starts innocently enough. “Last week the Patent Public Advisory Committee (PPAC) held its quarterly meeting at the United States Patent and Trademark Office (USPTO). These quarterly meetings give those on PPAC an opportunity to be brought up to speed about what is going on inside the USPTO, and to ask questions of various senior officials,” Watchtroll writes. But then, this Watchtroll who stoops very low in his attacks on PTAB ended up concluding with: “Could the Patent Office address this differently? Yes. Is the way Patent Office senior officials are addressing 101 in the guidance incorrect or outside of the envelope of reasonableness? No. Is the way examiners are applying 101 in keeping with the guidance? Absolutely not. Is this one big mess? You bet!”

“Software patents are a dying breed of patents.”So, doing the right thing is “one big mess”. Right…

The patent microcosm (mostly lawyers) just keeps lobbying the USPTO in order to make it their eternal vassal on matters such as patent scope. They just try to undermine Alice rather than accept the decision and move on. They even got Kappos in lobbying mode, utilising his connections (he is the former Director of the USPTO) to throw away Alice and attempt to restore software patenting. Another new example of this reluctance to accept the new formality can be seen in this tweet that says “Drafting claims: preambles? Dangerous. Just analyzed BASCOM: preamble may establish what a claim is “directed to” (abstract idea) for Alice.”

No matter how artful they try to be in interpreting Alice, the statistics speak for themselves, both at PTAB and at CAFC. Software patents are a dying breed of patents. Sooner or later, once challenged sufficiently, all ‘pure’ software patents turn out to be abstract.

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