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08.28.16

The United States Has Gotten Over Software Patents

Posted in America, Patents at 3:04 am by Dr. Roy Schestowitz

The very home (or origin) of software patents is finally breaking up with them

Breakup

Summary: A roundup of new articles about software patents in the United States, 2 years into the post-Alice era (the US Supreme Court deeming patents on software too abstract to have merit)

WE are very pleased to see the USPTO (and also GAO) recognising that patent quality truly counts. The EPO under Battistelli treats quality control as a nuisance, which is a terrible mistake. A lot of people publicly acknowledge right now that software patents are somewhat of a “thing of the past”, even if few of these still trickle in past the examiners (later to be properly scrutinised by PTAB and/or the courts, whereupon there’s a reversal). Jakob Schnaidt, writing for MIP, said this: “In the early 1960s, patent practice was quiet and inventors often faced a hostile environment.” Nowadays, by contrast, “patent practices” take over the system (they write patent law by proxy), tax everything, and inventors face a hostile environment full of patent trolls and fear. Which way — or status quo — will we be better off with? Remember that back in the 1960s there was software but no software patents. In fact, back then FOSS (Free/Open Source software) was the norm; people openly shared source code and didn’t keep it secret. It didn’t work too badly, did it? A lot of software innovation happened around that time, arguably more so than today. Magazines used to publish source code (e.g. for compression) and there was no atmosphere of fear over patent lawsuits in the field of software.

“Remember that back in the 1960s there was software but no software patents.”An industry full of (or rife with) patent lawyers is certainly good for “patent practices” but not for developers. An article which was mentioned here before but reposted/revisited by MIP over the weekend compares the situation in Japan to that of the US. “As Suntory and Asahi settle their patent dispute over non-alcoholic beer,” says the summary, “John A Tessensohn surveys the state of litigation in Japan, and compares it with the United States” (spoiler alert: there’s a paywall).

Japan is arguably the only country in which software patents are potent, other than the United States (which is moving away from them anyway). There are a few other east Asian countries where software patents stand a chance, but then again, quality control there is virtually non-existent. Consider SIPO in China for instance…

Looking at some recent patent news from the US, Cioffi, which was mentioned here before, uses software patents against Google. Cioffi does this in the Eastern District of Texas, the capital of patent trolls where courts advertise themselves as plaintiff-friendly. The US Supreme Court might eventually weigh in (latest reports on the case suggest that the software patents might somehow reach SCOTUS), potentially reaffirming its position on Alice. As one writer put it: “Central to the decision was the court’s interpretation of two of the claims that Cioffi had made in the patents pertaining to a “web browser process” and a “critical file.” While Cioffi’s lawyers maintained that the terms as defined in the claim were narrow and specific in scope, Google argued that there were no common definitions for these terms on which to base an infringement claim.”

After Alice these patents are not likely to survive. Cioffi is wasting its time and money and once it leaves the crooked courts of the Eastern District of Texas it doesn’t stand a chance. These patents are far too abstract and broad, as Google already points out.

“Sadly for lawyers, in order to win cases they need to do more than just call patents “medical” or “health” (to convince judges).”Revisiting MIP, there are a couple of new articles about PTAB’s fourth anniversary [1, 2]. “Covered business method (CBM) proceedings have lost some of their appeal recently,” says one article. The same goes for software patents and “two recent interesting ITC decisions involving PTAB proceedings,” as the latter article puts it, further reaffirming this (see the statistics presented/charted in the pages). The ITC‘s rejections of software (or abstract) patents were covered here very recently in relation to two cases, not just one. There’s almost no hope left for software patents in the US and vocal patent law firms are fuming. Watchtroll, for instance, is now resorting to ‘medi-washing’ (see “life-saving results” in the headline) of software patents, in an order to make it sound as though if the US doesn’t grant software patents, people will die! These truly pathetic tricks that exploit a perceived dilemma over life — a sort of hostage situation or ransom — just come to show how low Watchtroll would stoop (recall how he mocked PTAB a month ago). As we saw at the EPO’s appeal boards, calling software "device" or "medical" does not make the software patentable. And speaking of software patents on something “medical”, here is a new article titled “What have we learned from four years of digital health patent fights?”

“In 2012,” notes the author, “CardioNet sued several companies, including heart-monitoring company MedTel for allegedly infringing five patents by either selling devices or offering cardiac monitoring services using CardioNet’s software.”

We wrote about this case one year ago (“Healthwashing Patents”). Sadly for lawyers, in order to win cases they need to do more than just call patents “medical” or “health” (to convince judges). As this article notes, even Intellectual Ventures does not bother with the strategy. To quote: “The biggest of these NPEs, Intellectual Ventures, hasn’t filed a single suit in the mobile health space according to the firm’s website, though it has litigated aggressively in the telecom and digital camera spaces since 2012.”

“It’s only now, decades too late, that the US Congress, GAO, courts, ITC, PTAB and even the USPTO (however begrudgingly) acknowledge this was a mistake all along.”Yes, the Microsoft-connected Intellectual Ventures even went after Linux with such patents, as we showed earlier this year and last year. Finally, notes this article, Alice changed everything. To quote: “The judges in those two cases cited a Supreme Court precedent, Alice v CSL Bank. Much older precedents have created a category of inventions that are unpatentable because they constitute an “abstract idea”. Under Alice, a 2014 unanimous decision, the Supreme Court devised a test for whether computer software was a patentable invention or just the application of technology to an unpatentable human process, and therefore an unpatentable abstract idea. Both American Well and Jawbone failed that test.”

Patent law firms will tell us that this is bad news (for “innovation” of course!); so will officials-turned-lobbyists like David Kappos. But the reality is, such patents should never have been granted at all. It’s only now, decades too late, that the US Congress, GAO, courts, ITC, PTAB and even the USPTO (however begrudgingly) acknowledge this was a mistake all along. Better fix the system; better late than never.

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