09.21.16

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The Patent Law Firms in the US Relentlessly Lobby for Software Patents Resurgence by Placing Emphasis Only on Rare Outcomes

Posted in America, Courtroom, Patents at 6:13 am by Dr. Roy Schestowitz

The fine art of cherry-picking…

On cherry-picking

Summary: Decisions against software patents continue to be ignored or intentionally overlooked by patent law firms, which instead saturate the media with the few cases where courts unexpectedly rule in favour of software patents

LAST week we said that the patent microcosm would start amplifying (repeatedly mentioning and hyping up) McRO for software patents agenda [1, 2, 3]. We have since then seen several dozens of so-called ‘analyses’ from the patent microcosm (these drown out actual press articles) and just like with Enfish, this can on for weeks (here are some of the latest examples [1, 2, 3]). It’s not hard to see what patent law firms are trying to accomplish; they want more power for themselves at the expense of everybody else.

“It’s not hard to see what patent law firms are trying to accomplish; they want more power for themselves at the expense of everybody else.”The Eastern District of Michigan (not Texas) has just had a court foolishly accept a software patent. To quote the patent lawyers’ media: “Bruce Zak, an individual, sued Facebook, Inc. for patent infringement in the U.S. District Court for the Eastern District of Michigan on two of his software patents — United States Patent Nos. 8,713,134 and 9,141,720. Facebook moved for summary judgment arguing that the subject matter of the two patents is not eligible for patent protection under § 101. The District Court denied Facebook’s motion for summary judgment even though the representative claim was found to be directed to an abstract idea, since the claim was further found to recite enough details to specify how a solution will be implemented that addresses a business challenge particular to the Internet.”

Facebook itself has been stockpiling and suing with software patents as well.

In other news, trolls in the Eastern District of Texas (we mentioned this before because Acacia is involved) got some money out of Apple. As MIP put it: “A jury in the Eastern District of Texas has found Apple willfully infringed a wireless technology patent, and awarded $22.1 million to Acacia subsidiary Cellular Communications Equipment. The case is before Judge Nicole Mitchell.”

“Facebook itself has been stockpiling and suing with software patents as well.”Don’t sob for Apple. As Daniel Nazer (EFF) shows this week (see image), “Apple has applied for a utility patent on a white paper bag. Here, in its entirety, is Claim 1 of the application…”

And speaking of Apple, here we have CAFC interfering in PTAB matters, in order to help Apple in “patent bully” mode with its software patents. To quote this short report from Patently-O: “In a divided opinion, the Federal Circuit has sided with Apple Inc. and reversed the Patent Trial & Appeal Board (PTAB) — finding that no substantial evidence supported the USPTO’s factual findings regarding what was taught by the prior art. Application No. 11/968,067 (2007 priority date). The application here is one of 75+ that all claim priority to the same 2007 provisional application.”

“The patent microcosm tries hard to restore the potency of software patents and we oughtn’t lose sight of that.”Patently-O published another new post about CAFC, this one about Yeda Research v Abbott. “On appeal,” explained Patently-O, “the Federal Circuit ruled that the original disclosure “inherently discloses the remaining amino acids in the N-terminus sequence” and therefore “serves as adequate written description support for the patent claiming TBP-II.””

The Court of Appeals for the Federal Circuit (CAFC) has generally been more vigilant and strict after Alice, but historically it was very lax/lenient, especially when it comes to software patents. Therefore, it’s worth keeping abreast of what it does, especially after the McRO decision. There is enormous pressure being put on SCOTUS (or Section 101), CAFC, PTAB and even US Congress. The patent microcosm tries hard to restore the potency of software patents and we oughtn’t lose sight of that.

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