EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.27.16

Beware the Patent Law Firms Insinuating That Software Patents Are Back Because of McRO

Posted in America, Patents at 11:26 am by Dr. Roy Schestowitz

Drop
McRO at the Court of Appeals for the Federal Circuit (CAFC) is just a drop in the ocean

Summary: By repeatedly claiming (and then generalising) that CAFC accepted a software patent the patent microcosm (meta-industry) hopes to convince us that we should continue to pursue software patents in the US, i.e. pay them a lot more money for something of little/no value

THE PREVIOUS post, a short article regarding SCOTUS, mentioned the legacy of Alice. It’s a living nightmare for patent law firms, some of which reportedly went out of business (we covered one high-profile example exactly a month ago).

“It’s a living nightmare for patent law firms, some of which reportedly went out of business…”“Once a patent is deemed to be directed to an abstract idea, the burden appears to shift against the patentee,” Patently-O wrote yesterday in relation to Alice step 2 (the abstractness test), noting also that “Enfish substantially increased the overlap between Steps One and Two of the eligibility analysis. Typically, if a claim includes an eligible inventive concept then it will not be deemed directed to an abstract idea in the first place.”

Enfish hardly changed anything at all, but patent law firms kept talking about it and shoving it into the media for about a month! They were hoping to change policy and practice by means of selective emphasis. It’s a politician’s foreign policy trick, e.g. misleading chronology or selective coverage of just one side’s agony.

Take the area of digital payment patents. They’re basically as dead as can be and statistics associated with failure/success rate are undermining Patently German‘s case when he says that “Mining giant BHP Billiton introduces Ethereum-based file sharing sys to improve suppl chain. Pioneering non-financial #blockchain application” (Accenture is trying to get patents in this area, as we noted earlier this week).

“They were hoping to change policy and practice by means of selective emphasis.”Thankfully, with Alice as a precedent, software patents in this area are very much buried (about 90% of those being tested in a court or an appeal board get invalidated).

In relation to this new article, one patent attorney asks: “Will there be a war for Blockchain patents? No, because Alice is killing most all the patent applications” (well, good).

The EPO may be going in the opposite direction, but in the US there are more appeals right now and patents are being crushed in this area a lot more often than they are being upheld. It’s too risky to even file a lawsuit with such patents. In fact, it’s dangerous to even assume that once granted a patent, not to ever be asserted in a court of law, this patent would somehow be safe. The Patent Trial and Appeal Board (PTAB) changed a lot of this by introducing inter partes reviews (IPRs).

“Referring to the headline,” Patently-O wrote about inter partes reviews (PTAB appeals), “The PTAB (acting on behalf of the PTO Director) held that traditional equitable defenses do not apply to IPR proceedings. Because this holding was made as part of an IPR institution decision, the appeal was dismissed for lack of jurisdiction.”

“In fact, it’s dangerous to even assume that once granted a patent, not to ever be asserted in a court of law, this patent would somehow be safe.”So in this particular case, PTAB was not effective for clerical or bureaucratic reasons rather than technical reasons.

Speaking of the above-mentioned PTO Director, the previous one, David Kappos, who was responsible for a lot of the mess including a surge in patent trolling and software patents, is now in the lobbying industry. He is trying to use his previously-acquired connections to influence the law on behalf of massive corporate clients such as Microsoft, IBM, and Apple. He wants to marginalise Alice, under the guise of “clarity”. He is not alone, either. The patent microcosm backs him and here we have a couple of patent law firms putting forth their interests through Watchtroll — a site which cannot stop attacking the Supreme Court’s judgement because it wants software patents (profit). “Is it Time To Amend 101?” says their headline. But why? It’s fine. Unless one is a patent lawyer that strives to patent everything…

Jonas Bosson from FFII Sweden told us about McRO, stating that “the decision is bad. Have you seen any good analysis of the effects?”

“I’d like EFF or TechDirt to put some attention to this, as it seems software patent proponents are playing this big.”
      –Jonas Bosson
“I have seen dozens,” I told him. “Same as in Enfish, lots of noise, no profound effect. SCOTUS won’t revisit software patents any time soon.”

“I’d like EFF or TechDirt” he responded, “to put some attention to this, as it seems software patent proponents are playing this big.”

Yes, software patents proponents like Microsoft and patent law firms can’t stop hyping up McRO, as if they want us to forget that CAFC broadly rejects software patents. Here is Bilski Blog (proponent of software patents) coming up with “More Lessons from McRo” (later reposted in some sites of patent lawyers). The site says “there are a couple of issues that McRo should have addressed but did not. First, the court could have further clarified that the preemption analysis should be from the perspective of a person of ordinary skill in the art (POSITA), and not a lay court. Using POSITA makes the analysis objective, technology neutral, and adaptive to changes in technology over time. POSITA is the only objective framework in the patent law and is already employed for claim construction, enablement, written description, obviousness, and the doctrine of equivalents. My partner Dan Brownstone and I set forth this theory, what we called Objective Preemption, in our amicus brief in Alice.”

“Well, such is the nature of selling agenda (and one’s own services)…”One does not need to look too far to realise what they pushed for in Alice, and the same goes for Bilski. Software patents profiteers can’t stop lobbying for change and even more than 2 weeks after McRO we still see propaganda in the form of ‘analysis’ [1, 2] or “Free Webinar”. One example we found yesterday was published by Gunnar Leinberg and Bryan Smith from LeClairRyan. “Federal Circuit Provides Additional Support to Software Patents” was their misleading headline. How come they never wrote anything about any of the decisions where CAFC looked into software patents and found them invalid? Well, such is the nature of selling agenda (and one’s own services)…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Weaponising Russophobia Against One's Critics

    Response to smears and various whispering campaigns whose sole purpose is to deplete the support base for particular causes and people; these sorts of things have gotten out of control in recent years



  2. When the EPO is Run by Politicians It's Expected to Be Aggressive and Corrupt Like Purely Political Establishments

    António 'Photo Op' Campinos will have marked his one-year anniversary in July; he has failed to demonstrate morality, respect for the law, understanding of the sciences, leadership by example and even the most basic honesty (he lies a lot)



  3. Links 16/6/2019: Tmax OS and New Features for KDE.org

    Links for the day



  4. Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

    Almost a week ago the 'world tour' of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)



  5. 2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

    With a fortnight left before the second half of the year it seems evident that software patents aren't coming back; the courts have not changed their position at all



  6. As European Patent Office Management Covers up Collapse in Patent Quality Don't Expect UPC to Ever Kick Off

    It would be madness to allow EPO-granted patents to become 'unitary' (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)



  7. António Campinos -- Unlike His Father -- Engages in Imperialism (Using Invalid Patents)

    Despite some similarities to his father (not positive similarities), António Campinos is actively engaged in imperialistic agenda that defies even European law; the EPO not only illegally grants patents but also urges other patent offices to do the same



  8. António Campinos Takes EPO Waste and Corruption to Unprecedented Levels and Scale

    The “B” word (billions) is thrown around at Europe’s second-largest institution because a mischievous former EUIPO chief (not Archambeau) is ‘partying’ with about half of the EPO’s all-time savings, which are supposed to be reserved for pensions and other vital programmes, not presidential palaces and gambling



  9. Links 15/6/2019: Astra Linux in Russia, FreeBSD 11.3 RC

    Links for the day



  10. Code of Conduct Explained: Partial Transcript - August 10th, 2018 - Episode 80, The Truth About Southeast Linuxfest

    "Ask Noah" and the debate on how a 'Code of Conduct' is forcibly imposed on events



  11. Links 14/6/2019: Xfce-Related Releases, PHP 7.4.0 Alpha

    Links for the day



  12. The EPO is a Patent Troll's Wet Dream

    The makers of software and games in Europe will have to spend a lot of money just keeping patent trolls off their backs — a fact that seems to never bother EPO management because it profits from it



  13. EPO Spreading Patent Extremists' Ideology to the Whole World, Now to South Korea

    The EPO’s footprint around the world's patent systems is an exceptionally dangerous one; The EPO amplifies the most zealous voices of the patents and litigation ‘industry’ while totally ignoring the views and interests of the European public, rendering the EPO an ‘agent of corporate occupation’



  14. Guest Post: Notes on Free Speech, and a Line in the Sand

    We received this anonymous letter and have published it as a follow-up to "Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF"



  15. Links 13/6/2019: CERN Dumps Microsoft, GIMP 2.10.12 Released

    Links for the day



  16. Links 12/6/2019: Mesa 19.1.0, KDE neon 5.16, Endless OS 3.6.0 and BackBox Linux 6

    Links for the day



  17. Leaked Financial 'Study' Document Shows EPO Management and Mercer Engaging in an Elaborate “Hoax”

    How the European Patent Office (EPO) lies to its own staff to harm that staff; thankfully, the staff isn't easily fooled and this whole affair will merely obliterate any remnants of "benefit of the doubt" the President thus far enjoyed



  18. Measuring Patent Quality and Employer Quality in Europe

    Comparing the once-famous and respected EPO to today's joke of an office, which grants loads of bogus patents on just about anything including fruit and mathematics



  19. Granting More Fundamentally Wrong Patents Will Mean Reduced Certainty, Not Increased Certainty

    Law firms that are accustomed to making money from low-quality and abstract patents try to overcome barriers by bribing politicians; this will backfire because they show sheer disregard for the patent system's integrity and merely lower the legal certainty associated with granted (by greedy offices) patents



  20. Links 11/6/2019: Wine 4.10, Plasma 5.16

    Links for the day



  21. Chapter 10: Moving Forward -- Getting the Best Results From Open Source With Your Monopoly

    “the gradual shift in public consciousness from their branding towards our own, is the next best thing to owning them outright.”



  22. Chapter 9: Ownership Through Branding -- Change the Names, and Change the World

    The goal for those fighting against Open source, against the true openness (let's call it the yet unexploited opportunities) of Open source, has to be first to figuratively own the Linux brand, then literally own or destroy the brand, then to move the public awareness of the Linux brand to something like Azure, or whatever IBM is going to do with Red Hat.



  23. Links 10/6/2019: VLC 3.0.7, KDE Future Plans

    Links for the day



  24. Patent Quality Continues to Slip in Europe and We Know Who Will Profit From That (and Distract From It)

    The corporate media and large companies don't speak about it (like Red Hat did before entering a relationship with IBM), but Europe is being littered and saturated with a lot of bogus software patents -- abstract patents that European courts would almost certainly throw out; this utter failure of the media to do journalism gets exploited by the "big litigation" lobby and EPO management that's granting loads of invalid European Patents (whose invalidation goes underreported or unreported in the media)



  25. Corporate Front Groups Like OIN and the Linux Foundation Need to Combat Software Patents If They Really Care About Linux

    The absurdity of having groups that claim to defend Linux but in practice defend software patents, if not actively then passively (by refusing to comment on this matter)



  26. Links 9/6/2019: Arrest of Microsoft Peter, Linux 5.2 RC4, Ubuntu Touch Update

    Links for the day



  27. Chapter 8: A Foot in the Door -- How to Train Sympathetic Developers and Infiltrate Other Projects

    How to train sympathetic developers and infiltrate other projects



  28. Chapter 7: Patent War -- Use Low-Quality Patents to Prove That All Software Rips Off Your Company

    Patents in the United States last for 20 years from the time of filing. Prior to 1994, the patent term was 17 years from when the patent was issued.



  29. The Linux Foundation in 2019: Over 100 Million Dollars in Income, But Cannot Maintain Linux.com?

    Today’s Linux Foundation gets about 0.1 billion dollars per year (as explained in our previous post), so why can’t it spend about 0.1% of that money on people who write for and maintain a site that actually promotes GNU/Linux?



  30. Microsoft and Proprietary Software Vendors a Financial Boon for the Linux Foundation, But at What Cost?

    The Linux Foundation is thriving financially, but the sources of income are diversified to the point where the Linux Foundation is actually funded by foes of Linux, defeating the very purpose or direction of such a nonprofit foundation (led by self-serving millionaires who don't use GNU/Linux)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts