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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)…

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