10.02.16

Several Software Patents of Microsoft’s Patent Troll Intellectual Ventures Have Just Been Trashed by the Federal Circuit, But Patent Law Firms Keep Quiet About It

Posted in America, Patents at 9:57 am by Dr. Roy Schestowitz

Among other patents on software, which the Court of Appeals for the Federal Circuit (CAFC) has just practically trashed

The art of cherry-picking, courtesy of the patent microcosm, is nothing new or unpredictable

Summary: A roundup of recent news about software patents, patent trolls, the growing realisation that they are both a problem (connected to one another), and the deafening silence from the patent microcosm, which still obsesses over a case from last month (McRO) while ignoring recent cases that are not so ‘convenient’ to the microcosm’s agenda

“The Industry Patent Purchase Program (IP3),” according to IAM, “has bought 78 US patent applications and grants according to data from the USPTO’s assignment database.” Well, USPTO patents are not worth much, let alone mere applications, especially if these pertain to software. Amid tightening of patent scope in the US we see a departure (especially in the courts) from patents on abstract, immaterial things. That’s just the reality these days, but the patent microcosm refuses to accept it and in the month of September it just couldn’t (still can’t) stop with the McRO case nonsense. What we mentioned in the previous post about PTAB is that the patent microcosm also attempts to undermine quality control.

The above finding from IAM may be connected to this news about “[a]ssignment documents now publicly available through USPTO website”. To quote: “The US Patent and Trademark Office now makes copies of patent assignments available for immediate download. Although a seemingly small gesture, the new service is valuable to patent practitioners and IP professionals who often need expedited access to assignment records for diligence purposes or otherwise to diagnose inventorship or ownership issues.”

“They’re looking for new loopholes in the wake of McRO, but it’ll go down the ashtray of history like Enfish did, changing nothing substantial unless or until the Supreme Court tackles the subject again.”Adorning an IAM endorsement (as if that’s much of an endorsement at all), Steve Lundberg, the longtime software patents propagandist, milks the McRO nonsense over at his blog. It’s more of the same at Watchtroll (heckling courts that stand in the way of software patents) and Sheppard Mullin Richter & Hampton, which is also milking McRO [1, 2] for self promotion. They’re looking for new loopholes in the wake of McRO, but it’ll go down the ashtray of history like Enfish did, changing nothing substantial unless or until the Supreme Court tackles the subject again.

Here come Knobbe Martens Olson & Bear LLP, highlighting another one of those loopholes for software patents. To quote the gist: “Can boilerplate language describing possible variations to an invention ever impact validity of a patent? Many software patents include standard “boilerplate” text describing many ways to implement an invention, such as by discussing execution of the software on a smart phone, laptop, mainframe, PDA, audio player, or even a refrigerator! Often, such boilerplate language is added to patent applications with consideration of broadening the potential scope of the recited terms or providing additional support for recited claim terms.”

This is just an attempt to ascribe physical attributes to immaterial things. The same trick has been attempted in many other places around the world and here we have Korean lawyers reposted, wherein they try to argue for software patenting because Korea’s KIPO rejects such patents, still (at least in theory/principle, unless one exploits the loopholes).

“This system seems to favour large corporations and patent trolls, not sole/lone inventors. That’s just how it was designed and optimised for (after much lobbying).”What kind of a company celebrates software patents after Alice? They’re worthless, no matter what the USPTO (rubberstamp-happy) says, but some still advertise those in press releases. According to this latest overview from Patently-O, SCOTUS won’t be contradicting or revisiting Alice any time soon, so software patents are pretty much useless in the US (for the foreseeable future). There is a growing concern at SCOTUS about massive damages (article behind paywall) as it’s easy to see that the system is favouring large corporations when one can make billions from a single low-quality patent. There have been dozens of articles in English over the weekend about a case which we covered before. Among many reports about it we now have “Apple loses FaceTime patent retrial, ordered to pay $302.4 million” and “Apple Ordered to Pay $302 Million in Damages to VirnetX in Patent Retrial”.

Francis Jeffrey, who has patents in the US, told me: “So far I got nothin’ from mine…”

This system seems to favour large corporations and patent trolls, not sole/lone inventors. That’s just how it was designed and optimised for (after much lobbying).

Consider this news about Intellectual Ventures, or more specifically an offspring of the world’s biggest patent troll, bankrolled by Microsoft and Bill Gates. There appears to be somewhat of a rebrand/offshoot:

The Invention Development Fund (IDF), formerly one of the three main fund groups under Intellectual Ventures’ (IV) management, relaunches under a new brand today as it marks the final step in its spin-out from the patent aggregation firm.

The fund – the divestiture of which was revealed by its executive vice president Paul Levins at IPBC Global in Barcelona back in June – will henceforth be known as Xinova. This moniker incorporates Chinese and Latin terms for ‘new’, reflecting the fund’s long-held objective of bridging the gap between East and West when it comes to high-tech investment and IP commercialisation.

It has become hard to keep track of these trolls and satellites. Intellectual Ventures reportedly has several thousands of them and the above might also be targeting China, where there is growing patent activity (see recent reports from IAM and from MIP).

“Suffice to say, patent law firms hardly say a word about it.”Japan, by contract, studies the issue of patent trolls, according to this IAM report that says: “This week Japan’s Yomiuri Shimbun reported that the country’s Ministry of Economy, Trade and Industry (METI) would be undertaking a study of NPE [troll] activity, with a view to making policy recommendations for the sector’s regulation. A panel including lawyers and academics could begin looking into the matter as early as October, according to the report, which suggested that part of the impetus for the study was the observation that NPEs [trolls] are expanding their activities beyond the United States.”

They really need to stop it and fast, as Japan and other nations in east Asia are beginning to have a trolls epidemic [1, 2]. This expanded to nations further south (Singapore for example) and even Australia, where the subject of software patents is increasingly coming up these days. “Australia’s patent opposition system is well established, says Wayne Condon, but it’s important to note the differences between standard patents and innovation patents,” according to this new article from MIP. There are already some famous patent trolls in Australia, such as Uniloc.

Going back to Intellectual Ventures, the world’s biggest troll, CAFC has just reportedly “Killed 3 Anti-Malware IV Patents under 101/Alice today: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1769.Opinion.9-28-2016.1.PDF …” (i.e. the usual).

“Why are law firms ignoring the latest rulings AGAINST software patents at CAFC?”Suffice to say, patent law firms hardly say a word about it. The patent microcosm is instead cherry-picking for person gain, again (new examples in [1, 2, 3, 4]), bothering to mention only Federal Circuit decisions that bolster their narrative of software patents rebound. Section 101 continues to invalidate a lot of software patents almost every week, but patent law firms intentionally don’t write about those cases. One of them wrote that “Dyk wanted 2 prove he could out “abstract” Judge Stark who now will pretty much use 101 for every #patent case Im sure” (as if that’s a bad thing).

Why are law firms ignoring the latest rulings AGAINST software patents at CAFC? Are there any valid excuses for it? This has already become a rhetorical question. Patent lawyers would rather we obsess over McRO almost a month later (latest examples in [1, 2, 3]) and not (or hardly) mention cases like Cox Communications, Inc. v Sprint Communication [1, 2]. 5 days ago an article by Alex Okuliar and James J. Tierney from Orrick went with the headline “Are Patent Rights Poised For A Resurgence?”

“It seems as though software patents are losing again (in the US and beyond), so patent lawyers try to keep quiet about it, hoping nobody will notice as that may jeopardise their bogus narrative and depress demand for ‘services’.”Well, not when it comes to software patents (anywhere). This is all wishful thinking, trying to hypnotise readers into a parallel reality wherein software patents are recovering. Orrick has also just published “Orrick Partners Examine How Antitrust Law Has Shaped Modern Patent Rights” (patents are not a right, they conflate this with the misleading term IPR, where the R stands for “rights” and alludes to copyright, trademarks, and trade secrets).

It seems as though software patents are losing again (in the US and beyond), so patent lawyers try to keep quiet about it, hoping nobody will notice as that may jeopardise their bogus narrative and depress demand for ‘services’.

The latest from the courts in a nutshell: more software patents die, patent lawyers try to distract from the news, and the nature of patent trolling is a growing concern, even in Asia. █

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