12.04.16

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Software Patents Continue Their Invalidation Process, But Patent Law Firms Try to Deny This in Order to Attract Misinformed (or Poorly-Informed) Clients

Posted in America, Patents at 5:24 am by Dr. Roy Schestowitz

The patent microcosm is hijacking public debate for marketing/self promotional purposes

VOC
A widely-used technique for misspeaking and misrepresenting one’s customers

Summary: A roundup of news about software patents and demonstration of the sheer bias in the media, which is mostly controlled or steered by the patent microcosm rather than actual inventors

THE STATUS QUO of patentability of software at the US patent office isn’t too encouraging to those who have made a living by pursuing software patents, either as applicants or as patent agents.

“Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm).”What we’re observing these days is a lot of cognitive dissonance and cherry-picking, especially among patent agents and lobbyists of companies like Microsoft and IBM. They only see the ‘wins’ and refuse to see the ‘losses’. Take for example the new article (“Federal Circuit Takes A Common Law Approach to “Abstract Idea” Determinations in Alice Cases”) from the patent microcosm. It focuses on the Amdocs case and makes a case for software patents. Another such article, this one regarding Oracle, explains “How to Overcome Rejections Based on the Alice Decision” (“Highlighting the claim limitations helped Oracle avoid the Alice Rejection,” as the author put it in Twitter). They are still pursuing tricks and workarounds, seeing that PTAB and CAFC invalidate software patents faster than they can come up with new tricks and workarounds.

Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm). WIPR did cover it and said:

The US Court of Appeals for the Federal Circuit has handed down a mixed patent ruling, in what is a successful outcome for Apple and Domino’s Pizza.

In a decision handed down yesterday, November 29, the court affirmed in part and reversed in part decisions by the Patent Trial and Appeal Board (PTAB) in three covered business method (CBM) reviews.

The decisions addressed the subject matter eligibility of certain claims of US patent numbers 6,384,850; 6,871,325; and 6,982,733.

Internet-based solutions provider Ameranth owns the patents, which disclose computer systems with hardware and software.

We wrote about Ameranth not even a single time in the recent past (not a few times but none, in spite of us writing extensively on the topic for over a decade) and looking it up suggests that it’s known for almost nothing but litigation. It makes one wonder if the company is based just on litigation, i.e. flirting with “patent troll” status. We wrote about Ameranth last year and half a decade ago [1, 2, 3], always in relation to litigation.

Either way, some of its patents got invalided by PTAB (at long last) and as usual, as is so common among patent trolls, the patents are on software.

“The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm.”In other news sites, CAFC/PTAB killing yet more software patents got a short mention (only two paragraphs!). To quote: “A federal appeals court on Tuesday further narrowed the patents that Ameranth Inc can assert in litigation against dozens of companies that use online ordering systems, invalidating the few claims that had survived review by the Patent Trial and Appeal Board (PTAB) last year.”

The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm. Watch how they misuse language; terms like “attack” refer to reassessment of patents, PTAB is called “death squad”, and district courts taking the side of the defendants is “Patent Invalidity Offense” (as if the defendant is magically becoming the offender).

“Three TiVo Patents Reinstated after NY Judge Found Alice Analysis Improperly Applied,” one patent attorney wrote the other day, citing this decision [PDF].

“The language of the patent microcosm sure is misleading.”They typically use words like “survive” (or “reinstated” in this case) when the offender/aggressor gets its way. Get it? Those who litigate and force others into courtrooms are merely “surviving”. Not the defendant. If the defendant/victim wins, then it’s said to be “attacking” the patent; it’s a “Patent Invalidity Offense”. The language of the patent microcosm sure is misleading. Roles or narratives are being inverted/reversed.

In other news from the docket, a US “court sua sponte vacated the prior district judge’s summary judgment order invalidating defendant’s advertising campaign analysis patents for lack of patentable subject matter because the asserted claims were not directed toward an abstract idea.”

This does not necessarily mean it’s the end of it. This just means a new decision will be issued. Given the possibility that it will be escalated upwards to CAFC, assume that these patents are likely invalid. If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).

“If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).”“Meanwhile,” says a new article from American Lawyer (behind paywall), “the U.S. Supreme Court in 2014 tightened eligibility standards for software patents” (that’s a factual statement).

Another news site went with the headline “Is a Software Patent Worth the Time and Effort?”

“Although patents for things other than software are legitimate and have a clear purpose,” asserts the author, “software patents feel like a joke.”

“Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?”So are such patents “worth the time and effort”? Well, not anymore. Don’t trust what patent lawyers (sellers) say about software patents, as they know they mislead us. Watch what they wrote for IAM ‘magazine’ in the latest issue. The title is “Unlocking revenue opportunities in software patent portfolios after Enfish” and it’s behind a paywall. Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?

The lunacy deepens when one looks over at Watchtroll. “We are only just now starting to come out of the software patent wilderness with the Federal Circuit recognizing that at least some software is patent eligible,” this article says, but actually, more recently, CAFC pretty much invalided all software patents because of a decision from a prominent judge (whom Watchtroll personally attacked shortly thereafter).

It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk. Here is one of them, the EFF’s “Stupid Patent Of The Month” for November. To quote:

Stupid Patent Of The Month: Movies From The Cloud

The Onion once ran a piece titled “I invented YouTube back in 2010.” The joke, of course, is that YouTube launched in 2005. This month’s Stupid Patent of the Month is just as ridiculous. US Patent No. 8,856,221, titled ‘System and method for storing broadcast content in a cloud-based computing environment,’ claims a mundane process for delivering media content from remote servers. This might have been a somewhat fresh idea in, say the mid-1990s, but the application for this patent was filed in 2011.

The patent suggests using “at least one server” that should have “a memory that stores media content and a processor.” The server then communicates with “a consumer device” that can send messages and receive content. Aside from these prosaic details, the patent makes only a half-hearted effort to distinguish its supposed invention from the massive array of cloud-based media services that already existed when it was filed. For example, the description suggests that existing services were inadequate because customers might pay a flat monthly fee yet make few downloads. The patent recommends tailoring customer cost to the content actually downloaded. But even if that was a new idea in 2011 (and it wasn’t), routine pricing practices should not be patentable.

Don’t expect the patent microcosm to ever accept what they are paid to be in denial over. Software patents are an abomination, they don’t promote innovation, but they certainly bring more income to some patent law firms. Here is Peter Brewer obsessing about “patent agent” (middleman) over at IAM and another person’s remark on evergreening, which is a great example of patent systems being misused to just infinitely guard monopolies, not promote innovation. Warren D. Woessner, a patent maximalist, obsesses over the new patent eligibility guidelines not because he wants scope to be narrowed but because he wants everything to be expanded. Also see this IAM “report” about CAFC. Why are these pieces dominating the news feeds and where are actual scientists in the news. They are being spoken about (by the patent microcosm) but not for. It’s a real problem. The same thing happens in social media sites.

“It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk.”Consider this tweet from a patent attorney (“What does #TRUMP mean for patent eligibility? “Intellectual Property is HUGE!! Alice is a DISASTER! Let’s make patents great again!””).

Well, boosters would certainly wish for that. “Making patents great again” is also the title of one new article from IAM ‘magazine’, promoting the idea that resurrecting software patents is “great”. What they mean by “great” is more and more of them, i.e. patents of lower quality, hence not great at all.

“Don’t expect the patent microcosm to ever accept what they are paid to be in denial over.”Talking to patent lawyers who profit from patents on software at developers’ expense, Benjamin Henrion said that “software patents are a disaster for our profession.”

Well, they are great to the profession that is taxing software development by dragging software developers into courtrooms and expensive settlements that would not at all be needed if software patents didn’t exist.

No doubt the patent lawyers want software patents back and the employer of the above patent attorney also challenges Mayo right now. A few days ago it wrote that “[t]he Supreme Court’s current definition of a law of nature is scientifically incorrect. The analysis of this issue is quite complex, but I will attempt to summarize the issue. The Court’s definition in the Mayo case came down to: “the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.””

This same firm wrote in relation to the US patent system that “the GAO [Government Accounting Office] attempted to identify the factors that contributed to “low quality patents.””

“So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?”As one might expect, the firm does not agree with the Government Accounting Office and tries to dismiss it. It says this “report was prepared at the request of the House Judiciary Committee, which asked the GAO to examine trends in patent litigation and identify opportunities to improve patent quality. To address the latter, the GAO attempted to identify the factors that contributed to “low quality patents.” The GAO’s analysis of these factors was based primarily on a lengthy survey of USPTO patent examiners on various factors that affected the quality of the applications they examined.”

So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?

At the end of the day we have a conflict between scientists and lawyers. There’s no point denying it and perhaps it’s time for scientists to better organise for a better patent system — a system that puts science — not the revenue of patent law firms — first.

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