Eight Wireless Patents Have Just Been Invalidated Under Section 101 (Alice), But Don’t Expect the Patent Microcosm to Cover This News
Nostalgic and picky/selective (as always and forever) with ‘facts’, ignoring what’s inconvenient
Summary: Firms that are profiting from patents (without actually producing or inventing anything) want us to obsess over and think about the rare and few cases (some very old) where judges deny Alice and honour patents on software
SOFTWARE patents are a dying breed and thus a dying business for patent law firms. They know it, hence they’re angry and vindicative. Some of them even attack judges (the messengers). These patents keep dying both inside and outside the courtroom (e.g. PTAB) in the US, in spite of some USPTO examiners granting them, probably in an effort to inflate some numbers.
According to this patent attorney, “VA Dist. Ct. Killed 8 Wireless Patents under Alice/101: http://assets.law360news.com/0878000/878025/https-ecf-vaed-uscourts-gov-doc1-18917727618.pdf” (deemed abstract and thus ineligible).
We have not seen a single article about this case. None!
What we are seeing, on the other hand, is patent law firms’ sites romanticising/bringing up old cases, like this quick mention of McRO behind a paywall. To quote:
The full Federal Circuit has denied a bid by Electronic Arts and other gaming companies to rehear its September decision that found McRO Inc. software patents for lip-sync animation technology patent-eligible under Alice, according to an order issued by the appeals court Friday.
In other words, nothing is changing. But again, this is one among perhaps four (just 4!) decisions in the whole year when the Court of Appeals for the Federal Circuit (CAFC) ruled not to invalidate a software patent. What about all the rest? What about all those patents (hundreds if not thousands) that PTAB and the courts invalidated? Shouldn’t the patent microcosm inform clients (and potential clients) of the reality?
Bandai Namco Games America has been denied an en banc rehearing in its cornerstone software patent case against McRO.
All regular active judges for the US Court of Appeals for the Federal Circuit heard the petition and issued their response at the end of 2016.
Mark Raskin, partner at Mishcon de Reya, who is serving as trial counsel in the case, said: “We’re very excited that the entire Federal Circuit has recognised the technical innovations of our client’s inventions and the California cases will now proceed, hopefully expeditiously.”
The McRO case drew a lot of attention with its interpretation of the landmark Alice v CLS Bank decision.
As we noted before, Mishcon de Reya also works for Microsoft and the EPO. It’s hardly surprising that the firm advocates software patents. Another legal firm — one that the EPO hired to threaten Techrights — promotes the UPC.
There is another new article from a law firms’ platform, covering the Amdocs case (also at CAFC) as follows:
An interesting case came out of the Federal Circuit in Amdocs (Israel) Limited v. Openet Telecom, Inc., No. 2015-1180, 2016 WL 6440387 (Fed. Cir. Nov. 1, 2016) in which the Court reversed the district court’s granting of Openet’s motion for judgment on the pleadings on the basis that the patents were not directed to patent eligible subject matter under § 101. This is significant not for the result but for how the Court arrived at its conclusion. The majority and dissenting opinions offer several important insights: (1) the Court is struggling to find the proper “decisional mechanism” for deciding whether a software patent is directed to patent ineligible subject matter; (2) members of the Court continue to suggest borrowing from other sections of the Patent Act to analyze Section 101; and (3) claim construction can be very effective at staving off dismissal based on patent eligibility.
This ‘news’ is more than two months old. Why aren’t these legal firms covering some of the latest? Probably because it’s not convenient for them. It’s not good for their business. █