03.21.17

Gemini version available ♊︎

In the US Patent System, Evolved Tricks for Bypassing Invalidations of Software Patents and Getting Them Granted by the USPTO

Posted in America, Patents at 7:42 pm by Dr. Roy Schestowitz

Summary: A roundup of news about patents in the US and how the patent microcosm attempts to patent software in spite of Alice (high-impact SCOTUS decision from 2014)

THE EPO has been so full of scandals and lies lately that we have, at times, lost sight of news from the US, including improvements at the USPTO. Tonight, for a change, here is something positive.

“As one can expect, patent law firms promote software patents under the guise of “AI”…”This bit of news suggests that Sony wants a patent on wireless charging — not a new concept in its own right, but we certainly remember that Sony ‘innovated’ devices that almost literally explode, owing to their splendid battery. This happened several times over the years and 3 years ago there were still recalls of products (it also happened a decade ago, and not for the first time).

Putting aside patents on hardware, there are silly new patents on software being assigned. “Interfacing to cloud storage” they call it — the cloudwashing of patents as we called it this month and last month (a fairly recent trend of pseudo-’innovation’ using buzzwords). Someone in Twitter sent a “BS software patent alert” about it. Will courts ever uphold such a patent? probably not after Alice (§101).

“Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract.”Speaking of cloudwashing of patents, we have mentioned “AI” as another buzzword commonly used these days to patent old stuff. As one can expect, patent law firms promote software patents under the guise of “AI” and Barker Brettell LLP, which we mentioned here before in relation to the EPO [1, 2], has no qualms about it (here is another new article along those lines). Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract. The same goes for “machine learning”, “IoT”, “DevOps”, “smart”, “wearable” and other trendy terms that mean too little (if anything at all). These are still software patents, just like that Baxter patent application which Judge Corcoran ruled against in T1508/12-3.5.05.

Over at Watchtroll, the strident proponent of software patents (where actual software engineers never write about it), someone from a law firm (Harrity & Harrity) decided to market some tricks for patenting business methods in spite of Alice. Here’s an except:

These examples seem to indicate that the power of §101 to restrict patentability has been whittled down since Alice and that the USPTO would like to reduce the number of §101 rejections for technological claims in light of court decisions post-Alice. Below, we describe each example provided by the USPTO and explain the USPTO guidance for each example to assist practitioners with reducing and overcoming §101 rejections.

As often happens, they try to sort of reverse-engineer the USPTO’s guidelines in order to defy the rules and sneak bogus patents past the examiners. Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option). As long as the victims are kept isolated and unaware of one another (NDAs can accomplish this), they won’t pool together the financial resources required to fight back against the serial aggressor (taking away the ‘weapon’).

“Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option).”§101 has been worrying the patent microcosm and media of this microcosm keeps trying to scrape some good news from the bottom of the barrel. The other day, for example, MIP’s Michael Loney went along with a rather misleading headline, based on some figures from the patent microcosm itself (Fenwick & West). We’ve already mentioned this analysis; Loney could say that CAFC MAINTAINS high §101 invalidity rates, but instead he went along with “US district court 101 invalidity rates down slightly in 2017″ and left much of the rest behind a paywall. “The Federal Circuit,” he noted before the paywall kicked in, “maintains its high invalidity rate on Section 101 decisions so far this year but the district court rate has fallen, according to new figures from Fenwick & West’s Robert Sachs. One interesting recent trend is the PTAB has reversed all 16 ex parte appeals of Section 101 rejections since October…”

PTAB maintains and even increases its workload, though Loney recently compared non-corresponding months to make it look otherwise. They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.

“They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.”Speaking of CAFC, Patently-O wrote about this new verdict, noting that a “California jury held that TVIIM’s U.S. Patent No. 6,889,168 was both invalid as anticipated and not infringed. On appeal, the Federal Circuit affirmed. [...] The result here is that a potentially inconsistent verdict is not improper so long as any possible resolution of the inconsistency reaches the same outcome (here, that the patentee loses). In this case, any proposed construction of the claim terms resulted in either the patent being invalid or being not infringed.”

This is a good example of tricks used in vivo — so to speak — once the patents are already in a process; the same sorts of tricks have been attempted at PTAB, in desperate efforts to save patents by editing their contents (as if patents are something dynamic that should have versions and revisions even after a grant). It’s like evergreening of patents ‘on the go’. The whole thing is laughable and it contradicts the very premise/basis of patenting!

“…it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.”Incidentally, recently in Techrights we have covered several examples of frauds and charlatans extorting with patents; Some patently unethical frauds out there blackmail small companies by the thousands (of companies) using patents they haven’t got or patents which they know are bogus. Classic protection racket! Many examples were recently given of it and this new article (behind paywall) says that “Patent Owners Face Increased Fraud Liability Risk”. To quote the open access summary/outline: “New legislative and court-driven developments in patent law have increased the risk of securities fraud liability for public company patent owners. Such patent owners and their securities counsel are therefore best advised to understand these developments, their intersection with securities law, and how they may affect some public disclosures.”

As access to the article is restricted, as is normal for that site, it’s hard to say if any of this alludes to frauds and charlatans who claim to have patent leverages that they haven’t (in order to extract fees from a lot of companies), but either way, it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  2. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  3. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  4. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all



  5. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship



  6. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021



  7. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day



  8. This Apt Has Super Dumbass Powers. Linus Sebastian and Pop_OS!

    Guest post by Ryan, reprinted with permission



  9. [Meme] Trying to Appease Provocateurs and Borderline Trolls

    GNU/Linux isn’t just a clone of Microsoft Windows and it oughtn’t be a clone of Microsoft Windows, either; some people set themselves up for failure, maybe by intention



  10. Centralised Git Hosting Has a Business Model Which is Hostile Towards Developers' Interests (in Microsoft's Case, It's an Attack on Reciprocal Licensing and Persistent Manipulation)

    Spying, censoring, and abusing projects/developers/users are among the perks Microsoft found in GitHub; the E.E.E.-styled takeover is being misused for perception manipulation and even racism, so projects really need to take control of their hosting (outsourcing is risky and very expensive in the long run)



  11. Links 29/11/2021: FWUPD's 'Best Known Configuration' and Glimpse at OpenZFS 3.0

    Links for the day



  12. President Biden Wants to Put Microsofter in Charge of the Patent Office, Soon to Penalise Patent Applicants Who Don't Use Microsoft's Proprietary Formats

    The tradition of GAFAM or GIAFAM inside the USPTO carries on (e.g. Kappos and Lee; Kappos lobbies for Microsoft and IBM, whereas Lee now works for Amazon/Bezos after a career at Google); it's hard to believe anymore that the USPTO exists to serve innovators rather than aggressive monopolists, shielding their territory by patent threats (lawsuits or worse aggression) and cross-licensing that's akin to a cartel



  13. Microsoft GitHub Exposé — Part VIII — Mr. Graveley's Long Career Serving Microsoft's Agenda (Before Hiring by Microsoft to Work on GitHub's GPL Violations Machine)

    Balabhadra (Alex) Graveley was promoting .NET (or Mono) since his young days; his current job at Microsoft is consistent with past harms to GNU/Linux, basically pushing undesirable (except to Microsoft) things to GNU/Linux users; Tomboy used to be the main reason for distro ISOs to include Mono



  14. Dr. Andy Farnell on Teaching Cybersecurity in an Age of 'Fake Security'

    By Dr. Andy Farnell



  15. IRC Proceedings: Sunday, November 28, 2021

    IRC logs for Sunday, November 28, 2021



  16. Links 29/11/2021: Linux 5.16 RC3 and Lots of Patent Catch-up

    Links for the day



  17. By 2022 0% of 'News' Coverage About Patents Will Be Actual Journalism (Patent Litigation Sector Has Hijacked the World Wide Web to Disseminate Self-Promotional Misinformation)

    Finding news about the EPO is almost impossible because today’s so-called ‘news’ sites are in the pockets of Benoît Battistelli, António Campinos, and their cohorts who turned the EPO into a hub of litigation, not science; this is part of an international (worldwide) problem because financial resources for journalism have run out, and so the vacuum is filled/replaced almost entirely by Public Relations (PR) and marketing



  18. Trying to Appease Those Who Never Liked Free Software or Those Who Blindly Loved All Patent Monopolies to Begin With

    It’s crystal clear that trying to appease everyone, all the time, is impossible; in the case of the EPO, for example, we hope that exposing Team Battistelli/Campinos helps raise awareness of the harms of patent maximalism, and when speaking about Free software — whilst occasionally bashing the alternatives (proprietary) — we hope to convince more people to join the “Good Fight”



  19. Links 28/11/2021: Laravel 8.73 Released, GitHub Offline for Hours

    Links for the day



  20. IRC Proceedings: Saturday, November 27, 2021

    IRC logs for Saturday, November 27, 2021



  21. Links 27/11/2021: Nvidia’s DLSS Hype and Why GNU/Linux Matters

    Links for the day



  22. [Meme] Linus Gabriel Sebastian Takes GNU/Linux for a (Tail)'Spin'

    If you’re trying to prove that GNU/Linux is NOT Windows, then “haha! Well done…”



  23. GNU/Linux is for Freedom and It'll Gain Many Users When (or Where) People Understand What Software (or Computing) Freedom Means

    Software that respects people's freedom (and by extension privacy as well) is an alluring proposition; those who choose to try GNU/Linux for the wrong reasons are likely the wrong target audience for advocates



  24. Amid Reports of Microsoft's Competition Crimes in Europe...

    European companies are complaining, but they seem to overlook the principal aspect of an imperialistic system with bottomless pockets (almost 30 trillion dollars in debt already; US national debt soared again last month); Microsoft is shielded by a political system with military (“defence”) as bailout budget to help cushion international expansion for data grab and technical leverage, as we've seen in the case of EPO (this is all political, not technical, and should thus be treated as a political/corruption issue)



  25. Is Linus Trolling the GNU/Linux Community?

    This new video responds to what many sites have been provoked into amplifying



  26. Links 27/11/2021: Tux Paint 0.9.27 and SeaMonkey 1.1.19 in EasyOS

    Links for the day



  27. [Meme] Keeping Our Distance From Microsoft

    The OSI is the dagger, the Linux Foundation is the knife, and many others are the sword by which Microsoft tries to get into the very heart of GNU/Linux and extinguish the Free software movement



  28. Microsoft Edge Encourages Indebted Americans to Guilt-spend Just in Time for Christmas

    Guest post by Ryan, reprinted with permission



  29. IRC Proceedings: Friday, November 26, 2021

    IRC logs for Friday, November 26, 2021



  30. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.


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