EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

04.19.17

Patents on Business Methods and Software Are Collapsing, But the Patent Microcosm is Working Hard to Change That

Posted in America, Patents at 9:39 am by Dr. Roy Schestowitz

People like Robert Sachs (on the right) try to cherry-pick cases and make these precedential (to help patent maximalists/aggressors)

Robert R. SachsSummary: The never-ending battle over patent law, where those who are in the business of patents push for endless patenting, is still ongoing and resistance/opposition is needed from those who actually produce things (other than litigation) or else they will be perpetually taxed by parasites

FOLLOWING a SCOTUS decision nearly 3 years ago the patent landscape has not been the same in the US. The “effect of the Supreme Court’s Alice decision was to kill about 75% of all BM [business method] patent applications stone dead,”
Mark Summerfield has just said, having said the same thing earlier this year. Here is the part about software patents:

Software patent grants, however, continue to track the rates at which patents are issued by the USPTO across all fields of technology. I therefore feel confident in reiterating my earlier comments that ‘software patents’ in general are not in trouble. There is no evidence that the mere fact that computer software is used to implement an invention – even where the invention relates wholly to computer technology, such as in user interfaces, document processing, databases, and so forth – is a barrier to patent eligibility in the US.

But these die at the courts and in the Patent Trial and Appeal Board (PTAB), so this merely indicates that the USPTO does not do enough to account for these decisions. We wrote this many times before.

Watch Fenwick & West, a law firm that habitually attacks Alice, still working hard this month not just to spread software patents but also business method patents. To quote the latest from them:

On Wednesday, the Federal Circuit, in a per curiam order, denied SHzoom’s motion to make the Trading Technologies opinion precedential. The order of course gave no reasons for the decision. Nonetheless, the underlying decision is still a good one for patentees and applicants.

While not binding on the USPTO, it can nonetheless be argued as persuasive authority with examiners where the facts in the application “uniquely match” those in the case. Prosecutors should consider arguing this case to examiners where they have specifically claimed graphical elements that provide specific functionality.

We certainly hope that these patent maximalists don’t get their way. Software patents have long hobbled Free/Open Source software and proprietary software too. Up until now, including in 2017, these have been turning software freedom into something synonymous with “infringement”. As someone put it some days ago: “*whispers into the air* …the final patents on MP3 technology expired today…”

It’s about time. How many people suffered due to these patents? How many people struggled to get decoders to play their audio files? Or resorted to do something against patent law?

Finally, as an aside, we used to think more highly of Law 360, but Matthew Bultman adopts the misleading language of the patent microcosm, where defense from patents magically means “attack” (on the patent/s). This is not an attack, it’s a defense, but watch how Bultman put it both in the headline and the opening paragraph:

PTAB Rejects Some Follow-Up Attacks To Software Patents

The Patent Trial and Appeal Board has rejected a handful of recent attacks brought by Xactware Solutions Inc. against a rival’s patents covering aerial rooftop measurement software, saying the New Jersey company was morphing its challenges based on earlier board decisions.

This is another example of PTAB stepping in to reassess and usually correct the USPTO. The patent microcosm likes to just cherry-pick the situation in which the patents “survive” (their misleading term) scrutiny. As in the above…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 24/3/2019: Microsoft Does Not Change; Lots of FOSS Leftovers

    Links for the day



  2. Just Published: Irrational Ignorance at the Patent Office

    Iancu and his fellow Trump-appointed "swamp" at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States



  3. Microsoft Paid the Open Source Initiative. Now (a Year Later) Microsoft is in the Board of the Open Source Initiative.

    The progression of Microsoft entryism in FOSS-centric institutions (while buying key "assets" such as GitHub) isn't indicative of FOSS "winning" but of FOSS being infiltrated (to be undermined)



  4. Jim Zemlin's Linux Foundation Still Does Not Care About Linux Desktops

    We are saddened to see that the largest body associated with Linux (the kernel and more) is not really eager to see GNU/Linux success; it's mostly concerned about its bottom line (about $100,000,000 per annum)



  5. Links 23/3/2019: Falkon 3.1.0 and Tails 3.13.1

    Links for the day



  6. The Unified Patent Court is Dead, But Doubts Remain Over the EPO's Appeal Boards' Ability to Rule Independently Against Patents on Nature and Code

    Patents used to cover physical inventions (such as engines); nowadays this just isn't the case anymore and judges who can clarify these questions lack the freedom to think outside the box (and disobey patent maximalists' dogma)



  7. Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

    There's no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there's nothing even remotely like that



  8. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  9. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  10. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  11. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  12. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  13. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  14. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  15. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  16. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  17. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  18. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  19. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  20. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  21. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  22. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  23. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  24. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  25. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  26. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  27. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  28. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  29. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  30. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day


CoPilotCo

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

CoPilotCo

Recent Posts