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


In Spite of Lobbying and Endless Attempts by the Patent Microcosm, US Supreme Court Won’t Consider Any Software Patent Cases Anymore (in the Foreseeable Future)

Posted in America, Courtroom, Patents at 10:12 am by Dr. Roy Schestowitz

Alice stands firm.

Alice (software)
Software patents are being invalidated en masse using Alice. Not to be confused with Alice the software.

Summary: Lobbyists of software patents, i.e. proponents of endless litigation and patent trolls, are attempting to convince the US Supreme Court (SCOTUS) to have another look at abstract patents and reconsider its position on cases like Alice Corp. v CLS Bank International

THE USPTO can grant as many software patents as it wants, but American courts reject these and litigation with such patents has become an unattractive, risky strategy. Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office.

Earlier this week we spotted this press release about HEVC — certainly a massive software patents trap [1, 2] (evergreening). “This innovative product utilizes Beamr’s 29 granted patents and 18 pending patent applications to produce HEVC video encodes that are up to 50% smaller than Beamr’s market-leading HEVC software encoder, Beamr 5,” the press release stated. Wanna bet all of these patent applications, even if they got granted, would be thrown away by courts like the Court of Appeals for the Federal Circuit (CAFC), if not SCOTUS above it? This whole thing in an exercise in ‘thicketing’ — i.e. making up for the invalidity of patents by quantity rather than quality (to make legal challenges more lengthy and thus expensive). Microsoft does this quite a lot. It flings a large pile of lousy software patents at poor companies and demands that they settle (pay ‘protection’ money) or spend years in courtrooms (at the expense of millions of dollars, making settlement the cheaper option, securing the patents from much-needed scrutiny).

“Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office.”The matter of fact is, software patents should no longer be issued by the USPTO. These contribute to extortion, not innovation. Only the law firms profit from that.

The other day we saw this new rant about Alice, courtesy of Matthew Schantz who profits from legal chaos. That’s just latest example of patent law firms promoting software patents and yearning for them. Watch the language of optimism and positivism: “Software patents have seen better times. The glory days of the 1980s and 1990s, after the U.S. Supreme Court held in Diamond v. Diehr (1981) that inventions implemented in software are not unpatentable just because they are implemented in software, continued long past the generalized expansion of patentable subject matter by the Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial Group (1998). But the Supreme Court shook the foundations of the software patent world in 2012 (Mayo v. Prometheus) and 2014 (Alice Corp. v. CLS Bank International), leaving business leaders (and their patent attorneys) to wonder whether — or even hope that — software patents were dead. While the U.S. Patent and Trademark Office and courts have struggled to find reasonable, “new normal” limits on software patents that are practical in application and justifiable under precedent, recent cases reflect a maturing of the law surrounding patents on software-implemented inventions.”

“The matter of fact is, software patents should no longer be issued by the USPTO.”That’s good. That’s very desirable. Just ask any software professional about it. These professionals do not want software patents, unlike those who pretend to speak on ‘their behalf’. Some of them repeatedly heckle PTAB and try to slow it down, for it invalidates a growing number of software patents these days (a lot more than courts do). Patently-O, one of the scarcely-closeted opponents of PTAB, only accentuates the negatives, not the positives, and then proceeds to looking into SCOTUS cases that have nothing whatsoever to do with software patents. The first of these says: “A newly filed petition for writ of certiorari offers a substantial challenge to the quick-look eligibility decisions that have been so popular among district courts. The challenge here is especially focused on no-evidence eligibility decisions that serve as a substitute for an obviousness determination.”

Again, he is hoping to slow down (or prevent) invalidation of bogus patents. The second of these says: “The Court affirmed that requirement in a non-patent case, Goodyear Tire & Rubber Co. v. Haeger (Apr. 18, 2017). In that case, Goodyear engaged in a years-long effort to hide key documents from the plaintiffs, who, not knowing of them, settled the case. When they sought sanctions, the district court awarded all of the litigation fees the plaintiff had incurred from the time when the scheme had begun: $2.7 million. It also held, conditionally, that $2 million was caused directly by the shenanigans.”

“Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there’s no point revisiting the matter.”But this case isn’t even about patents. Why is Patently-O covering this?

The threat that SCOTUS will revisit Alice-type cases isn’t quite there, at least not yet. Watchtroll is trying to change this right now, by urging (in the form of amici) an escalation of a software patents case to SCOTUS. To quote: “BBiTV appeals from the Federal Circuit’s Rule 36 affirmance of two summary judgment decisions in which the district court found claims of U.S. Patent No. 7,631,336, entitled “Method for converting, navigating and displaying video content uploaded from the internet to a digital TV video-on-demand platform,” to be directed to the abstract idea of “using the same hierarchical ordering based on metadata to facilitate the display and locating of video content.” The following excerpts of the Petition set forth the issues presented and portions of BBiTV’s arguments. Amicus briefs in support of the Petition are due by May 15, 2017.”

Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there’s no point revisiting the matter.

“Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions.”We are no doubt going to see many more attempts like the above to crush Alice. There is in fact a whole "task force" now, led by IBM and its lobbyists (people like David Kappos), dedicated to doing just that.

Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions.

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 18/3/2018: Wine 3.4, Wine-Staging 3.4, KDE Connect 1.8 for Android

    Links for the day

  2. TXED Courts Are Causing Businesses to Leave the District, Notably For Fear That Having Any Operations Based There is a Legal Liability

    A discussion about the infamous abundance of patent cases in the Eastern District of Texas (TXED/EDTX) and what this will mean for businesses that have branches or any form of operations there (making them subjected to lawsuits in that district even after TC Heartland)

  3. PTAB Hatred is So Intense Among the Patent 'Industry' That Even Scammers Are Hailed as Champions If They Target PTAB

    The patent microcosm is so eager to stop the Patent Trial and Appeal Board (PTAB) that it's supporting sham deals (or "scams") and exploits/distorts the voice of the new USPTO Director to come up with PTAB-hostile catchphrases

  4. The Patent 'Industry' is Increasingly Mocking CAFC and Its Judges Because It Doesn't Like the Decisions

    Judgmental patent maximalists are still respecting high courts only when it suits them; whenever the outcome is not desirable they're willing to attack the legitimacy of the courts and the competence of judges, even resorting to racist ad hominem attacks if necessary

  5. The Patent Trial and Appeal Board (PTAB) Carries on Enforcing § 101, Invalidating Software Patents and Upsetting the Patent 'Industry' in the Process

    A quick report on where PTAB stands at the moment, some time ahead of the Oil States decision (soon to come from the US Supreme Court)

  6. Luxembourg Can Become a Hub of Patent Trolls If the EPO Carries on With Its 'Reforms', Even Without the UPC

    With or without the Unified Patent Court (UPC), which is the wet dream of patent trolls and their legal representatives, the EPO's terrible policies have landed a lot of low-quality patents on the hands of patent trolls (many of which operate through city-states that exist for tax evasion -- a fiscal environment ripe for shells)

  7. The Patent 'Printing Machine' of the EPO Will Spawn Many Lawsuits and Extortions (Threats of Lawsuits), in Effect Taxing Europe

    The money-obsessed, money-printing patent office, where the assembly line mentality has been adopted and patent-printing management is in charge, is devaluing or diluting the pool of European Patents, more so with restrictions (monetary barriers) to challenging bad patents

  8. Links 17/3/2018: Varnish 6, Wine 3.4

    Links for the day

  9. Deleted EPO Tweets and Promotion of Software Patents Amid Complaints About Abuse and Demise of Patent Quality

    Another ordinary day at the EPO with repressions of workforce, promotion of patents that aren't even allowed, and Team UPC failing to get its act together

  10. Guest Post: Suspected “Whitewashing” Operations by Željko Topić in Croatia

    Articles about EPO Vice-President Željko Topić are disappearing and sources indicate that it’s a result of yet more SLAPP from him

  11. Monumental Effort to Highlight Decline in Quality of European Patents (a Quarter of Examiners Sign Petition in Spite of Fear), Yet Barely Any Press Coverage

    he media in Europe continues to be largely apathetic towards the EPO crisis, instead relaying a bunch of press releases and doctored figures from the EPO; only blogs that closely follow EPO scandals bothered mentioning the new petition

  12. Careful Not to Conflate UPC Critics With AfD or Anti-EU Elements

    The tyrannical Unified Patent Court (UPC) is being spun as something that only fascists would oppose after the right-wing, anti-EU politicians in Germany express strong opposition to it

  13. Links 15/3/2018: Qt Creator 4.6 RC, Microsoft Openwashing

    Links for the day

  14. PTAB Continues to Increase Capacity Ahead of Oil States; Patent Maximalists Utterly Upset

    The Patent Trial and Appeal Board (PTAB) sees the number of filings up to an almost all-time high and efforts to undermine PTAB are failing pretty badly -- a trend which will be further cemented quite soon when the US Supreme Court (quite likely) backs the processes of PTAB

  15. Patent Maximalists Are Still Trying to Create a Patent Bubble in India

    Litigation maximalists and patent zealots continue to taunt India, looking for an opportunity to sue over just about anything including abstract ideas because that's what they derive income from

  16. EPO Staff Has Just Warned the National Delegates That EPO's Decline (in Terms of Patent Quality and Staff Welfare) Would Be Beneficial to Patent Trolls

    The staff of the EPO increasingly recognises the grave dangers of low-quality patents -- an issue we've written about (also in relation to the EPO) for many years

  17. The EPO is a Mess Under Battistelli and Stakeholders Including Law Firms Will Suffer, Not Just EP Holders

    As one last 'gift' from Battistelli, appeals are becoming a lot more expensive -- the very opposite of what he does to applications, in effect ensuring a sharp increase in wrongly-granted patents

  18. The EPO Under Battistelli Has Become Like China Under Xi and CPC

    The EPO is trying very hard to silence not only the union but also staff representatives; it's evidently worried that the lies told by Team Battistelli will be refuted and morale be affected by reality

  19. Links 14/3/2018: IPFire 2.19 – Core Update 119, Tails 3.6

    Links for the day

  20. Links 13/3/2018: Qt Creator 4.5.2, Tails 3.6, Firefox 59

    Links for the day

  21. Willy Minnoye (EPO) Threatened Staff With Disabilities Said to Have Been Caused by the EPO Work Pressures

    Willy Minnoye, or Battistelli's 'deputy' at the EPO until last year, turns out to have misused powers (and immunity) to essentially bully vulnerable staff

  22. IAM and IBM Want Lots of Patent Litigation in India

    Having 'championed' lobbying for litigation Armageddon in China (where IBM's practicing business units have gone), patent maximalists set their eyes on India

  23. The Patent Trolls' Lobby (IAM) Already Pressures Andrei Iancu, Inciting a USPTO Director Against PTAB

    Suspicions that Iancu might destroy the integrity of the Office for the sake of the litigation ‘industry’ may be further reaffirmed by the approach towards patent maximalists from IAM, who also participated in the shaming of his predecessor, Michelle Lee, and promoted a disgraced judge (and friend of patent trolls) for her then-vacant role

  24. Patent Trolls in the United States Increasingly Target Small Businesses Which Cannot Challenge Their Likely-Invalid Software Patents

    South by Southwest (SXSW Conference/Festivals in Austin, Texas) has a presentation about patent trolls, whose general message may be reaffirmed by recent legal actions in Texas and outside Texas

  25. EPO Staff Union Organises Protest to Complain About Inability “of the Office to Recruit the Highly Qualified Staff it Needs.”

    Having already targeted union leaders and staff representatives, the EPO may soon be going after those whom they passionately represented and the staff union (SUEPO) wants the Administrative Council to be aware

  26. Battistelli Likes to Describe His Critics as 'Nazis', Team UPC Will Attempt the Same Thing Against UPC Critics

    Demonising one's opposition or framing it as "fascist" is a classic trick; to what degree will Team UPC exploit such tactics?

  27. Session in Bavaria to Discuss the Abuses of the European Patent Office Later Today

    The EPO shambles in Munich have gotten the attention of more Bavarian politicians, more so in light of the Constitutional complaint against the UPC (now dealt with by the German FCC, which saw merit in the complaint)

  28. Links 12/3/2018: Linux 4.16 RC5, KEXI 3.1, Karton 1.0, Netrunner 18.03, Debian 9.4

    Links for the day

  29. EPO Patent 'Growth' Not Achieved But Demanded/Mandated by Battistelli, by Lowering Quality of Patents/Services

    Targets at the EPO are not actually reached but are being imposed by overzealous management which dries up all the work in a hurry in order to make examiners redundant and many European Patents worthless

  30. Doubt Over Independence of Judges at the EPO Clouds Reason in Deciding Regarding Patents on Life

    With the growing prospect of a Board of Appeal (BoA) having to decide on patentability of CRISPR 'innovation' (more like explanation/discovery), questions linger or persist about judges' ability to rule as they see fit rather than what some lunatic wants


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