08.17.17
The Patent Trial and Appeal Board Squashes Many Software Patents (Abstract) and §101 Seems Safe From Lobbying by the Patent Microcosm
Summary: The Patent Trial and Appeal Board (PTAB), together with the Alice-inspired §101, is an efficient eliminator of bogus patents on software and there is no end to that in sight
THE WORD “PTAB” has become a trigger warning to patent lawyers. It’s so often that once PTAB is invoked (through “IPR/s”) that a patent/s will end up invalidated. Not everything which gets granted by the USPTO has merit and trolls often rely on patents not being challenged (at all) inside courts.
The reality of the matter is, shallow/bogus patents are destroying practicing companies in the US. The main victims are small companies that we may never hear about (even in the media). They’re quietly destroyed by a bunch of malicious trolls (serial litigators who prey on the weak).
“The reality of the matter is, shallow/bogus patents are destroying practicing companies in the US.”Curiously enough, yesterday there was this article about serial litigators . It spoke about “infringement of Prism’s patents generally covering network security systems that provide for secure transactions on unsecured systems” (i.e. software patents). The one reprieve that most small companies can afford is PTAB. It gets the job done without having to spend much money and the courts (e.g. CAFC) typically swiftly and effortlessly agree with PTAB upon appeal (if any is filed).
Things aren’t all rosy though; as we noted recently, a relatively small company that’s being bullied by Cisco had an embargo against it (because of patents which were deemed invalid). We wondered why the ITC cannot obey the law and respect PTAB's decisions. Yesterday we found this update on the case:
The U.S. International Trade Commission has declined to rescind remedial orders blocking importation of products found to infringe two patents that were recently found invalid by the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office.
This is pretty serious because they are acting as though PTAB has no legal authority. Moreover, they persist with a radical measure like an embargo. What ever happened to due process?
“This is pretty serious because they are acting as though PTAB has no legal authority. Moreover, they persist with a radical measure like an embargo. What ever happened to due process?”It’s time to recognise if not accept that parts of the system may be in the pockets of large corporations, which means that legal processes can magically be bypassed. Yesterday, as this tweet put it, IBM (patent aggressor) lost another patent at PTAB, which apparently cited Alice. The tweet said: “IBM now 0 for ∞ in PTAB cases, loses another! 101 case: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2015006311-08-15-2017-1 … reserving computer resources is now “abstract idea” too…”
IBM’s friends at Watchtroll have also published an article about “§101 Rejection” (“Abstract Idea”) on the very same day. They’re part of that malicious effort to derail PTAB and change §101. They are doing this alongside PTAB foes like Patently-O, which incidentally, just days ago, ended up picking one of the ~20% of cases (not even a software patent) where a PTAB decision is overturned by CAFC.
To quote Patently-O:
In a split opinion, the Federal Circuit rejected the PTAB’s IPR validity judgment favoring the patentee Whirlpool — holding instead that the challenged claims are invalid as anticipated. Patent No. 7,581,688; IPR No. IPR2014-00877. Judge Dyk penned the opinion joined by Chief Judge Prost. Judge Newman wrote in dissent.
The underlying claimed invention is an automatically pulsed blender cycle. The basic idea is to occasionally go through a “deceleration phase” that slows the cutter blade down to a reduced “predetermined settling speed” before accelerating the blade back to the normal operating speed. The claims require that the settling speed be “indicative of the items in the container having settled around the cutter assembly.”
Why does Patently-O not cover all those other cases where CAFC endorses PTAB’s decisions? Bias by omission?
“§101 is largely supported by the technology sector and is widely opposed only by law firms that are trying to tax this sector.”What PTAB makes clear is that it matters not whether the USPTO will grant some patents on software but whether courts will accept them (they almost certainly won’t).
Recently, the USPTO issued a report on §101 and it was dominated by the patent microcosm. Here is what one law firm says about this report this week:
On July 24, 2017, the USPTO issued a 48-page report on Patent Eligible Subject Matter. The report summarizes key court decisions interpreting and applying 35 USC § 101, international views on eligible subject matter, and public comments and recommendations for addressing recent changes in this foundational issue of U.S. patent jurisprudence. While some have criticized the USPTO Patent Eligible Subject Matter report for failing to take a position on the issues or suggest any solutions, others have commended the concise summary of where things stand today.
It’s hard to believe that anything will change for the worse; §101 is largely supported by the technology sector and is widely opposed only by law firms that are trying to tax this sector. It certainly looks like even politicians now understand this. █
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