09.24.17

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Fake News About Software Patents in the United States

Posted in America, Patents at 7:40 am by Dr. Roy Schestowitz

Science fiction does not just predict the future but rather inspires it. Similarly, in patent lobbying, making ridiculous claims can change the outcome to the effect the lobbyists want (UPC, Alice and so on)

Fake news about Alice

Summary: Spinning and twisting the facts (for so-called ‘alternative facts’), the patent microcosm is trying to give the impression that software patents are still fine in the US

THE previous post reminded readers that the Intellectual Property Owners Association (IPO), together with IBM, is trying to undermine Alice. They mislead the world. It’s a lobbying and PR campaign. IBM’s longtime asset, David Kappos (former USPTO Director), plays a role in that. But what role does crooked media play in the attempts to water down or suppress Alice? Actually, as we have been showing for years, such media is occupied or dominated by the patent microcosm.

“It’s a classic reversal of narratives, where the attacker is the “defender” and the attacked (defender) is the “aggressor”.”Yesterday, Matthew Bultman was at it again, spinning against Alice, as usual. He is habitually cherry-picking and using misleading language to make it seem as though the patent microcosm is right and still has might. He writes for Law 360, a news site which many people would wrongly assume to be objective. Hidden behind paywalls is this latest article of his, with the word “Surviving” in the headline (sometimes he puts “Attack” in his headlines). To Bultman, the one being sued “attacks” and the troll “survives”. It’s a classic reversal of narratives, where the attacker is the “defender” and the attacked (defender) is the “aggressor”. It’s appalling. Foreign policy officials often use similar linguistic tricks.

Here is the opening paragraph from Bultman:

Federal courts followed the U.S. Supreme Court’s 2014 Alice decision by invalidating scores of computer and software patents. But district courts are more often upholding patents in these types of challenges, new data shows, with a surprising twist coming out of the Eastern District of Texas.

Well, that assertion does not match the headline. At all. Back in summer we said that we had not seen (for a very long time) the Federal Circuit ruling in favour of any software patents. Nothing has changed since. I have been watching these things closely for about a decade and I call Bultman’s article — especially the headline — “fake news”.

“I have been watching these things closely for about a decade and I call Bultman’s article — especially the headline — “fake news”.”What do others say? Well, judging by the past week’s news, concerns about the death of software patents are widely expressed. Their demise is generally acknowledged by both sides. There is a “chilling effect on many non-practicing entities [trolls], which often assert ‘business method’ and software patents,” one site wrote some days ago in preparation for the “Patent disputes” roundtable (an echo chamber of patent maximalists). They are worried about the demise of software patents — a fact they cannot deny even publicly.

“Speaking at IPO meeting,” IAM said the other day, “acting USPTO director Matal predicts Congressional action on [Section] 101 reform amid concern over medical diagnostics.”

“Remember that Matal played a role in putting AIA in place.”Section 101 is fine as it is regarding abstract patents like software patents. As for medical diagnostics? That’s another domain…

Remember that Matal played a role in putting AIA in place. It paved the way to the Patent Trial & Appeal Board (PTAB). Matal is not perfect, but Iancu would probably be a lot worse.

Earlier on Professor Jason Rantanen wrote about a “second part of the Mayo/Alice inquiry” (basis for Section 101). To quote Patently-O:

The idea that courts describe patent claims in words other than those of the claims themselves during patent eligible subject matter inquiries is nothing new–to the contrary, it’s a frequent complaint about the Supreme Court’s patent eligible subject matter cases. Usually, it’s referred to as determining what the claims are “directed to,” or, in the second part of the Mayo/Alice inquiry, the search for an “inventive concept.”

As we shall show later today, Patently-O is still trying to undermine PTAB, which basically applies criteria like those in Section 101 in order to thwart software patents. It has already been said that it’s harder to enforce software patents in the US than in Europe (owing to EPO being rather defunct under Battistelli). Isn’t it incredible? The US went towards the light and Europe entered darkness. Patent profiteers look at it the other way around. Here is Bastian Best, for example, stating: “Kickstart your day with a good read!⚡️How to get your software patent allowed in Europe” (well, that’s a very bad way to start the day when you actually develop software).

Also just found via Bastian Best was this new article about a NON-CAFC case (United States District Court in Delaware). To quote:

The Federal District Court in Delaware recently denied a motion to dismiss a patent infringement case involving a video game networking technology patent based on the patent allegedly being invalid for lack of patent-eligible subject matter under 35 U.S.C. § 101. Despite all of the recent press regarding the so-called Alice test, which revised the test for patent-eligible subject matter, video game related patents are still obtainable and enforceable. It is critical that patent applications for these inventions be carefully considered, the patent applications be properly drafted and the claims be presented in a way that complies with the relevant test.

Guess what would happen if it was to reach CAFC…

“As we shall show later today, Patently-O is still trying to undermine PTAB, which basically applies criteria like those in Section 101 in order to thwart software patents.”The usual.

There is another new article about Alice, this time by Mark Nowotarski (who wrote to tell me that his article does not represent the stance of Fenwick & West). This third article in the “Surviving Alice” series still uses the word “survive” to reinforce the notion that quality control (PTAB) is death/killer, merely to be “survived”. What does the article show? Here is a portion:

Figure 1 shows how the PTAB ex parte appeals judges[8] have responded to Alice in the field of business methods. The blue curve shows the PTAB reversals as a percent of all decisions in the business method work groups from the first quarter of 2013 (before Alice) to the second quarter of 2017. There are typically 100 to 250 decisions in each quarter. These are “full reversals” in the sense that all rejections by the examiner including § 101, § 102, § 103, §112, etc. were overturned by the board. Some of these full reversals have new grounds of rejection introduced by the board[9]. The black curve shows the reversals where the board introduced a new ground of rejection under § 101. The new grounds were typically based on the claims for failing the Alice/Mayo test. Finally, the brown curve shows the reversals in which the PTAB did not make a new § 101 rejection, but nonetheless put in a footnote suggesting that the examiner review the claims under Alice.[10] Alice footnotes[11] started immediately after the Alice decision and abruptly ended in the fourth quarter of 2016.

Figure 1 also shows how examiners in the business method work groups responded to the reversals by the board. The green curve shows the reversals that the examiners subsequently allowed. The red curve shows the reversals that the examiners subsequently rejected with a new ground of rejection under § 101. Examiners can reject claims again after a reversal by the board but only with the approval of their art unit director[12]. This is normally a rare event, but it became standard practice in the business method work groups after Alice.

So here we have some measurable figures; we’ll focus on PTAB in our next post though. Focusing instead on Alice itself, see “‘Alice’ Before ‘Alice’”, “[t]he story of how the USPTO first began systematically denying patentability to software inventions long before Alice v. CLS Bank International.”

“Their overall message is, don’t bother with software patents.”It’s a “[w]ebinar on how to get software patents despite Alice,” Benjamin Henrion explained. So over time they try to devise new tricks to get past the restrictions and still they are failing to win cases. CAFC is about as convinced/impressed by software patents as the Supreme Court was, i.e. not at all.

Writing from Canada, Gowling WLG’s Georgi Paskalev and Benoit Yelle said about a week ago that “pure software algorithms might prove difficult to protect using patents.”

They reposted this days later in another site of the patent microcosm.

Their overall message is, don’t bother with software patents. Or “pure” software patents — whatever that actually means (software is just software). As we have been arguing and showing (with detailed evidence) for years, software patents are worth neither the money nor the effort. Unless the lobby of IBM can pull something off (i.e. changing the law), none of this reality will change any time soon.

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