10.01.17
Buzzwords Are Used to Patent Software in the US, Courts Continue to Reject These, and Alice is Secure
What’s that buzzing?
Summary: Buzzwords such as “AI” continue to pave the way to more bogus patents (USPTO grant numbers soar to new record), but the legal system remains resistant to these and Alice — contrary to some misinformation — isn’t at risk from the US Supreme Court (SCOTUS)
THE focus here has, over the years, moved to Europe, but we still watch the USPTO closely, especially because of patent trolls and software patents (some have dubbed them “software patent trolls” to signify the correlation between the two phenomena).
As another reminder of how patents harm progress in technology (several domains affected and especially software), consider this short report from Phoronix. It is about a patent which is about to expire:
If you need an extra reason to celebrate this weekend, next week the notorious S3 Texture Compression (S3TC) patent is set to expire!
S3TC has been a thorn in the side of open-source graphics driver developers for years. It’s resulted in a nasty wreck that’s long been problematic for both drivers and users from a legal perspective.
Compression is software, obviously. When combined with physical graphics cards (not drivers) — some might falsely argue — it’s then magically “non-abstract” or “hardware”.
The truth of the matter is, the US continues to grant software patents. Not only “hardware” or “device” is the loophole; we previously mentioned “over the Internet”, “on a phone”, “in a car” etc. There’s also that old bunch of buzzwords like “cloud”, “AI”, and “IoT”. They keep coming up with all sorts of new terms that still allude to things which existed decades ago.
According to these latest figures which Patently-O has charted, the USPTO bubble continues to grow. A lot of awful patents are granted. Throwing them out? That’s left for PTAB (the board) and the courts to do.
Consider this new example from Patently-O. “You can read Claim 1 for yourself,” it says, “but my quick review lets me classify the patent as quite low quality; very difficult to infringe; and likely invalid under 101 (abstract idea).”
So the USPTO bubble continues its growth (“Record Year for PTO Grant Numbers” as Patently-O has just put it), even though innovation isn’t peaking or soaring, it’s just patent maximalism.
The main novelty nowadays seems to be marketing and aliasing/terminology. They find new ways to refer to things and we are going to present some examples of that.
Watchtroll, as of 4 days ago, wanted people to bypass the rules to get software patents and then dodge quality control by PTAB. They’re very blatantly open about it; even the headline: “A Revolutionary Approach to Obtaining Software Patents Without Appealing to the PTAB” (in other words, cheat a little).
Watchtroll also attacked Elon Musk on the same day, having done the same to Mark Cuban because he does not agree with Watchtroll’s ‘religion’.
Anyway, pressing on with some loophole examples, last week IP Watch wrote about patents on driving — a subject we covered here before. Lots of software patents are nowadays disguised (for supposed novelty) as “on a car”, pretending it’s all novel because “AI” or physical because “automobile” etc.
These same old buzzwords that are nowadays being used to sneak in patents on software (“AI”, “cloud” etc.) need to be understood by patent examiners. They’re pretty meaningless buzzwords. They don’t even allude to anything so new.
How about this nonsense ‘news’ item which was crossposted in at least three places last week [1, 2, 3]? Just look at it. It speaks of a patent on “Industrial Internet of things (IIoT)” — a concept or buzzword I never even heard before.
To quote: “We’re excited to receive recognition of our innovation and will continue to pursue our goal to create the most advanced Industrial IoT software available, as well as to protect its value with registered patents,” says Avner Ben-Bassat, President…”
Someone wrote to me the following message about it:
*sigh* I’m an automation engineer and hear IIoT all. the. time. And it’s just marketing BS for instrumentation networks that have evolved over the last 25 or so years to encapsulate comms in IP. It is not a new concept.
And the patent in the press release you linked to is BS too. Plant performance systems have been deployed for about 20 years as well. Rockwell probably has prior art and maybe even patents that are close to or already expired for example.
A few days ago, in the EFF’s “Stupid Patent of the Month” series, the EFF and friends berated the use of the term “AI”. They explained how the term Artificial Intelligence (AI) is misused in the pursuit of software patents, or at least that’s we see between the lines. To quote:
We have written many times about why the patent system is a bad fit for software. Too often, the Patent Office reviews applications without ever looking at real world software and hands out broad, vague, or obvious patents on software concepts. These patents fuel patent trolling and waste. As machine learning and artificial intelligence become more commonplace, it is worth considering how these flaws in the patent system might impact advances in AI.
Some have worried about very broad patents being issued in the AI space. For example, Google has a patent on a common machine learning technique called dropout. This means that Google could insist that no one else use this technique until 2032. Meanwhile, Microsoft has a patent application with some very broad claims on active machine learning (the Patent Office recently issued a non-final rejection, though the application remains pending and Microsoft will have the opportunity to argue why it should still be granted a patent). Patents on fundamental machine learning techniques have the potential to fragment development and hold up advances in AI.
As a subset of software development, AI patents are likely to raise many of the same problems as software patents generally. For example, we’ve noted that many software patents take the form: apply well-known technique X in domain Y. For example, our Stupid Patent of the Month from January 2015 applied the years-old practice of remotely updating software to sports video games (the patent was later found invalid). Other patents have computers do incredibly simple things like counting votes or counting calories. We can expect the Patent Office to hand out similar patents on using machine learning techniques in obvious and expected ways.
Why are such “stupid” patents being granted at all?
Why are such patents being glorified?
A week ago this news site praised a lady, saying that “Hoover was awarded one of the earliest software patents” as if such patents are a source of pride (Martin Goetz certainly loves his first-ever software patent). The general consensusview of software patents is very negative. It’s typically the patent maximalists who promote these, along with patent trolls.
The other day Bryan Lunduke wrote: “Perhaps the solution is in the complete abolishment of computer hardware and software patents” (in a mainstream publication).
In contrast to this, the patent ‘industry’ published self promotion in AOL, ending with a completely shameless ‘plug’:
As I said, it’s not that you can’t get a software patent, but it may not be the best solution. Your best bet is to go over your options with an intellectual property attorney.
LawTrades can connect you with a qualified IP attorney that can answer your questions and guide you in the right direction. Our marketplace of attorneys differs from traditional law firms because they don’t have the outrageous overhead and you will have direct access to your attorney.
Software patents are a waste of time and money in the US. That’s because the courts almost always discard them these days. But law firms don’t want to say this. It’s not good for their business. If software patents are no more, or at least not effective, then they might have to change jobs. Here is a press release from 5 days ago that says “Bednarek began his career in the early 1980s as patent examiner at the U.S. Patent and Trademark Office, examining some of the first software patents granted by the agency.”
These patents, a few decades later, are not just expired. Patents like these are considered to be an impediment to free speech and are being invalidated almost every day. Is there any upcoming threat to Alice. Well, some want us to believe so, having published (just a few days ago) an article titled “SCOTUS to decide whether Alice-focused case is ripe for review”
There are claims that this case might lead to Alice being reconsidered/revisited (which we strongly doubt), but looking at the actual substance of the case, it’s that same old case which we said isn’t about software and is only being framed as software by those who intentionally twist the facts and attempt to undermine Alice that way. To quote:
The US Supreme Court could decide to take on a case that re-visits the landmark 2014 Alice v CLS Bank decision, which rocked the computer software patent industry.
Synopsys, an electronic design automation company, petitioned the court to “examine whether an otherwise revolutionary technological breakthrough is not an ‘inventive concept’” under the second step of Alice “merely because the court believed the breakthrough could theoretically be implemented without a computer”.
It stems from a dispute with rival Mentor Graphics, which Synopsys accused of infringing US patent numbers 5,530,841, 5,680,318, 5,748,488, and 6,836,420, relating to logic circuits.
Even if the Supreme Court was ever to deal with this case, it’s nothing like Alice. It’s a lie.
Speaking of the Supreme Court, this new article speaks of the decline of the doctrine of equivalents (covered here recently) two decades down the line:
Some recent Federal Circuit decisions as well as a petition to the Supreme Court suggest the doctrine of equivalents is not dead in the US, despite a declining number of decisions referencing the doctrine since Warner-Jenkinson in 1997
The number of US patent decisions referencing the doctrine of equivalents has been falling for two decades.
In the UK Supreme Court, in the meantime, patent scope on is the line, so 3 patent maximalists (Kingsley Egbuonu, Michael Loney and James Nurton) weigh in, also in relation to the doctrine of equivalents (partly in relation to the UK, but the EPC is mentioned as well):
The Supreme Court’s decision in Actavis v Eli Lilly introduced a doctrine of equivalents and arguably also established a doctrine of prosecution history estoppel in the UK. Over the following 19 pages we look at the law across Europe, and the impact the decision might have.
As usual, it’s behind a paywall, so only the patent microcosm will read this, rendering the rest of us unable to properly scrutinise it. █
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