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

10.15.17

Software Patents and Patent Trolls Not a Solved Issue, But the US is Getting There

Posted in America, IBM, Patents at 11:18 am by Dr. Roy Schestowitz

Summary: A media survey regarding software patents, which are being rejected in the US in spite of all the spin from law firms and bullies such as IBM

TROLLS appear to be moving to Europe and Asia, notably to China. It’s not hard to see why.

As we noted in our previous post, there’s a big problem for patent trolls in the US. As for China? An article just updated (or bumped), some time during this weekend, reminds us that the only country where software patents are still valid and enforceable is China. Lei Zhou and Nancy (Xiaowen) Song (of Linda Liu & Partners, Linda Liu Group) said: “A computer program is patentable in China if it is written in the form of a method or virtual apparatus (ie, an apparatus including modules in one-to-one correspondence with methodological steps). In recent years, claims with an apparatus including processors and memories as their subject matter have been increasingly accepted by examiners.”

Barely any other nation that we can think of would tolerate these; it’s only China where these have bearing when brought before a court. We need to ensure that software patents become extinct everywhere, including in China, as many companies still trade with/in China.

Over the past week we’ve accumulated observations and various takes on the subject of software patents in the US. We’re still observing and concluding that there’s no redemption for them. More worthless software patents, based on [1, 2], are being framed as “AI”, but anyone with a clue knows Alice scraps these. Even if the USPTO says “OK” the courts will likely say “No!”

Steven J. Pollinger, the managing principal of McKool Smith’s Austin office (Texas), ranted the other day about the USPTO’s rejection of “Direct Claiming Of ‘Computer Software’” (i.e. no weasel words or loopholes).

McKool Smith staff, however, are in no position to assert what should come under patent scope; they represent many patent trolls. National Law Review published this on behalf of Pollinger, in essence lobbying for software patents without even asking any software professionals (who oppose this, obviously). To quote:

We propose that the U.S. Patent and Trademark Office amend its subject matter eligibility guidelines, and all other related guidance, to make clear that claims may be expressly directed to “computer software” consistent with 35 U.S.C. §101. This would bring the Patent Office’s practice in line with recent Supreme Court and Federal Circuit case law, and would help innovators to better protect their software inventions that play such a key role in today’s computer-focused economy.

The Patent Office’s current guidelines can be read to discourage or even prohibit direct claiming of computer software. Even where the crux of an invention is directed to software, patentees currently are motivated to engage in a needlessly inefficient and expensive claim drafting process, whereby practitioners seek to cover software in an indirect manner — with various sets of claims directed to configured systems, media, methods, or other similar language — instead of simply claiming software itself.

Even if people like Pollinger can ‘trick’ examiners into granting a software patent, the likelihood of such a patent being respected by courts has been vastly diminished. They know it! An honest law firm would say, “don’t litigate, software patents are dead,” but they profit for lying about it. As is often the case, the media that they have a grip on will twist and spin to make it seem otherwise.

How about this press release? It’s a paid-for statement that says “Enterprise IP management software is an automation system for modern corporate that supports in the tracking of patents, trademarks, copyrights and IP.”

IP Pro Patents, in the meantime, reminds us that it’s just a propaganda and marketing site with this puff piece about Anaqua. All these pieces of software merely give the illusion of value. They’re like a virtual world for paper ‘assets’.

Here is IP Pro Patents with another puff piece, ‘dressed up’ as an article preceded by: “Barney Dixon speaks to James Muraff of Neal Gerber Eisenbeg on how to tackle patent subject matter eligibility in the ever-growing wake of Alice” (2014)

The whole thing is just a marketing opportunity and a lot of spin around Alice, e.g.:

How does Neal Gerber & Eisenberg’s approach to Section 101 litigation differ from other law firms?

Arguing the first step equally to, if not more than, the second is important because it gives a patent examiner a better sense of what the invention really is and the meaning of the specific required claim limitations, all up front. This often causes the examiner to realise the invention is really not just some broad (abstract) idea, at the outset of the arguments. I think the firms with better success argue both steps strongly, especially the first step.

But once assessed at a higher level like PTAB or courts (with an appellant) none of this would work. We’ve seen it all before. What are these people on, drugs?

Surely they know that patents on software aren’t worth pursuing, but either they intentionally lie about it or they’re on some truly strong drugs. Speaking of drugs, there are also patents on drugs, deemed “recreational”. Here is an article composed and published about it 5 days ago. From the introduction:

Patent law, possibly the most talked about yet least understood form of intellectual property, has yet to have a large impact on the marijuana industry. However, there is no doubt that the powerful protections that patent registrations provide will certainly have lasting effects. Many within the industry have the powerful tool known as patent law at their disposal, and a few have used it to great extent already. In this post I intend to nail down some patent basics and the potential implications that a patent-ridden landscape could have on not just the industry, but the plants themselves.

Even patents on drugs would be a lot more enforceable than patents on software at this stage. This new article admits that “Alice thus significantly curtailed what software-related inventions remained available for patent protection. However, it provided no specific guidance for determining the bounds of what software-related innovations remained patent eligible” (there are caselaw-type examples though).

EFF bashers such as J Nicholas Gross like to over-complicate patents to celebrate them being granted; when rejected they simplify it.

Watch what he wrote the other day: “USPTO reaches new milestone of insanity, rejects patent application on turbine engine as just an “abstract idea” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005774-09-28-2017-1 …”

“You must be over-simplifying what the patent claimed,” I told him “maybe wrongly ascribed to a “device” such as a turbine engine.”

Several days ago we found this report titled “Lufthansa Technik AG Files Patents For New Composite Repair Robot” and it made it sound like Lufthansa is patenting software now. To quote from the article: “The robot’s specially developed software scans and diagnoses damage, identifies the surface and calculates the scarf joint’s form and a milling path before cutting out the damaged material.”

There’s a physical element to it, but the software part should not be patentable. The same goes for 3-D printers. Several days ago there was this report about Ultimaker, noting that “[o]pen source was a big focus at this year’s edition of the TCT Show, and remains so as well for Ultimaker, which maintains deep roots in the community.”

So why patents? It says “following the company’s first filed intellectual property patent” as if they try to build a patent portfolio around their software.

How about this new article regarding Blockchain, which is already being infested with questionable software patents? Leslie M. Spencer and Marta Belcher ought to know that software patents are dead. Courts reject them.

Why does Ropes & Gray LLP promote software patents on Blockchain still?

From their article:

Blockchain — the distributed ledger technology underlying bitcoin — has the potential to have a revolutionary impact far beyond cryptocurrencies. Fundamentally, a blockchain is an immutable record of transactions — each one cryptographically verifiable and linked to the other transactions — that allows for accurate and secure transfers of digital assets without requiring a middleman or trusted broker such as a bank. IBM Chairman and CEO Ginni Rometty has stated that “blockchain will do for trusted transactions what the internet has done for information,”1 and a recently published World Economic Forum white paper argued that blockchain is creating an “internet of value.”2 Whether the mainstreaming of blockchain is as imminent as some suggest, a huge amount of investment is flowing into the development of blockchain applications in sectors ranging from financial services to health care to supply chain management.

They are quoting Ginni Rometty from IBM, the leading lobbyist for software patents and one of the biggest patent bullies around. IBM keeps trying to undermine Alice and the company’s patent chief has in fact just promoted this article about Alice, taking note only of the few decisions where Alice challenges got rejected by the Federal Circuit (not any time recently). To quote:

It has now been over three years since the U.S. Supreme Court handed down its transformative patent decision in Alice Corp. v. CLS Bank. During that time, the Federal Circuit has issued only a precious few decisions upholding the validity of software patent claims. Thus, it is critical that patent applicants and practitioners understand the lessons that these cases offer and the hallmarks of software patent eligibility they establish. While clear eligibility rules remain elusive, the cases that have been decided provide valuable guideposts for drafting patent applications moving forward.

The post-Alice eligibility analysis uses the Supreme Court’s previously established two-step framework. Under Step 1, courts first decide whether patent claims are directed to an abstract idea. If they are found “not abstract,” that finding alone supports eligibility, and the analysis can end. If the claims are found to be directed to an abstract idea, under Step 2 courts decide whether the claims contain an inventive concept sufficient to ensure that the claims amount to “significantly more” than the abstract idea itself. If they do, they are deemed patent eligible. This post examines the Federal Circuit decisions upholding software patent claims on Step 1 grounds; we will also publish a second post that examines patent claims upheld on Step 2 grounds.

Look who wrote this article. It’s S. James Boumil from Proskauer Rose LLP, which is being dishonest (cherry-picking) again. No Federal Circuit case has, for many months, favoured software patents (Visual Memory v NVIDIA is not relevant at all). “James assists clients in obtaining and enforcing intellectual property rights in the U.S. and abroad,” says the disclosure. So obviously he just wants companies to sue spuriously; he would earn money no matter if the cases get dropped/dismissed.

This is the kind of tripe pushed by IBM!

IBM is trying hard to convert its pile of software patents into much-needed cash (now that IBM is imploding), but PTAB and courts keep invaliding IBM patents, typically using Alice. IBM keeps setting up groups and events to fight against Alice, but so far no success…

Dennis Crouch, who has also been trying to crush Alice and bring back software patents, advertised this event a few days ago. The title says very clearly what it’s trying to accomplish. “The Need for Legislative Reform: The Berkeley Section 101 Workshop” is the title and here is the abstract:

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation’s patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: that a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an “inventive” application of the discovery. The following year, the Court ruled that discoveries of the location and sequence of DNA compositions that are useful in diagnosing diseases are ineligible for patent protection. And in its 2014 Alice Corp. v. CLS Bank International decision, the Court ruled that software-related claims are ineligible for patent protection unless the abstract ideas or mathematical formulas disclosed are inventively applied.

They just can’t help trying to undermine the Supreme Court, can they?

The other day Crouch promoted a paper which said “legal job market is strong and growing” (by “legal jobs” they means jobs that are not making anything, just suing, or threatening to sue).

Looking at the paper in question, it speaks of patent maximalism and concludes: “In fact, patent attorneys with the appropriate background (mechanical, electrical, chemical or computer engineering degrees or “MECC Engineers”) are quite attractive on the employment market. Yet, they still do not come to law school.”

Maybe they want to change the world for the better, not destroying people’s actual work. Dennis Crouch remarked that this “article argues that “this fact will have a deleterious effect on the United States economy.””

What will? The patent microcosm? To people like Crouch, for example, the “United States economy” probably just means a bunch of blood-sucking law firms. With patents being granted to malicious firms like Securus (the incarceration industrial complex).

Some “economy”, eh?

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. Microsoft's Latest Vapourware About Supercomputers

    Microsoft has spent almost two decades dropping supercomputers vapourware on the media, but those misinformation dumps always turn out to be 100% hot air, no substance



  2. 2020: A Time for Resolutions or Revolutions?

    There are nonviolent means by which the current system can be corrected; we need to convince peers and relatives to change the way they behave and not cooperate with unjust elements of the system



  3. IRC Proceedings: Tuesday, June 02, 2020

    IRC logs for Tuesday, June 02, 2020



  4. The Gates Press (GatesGate) -- Part I: Lost the Job After Writing an Article Critical of Bill Gates for Attacking Some Actual, Legitimate Charities (Because They Had Spread GNU/Linux)

    The sociopaths from the fake 'charity' of Bill Gates would go to great lengths to squash criticism and also to eliminate critics; this series tells the story of some of those personally affected



  5. Don't Fall for the Spin, Microsoft is Laying Off Workers and It's Not Just Because of the Pandemic





  6. All They Want is Litigation, Not Innovation

    It's getting difficult to ignore or to overlook the fact that the 'litigation lobby' (the likes of Team UPC and today's EPO management, guided by groups like the Licensing Executives Society International) doesn't care about innovation and is in fact looking to profit by crushing innovation



  7. Reminder: Microsoft Profits From Crushing Protesters for Donald Trump

    Don't lose sight of the fact that what's going on in the United States right now is very profitable to Microsoft



  8. No, GNU/Linux Isn't at 3% and Windows Isn't at Over 90%, Either

    This ludicrous idea that "Linux" (however one defines it) enjoys just 3% of the "market" is false and it should be treated as laughable spin (it is being widely promoted this week, often by Microsoft boosters looking to make charts where Windows stays at above 90% and Vista 10 is 'gaining'... at the expense of Windows)



  9. Links 3/6/2020: Devuan Beowulf 3.0.0 and Tails 4.7 Released

    Links for the day



  10. Links 2/6/2020: New Firefox Release (77), Debian-based MX Linux 19.2, KDevelop 5.5.2, GNU/Linux Growth on Desktops/Laptops

    Links for the day



  11. Techrights Can Figure Out Source Protection/Anonymisation Whilst Operating Very Transparently

    We're still quite radically transparent whilst at the same time enjoying 100% source protection record; we're also improving the software we use to publish more quickly and efficiently



  12. IRC Proceedings: Monday, June 01, 2020

    IRC logs for Monday, June 01, 2020



  13. This is How GNU Finally Dies

    "Brace for when GNU falls the way that OSI, FSF, FSFE, Mozilla, and the Linux Foundation did."



  14. Latest Microsoft Layoffs Spun as 'Innovation' (There's Always a Positive PR Angle)

    The public is expected to simply ignore the fact that Microsoft is laying off employees (again); instead we're expected to think it's all about Microsoft being very brilliant and innovative



  15. Microsoft Playing the Victim, Irrationally 'Hated' by Victims of Its Abuse

    We're meant to believe that those whom Microsoft bribes against are the opinionated 'haters' and Microsoft is a victim of 'hate'



  16. Links 1/6/2020: Linux 5.7, FOSSlife Born, LibreOffice 7.0 Beta1, Linux Mint 20 Making Early Promises

    Links for the day



  17. Linux Without Linus

    The Linux Foundation seems to be acting like Linus (Linux founder) is somewhat of a liability (forcing him to take a ‘break’ from his own project) while taking even the most notorious proposals from corporations, including those that called Linux a “cancer”



  18. What It Would Take for Linus Torvalds to Leave Linux Foundation Without the Linux Trademark and Without Linux

    It's nice to think that the founder of Linux can just take his project and walk away, moving elsewhere, i.e. away from the Microsoft-employed executives who now "boss" him; but it's not that simple anymore



  19. The Past Does Not Go Away, Except From Short-Term Memories

    People who are drunk on power and money (sometimes not even their own money) like to portray themselves as the very opposite of what they are; but in the age of the Internet it's difficult to make the general public simply forget the past and "move on..."



  20. IRC Proceedings: Sunday, May 31, 2020

    IRC logs for Sunday, May 31, 2020



  21. Links 1/6/2020: OpenMandriva Lx 4.1 2020.05, Linux Lite 5.0 Release, FreeBSD 11.4 RC2

    Links for the day



  22. It's a Common Mistake and Common Misconception/Error to Treat Microsoft as Just Another 'Large Company' (or 'Big Tech')

    What's wrong about Microsoft isn't its size; what's wrong with Microsoft is its behaviour, which isn't just illegal (crimes are the norm) but also hugely unethical



  23. Lessons of Michael Arrington (About Microsoft)

    Microsoft and Bill Gates have a long history bullying their critics; the quote above (or below) shows how even people who advertise with Microsoft are becoming the target of abuse



  24. 'Best' of Both Worlds: GNU/Linux Freedom + Malware With Keyloggers and DRM

    Running a Microsoft-controlled GNU/Linux instance under Vista 10 ("Windows Subsystem for Linux") in the age of virtual machines, dual boot and containers makes as much sense as chopping some carrots to go with the veal meal to appease vegetarian diners



  25. First They Bribe the Employer, Media Lynch Mobs May Follow

    The 'cancel culture' lynch mobs, which leverage social causes (or marginalised groups), remain a convenient means by which to oust one's political/business opposition; but money too is a massive contributing factor and the more one has of it, the easier it is to control media narrative and subversive focus



  26. Upcoming Series Teaser: The Bribery Operation of William Henry Gates III

    Bribery goes a very long way when it comes to the megalomaniac who pays the media to portray him as the world's most generous person



  27. Windows Ransomware Must Not be Unspeakable When People Die in Large Numbers Due to That (and Windows Has Intentional Back Doors)

    Loss of electronic patient records, ransom and downtime among the severe consequences of deploying Microsoft inside hospitals; yet the media rarely names the real culprit (manslaughter charges theoretically possible) and nobody gets punished except those who offer real solutions



  28. IRC Proceedings: Saturday, May 30, 2020

    IRC logs for Saturday, May 30, 2020



  29. Burning the House That Richard Stallman (RMS) Built: An Open Letter to GNU Maintainers Who Opposed RMS

    An open letter to people who petitioned RMS to step down and who outsource GNU projects to Microsoft (GitHub)



  30. Links 30/5/2020: Godot Editor Under Web Browsers, Alpine Linux 3.12.0 and EasyOS 2.3

    Links for the day


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