10.15.17

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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?

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