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10.18.17

In the Age of Alice and PTAB There is No Reason to Pursue Software Patents in the United States (Not Anymore)

Posted in America, Patents at 6:36 am by Dr. Roy Schestowitz

Summary: The appeal board in the US (PTAB) combined with a key decision of the Supreme Court may mean that even at a very low cost software patents can be invalidated upon demand (petition) and, failing that, the courts will invalidate these

Unwired Planet (formerly known as Openwave) is a patent troll that’s controlled by Ericsson. It is very malicious and it has already targeted the UK too. According to this (more reports from this event can be found at IP Kat), the troll was discussed in Australia and Ruschke from PTAB was there too. Here is the relevant section:

Arguing before a jury is second nature for experienced US patent trual lawyers. According to PTAB Chief Judge David Ruschke, that fact accounts for one of the biggest mistakes parties make in IPRs. Those same trial lawyers are still trying to figure out how best to argue at PTAB proceedings, Ruschke told a panel on post-grant procedures around the world. “You’re not talking to a jury, you’re talking to a panel of technology and law experts,” the judge reminded practitioners. “Some counsel try to tell a story like they would tell to a jury, but then can’t answer fundamental technical questions,” he observed. Ruschke said he was well aware that the PTAB has received what he called “challenging press” and assured attendees that he does not turn a blind eye to it. But he emphasised that the post-grant system is still very much in a transition period.

That’s almost the equivalent of the EPO‘s appeal board (albeit there are fundamental differences).

PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost. No wonder the trolls’ lobby wants so badly to squash PTAB itself.

According to yesterday’s press release from StrikeForce, it managed to escape PTAB’s scrutiny. The funny thing is, this company actually paid money to brag that it had managed to dodge scrutiny of its crappy patents (which would probably have been trashed by PTAB, based on their description which invokes Alice).

“PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost.”Also yesterday there was this press release from FatPipe Networks, which calls itself “the inventor and multiple patents holder of software-defined networks” (i.e. software patents).

Unless they can pretend that the software is somehow physical (an impossibility), these patents are likely worthless.

Eric Lavallee from Lavery de Billy LLP has just published this article, openly urging people to disguise software patents as something else like “AI” (a fashionable buzzword these days even though the concept is far from new). To quote:

The initial instinct of many entrepreneurs would be to patent their artificial intelligence processes. However, although in some instances such a course of action would be an effective method of protection, obtaining a patent is not necessarily the most appropriate form of protection for artificial intelligence or software technologies generally. Since the major Supreme Court of the United States decision in Alice Corp. v. CLS Bank International, it is now acknowledged that applying abstract concepts in the IT environment will not suffice to transform such concepts into patentable items. For instance, in light of that decision, a patent that had been issued for an expert system (which is a form of artificial intelligence) was subsequently invalidated by a U.S. court.2

Law firms are just trying to ‘dress up’ software patents as “AI” to bypass the simple law that renders them worthless.

When will the wider public realise that software patents are virtually dead now? It’s very hard to actually enforce these in a court of law.

“When will the wider public realise that software patents are virtually dead now? It’s very hard to actually enforce these in a court of law.”“Software patents provided some limited protection,” yesterday’s article from Venturebeat said, “but feature wars rage on.”

Programs live or die based on their features, not based on patents that are basically dead now (no leverage to gain from them).

Let’s face the simple fact that Alice changed everything. Last night the EFF published yet another story about Alice, this time regarding blackmail by “My Health”. To quote some portions:

Alice Saves Medical Startup From Death By Telehealth Patent

[...]

When Justus received the demand letter, he was shocked. He read the patent, and it seemed incredibly mundane. It didn’t offer any of the technical detail that Justus knew went into building a complex product like the one offered by MyVitalz. It gave no explanation on how to accomplish any of the goals it claimed. Instead, it seemed to claim the idea of telehealth itself. Justus thought, “I put in four years of work to build my product, and this patent seems so basic.”

“It almost felt as though my business was being blackmailed,” Justus says. “Sure, I could make the threat go away with a payment that would be less than the cost of litigation. But I refused to pay just to be able to keep running my business which I’d devoted my life to building.”

Justus scoured the Internet for information that could help him with My Health’s demand. He tried to figure out how he could defend himself, knowing that to do so would likely mean selling his personal assets to afford a lawyer.

[...]

Thanks to Alice, Justus never heard from My Health again. He’s now back focusing on what matters most: helping people get better health care.

Patent filings at the USPTO are still growing, but legal actions have collapsed. In the coming years we can expect further reduction in the number of patent cases, bringing the system closer to its roots (and further away from extortionate litigation).

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