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

10.19.17

Some of the USPTO’s Most Ridiculous Patents Are Scrutinised by “Above the Law” While Dennis Crouch Attempts to Tarnish Alice

Posted in America, Patents at 6:20 pm by Dr. Roy Schestowitz

Whereas Charles Duan (below) compares patents to monopolies

Charles DuanSummary: Controversies over patent scope and level of novelty required for a patent; as usual, public interest groups try to restrict patent scope, whereas those who make money out of abundance of patents attempt to remove every barrier

THE declining quality of European Patents (EPs) is a real issue at the EPO. But that pales in comparison to some of the patents granted by the US patent office. USPTO patents include a method of swinging a swing, for example. Sideways. Yes, it’s a patent!

“Ever tried swinging from side to side on a swing instead of back & forth? Turns out, that method is patented,” United for Patent Reform wrote, linking to this article from earlier this month. It’s a pretty infamous patent which we mentioned here before.

“There’s also a patent for the “comb-over”,” one person reminded me today. This too we mentioned here a very long time ago.

From the article at “Above the Law”:

The United States Patent and Trademark Office (USPTO) has granted some pretty ridiculous patents over the years. It makes me wonder about the quality of patents they’re not granting. If you’re interested in patent policy, you should really read the Electronic Frontier Foundation’s (EFF) “Stupid Patent of the Month” column (EFF actually has the Mark Cuban Endowed Chair to Eliminate Stupid Patents), which is exactly what it describes itself to be: an incredible collection of outrageous, low-quality, obvious claims that USPTO somehow deemed worthy of monopoly protection. While some of these have since been revoked or overturned, just remember that they were once granted. Note that the Supreme Court in recent years has—often unanimously—overturned several patents, clarifying patentability criteria, which should impact the number of stupid patents being granted. And, I note that the collection of ridiculous patents below does not include items that actually meet patentability thresholds, but are just crazy ideas; instead, they cover things that probably should never have been granted a patent to begin with.

How about the other picks from the EFF?

“Unfortunately, the negligent USPTO will issue patents to people like this. Here’s one on a mundane training regime,” the EFF’s Daniel Nazer wrote about this patent and there’s more in Twitter (in this thread, for context).

Why did the examiners at the USPTO accept these applications and how did that slip through the system without adequate safeguards? This is why things like PTAB (to be covered separately) are required.

Earlier today we also stumbled upon this truly ridiculous article from the National Law Review. It wants us to think of methods as objects and the headline is a loaded question: “Why Can’t A Method Be Sold, Just Like Any Other Invention?”

U.S. Patent and Trademark Office guidelines do not currently allow patentees to directly claim software inventions, thereby encouraging use of other claim types such as method claims. As a result, the patent office has issued many patents with method claims directed to software inventions. But patentees who rely on method claims to protect their software inventions — and indeed all patentees with method claims — face a significant obstacle that has been imposed by the Federal Circuit.

Specifically, the Federal Circuit has held for purposes of infringement that method inventions are not considered made or sold even if they are necessarily used by or embodied in products that are made or sold. This has the effective result of helping infringers to exploit patented method inventions by selling products that make use of the invention — even in ordinary and expected usage of the product — while evading legitimate attempts by the patentee to remedy the infringement. Below, we suggest that the Federal Circuit’s position is incorrect and unnecessarily hampers protection and enforcement of method inventions, disproportionately affecting software. The Federal Circuit should change course and clarify that methods can be sold just like any other invention in certain circumstances.

The first paragraph says “software inventions” three times. It’s obvious that people who never developed software can’t quite grasp that programming isn’t “invention”.

We assume that many law professors still deliberately misunderstand software development and incidentally, there’s this new article today about Judge William H. Alsup of the northern district of California learning how to code in order to better understand the Oracle v Google case (copyrights and patents).

Earlier today Dennis Crouch wrote about the Federal Circuit, claiming that on Alice the “Turnstile Keeps Spinning” even though nowadays (this year) the court almost always invalidates software patents. It’s becoming more consistent over time, but to lobbyists like Crouch (promoting patent maximalists’ and trolls’ agenda) it’s a “Turnstile”, apparently. To quote:

In a split opinion, the Federal Circuit has affirmed the district court’s judgment on the pleadings – R. 12(c) – that the asserted claims of SSI’s four patents are invalid under Section 101 for claiming an abstract idea. U.S. Patent Nos. 7,566,003, 7,568,617, 8,505,816, and 8,662,390. (Claim 14 of the ‘003 patent – covering a method for validating entry to a city bus or train – is reproduced below).

[...]

As the Supreme Court has done in its 101 analysis, Judge Linn linked his work back to cases such as Le Roy, Mackay, and Funk Bros. The language of those cases focus on “fundamental truths” and “hitherto unknown phenomenon of nature.” In Benson and Alice, the court also explained “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”

For Judge Linn, a method of charging a bank-card at a bus-turnstile does not fit into those expansive definitions.

Judge Linn’s opinion recognizes that his concern directly stems from the Supreme Court’s approach in Alice and Mayo. He writes: “The problem with this test, however, is that it is indeterminate and often leads to arbitrary results.” His solution is that the two part test should not be “applied in a legal vacuum divorced from its genesis” and the three exceptions should be treated consistently. Patents should not be struck down simply because they “seemingly fail the Supreme Court’s test.” Rather, the focus should be on whether the patents “attempt to appropriate a basic building block of scientific or technological work.”

The solution for Judge Linn: Focus on the language of the claims and each limitation when determining whether a claim is directed to an abstract idea – “a basic building block of scientific or technological activity” or instead to a “tangible application” that serves a “new and useful end.”

Crouch is hoping to scandalise Alice like he does PTAB. Earlier this year it became ever more evident that Crouch is more like an activist (for trolls) than a scholar. He’s no longer good at concealing it. Earlier today he published a guest post by Charles Duan of Public Knowledge. This, for a change, gave an illusion of balance, comparing patents to monopolies:

Are Patents Monopolies? It Depends on the Relevant Century

The question of whether patents are monopolies is one of ongoing debate. But an important aspect of that debate is the correct meaning of the word “monopoly.” A change in the word’s meaning over the last few centuries can explain at least some of the differing opinions on the question.

Today, the word “monopoly” refers to a concentration of economic market power in a single firm or entity. But up through the early 19th century, that was not the accepted definition. In that time period, a monopoly was a government grant of an exclusive right, more akin to a franchise or government contract.

As we showed earlier this year, Crouch keeps misleading the readers about what patents are. He uses the language of patent maximalists.

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. With Stambler v Mastercard, Patent Maximalists Are Hoping to Prop Up Software Patents and Damage PTAB

    The patent 'industry' is hoping to persuade the highest US court to weaken the Patent Trial and Appeal Board (PTAB), for PTAB is making patent lawsuits a lot harder and raises the threshold for patent eligibility



  2. Apple Discovers That Its Patent Disputes Are a Losing Battle Which Only Lawyers Win (Profit From)

    By pouring a lot of money and energy into the 'litigation card' Apple lost focus and it's also losing some key cases, as its patents are simply not strong enough



  3. The Patent Microcosm Takes Berkheimer v HP Out of Context to Pretend PTAB Disregards Fact-Finding Process

    In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts



  4. Microsoft Has Left RPX, But RPX Now Pays a Microsoft Patent Troll, Intellectual Ventures

    The patent/litigation arms race keeps getting a little more complicated, as the 'arms' are being passed around to new and old entities that do nothing but shake-downs



  5. UPC Has Done Nothing for Europe Except Destruction of the EPO and Imminent Layoffs Due to Lack of Applications and Lowered Value of European Patents

    The Unified Patent Court (UPC) is merely a distant dream or a fantasy for litigators; to everyone else the UPC lobby has done nothing but damage, including potentially irreparable damage to the European Patent Office, which is declining very sharply



  6. Links 17/2/2018: Mesa 17.3.4, Wine 3.2, Go 1.10

    Links for the day



  7. Patent Trolls Are Thwarted by Judges, But Patent Lawyers View Them as a 'Business' Opportunity

    Patent lawyers are salivating over the idea that trolls may be coming to their state/s; owing to courts and the Patent Trial and Appeal Board (PTAB) other trolls' software patents get invalidated



  8. Microsoft's Patent Moves: Dominion Harbor, Intellectual Ventures, Intellectual Discovery, NEC and Uber

    A look at some of the latest moves and twists, as patents change hands and there are still signs of Microsoft's 'hidden hand'



  9. Links 15/2/2018: GNOME 3.28 Beta, Rust 1.24

    Links for the day



  10. Bavarian State Parliament Has Upcoming Debate About Issues Which Can Thwart UPC for Good

    An upcoming debate about Battistelli's attacks on the EPO Boards of Appeal will open an old can of worms, which serves to show why UPC is a non-starter



  11. The EPO is Being Destroyed and There's Nothing Left to Replace It Except National Patent Offices

    It looks like Battistelli is setting up the European Patent Office (EPO) for mass layoffs; in fact, it looks as though he is so certain that the UPC will materialise that he obsesses over "validation" for mass litigation worldwide, departing from a "model office" that used to lead the world in terms of patent quality and workers' welfare/conditions



  12. IBM is Getting Desperate and Now Suing Microsoft Over Lost Staff, Not Just Suing Everyone Using Patents

    IBM's policy when it comes to patents, not to mention its alignment with patent extremists, gives room for thought if not deep concern; the company rapidly becomes more and more like a troll



  13. In Microsoft's Lawsuit Against Corel the Only Winner is the Lawyers

    The outcome of the old Microsoft v Corel lawsuit reaffirms a trend; companies with deep pockets harass their competitors, knowing that the legal bills are more cumbersome to the defendants; there's a similar example today in Cisco v Arista Networks



  14. The Latest Lies About Unitary Patent (UPC) and the EPO

    Lobbying defies facts; we are once again seeing some easily-debunked talking points from those who stand to benefit from the UPC and mass litigation



  15. Speech Deficit and No Freedom of Association at the EPO

    True information cannot be disseminated at the EPO and justice too is beyond elusive; this poses a threat to the EPO's future, not only to its already-damaged reputation



  16. No, Britain is Not Ratifying 'Unitary' Anything, But Team UPC Insinuates It Will (Desperate Effort to Affect Tomorrow's Outcome)

    Contrary to several misleading headlines from Bristows (in its blog and others'), the UPC isn't happening and isn't coming to the UK; it all amounts to lobbying (by setting false expectations)



  17. The EPO's Paid Promotion of Software Patents Gets Patent Maximalists All Excited and Emboldened

    The software patents advocacy from Battistelli (and his cohorts) isn't just a spit in the face of European Parliament but also the EPC; but patent scope seems to no longer exist or matter under his watch, as all he cares about is granting as many patents as possible, irrespective of real quality/legitimacy/merit



  18. Andrei Iancu Begins His USPTO Career While Former USPTO Director (and Now Paid Lobbyist) Keeps Meddling in Office Affairs

    The USPTO, which is supposed to be a government branch (loosely speaking) is being lobbied by former officials, who are now being paid by private corporations to help influence and shape policies; this damages the image of the Office and harms its independence from corporate influence



  19. Links 14/2/2018: Atom 1.24, OSI Joins UNESCO

    Links for the day



  20. The EPO Now Censors the Central Staff Committee Like It Used to Censor SUEPO

    The EPO's Central Staff Committee (CSC) is now being treated as poorly as SUEPO several years ago (when it was threatened to remove publications from its site or face severe action)



  21. Microsoft-Connected Patent Trolls, Xerox, and Andrei Iancu

    A roundup of news pertaining to Microsoft-connected entities and their patent activity this month; Director Iancu is only loosely connected to one of them (he fought against it)



  22. The Campaign to Subvert the US Patent Office by Misrepresenting Its Successes

    Figureheads of the patent microcosm (firms that profit from patent chaos) are still meddling in affairs which they intentionally mis-portray, conflating innovation with number of patents and so on



  23. Almost All Patent Lawsuits in China Are Filed by the Chinese, But IAM (Cherry) Picks the Exception

    China's patent office (SIPO) is a pretty one-sided office where Mandarin patents get filed primarily by local firms and lawsuits too are filed by local firms; IAM, however, found a "man bites dog" slant



  24. Congratulations to Cloudflare on Beating Patent Troll Blackbird Technologies

    After nearly a year in the court (no doubt an expensive exercise for Cloudflare) the Northern District of California finally dismisses the lawsuit, deeming the underlying claims “[a]bstract ideas [which] are not patentable”



  25. Watch Out for Buzzwords That Are Used to Mask Patents on Software, Even in Europe

    The EPO now exploits EPO budget for advocacy of software patents; It's troubling as it was traditionally the 'job' of the patent 'industry' and moreover it reveals an EPO so adrift from law and order that it's a Bavaria-based pariah acting with impunity, posing a threat to software development in the whole of Europe



  26. EPO Opposition to CRISPR Patents Has Wide-Ranging and Far-Reaching Impact, But Mind Not the Lobbyists

    The patent maximalists who strive to bring patent trolls and limitless patents to Europe are losing their battle; this is, for the most part, owing to courageous European examiners who say "no" to patents that aren't justified



  27. Links 13/2/2018: Rise of the Tomb Raider on GNU/Linux, KDE 5.43.0, Qt 5.10.1

    Links for the day



  28. Denialists of Patent Trolls Are at It Again

    The patent trolls' lobby (sites like IAM and Watchtroll or Koch-funded scholars) want us to think that patent trolls are just a myth that can be dismissed and ignored; sadly for these lobbyists, underlying facts are not on their side



  29. Patent Maximalists Won't Get Their Way and UPC Will Likely Never Happen (Even After Battistelli)

    The incautious optimism from the patent 'industry', trying to convince us all that expansion of patent scope and litigation would be a boon to innovation, faces growing resistance; contrary to what the patent microcosm is saying, it's extremely unlikely that the UK and Germany will ratify the Unified Patent Court (UPC), i.e. open the door for patent trolls in Europe



  30. Links 12/2/2018: Linux 4.16 RC1, ZFS Back in Focus

    Links for the day


CoPilotCo

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

CoPilotCo

Recent Posts