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

11.05.17

A High US Court (CAFC) Continues Rejecting Software Patents (Even of Microsoft’s Patent Trolls)

Posted in America, Courtroom, Microsoft, Patents at 10:51 am by Dr. Roy Schestowitz

Microsoft too has trouble in that court, but will Microsoft change its course?

Sharon ProstSummary: Under Chief Judge Sharon Prost (who took over after the corrupt Randall Ray Rader had been pushed out 3 years ago) CAFC has become the opposite of what it used to be, at least when it comes to patents

THE Court of Appeals for the Federal Circuit (CAFC) is where software patents were born. Nowadays, in spectacular and sharp contrast, CAFC is where many software patents come to die (for good). Things have certainly not been the same since Alice.

“Things have certainly not been the same since Alice.”Firms that profit from software patents are not happy about this. Some are attacking CAFC judges, whereas others are more polite. Fox Rothschild LLP, for example, was promoting software patents a few days ago and it was pressuring CAFC to allow software patents in defiance of the Supreme Court. It’s yet another one of those thousands of rants about Alice and decisions which cite Alice. Here is the original, which was cross-posted (probably for a payment) and said: “In the past year, several Federal Circuit decisions defined situations in which software inventions could be eligible for patenting in the United States. However, two recent Federal Circuit decisions show that the path for patent-eligibility is not yet clear, especially for patents that claim methods of processing or presenting data.”

“They’ll just carry on asking for the contrary stance/more “clarity”, as if the Justices got it all wrong and need to be lectured by the patent ‘industry’.”This has in it the false assumption that some software patents should be allowed. Or that it all boils down to “clarity”. So far this year CAFC has rejected software patents almost all the time. Why don’t they just get a clue? The Justices were clear enough about abstract patents, but patent extremists refuse to understand (or pretend not to). They’ll just carry on asking for the contrary stance/more “clarity”, as if the Justices got it all wrong and need to be lectured by the patent ‘industry’.

From Fox Rothschild’s conclusion: “The Federal Circuit’s case-specific, and sometimes inconsistent, interpretations of Alice leave software patent applicants, patent litigants, and USPTO Examiners with even less definitive guidance as to the patent-eligibility of software inventions than they had a few weeks ago. And with the Supreme Court’s recent decision to deny certiorari in a case that asked “Whether [a] 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,” clarification from a higher authority is not likely on the horizon.”

“Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony.”There’s no need for “clarification”; what’s needed is amendment of USPTO guidelines to altogether end software patents — something which is rumoured to be work in progress.

Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony. These people refuse to accept reality. One of them portrayed CAFC as a killer with threats, with words like these: “RecogniCorp’s Petition for Cert Re Patent Kill under Alice Threatening Validity of Much if not All Computer Tech: https://dlbjbjzgnk95t.cloudfront.net/0980000/980981/2017-11-01%20petition%20for%20writ%20of%20certiorari%20-%20recoginicorp%20v.%20nintendo.pdf …”

“Microsoft’s biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated.”There is another case involving Intellectual Ventures (IV), which has had many of its patents found to be invalid under Alice. Here is that word “Kill” again, as in: “Fed. Cir. Affirmed a 12(b)6 Alice Kill of an IV Patent: cafc.uscourts.gov/sites/default/…
https://t.co/iNyNZR2POL”

Then came another patent maximalist, stating that the “Federal circuit now wants in on the game of invalidating patents without much work, 101 is just such a convenient, tempting tool https://twitter.com/patentbuddy/status/926482154598608901 …”

Well, it’s the law. De facto law.

The above invalidation has since then been covered by Law 360. Microsoft’s biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated. According to the following, this troll has now amassed over 70,000 patents:

The Federal Circuit affirmed Friday a lower court ruling that found an Intellectual Ventures patent on screening for “errant” computer files was invalid under the U.S. Supreme Court’s Alice ruling, agreeing that the company failed to show that the patent’s claims were not abstract.

Intellectual Ventures, a major patent licensing company that owns more than 70,000 patents, accused Erie Indemnity Co. and other insurers of infringing four patents through their databases and other software.

As can be expected from Patently-O, there’s now some more CAFC bashing. Judges rather than laws are being scrutinised. They’re being criticised for knocking out software patents (the Two-Way Media case):

The Federal Circuit’s decision in Two-Way Media is in some amount of tension with the court’s 2016 decision in Amdocs v. Openet Telecom. In Amdocs, the court noted that the claims appeared problematic under Section 101 (abstract ideas), but that the architecture – as specifically described in the specification but more generically claimed – showed that the invention was actually a technological improvement.

Attempts to use Alice to throw out patents (also Two-Way Media) were also covered in another post from Patently-O. For background: “Two-Way sued Comcast (and others) for infringement. However, the district court granted the defendant’s motion for judgment on the pleadings – holding that the claims were invalid as ineligible under 35 U.S.C. Section 101 as interpreted by the Supreme Court in Alice and Mayo. In that process, the district court refused to consider evidence of the patents’ novelty and nonobviousness – holding that such evidence would be irrelevant to a Section 101 inquiry. [...] Note here that the court seemingly offered a road-map for the patentee — a technological arts test — noting that the specifications appear to describe a “system architecture as a technological innovation” but “the claim—as opposed to something purportedly described in the specification—is missing an inventive concept.””

“They’ve long attempted to change the debate and warp examination using words alone.”Haug Partners LLP’s Jon Gordon, writing for IAM (the patent trolls’ lobby), says that CAFC already clarifies when/where software patents are banned. To quote: “Patents directed to software-implemented inventions commonly describe and claim the invention in terms of the inventive idea and this disclosure suffices to enable persons skilled in the computer arts to practise the idea. [...] principles are indeed emerging and they show the beginnings of the path to patentability for software-implemented inventions.”

The term “software-implemented inventions” seems new; it’s like a combination of software patents and CII (computer-implemented inventions) and these are mostly syntactic/semantic tricks. They’ve long attempted to change the debate and warp examination using words alone. But code is still code, no matter what people call it (code is not an “invention” though, it’s development like that of a building or sculpting).

“Microsoft along with its trolls carry on leveraging software patents — typically behind closed doors — to demand ‘protection’ money.”These people try hard to study ways of fooling examiners and getting patents past judges as well. Patently-O has taken stock of popular CAFC cases and later recalled MasterMine v Microsoft.

MasterMine v Microsoft was mentioned here back in the summer and again last week when the case suddenly resurfaced. CAFC gave some new life to it and Patently-O then said that “the decision here continues the Federal Circuit’s implicit rejection of the Supreme Court’s Nautilus decision.”

“What remains noteworthy, all in all, is CAFC’s intolerance of software patents. What’s also noteworthy is the patent microcosm’s intolerance of CAFC.”Well, Microsoft ought to fight against software patents, but this case won’t be enough to convince it. Microsoft along with its trolls carry on leveraging software patents — typically behind closed doors — to demand ‘protection’ money. Here is what WIPR wrote about this latest twist:

The US Court of Appeals for the Federal Circuit has reignited a patent battle between multinational Microsoft and software company MasterMine Software.

Yesterday, October 30, the Federal Circuit affirmed a lower court’s claim construction of two data-mining patents owned by MasterMine, but reversed the court’s determination that they were indefinite and remanded the case.

In 2013, MasterMine sued Microsoft for infringement of two related patents, US patent numbers 7,945,850 and 8,429,518, at the US District Court for the District of Minnesota.

What remains noteworthy, all in all, is CAFC’s intolerance of software patents. What’s also noteworthy is the patent microcosm’s intolerance of CAFC. It’s probably worth commending CAFC for what it is doing, reminding the judges that the real industry (i.e. not mere litigators) support its recent judgments. Its older judgments have been repeatedly overturned by the Supreme Court, so perhaps it’s learning to adapt to this new reality.

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. Links 13/12/2018: IRS Migration, GNOME 3.31.3 Released

    Links for the day



  2. Patent Trial and Appeal Board (PTAB) Decisions Still Uncontroversial Unless One Asks the Patent Maximalists

    Contrary to what the Director of the U.S. Patent and Trademark Office has claimed, PTAB is liked by companies that actually create things and opposition to PTAB comes from power brokers of the Koch brothers, law firms, and trolls (including those who foolishly repeat them)



  3. Latest Talk From IBM’s Manny Schecter Shows That IBM Hasn't Changed and After the Red Hat Takeover It'll Continue to Promote Software Patents

    IBM's hardheaded attitude and patent aggression unaffected by its strategic acquisition of a company that at least claimed to oppose software patents (whilst at the same time pursuing them)



  4. The European Patent Troll Wants as Much Litigation as Possible

    Patent quality is a concept no longer recognisable at the European Patent Office; all that the management understands is speed and PACE, which it conflates with quality in order to register as much cash as possible before the whole thing comes crashing down (bubbles always implode at the end)



  5. António Campinos Turns His 'Boss' Into His Lapdog, Just Like Battistelli and Kongstad

    The European Patent Organisation expects us to believe that Josef Kratochvíl will keep the Office honest while his predecessor, the German who failed to do anything about Battistelli's abuses, becomes officially subservient to António Campinos



  6. Links 12/12/2018: Mesa 18.3.1 Released, CNCF Takes Control of etcd

    Links for the day



  7. EPO Trust, Leadership and Commitment

    "Trust, leadership and commitment" is the latest publication from EPO insiders, who in the absence of free speech and freedom of association for the union/representation are an essential spotlight on EPO abuses



  8. Links 11/12/2018: Tails 3.11, New Firefox, FreeBSD 12.0

    Links for the day



  9. Number of Filings at the Patent Trial and Appeal Board (PTAB) Highest in Almost Two Years

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), which [cref 113718 typically invalidate software patents by citing 35 U.S.C. § 101], are withstanding negative rhetoric and hostility from Iancu



  10. With 'Brexit' in a Lot of Headlines Team UPC Takes the Unitary Patent Lies up a Notch

    Misinformation continues to run like water; people are expected to believe that the UPC, an inherently EU-centric construct, can magically come to fruition in the UK (or in Europe as a whole)



  11. The EPO Not Only Abandoned the EPC But Also the Biotech Directive

    Last week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first placeLast week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place



  12. Patents on Abstract Things and on Life (or Patents Which Threaten Lives) Merely Threaten the Very Legitimacy of Patent Offices, Including EPO

    Patent Hubris and maximalism pose a threat or a major risk to the very system that they claim to be championing; by reducing the barrier to entry (i.e. introducing low-quality or socially detrimental patents) they merely embolden ardent critics who demand patent systems as a whole be abolished; the EPO is nowadays a leading example of it



  13. Links 10/12/2018: Linux 4.20 RC6 and Git 2.20

    Links for the day



  14. US Courts Make the United States' Patent System Sane Again

    35 U.S.C. § 101 (Section 101), the Patent Trial and Appeal Board (PTAB) and other factors are making the patent system in the US a lot more sane



  15. Today's USPTO Grants a Lot of Fake Patents, Software Patents That Courts Would Invalidate

    The 35 U.S.C. § 101 effect is very much real; patents on abstract/nonphysical ideas get invalidated en masse (in courts/PTAB) and Director Andrei Iancu refuses to pay attention as if he's above the law and court rulings don't apply to him



  16. A Month After Microsoft Claimed Patent 'Truce' Its Patent Trolls Keep Attacking Microsoft's Rivals

    Microsoft's legal department relies on its vultures (to whom it passes money and patents) to sue its rivals; but other than that, Microsoft is a wonderful company!



  17. Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

    35 U.S.C. § 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board’s (PTAB) panels, initiated by inter partes reviews (IPRs)



  18. Florian Müller's Article About SEPs and the EPO

    Report from the court in Munich, where the EPO is based



  19. EPO Vice-President Željko Topić in New Article About Corruption in Croatia

    The Croatian newspaper 7Dnevno has an outline of what Željko Topić has done in Croatia and in the EPO in Munich; it argues that this seriously erodes Croatia's national brand/identity



  20. The Quality of European Patents Continues to Deteriorate Under António Campinos and Software Patents Are Advocated Every Day

    The EPC in the European Patent Office and 35 U.S.C. § 101 in the USPTO annul most if not all software patents; under António Campinos, however, software patents are being granted in Europe and the USPTO exploits similar tricks



  21. Team UPC is Still Spreading False Rumours in an Effort to Trick Politicians and Pressure Judges

    Abuses at the European Patent Office, political turmoil and an obvious legislative coup by a self-serving occupation that produces nothing have already doomed the Unitary Patent or Unified Patent Court (UPC); so now we deal with complete fabrications from Team UPC as they're struggling to make something out of nothing, anonymously smearing opposition to the UPC and anonymously making stuff up



  22. Patents on Life and Patents That Kill the Poor Would Only Delegitimise the European Patent Office

    After Mayo, Myriad and other SCOTUS cases (the basis of 35 U.S.C. § 101) the U.S. Patent and Trademark Office is reluctant to grant patents on life; the European Patent Office (EPO), however, goes in the opposite direction, even in defiance of the European Patent Convention



  23. EPO 'Untapped Potential'

    "Campinos is diligently looking for ways to further increase the Office’s output without increasing the number of examiners," says the EPO-FLIER team



  24. Links 9/12/2018: New Linux Stable Releases (Notably Linux 4.19.8), RC Coming, and Unifont 11.0.03

    Links for the day



  25. Links 8/12/2018: Mesa 18.3.0, Mageia 7 Beta, WordPress 5.0

    Links for the day



  26. The European Patent Organisation is Like a Private Club and Roland Grossenbacher is Back in It

    In the absence of Benoît Battistelli quality control at the EPO is still not effective; patents are being granted like the sole goal is to increase so-called 'production' (or profit), appeals are being subjected to threats from Office management, and external courts (courts that assess patents outside the jurisdiction of the Office/Organisation) are being targeted with a long-sought replacement like the Unified Patent Court, or UPC (Unitary Patent)



  27. Links 7/12/2018: GNU Guix, GuixSD 0.16.0, GCC 7.4, PHP 7.3.0 Released

    Links for the day



  28. The Federal Circuit's Decision on Ancora Technologies v HTC America is the Rare Exception, Not the Norm

    Even though the PTAB does not automatically reject every patent when 35 U.S.C. § 101 gets invoked we're supposed to think that somehow things are changing in favour of patent maximalists; but all they do is obsess over something old (as old as a month ago) and hardly controversial



  29. The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

    With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges



  30. Many of the Same People Are Still in Charge of the European Patent Office Even Though They Broke the Law

    "EPO’s art collection honoured with award," the EPO writes, choosing to distract from what actually goes on at the Office and has never been properly dealt with


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