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11.12.17

Time for the Court of Appeals for the Federal Circuit (CAFC) to Disregard Rulings From the Eastern District of Texas

Posted in America, Courtroom, Microsoft, Patents at 11:24 am by Dr. Roy Schestowitz

Judge Gilstrap alone has become a cautionary tale and there are other culprits

Eastern District of Texas Summary: A look at the latest developments at the Federal Circuit and some bits about Microsoft’s extortion using software patents (even after Alice)

Writing about Georgetown Rail Equipment Co. v Holland L.P. the other day, this article sheds light on a case we have not covered here before. It is not about software patents, but it ought to give a clue to the Federal Circuit (CAFC). It’s a reminder that Texas has serious issues. Maybe they should lower the seriousness (or impact) assigned to just about every decision from the Eastern District of Texas, which is a disgraced court district, sometimes even corrupt.

“Maybe they should lower the seriousness (or impact) assigned to just about every decision from the Eastern District of Texas, which is a disgraced court district, sometimes even corrupt.”Over the past decade or so we have seen far too many cases in which judges ruled for the financial interests of their towns rather than justice itself. Up until TC Heartland it has gone largely unaddressed.

For CAFC to gain or regain credibility perhaps it should take all this into account. CAFC is currently dealing with MasterMine v Microsoft [1, 2, 3] — a case which threatens to revive fears of software patents. “Every so often a decision comes out of the Federal Circuit that has immediate value for patent prosecutors,” the patent microcosm wrote, and the “decision in Mastermine Software, Inc. v. Microsoft Corp., is one such case.”

To quote a key part:

Prosecutors in the software/electronic arts will find this case helpful. It should be particularly useful in dealing with rejections from patent examiners struggling with the distinction between true hybrid claims and system functionality driven by user interaction.

Remember that Microsoft continues to leverage software patents against the competition, notably GNU/Linux. A few days ago we saw an article about it. “Earlier this year,” it said, “the company agreed to license a series of connected car software patents to Toyota.”

We wrote several articles about this.

So patents with near-zero value under Alice were actually used for financial gain? It’s worth reminding ourselves that very many of the rulings in favour of software patents came from low-level courts in the Eastern District of Texas. Erasing their toxic legacy may be worthwhile. That would also help wipe out software patents.

Alice (De Facto Ban on Software Patents) Remains Untouched in 2017 and Likely in 2018 As Well

Posted in America, Courtroom, Patents at 4:42 am by Dr. Roy Schestowitz

No cases that involve software patents are being revisited by the US Supreme Court

Upset

Summary: The patent microcosm (people like Dennis Crouch) is trying to find cases that can contradict Alice (at the higher levels, especially the US Supreme Court) but is unable to find them; as things stand, suing anyone with a software patent seems like a losing/high-risk strategy

WE have been observing with keen interest the patent cases that may somehow reach the US Supreme Court. We don’t want to see any case there which can somehow override Alice. So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore. It is still being cited, but nowhere as frequently as Alice

“So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore.”Patently-O‘s Dennis Crouch is still hoping for a miracle. He tried hard to undermine Alice for a number of years (the mask fell off and he no longer masquerades his agenda as well as he used to) and days ago he wrote about Recognicorp v Nintendo — a case that we covered here in recent months. “The patent at issue here is U.S. Patent No. 8,005,303 that is generally directed toward a mechanism for creating a composite image,” Crouch explained.

“After reading through this claim,” he continued, “I’ll give this petition approximately 0% of winning.”

Patently-O‘s Dennis Crouch is still hoping for a miracle.”For the time being, software patents remain dead in the US. Attempts to find opportunities to override Alice (and re-open the gate to software patents) have not been successful and “so many patents are being invalidated under Section 101,” in the words of Patently-O.

That’s a good thing actually. The full paragraph states this:

The petition here is timely – not only because so many patents are being invalidated under Section 101 – but also because the Supreme Court in SCA Hygiene (2017) reaffirmed the power of Section 282(b) — holding that laches was not a congnizable defense under the provision.

Dennis Crouch has mentioned another case, noting that “[t]he district court sided with the patentee – Prism Tech’s – finding the user-authentication claims eligible under section 101. Important for the petition here, the district court relied upon substantial expert testimony as well as other documentary evidence in concluding that the claims were enforceable.”

“The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.”But these are district courts. The higher up such cases go, the less likely the judges are to deem abstract patents to be valid. We generally note a trend here; as time goes on there’s less “Alice denial” (like climate change denial) and more attempts to just sabotage Alice.

Will Alice ever be challenged and precedence overturned? Well, judging by the retreat from software patents everywhere but SIPO (China) and the EPO, it is not software patents — not their critics — that face an uphill battle. The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.

The USPTO’s Joe Matal (Interim Director) Sounds Serious About Improving the Patent Quality and Services

Posted in America, Patents at 4:02 am by Dr. Roy Schestowitz

Related: Patents in the US Are Becoming Stronger (Better Quality), But the Patent ‘Industry’ is Trying to Change That

USPTO Director Lee Discusses Importance Of Patent Quality
\
Reference: USPTO Director Lee Discusses Importance Of Patent Quality

Summary: An expressed desire to improve the US patent system rather than treat is like a money-making machine, as illuminated in recent days by Patently-O

THE USPTO, according to this new post, wants “to better facilitate examination and ultimately improve patent quality at issuance.”

Sounds a lot like the EPO‘s examiners.

To quote more:

Patentees often blame the USPTO for low patent quality. Examiners though often reflect upon the principle “garbage-in, garbage out.”

Yes, the USPTO spent over a decade granting patents which were utter rubbish. We protested against it and it seems like the message is getting through owing to Alice. The USPTO has developed an image issue and it is now trying to tackle it, potentially with a ban on all software patents.

Joe Matal, who would be better than Iancu as permanent Director of the USPTO, has also published this post about inventorship and another regarding privacy.

To quote the latter:

(a) Privileged communications. A communication between a client and a USPTO patent practitioner or a foreign jurisdiction patent practitioner that is reasonably necessary and incident to the scope of the practitioner’s authority shall receive the same protections of privilege under Federal law as if that communication were between a client and an attorney authorized to practice in the United States, including all limitations and exceptions.

Worthless promises such as these might provide peace of mind (to some), but since the US government and various US corporations (including E-mail service providers) are spying on everything worldwide, they respect no “privilege” per se. In fact, one of the strongest arguments against mass surveillance is that it harms journalism and legal processes (confidentiality eliminated).

Patent Trial and Appeal Board (PTAB) Defends Firms From Bogus Patents and US Congress Hears About How PTAB Dodgers Misuse Immunity

Posted in America, Patents at 3:19 am by Dr. Roy Schestowitz

Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law,” Jerrold Nadler (below on the left) explained.

Jerrold NadlerSummary: The debate about PTAB is being lost by the patent microcosm, whose attempt to dodge and demonise PTAB merely serves to reinforce PTAB’s importance and continued success

THE USPTO is no longer so friendly towards software patents. In fact, many such patents that have been granted are nowadays being invalidated. We wrote many articles about the subject.

The judges at PTAB too — not just patent courts — continue to nuke software patents (there are hundreds of thousands of these) and one of the latest examples received coverage some days ago, just after PTAB had decided that it boils down to things of a mathematical nature. To quote: “The PTAB just rejected its claims as abstract ideas. Claim 1 is a bit long but is listed below as a method for joining mis-matched portions of an object’s surface (NURBS patches) so that a whole object model is prepped for finite element analysis (FEA). The problem for the patentee is that it presents a step-by-step algorithm with such precision that the Examiner (and PTAB) saw it as claiming a mathematical algorithm.”

Obviously.

To us, this is like a dream come true. To patent lawyers, however, this is a nightmare.

Adam Baldridge and Nicole Berkowitz of Baker Donelson wrestle to find ways out of PTAB’s scrutiny (some have resorted to scams, as we shall show later). They even resort to misleading terms like “private rights” (as in, “[i]f the Supreme Court holds that patents involve private rights”) even though patents are neither rights nor private. It’s almost amusing to watch how they try to leverage immunity, bankruptcy and so on. They don’t seem to mind bending and even breaking the law just to protect patents from justice. What does that say about such law firms/lawyers?

PTAB is Defensive

According to this article which cites another (“Patexia Chart 44: Eighty Percent of IPR Filings are for Defensive Purposes”), PTAB has already dealt with nearly 7,000 patent challenges. “Pedram Sameni at Patexia has an interesting new post titled Eighty Percent of IPR Filings are for Defensive Purposes,” it noted, and “80% challenge patents that were already being asserted in district court.”

In other words, PTAB was invoked when patents were used aggressively. If the same tests were applied also to patents that are ‘dormant’, how many patents would be invalided? Perhaps many hundreds of thousands? Many software patents are just sitting ther waiting to expire or be invalidated.

“Out of 6,580 IPR cases,” Patexia wrote, “1338 or approximately 20 percent had been filed to challenge a patent that had not been named in any district court cases…”

These are valuable statistics. About 20% of patents ruled on by PTAB also face appeals/reversal by a higher court. About 80% of the time PTAB’s judgments are reaffirmed.

It’s not hard to see why patent maximalists hate PTAB with a great and ever-growing passion.

Over at Watchtroll, a site which represents the patent trolls’ lobby, Steve Brachmann attacked PTAB as recently as 4 days ago on behalf of this notorious patent troll. He was whining about courts supporting PTAB against the likes of Uniloc, whose core ‘business’ is leveraging software patents against large companies.

Allergan’s “Scam”

Last week the US Congress spoke about misuse of immunity against PTAB. CCIA soon rebutted lies told to US Congress about PTAB — lies perpetuated in an effort to enable a scam/sham perpetrated by Allergan. To quote:

Yesterday afternoon, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on “Sovereign Immunity and the Intellectual Property System.” A fascinating topic, and one I’ve written on right here in the past. [1] [2]

But I was struck by some testimony given by Philip Johnson, testimony he stood by at the hearing. Johnson claimed that 200 patents had been upheld as valid by federal courts, and then struck down as invalid by the PTAB, with only 63 patents invalidated in both district court and the PTAB.

That’d be a truly astonishing error rate, if it was accurate. But it isn’t.

Phil Johnson testified to a conclusion that was fundamentally wrong, based on erroneous data.

The Conservatives-leaning Washington Times called it a “ploy [...] developed by Allergan” (“scam” is a more common term than “ploy”, and a judge called it a “sham”). “Both the PTAB and IPRs were established by the 2011 America Invents Act,” it said. “Congress adopted the law after years of concern about the declining quality of U.S. patents. Particularly in the area of high technology (software and electronics)…”

Here are some details from last Tuesday’s hearing:

The House Judiciary Committee met Tuesday to hear testimony on a patent deal between the drugmaker Allergan Plc and a Native American tribe. The deal has become a major scandal in the nation’s communities of innovators. The same tribe has struck an equally controversial copycat bargain with a notorious patent troll and is now suing Amazon and Microsoft. If these arrangements stand, they will deliver a harsh blow to the nearly decade-long national effort to improve the quality of the nation’s patent system, hurting the innovation and job creation on which our economic vitality depends.

The ploy was developed by Allergan, which is itself the product of a complicated 2015 transaction that allowed the maker of the mega-drug Botox to move its headquarters to Ireland, escaping U.S. corporate taxes. Trying to escape official scrutiny of the validity of some of its patents, the company sold some of its portfolio to upstate New York’s St. Regis Mohawk tribe.

Jerry Nadler, according to this report, said that Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law.”

Here is the source, which is mostly behind a paywall:

The Patent Trial and Appeal Board has asked for amicus briefing on whether tribal ownership immunises a patent from IPR challenges, while a House of Representatives subcommittee held a hearing on sovereign immunity and the intellectual property system in which ranking member Jerry Nadler said Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law”

Scrutiny is increasing of whether patents can be assigned to Native American tribes to shield them from review at the Patent Trial and Appeal Board (PTAB).

Thousands of Petitions Handled Each Year

Michael Loney wrote another article about PTAB, this time focusing on PTAB statistics:

October at the Patent Trial and Appeal Board saw a levelling out of petition filing, the first ever extension of the final written decision deadline for good cause, and one precedential and three informative PTAB decisions

Petition filing at the Patent Trial and Appeal Board (PTAB) has levelled out in recent months.

PTAB has been breaking records for a number of years, so reaching a plateau is fine. PTAB bashers hope to create enough fake scandals in order to stop PTAB, but thus far they have not been successful.

PTAB Bashers

“Nobody knows what an automaton really is,” a PTAB-bashing blog said about PTAB the other day. This is not true. The patent microcosm pretends similarly regarding abstract. It claims that there’s lack of “clarity” or something along those lines, but the simple matter of fact is, they refuse to accept reality. To quote:

In a non-precedential decision, the Federal Circuit has affirmed the USPTO handling of the inter partes reexamination of Maryland’s U.S. patent No. 6,673,532. The examiner rejected claims 1, 3– 6, 9–11, 13–16, 19, and 20 as obvious under 35 U.S.C. § 103. That determination was affirmed by the PTAB and now by the Federal Circuit.

Note, the inter partes reexamination was filed in 2011 and at that time Maryland did not challenge the process on Eleventh Amendment Immunity grounds. However, the same patent was challenged in an Inter Partes Review (IPR) in 2016 and the PTAB recently dismissed the petition on sovereign immunity grounds. [IPR2016-00208 28 – Termination – Dismissed After Institution]. In the appeal, Maryland did not raise the issue.

[...]

As an aside, patent law may do well to move-on from the automaton language. Nobody knows what an automaton really is — does someone have one they can show me? How does an automaton compare with contemporary AI?

“AI” is nothing new and is, for the most part, a popular buzzword these days. In the context of patents, “AI” has become a popular trick for painting software patents as innovative/novel.

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