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11.19.17

PTAB is Safe, the Patent Extremists Just Try to Scandalise It Out of Sheer Desperation

Posted in America, Courtroom, Patents at 5:53 pm by Dr. Roy Schestowitz

Tyranny of the patent microcosm continues to slip away

Kim to patent zealots
Nice try, patent zealots, but patent quality matters more than your ‘protection’ money

Summary: The Leahy-Smith America Invents Act (AIA), which gave powers to the Patent Trial and Appeal Board (PTAB) through inter partes reviews (IPRs), has no imminent threats, not potent ones anyway

THE Patent Trial and Appeal Board (PTAB) is a subject we get to revisit every weekend. A lot is happening there. Technology companies like PTAB, whereas law firms are trying to destroy PTAB, which really says a lot about whose interests are served by improved patent quality.

A few days ago the patent trolls’ lobby expressed its interest in an old proposal for slicing USPTO. By “independent” USPTO they just mean a private USPTO, i.e. a for-profit monopoly whose goal would be to maximise profit, potentially by lowering patent quality (a la EPO).

Quoting IAM:

The USPTO is one of the few federal agencies that actually makes a profit from its operations, versus the majority of other US federal agencies which require taxpayer dollars to carry out their delegated functions. At present, the USPTO collects filing fees from applicants for patents and trademarks, as well as additional fees for many other services. These fees cover the USPTO’s operations, including the Trademark Trial and Appeal Board (TTAB) and the Patent Trial and Appeal Board (PTAB). Historically, however, the federal government has diverted excess fees collected by the USPTO away from that office and into unrelated government programmes – some estimates put the figure at more than $1 billion diverted from the USPTO since the early 1990s alone. With the enactment of the America Invents Act in 2011, the Patent and Trademark Fee Reserve Fund was created to hold all patent and trademark fees collected by the USPTO, with all allocations from the reserve fund to be determined by Congress under the USPTO’s annual appropriation amount.

Things as they stand at the moment aren’t pleasing to those who became accustomed to a venue-shifting, litigant-friendly system (favouring plaintiffs with patents that lack merit). Loopholes are being closed, patent scope is being tightened, trolls are turned away, and thousands of patents are being formally invalidated by PTAB.

Recently, some patent extremists went to the USPTO to literally burn patents there. They also attacked — viciously and repeatedly — the Director of the USPTO until she resigned. How low will they sink? How poor-quality a bunch of patents are they striving to protect? A couple of days ago Ian McCarthy wrote about “consumer generated intellectual property” — a bizarre term which is 4 offensive words (and lies) in a row. Incredible what these people can come up with! Some of them actually want computer-generated patents to be examined and accepted by computer algorithms alone. Maybe they want billions if not trillions of patents, rendering the entire purpose (and manageability) of the Office moot. A patent system without restrictions on quality would be ignored; quantity should barely even be a parameter to strive for. At all!

PTAB’s job is, quite generally, to ensure patent quality is preserved if not improved. So who would oppose it? The answer is obvious: those whose patents are of no value (and know their patents lack any value). They don’t want any legal scrutiny. By avoiding actual litigation (initiated by themselves) they can dodge such scrutiny, but PTAB is different. Their patents are constantly under threat even if they initiate no legal action but only threaten vulnerable companies.

A Web site of patent extremists has just spoken to a firm favoured among patent trolls. It’s about bashing PTAB. That’s their goal. On another day that site showed that PTAB rules/procedures got altered, albeit only after repeated pressure. To quote:

The Patent Trial and Appeal Board has revised the “Standard Operating Procedure 9 (SOP9)” for cases remanded from the Federal Circuit, including requiring panels to meet with the PTAB chief, deputy chief or a delegate to discuss remanded cases

The Patent Trial and Appeal Board (PTAB) has revised the “Standard Operating Procedure 9 (SOP9)” directed to procedures for cases remanded from the Federal Circuit.

That does not seem to have changed anything so substantial; patent extremists are trying hard to sabotage PTAB and help trolls with shoddy patents. Will they succeed? We doubt it. Have they made any progress? Not so far. PTAB is still going strong, but that should not be taken for granted.

United for Patent Reform wrote the other day some words from the pro-PTAB group, High Tech Inventors Alliance. Its head, John Thorne, told the panel: “For those who are not aware of what #IPR is, it’s an opportunity for @uspto to correct its own mistakes.”

Yes, exactly.

Nothing wrong with that, right?

If the USPTO does its job (examination) properly, PTAB will not be necessary.

Yesterday (yes, a Saturday!) Watchtroll went on another PTAB rant, stating the obvious in an attempt to demonise those who dispute validity of patents, e.g./notably PTAB. Alluding a lot to i4i vs Microsoft, Watchtroll said this:

Microsoft argued that the standard for proving a patent invalid should be by a preponderance of the evidence because the PTO did not consider the software in question when it issued the patent. According to Microsoft, the patent on which i4i relies is invalid because of prior art using the technology before the application was filed with the Patent and Trademark Office (PTO). Microsoft questioned why the “clear and convincing evidence” standard should apply even for issues that the Patent and Trademark Office (PTO) did consider. Furthermore, Microsoft argued that the “clear and convincing evidence” standard is an unjust creation of the Federal Circuit.

i4i Limited Partnership maintained that Microsoft had infringed on a patent i4i received in 1998, US Patent No. 5,787,449. This patent makes clear that i4i claimed a particular “method and system for querying a structured document stored in its native format in a database, where the structured document includes a plurality of nodes that form a hierarchical node tree…” While the language may appear inscrutable to a layman, essentially i4i maintained that the XML-editing features in Microsoft Word infringed on i4i’s patent. In response to Microsoft’s argument, i4i argued that it did not sell a product which served as prior art and that only the product’s source code could meet the “clear and convincing evidence” standard. Since the source code was no longer available, this was a convenient interpretation for i4i. In addition, i4i strongly argued that the Court should use the “clear and convincing evidence” standard instead of the “by a preponderance of the evidence” standard supported by Microsoft.

We wrote several dozens of posts about this case. For Watchtroll it’s just another cheap excuse to claim that when it comes to patents the “Burden is on the Challenger” (to quote the headline). This wasn’t the only Watchtroll attack on PTAB lately. Watchtroll also spoke to patent maximalists in an effort to tilt a sense of expectation in Oil States, basically bashing PTAB ahead of a Supreme Court decision that can determine its fate. Such is the nature of that lobbying site.

For those who rely on the Supreme Court to stop PTAB, forget about it… it won’t happen. We have already explained the whys many times before. Some have attempted other tricks/shams/scams for bypassing PTAB, but loopholes like these will be no more (pretty soon). As one legal blog put it the other day, “Legislation to Curtail Sovereign Immunity in IPR May Be On the Way” (as reported elsewhere as well). To quote the background and the latest outcome:

A Native American tribe’s recent deal to obtain several pharmaceutical patents and seek dismissal of pending IPRs on the basis of sovereign immunity has piqued the public’s interest in sovereign immunity to IPR. The same tribe also recently asserted several other patents against Microsoft and Amazon, and may assert sovereign immunity from IPR there too. Prompted by the tribe’s actions, a subcommittee of the House Judiciary Committee held a hearing on what Congress can and should do about it. Although much of the hearing focused on what many perceive as the problem of tribal sovereign immunity in IPR—not the use of sovereign immunity to IPR by state universities—many of the proposed reforms would also target state universities. Whether any of these reforms will be enacted remains to be seen, but there are reasons to doubt their constitutionality.

[...]

The hearing also explored whether statutory changes could be made to permit IPR to go forward without participation of sovereign patent owners that refuse to waive their immunity. The hearing offered few details about how such changes would be implemented, or whether, for example, such a proceeding would resemble ex parte reexamination—a proceeding already available to challengers. Further, the hearing did not address how such a proceeding would address the Supreme Court’s ruling that sovereign immunity bars an agency from adjudicating a private party’s complaint against a sovereign, even where participation by the sovereign is optional.[3]

This hearing suggested that some in Congress are interested in curtailing the use of sovereign immunity in IPR, but whether state universities will be targeted in ways that raise constitutional concerns remains unclear. While state immunity from IPR provides a privilege that private citizens do not enjoy, that is not new, as states enjoy immunity from numerous types of actions.[4] As the Supreme Court has explained, states’ unique constitutional role “sets them apart” for special treatment.[5] Thus, a one-size-fits-all reform to IPR that addresses the concerns of some about tribal sovereign immunity, but also seeks to limit states’ rights, may not be constitutionally possible.

The above spoke about ex parte reexamination — a subject also explored earlier this month in another legal blog.

Overall, what we are seeing here is a clear trend in favour of PTAB, which is growing each year and becoming more effective at tackling a broader range of patents, setting precedents in the process. Don’t expect PTAB to vanish any time soon. The “USPTO Finalizes Rule for Privileged Communications in Trials Before the PTAB,” said another blog earlier this month, showing that the USPTO too recognises the long-term operation of the board. To quote:

The Leahy-Smith America Invents Act (“AIA”) provided for trials before the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) in inter partes reviews, post-grant reviews, the transitional program for covered business method patents, and derivation proceedings. While patent agents are registered to practice before the USPTO, they are not attorneys. Therefore, it has been unclear whether attorney-client privilege prevents discovery in PTAB proceedings of communications between these non-attorney agents and their clients. Addressing this ambiguity, the USPTO just issued a final rule for trial practice before the PTAB that explicitly protects communications between patent agents or foreign patent practitioners and their clients. The amended rule becomes effective December 7, 2017.

That’s just three weeks from now.

In an effort to perhaps find something negative, patent maximalists are now measuring rates of rather irrelevant things. Instead of measuring the number of IPRs or successful invalidation they look at number of “stays” (in the legal sense). “Overall success rates of motions to stay district court litigation pending review at the Patent Trial and Appeal Board have dropped noticeably in the past fiscal year,” it says.

Well, district court litigation is relatively low profile and the number or proportion of “stays” does not say anything so interesting. It’s almost irrelevant. It’s like the ‘other’ “IPR” (the propaganda term that is meant to mislead, which these same patent maximalists use in relation to India). The interesting figures show that PTAB activity is growing or is at least stable (after year-to-year growth for half a decade).

“The flood of bad patents fueled an explosion of wasteful litigation in the tech industry,” United for Patent Reform quoted the other day, “brought by patent trolls that exist for no reason other than to make money filing lawsuits. #IPR has been a step toward reining in that problem…”

It has been happening more and more over time. Demand for PTAB has grown.

As we noted last week, the USPTO succumbed to bullying/pressure from patent extremists and the patent trolls' lobby, at least judging by the fact that it made PTAB less affordable. The patent maximalists wrote about that a few days later. dubbing it a “72% IPR request fee change”. To quote:

The USPTO has released a final rule detailing fee increases to go into effect in January. The combined cost of an inter partes review request and institution at the Patent Trial and Appeal Board will go up to $30,500

See how they’re trying to make PTAB less accessible, especially for small and vulnerable companies? Not good. If they cannot stop PTAB using Native American tribes and Justices, then maybe they can just price PTAB out of reach. There’s also the STRONGER [sic] Patents Act, which is an abomination that is going nowhere (so far). Rachel Wolbers mentioned it the other day. “This radical piece of legislation would leave startups without any of the tools they currently have to protect themselves from patent trolls,” she said.

Here’s more:

The real reason clever patent trolls are moving their patents to Indian tribes is to avoid the USPTO’s Inter Partes Review process, which provides startups with a quick and effective way to invalidate bad patents. Weakening the IPR process would cause the most damage to America’s startup ecosystem and we should not upend the good work done by the USPTO to improve patent quality.

Another potential threat to the current patent system would be the “STRONGER Patents Act” introduced by Sens. Chris Coons (D-Del.) and Tom Cotton (R-Ark.) in June. The bill would completely gut the IPR system and would overturn decades of Supreme Court precedent on patents. This radical piece of legislation would leave startups without any of the tools they currently have to protect themselves from patent trolls. Furthermore, it would make investing in a technology startup much riskier, deterring investment in a sector of the economy that has been steadily growing for a decade.

IAM does a rather poor job hiding the fact that it’s a think tank for patent radicals and trolls. Watch who it gave a platform to (in its own event): “One of our keynote speakers was Senator Chris Coons, a member of the Senate Judiciary Committee, the author of the STRONGER Patents Act and one of the relatively few US legislators who demonstrates a keen understanding of the importance of strong IP rights to an innovation economy. In an engaging speech he called for Congress to take action to strengthen patent rights in the US. Here’s a part of what he had to say:”

Where were the engineers? Totally absent from these stacked panels and lobbying events, as usual.

Various ‘Conservative’ sites have also been lying about the STRONGER [sic] Patents Act, by which they attempt to destroy patent reform. The National Center’s Jeff Stier came up with this misleading headline under a month ago and here is what Heartland wrote some days ago. Notice who wrote it: “Seton Motley is the president of Less Government, a DC-based non-profit organization dedicated to reducing the power of government and protecting the First Amendment from governmental assault.”

So they basically stand for reckless markets in which patent extortion would be ‘normalised’ and not subjected to government intervention.

Going back to IAM, watch what it wrote when PTAB was invoked and ITC then got involved:

Interestingly, the separator technology on the line in this case, which LG Chem calls Safety Reinforced Separator (SRS), has previously been an IP moneymaker for LG Chem. It was able to license the technology to UBE Maxell, a Japanese joint venture, back in 2014 (not before UBE Maxell tried and failed to IPR one of the patents now being asserted against Amperex).

LG Chem is not the only company seeking to license-out battery-related technology. UBE itself assigned two US patents for a “Cell electrode sheet with displaced electrode depolarizing mixes” to a Japanese licensing firm called Ryujin Patent & Licensing in 2014. One of them is now facing an IPR filed by Dell, HP, Asus and LG Chem, indicating the range of companies it may be approaching as potential licensees.

This is an example where PTAB impedes actions not just by patent trolls with software patents but also large companies which try to tax everything. This kind of case is the reason we see growing support for PTAB even from large technology companies. As Washington is generally dominated by those companies and their lobbyists, expect PTAB to remain in tact (albeit, perhaps, more accessible to large and wealthy corporations).

Update on the EPO’s Crackdown on the Boards of Appeal

Posted in Europe, Patents at 5:20 pm by Dr. Roy Schestowitz

A shocked Battistelli

Summary: Demand of 35% increases from the boards serves to show that Battistelli now does to the ‘independent’ judges what he already did to examiners at the Office

EARLIER this month we wrote about the Haar party which chairs refuse to attend. Team Battistelli had the ‘brilliant’ idea of inviting EPO chairs to actually celebrate Battistelli’s attack on the EPC. How tactless a move.

“So basically, Battistelli is now doing to the boards the same thing he did to examiners: working them to death.”“As far as I can tell,” one source tells us, “there are still only two takers for [the] meet up [and] In other news, Battistelli ‘junior’ is demanding 35% increases from the boards on the basis of “concentrating on essentials”.

Battistelli ‘junior’ is “[t]he independent other president. Holder of secret delegated powers.”

So basically, Battistelli is now doing to the boards the same thing he did to examiners: working them to death. Neither patent nor service quality can be assured this way.

“It often seems like Battistelli wants the EPO to have no staff anymore.”How independent and impartial they must feel…

This has gotten as ridiculous as it can get. But also predictable. It often seems like Battistelli wants the EPO to have no staff anymore. Maybe he wants everyone replaced by useless computer programs and fresh graduates with only enough knowledge to help operate these. Or maybe Battistelli wants to just outsource most of the work to yet another French company. Or some French court (UPC in Paris).

The Lobbyists Are Trying to Subvert US Law in Favour of Patent Predators

Posted in America, Asia, Europe, IBM, Microsoft, Patents at 4:01 pm by Dr. Roy Schestowitz

David Kappos
Source: David Kappos 2013 interview

Kappos PAI
Kappos-led lobbying group

Summary: Mingorance, Kappos, Underweiser and other lobbyists for the software patents agenda (paid by firms like Microsoft and IBM) keep trying to undo progress, notably the bans on software patents

The patent trolls’ (or sharks’) lobby is at it again. Thankfully, owing to reports from their fan media and sometimes their own Web sites, we are able to see what they are up to.

Francisco Mingorance, a rather evil and deceitful person from Microsoft front groups like the BSA and now IP Europe, is trying to force software patents upon Europe using buzzwords like 5G and IoT. We wrote about it last month. Found via their tweet was this press release which quotes Mingorance as saying: “We wholeheartedly welcome this signal from the DOJ that they will prioritise the safeguarding of longstanding FRAND principles against recent coordinated action of some implementers. In Europe, a decision to abandon this Communication – or to bring it back into line with its initially stated goals – can protect innovation, R&D investment, high-tech jobs and European leadership in 5G and IoT open standards.”

Nonsense. Exactly the opposite is true, as actual practitioners in this area would gladly tell (if the media bothered asking them; it prefers to print lobbyists’ words). These patent thickets actively suppress innovation and breed monopoly. Why isn’t the mainstream media talking about it? The downside of patent lobbying and propaganda sites (like the above) is that they push agenda; the upside is, they inadvertently reveal who’s behind it.

Days ago we found out that David Kappos too is at it again. A bunch of patent bullies, including this IBM-paid lobbyist and former IBM employee, were lying to an audience. To quote the event’s organisers: “Last #IPDF17 panel of day on patent quality Kappos, Judge Michel, John Mulgrew @Uber, Marian Underweiser @IBM & A. Fahrenkrog @RobinsKaplan” (stacked panel).

“At the #patent quality panel at #IPDF17,” said another tweet, “Marian Underweiser @IBM points out that “the subject matter [ #Alice] discussion undercuts the purpose of the patent system.””

Remember Marian Underweiser? IBM appointed her to crush Alice. We wrote about her several times earlier this year and her agenda remains very clear; patent bully IBM has paid Underweiser for lobbying. Just like it pays Kappos for his connections and clout at the USPTO. IBM is very evil when it comes to software patents. Surprisingly even, especially considering the work it did for GNU/Linux.

Relaying messages from another event, IAM quoted or paraphrased: “Shore – we’re living in a banana republic. Silicon Valley owns Congress and the executive branch. The only difference between us and Honduras in early C20th is that instead of bananas it’s smartphones and software #IPDF17″

The law ‘industry’ wants to dominate everything, so when Silicon Valley warps the law in favour of technology Shore and others get upset. When technology sets law it bothers the parasites. They’re accustomed to making money by doing (or making) nothing.

A few days ago IAM again quoted Kappos. The patent trolls’ lobby wants lots of lawsuits and it now mistakes pro-aggression for “pro-innovator”. Here is what IAM wrote:

Delrahim’s comments have already made an impact with senior members of the IP community. Former USPTO Director David Kappos, who was in the audience, described it as “the most important DOJ antitrust speech on IP during my decades practising law”. He added that: “It marks a major pro-IP and pro-innovator shift in DOJ antitrust policy.”

For the USPTO to improve its reputation it ought to ensure former officials don’t become lobbyists (as they do). It’s just embarrassing and it reinforces the perception that laws are up for sale.

Kappos is one among the alarmists who keep bringing up “China!” in order to scare legislators, urging them to act or else “China is coming” (similar to the “Russia!” hysteria in politics). China has become litigation central (not innovation central), which invites patent trolls rather than practising companies. What does the US want or need? More jobs or more lawsuits?

Days ago we saw Managing IP hailing China (litigation) and IAM spreading the myth that the success of Huawei is owing to patents rather than in spite of them. To quote IAM: “China is a crucial market for SEP owners – with a large amount of standards implementation and a litigation system that is becoming more favourable to patent holders – and that is borne out in the level of filing there. About 18% of global 4G-LTE patents are Chinese rights – putting the country second only to the United States and just ahead of the EPO.”

See what we said above about Mingorance. These patents are counter-productive and harmful to actual innovation. Moreover, China has developed some of its proprietary/national standards in several areas (technical domains). What causes a large surge in Chinese patents (at SIPO more so than overseas) is the lowered bar, which now officially permits software patents too. It makes China one of the few countries (if not only country) in the world to move in such a direction.

Thailand, according to this new overview from Ananda’s Benjapol Kongsombut, does not allow software patents (similar to Korea and maybe even Japan to a lesser degree). “Computer programs or software cannot be patented under Sections 9,” Kongsombut explains. Here is the entire relevant part:

To what extent can inventions covering software be patented?

Computer programs or software cannot be patented under Sections 9 and 65decies of the Patent Act. However, inventions relating to devices or machines controlled by software, or processes or algorithms for controlling devices or computers, may be patentable. Software-related inventions involving only computer source code cannot be patented but may be protected as a copyrighted literary work or a trade secret.

To what extent can inventions covering business methods be patented?

A business method cannot be patented as it is not considered to be an invention as defined in Section 3 of the Patent Act. However, a business method carried out by a computer can be considered as a software-related invention that may be patentable.

To what extent can inventions relating to stem cells be patented?

Stem cells are considered to be an animal extract, which is a non-patentable subject matter under Section 9 of the Patent Act. However, processes for the production or use of stem cells may be patentable.

What the likes of Mingorance, Kappos, and Underweiser are paid to promote is software patents in the US. We already know why: Alice and the Patent Trial and Appeal Board (PTAB), which we’ll deal with in our next post.

Patent Trolls Based in East Texas Are Affected Very Critically by TC Heartland

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

Of relevance and recent: US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Argument analysis: Justices hear horror stories about venue for patent litigation
Reference: Argument analysis: Justices hear horror stories about venue for patent litigation

Summary: The latest situation in Texas (United States District Court for the Eastern District of Texas in particular), which according to new analyses is the target of legal scrutiny for the ‘loopholes’ it provided to patent trolls in search of easy legal battles

According to Lex Machina, which is an invaluable service as we said yesterday, there may be a massive patent troll in the making. Several days ago the patent trolls’ lobby said that Alan Loudermilk is behind the entity named 511 Technologies, based in Marshall, Texas (where many of the trolls reside). It’s not actually a company, even if it has the word “Technologies” in its name (we recently wrote about other trolls that do this). Loudermilk, who founded this troll, has since then created what looks like another troll, Ginocchio Properties LLC, based in the same place. Will TC Heartland help squash these? We certainly hope so, but in the meantime, we have this to worry about:

Among the segments Maxell no longer operates in is magnetic tape cartridges. Once one of the most recognisable products under the Maxell brand, the company shuttered the division in 2014. That decision left only Fujifilm and Sony competing in the market, and according to USPTO assignments records from September, it is the former company that has benefitted patent-wise from its erstwhile rival’s withdrawal. Maxell transferred 53 US patents related to magnetic tapes to Fujifilm in two separate assignments on 1st September. Notably, Fujifilm is locked in a litigation fight with Sony over that same technology. As this blog detailed last week, the two sides are currently contesting an ITC investigation that could have huge implications for the availability of SEP injunctions in that venue going forward.

[...]

Loudermilk’s most recent venture is 511 Technologies, Inc, which filed 11 patent suits over the past two years against companies including Huawei, Qualcomm and Microsoft, all of which have resulted in either a voluntary or stipulated dismissal, according to Lex Machina. Previously, he was CEO of Solid State Storage Solutions, Inc, which acquired a portfolio of patents from Japan’s Renesas and asserted them against eight companies in 2011 and 2012 before transferring a portion of them to Acacia two years ago.

We wrote a lot about Acacia over the years. It is connected to Microsoft and it has repeatedly attacked GNU/Linux, which makes this troll particularly interesting to us. Another firm of interest is Rovi, which is connected to another Microsoft patent troll, Intellectual Ventures. According to news from four days ago, the ITC was called to potentially ban products. “Rovi asked the ITC to investigate the importation of certain digital video receivers and hardware and software components that use the inventions claimed in its patents,” said the report. “Both complaints were filed by Rovi right before it agreed to acquire TiVo…”

Going back to Texas, there are serious and perfectly relevant questions about its fate (and the fate of patent trolls that are based/stationed there, at least on paper). “Texas law of unfair competition by misappropriation improperly extends to offer patent and copyright protections,” Patently-O said a few days ago. This could get serious because it deviates from the national law:

On the patent side, the court cited to Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) statements that state laws that offer “substantially similar” protections are preempted by federal patent law and thus not enforceable.

As with copyright law, the appellate panel here suggested that torts that require “deceit” or “improper means” will be acceptable, but laws that focus simply on protecting the investment in product development and marketing will be preempted.

Of even greater interest, however, is TC Heartland, which is only months old and has already caused a collapse in litigation at Texas. The US will certainly be tougher on patent trolls after TC Heartland got told off at the highest level. This positive development (which is good for US technology companies) was mentioned by Dennis Crouch a few days ago when he said:

Regardless of this technicality, the rule appears now that district courts should be considering and granting improper venue decisions moving forward.

“Federal Circuit says TC Heartland changed the law,” heralded another site of patent maximalists. The USPTO refuses to tackle patent trolls (no financial incentive to do so), but judges certainly will take on the issue and it’s pleasing to see. Quoting Managing IP:

The Federal Circuit has granted Micron’s mandamus petition stating: “We conclude that TC Heartland changed the controlling law in the relevant sense: at the time of the initial motion to dismiss, before the Court decided TC Heartland, the venue defense … based on TC Heartland’s interpretation of the venue statute was not ‘available’”

Obviously it’s all known and visible to patent trolls, who prefer to maintain a low profile and extort/blackmail companies behind the scenes (avoiding challenge from judges like the above). Whether trolls get eradicated by a series of rulings depends on Congressional action (or inaction) too. That’s where lobbying comes into play. We’ll deal with that in our next post.

Alice Remains a Strong Precedential Decision and the Media Has Turned Against Software Patents

Posted in America, Law, Patents at 2:28 pm by Dr. Roy Schestowitz

Judge Paul Redmond MichelPublishers too, after all, have come under attacks from software patents (which retired Judge Paul Redmond Michel, shown to the left, continues to defend, even in his retirement)

Summary: The momentum against the scourge of software patents and the desperation among patent ‘professionals’ (people who don’t create/develop/invent) is growing

TWELVE years ago Europe decided on a ban/policy against software patents. 3.5 years ago something similar happened in the United States, owing largely to a panel of judges (Justices) whose decisions in recent years — on patents at least — we are thoroughly pleased with. Alice is, to us, a blessing. It’s something we have been striving for since inception. We therefore need to guard Alice, shielding it from the constant barrage that’s almost always yielded by the patent microcosm, i.e. people who do nothing but patents (handling of patents, not actual invention).

Mainstream Media Against Software Patents

Alice is, to us, a blessing. It’s something we have been striving for since inception.”A couple of days ago the New York Times said regarding “subsidies for the financial sector’s risk-taking” that it’s wrong, as well as “overprotection of software and pharmaceutical patents” (the article is about “Myths of the 1 Percent: What Puts People at the Top”). It’s very good to see that even the so-called journal of record highlights the problem with software patents. Another site, Biotech Blog, said a few days ago that “[i]n some industries (e.g. software), patents are often seen as a nuisance.”

Rightly so. Software patents must be banned universally if the will of actual software developers is to be honoured.

“Software patents must be banned universally if the will of actual software developers is to be honoured.”“This is not a matter of software patents,” said another mainstream site last week. “This is a matter of a monopoly.”

They speak about “The Frightful Five” — a term which alludes to Alphabet-Google, Amazon, Apple, Facebook, and Microsoft.

Lawyers Learning to Accept That Software Patents Are Kaput

The lawyers’ media too is coming to grips with Alice. A couple of years ago these sites still pretended that Alice was a temporary “issue” to be overcome, but now they’ve found the integrity/honesty/morals/courage to treat Alice as de facto law. In Two-Way Media, for example (mentioned earlier this month), Alice was once again reaffirmed by the Federal judges (one level below the Supreme Court) and it’s a precedential decision. The National Law Review said this:

In issuing its precedential decision earlier this month in Two-Way Media v. Comcast, the Federal Circuit affirmed a Delaware district court determination that four data streaming patents were directed to ineligible subject matter pursuant to § 101 and the Alice framework. The four related patents (U.S. Patent Nos. 5,778,187, 5,983,005, 6,434,622, and 7,266,686) describe methods and systems for streaming audio/visual data over a communications system (e.g., the Internet) and, in particular, a scalable architecture for delivering real-time information to a number of users, including a control mechanism allowing for management and administration of users intended to receive the real-time information.

Excellent!

§ 101/Alice has also invalidated some more software patents in Smart Systems Innovations (patent troll), as noted a few days ago in Lexology (another pro-software patents platform). To quote:

Recently however, the Federal Circuit dealt Smart Systems a major setback in Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (Fed. Cir. 2017). In this case, Smart Systems alleged that the Chicago Transit Authority (CTA) infringed four of Smart Systems’ patents. CTA moved for judgment on the pleadings, arguing that the patents’ claims were ineligible under § 101 because they were directed at abstract ideas. See Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Smart Systems responded by arguing that the patents sped up processing at turnstiles, i.e. the claims were patentable because they improved a process.

Under Alice, courts must use the following two part test when analyzing a claim’s patent eligibility under 35 U.S.C. § 101: (i) is the claim directed to an abstract idea, and if so, (ii) are there any claim limitations or combination of claim limitations that constitute an inventive concept? The post-Alice cases in the Federal Circuit are not the picture of clarity, and there remains a great deal of uncertainty regarding what is a patent-ineligible abstract idea. It is, however, generally understood that claiming a general-purpose computer that performs an abstract processes will be directed to an abstract idea, whereas improvements to a computer or technological process will not.

It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software. The climate has changed profoundly. All they can offer clients is a bunch of tactics for dodging § 101/Alice at the examination phase, i.e. before a thorough test of claims is undertaken. To quote from the above: “This case underscores the importance of careful claim drafting for software-related patents. Prosecution counsel should be careful to adequately describe how particular solutions are achieved, not just recite the solutions.”

“It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software.”But still, that may not help fully fool the judges. The plaintiff would be confronted by expert witnesses who can see past the buzzwords and weasel words. Software patents are just software patents, no matter the framing/posting/casting.

Another new article, this one from Christopher M. DiLeo and Derek M. Abeyta, speaks in support of patent trolls and offers tips for dodging Alice towards the end: [via]

On October 16, 2017, the Federal Circuit affirmed the district court’s ruling that the claims in Secured Mail Solutions LLC, v. Universal Wilde, Inc. (“Secured Mail”) were directed to patent-ineligible subject matter under 35 U.S.C. § 101. This ruling provides another data point as to what level of concreteness and specificity courts should consider when analyzing patent-eligibility questions under § 101.

[...]

This decision reminds applicants that claims can be found patent-ineligible at the motion to dismiss stage based solely on intrinsic evidence gathered from the written description. Secured Mail at 13. At this time, the courts do not seem willing to engage in any formal claim construction and the court can “simply conclude[] from the claims that they [are] directed to patent-ineligible subject matter.” Id. at 13. Applicants concerned with § 101 challenges should consider articulating technical details in the specification as courts seem willing to make an eligibility determination early in litigation with little, if any, evidence beyond the issued patent.

When preparing a patent application, it may be desirable to ensure that the claims provide sufficient details that can demonstrate what is inventive about the individual claim elements or the processes involving those elements. The claims should also include details that can be traced to further descriptive text included in the body of the application. Including these in the specification can support the ways that the claim elements recited are more than generic processes that are simply being applied or implemented by generic hardware. Patent eligibility can be bolstered by focusing claims on a specific means or method and claiming specifically how those means improve computer functionality, rather than simply an existing process that could, in theory, be performed without computer implementation entirely. Consider including special rules or details within the claim limitations to further ground the claimed features.

Notice the tone. All they can do now is suggest ways of getting around the law/rules. What does that say about them?

IAM a Megaphone to § 101 and AIA Bashers

Suffice to say (and as we shall show later tonight), IAM cannot keep its mouth shut about the Supremes/§ 101/Alice — something which IAM apparently views as an abomination because of the target audience. Litigation professionals bemoan barriers to litigation (§ 101 in this case) and IAM says that Bristol Myers Squibb’s Henry Hadad claims Section “101 reform clearly needs to be addressed by Congress, not going to be done by the courts” (they try to bypass the law and simply lobby/bribe officials).

“There’s a malicious lobby which tries hard to undermine the Supreme Court’s decision. This lobby is funded by the “usual suspects”.”IAM also wrote about former CAFC Chief Paul Michel (another maximalist* like Randall Ray Rader, who succeeded him) that he had said something to the effect of: “If you ask members of Congress and their staffers what they think about patents they r going to tell u 3 myths – most patents r invalid, most lawsuits r abusive and most patent owners asserting patents who are not practising them r abusers…”

These are NOT myths, that’s just the truth and it’s hard for patent maximalists to accept that. We’ll say more about Michel and the context of these remarks later on. There’s a malicious lobby which tries hard to undermine the Supreme Court’s decision. This lobby is funded by the “usual suspects”.
_____
* He even writes for patent extremists’ sites like Watchtroll and Patently-O (less radical than Watchtroll).

Harm Still Caused by Granted Software Patents

Posted in America, Patents at 5:52 am by Dr. Roy Schestowitz

KEEP CALM AND CRUSH PATENT TROLLSSoftware patents remain a troll’s weapon of choice

Summary: A roundup of recent (past week’s) announcements, including legal actions, contingent upon software patents in an age when software patents bear no real legitimacy

SOFTWARE patents are bunk, but if you throw 26 of them at a rival (in six lawsuits which have software patents in the mix) you hope a settlement will be cheaper than justice. This is exactly what happened some days ago [1, 2, 3] and the aggressor said in its press release:

Align Technology, Inc. (NASDAQ: ALGN) today announced that it has filed six patent infringement lawsuits asserting 26 patents against 3Shape A/S, a Danish corporation, and a related U.S. corporate entity, asserting that 3Shape’s Trios intraoral scanning system and Dental System software infringe Align patents.

The accused has responded in this press release:

We have today read the news of Align Technology’s lawsuits against 3Shape in the USA. The said lawsuit and infringement claims are completely unfounded and without merit. 3Shape will vigorously defend itself against such claims.

How many of these are software patents we don’t know for sure because we didn’t look at 26 pertinent patents. But what’s at stake here is definitely software. Unfortunately, the USPTO built a large pile (or pool) of software patents for a number of decades and even though Alice renders these obsolete they can still be used, especially in bulk, to force settlement (under threat of heavy legal fees/defense costs).

The USPTO ought to do something about it. The writings are on the wall, but the USPTO lacks the incentive to reduce litigation. In fact, it seems to have just erroneously (again) granted software patents that are invalid under Alice, based on this press release of Foxwordy.

“The USPTO ought to do something about it. The writings are on the wall, but the USPTO lacks the incentive to reduce litigation.”As we said as far back as a decade ago, we are not against patents. We are all for patent justice, but when patents are granted which are out of scope and then used en masse to extract ‘protection’ money (Microsoft does that a lot), then it’s mob justice, not real justice. It’s 2017 and companies still brag about software patents, perhaps pretending not to know about Alice. GE’s promotion of software patents notwithstanding (we covered that many years ago), here it is making deals and boasting about patents in connection to “GE’s software platform for the industrial internet, to monitor the printing process and also the health of the machine.”

We have seen many of these sorts of patents (oftentimes software patents) connected to “machines” or “cars” or “planes” or whatever. Here is a new report which speaks about “an enormous spike in the number of patents filed by major carmakers for autonomous technology since 2007.”

“We have seen many of these sorts of patents (oftentimes software patents) connected to “machines” or “cars” or “planes” or whatever.”These are, in essence, software patents where there’s plenty of prior art. The patent ‘industry’ exploits this latest hype to pursue software patents and tax everything inside the car. Here is another new article (“Re-regulating the car industry now it is all about software”) which says: “The parts-makers are capturing more and more of the value because their patents give them monopolies over critical components. Their shares have doubled in value relative to the carmakers over the past five years.”

Why are patents like these allowed in the first place? We were reminded of FatPipe [1, 2] a few days ago when a press release said that “BCM One, a leading technology solutions provider, announced today a partnership with FatPipe Networks, the inventor and holder of multiple patents of software-defined networks…”

“Each week we look at the news we identify new ways to pass off or characterise software as something which merits patents.”These are, again, software patents. How about this other new press release [1, 2, 3] that says “PSS 3.2 has specific software controls for high-speed 3D printing with EnvisionTEC’s patented Continuous Digital Light Manufacturing (cDLM) technology.”

Each week we look at the news we identify new ways to pass off or characterise software as something which merits patents. The tactics vary over time and we’ll cover them separately later today — in an article dedicated to Alice.

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