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

11.19.17

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).

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. Judge Corcoran Got His User ID/Desk Back (as ILO Asked), But Cannot Perform Actual Work

    The latest update regarding Patrick Corcoran, whose 3-year ordeal is far from over in spite of ILO's unambiguous rulings in his favour



  2. The End of Software Patents and PTAB's Role in Enforcing That End

    Software patents are fast becoming a dying breed and the appeal board (PTAB) of the USPTO accelerates this trend, irrespective of patent immunity attempts



  3. No, China Isn't Most Innovative, It's Just Granting a Lot of Low-Quality Patents

    Patent extremists are trying to make China look like a role model or a success story because China grants far too many patents, spurring an explosion in litigation



  4. Battistelli-Campinos Transition Will Be a Smooth One as the Administrative Council Remains the Same and the Boards Still Besieged

    A rather pessimistic (albeit likely realistic) expectation from tomorrow's meeting of the Administrative Council, which continues to show that no lessons were learned and no strategy will be altered to avoid doom (low-quality patents and stocks running out)



  5. Links 12/12/2017: New BlackArch ISO and Stable Kernels

    Links for the day



  6. German Media Helps Cover Up -- Not Cover -- the Latest EPO Scandal

    EPO-Handelsblatt attention diversion tricks may be effective as German media barely shows interest in one of the EPO's biggest scandals to date



  7. PTAB Haters Fail to Guard Bogus Patents, But They Still Try

    Three Affiliated Tribes probably won't enjoy sovereign immunity from PTAB, Dennis Crouch won't manage to slow down PTAB, and patent litigation will stagnate as bad patents perish before they even land in a lawsuit



  8. Team UPC's Tilmann Defends Rogue Vote at 1 AM in the Morning With Just 5% of Politicians (Those With Vested Interests) Attending

    Just when German democracy is being stolen by a legislative coup (in the dead of night when 95% of politicians are absent/asleep) there's someone 'courageous' enough to rear his ugly head and attempt to justify that coup



  9. The Mask Falls: Lobbyist David Kappos Now Composes Pieces for the Patent Trolls' Lobby (IAM)

    David Kappos, a former USPTO Director who is now lobbying for large corporations that derive revenue from patent extortion, is writing for IAM even if his views are significantly biased by his aggressive paymasters (just like IAM's)



  10. The EPO Protest Tomorrow Isn't Just About Judge Corcoran But About the EPO as a Whole

    PO staff is about to protest against the employer, pointing out that "Battistelli is still showing a total and utter lack of respect not only for his staff and their rights but also for the Administrative Council and for the Tribunal"



  11. Claim: Judge Corcoran to Be Put Under Benoît Battistelli's Control in DG1

    Benoît Battistelli, who openly disregards and refuses to obey judges (while intervening in trials and delivering 'royal decrees' whenever it suits him), may soon gain direct control over the judge he hates most



  12. The European Patent Organisation Refrains (For Nearly a Week) From Speaking About Battistelli's Abuses as Judged by ILO Tribunal

    The EPO's silence on the matter of Patrick Corcoran is deafening; to make matters worse, the EPO continues to pollute media and academia with money of stakeholders, with the sole intention of lobbying and misleading news coverage (clearly a disservice to these stakeholders)



  13. Carl Josefsson Lets Judge Patrick Corcoran Come Back to Work at the EPO

    After initial reluctance to obey/respect the rulings from the ILO (security staff declining access) there is official permission for Patrick Corcoran to enter and resume work (following 3 years of injustice against him)



  14. Bristows is Being Hammered With Negative Comments For Its Unitary Patent (UPC) Lies

    The Unified Patent Court (UPC) is practically dead in the UK and Ireland; Bristows, nevertheless, continues with its desperate spin



  15. Links 11/12/2017: Linux 4.15 RC3, Debian 8.10 and Debian 9.3

    Links for the day



  16. Judge Corcoran Turns to His Government for Help and EPO 'House Ban' is Finally Lifted

    Sources that are very reliable say that Patrick Corcoran is coming back to work, however it's now clear when and how long for



  17. Raw: Battistelli's Control/Domination Over the Boards of Appeal

    An old EPO document internally voicing concerns about the lack of independence at the Boards of Appeal



  18. Raw: Conflicts of Interest of EPO Vice-President

    An old EPO concern regarding structural collisions and mixed loyalties



  19. Microsoft-Connected Patent Trolls Are Increasingly Active and Microsoft is Selling 'Protection' (Azure Subscriptions)

    There are several indications that Microsoft-connected shells, which produce no products and are threatening a large number of companies, are inadvertently if not intentionally helping Microsoft sell "indemnification" ("Azure IP Advantage," which echoes the Microsoft/Novell strategy for collecting what they called "patent royalties" one decade ago)



  20. Yes, RPost is Definitely a Patent Troll and Its Software Patents Are at Risk Thanks to Alice

    The latest whitewashing (or reputation-laundering) pieces from Watchtroll, which tries to justify patent-trolling activities with software patents, typically in the Eastern District of Texas



  21. The Latest Scams in the Patent World

    Examples of 'dirty laundry' of the patent microcosm, which it understandably does not like covering (as it harms confidence in their services/advice)



  22. Patents Are Becoming a Welfare System for the Rich and Powerful

    A culture of litigation and more recently the patenting of broad industry standards may mean that multi-billion dollar corporations are cashing in without lifting a finger



  23. Unlike the Mobile Domain, When it Comes to Cars Patent Lawsuits Remain Rare

    An optimistic note regarding the relatively low-temperature legal landscape surrounding advanced automobiles, even though patents are being amassed on software in that domain



  24. The Federal Circuit Rules (Again) in Favour of Section 101/Alice, Koch-Funded CPIP Tries to Overturn Alice at the Supreme Court

    The US Supreme Court's decision on Alice continues to have a profoundly positive impact (except for trolls) and Koch-funded academics try hard to compel the US Supreme Court to reverse/override Alice (so far to no avail)



  25. Next Director of the USPTO Parrots Talking Points of Patent Extremists and Their Lobbyists

    The next USPTO boss (still subject to official confirmation) may be little more than a power grab by the litigation and patenting 'industry', which prioritises not science and technology but its own bottom line



  26. Raw: Three Years for 'Justice' (to be Disregarded by Benoît Battistelli) at ILO and Over a Decade at the EPO

    The delays associated with ‘justice’ at the EPO (usually neither justice nor compliance with rulings) have become so extraordinary that immunity should long ago have been stripped off and Battistelli et al been held accountable



  27. Raw: Scuttling of the General Advisory Committee and Battistelli Stacking the Deck to Have 'Yes Men' as Representatives

    How the EPO broke down resistance to Battistelli’s oppressive policies not only at the Council, disciplinary committees and auditory divisions but also staff representation (symptomatic of Battistelli’s notion of justice)



  28. The Patent Trial and Appeal Board Will Endure Supreme Court Test and Overcome the Tribal Immunity “Scam”

    The Patent Trial and Appeal Board (PTAB), based on the latest news, is still winning the argument and justifying its existence/importance



  29. Phones/Mobility (Trillion-Dollar Market) May Have Become Infested and Encumbered by Aggressive, Dying Companies

    The tough reality that new entrants/entrepreneurs are facing now that a few dying giants look to "monetise" their patents rather than create anything



  30. Links 9/12/2017: Mesa 17.3, Wine 3.0 RC1, New Debian Builds

    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