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

01.07.18

Patent ‘Industry’ Settles on Use of Buzzwords for Bypassing § 101/Alice Rules in the United States

Posted in America, Deception, Patents at 7:40 am by Dr. Roy Schestowitz

Industry 4.0

Summary: Facing a tough reality wherein software patents get repeatedly rejected by courts, the patent lawyers reach out to low-importance precedence in low courts (rocket dockets) and pretty meaningless buzzwords that make computer code sound both innovative and physical

A FEW DAYS ago we published this long article about the demise of software patents, accompanied/complete with new examples. As we showed at the time, the patent industry was fuming and looking for workarounds.

Since then, promoted by some patent extremists for the most part (in Twitter) was this article titled “The Current State of § 101 Examination for Computer-Related Inventions”. The patent microcosm cannot help itself; it is still exploring ways to get around the de facto ban on software patents or § 101 (incorporating Alice). To quote:

The impact of recent § 101 changes on the patent community, particularly for computing technologies, is difficult to overstate. As the various administrative bodies seek (and fail to find) a coherent and consistent statement of the law, a distinct reality is manifesting at the point where the rubber meets the road – in day-to-day patent examination. This first post of the reconstituted USPTO Talk presents observations about the state of play in § 101 examination practice for computer-related inventions.

Having studied the matter for over a decade (and published many thousands of articles about it), what we see nowadays is a retreat to buzzwords. Code is being passed off/characterised as “AI” or “IoT” (older tricks involved phrases like “over the Internet”). The EPO keeps coming up with new buzzwords of its own.

“Having studied the matter for over a decade (and published many thousands of articles about it), what we see nowadays is a retreat to buzzwords.”See this new European tweet which reads: “Workshop open to IoT vendors & innovators #SMEs @IConectada40 CEN-CENELEC/WS SEP2 – Industry Best Practices and an Industry Code of Conduct for Licensing of Standard Essential Patents in the field of 5G and Internet of Things…”

There’s also this new report titled “PATENTING INTERNET OF THINGS (IoT) AND INDUSTRIAL IoT INVENTIONS AFTER ALICE” and “TRENDS AND PRACTICE TIPS IN THERAPEUTIC ANTIBODY PATENTING” from the same firm (uploaded last month). Patenting software algorithms by disguising them with buzzwords like “IoT” isn’t an entirely new thing. We wrote a lot about it. We expect to see more of that in months/years to come (until they embrace newer buzzwords).

“We expect to see more of that in months/years to come (until they embrace newer buzzwords).”(Self-)esteemed lawyers from McDermott Will & Emery apparently want to infect digital currencies too with software patents; they just use trendy terms like “Blockchain” and “Cryptocurrency”.

Safraz W Ishmael from Proskauer Rose LLP (an infamous cherry-picker) has just published a long article titled “Patenting the Blockchain”. It’s in the National Law Review and it says this:

And while software patents are much more difficult to get through the Patent Office these days, especially after the Supreme Court’s 2014 ruling in Alice v. CLS Bank (finding that software that implements intermediated settlement services is ineligible for patenting), recent interpretations of the Alice case by the lower courts have indicated that patents directed to innovative database technologies that improve a network of computers may be patent eligible. As blockchain is at bottom a complex decentralized database system designed to track and store electronic transactions, many innovations in the space may very well be eligible for patenting.

This is still software; Ishmael does not name any of these “lower courts” decisions that he alludes to. Does it even matter? These “lower courts” (he probably means district courts, such as the notorious ones in Texas) are more Alice-hostile than the Court of Appeals for the Federal Circuit (CAFC) and their rulings have little weight. For cherry-pickers like Proskauer Rose LLP that seems to be enough to compel the National Law Review to publish the above (and it’s what readers of the National Law Review want to believe anyway).

“This is still software; Ishmael does not name any of these “lower courts” decisions that he alludes to.”The bottom line is, watch out for (mis)use of buzzwords; the EPO does this a lot (in recent months we covered many examples) and the USPTO is more receptive towards patent applications which disguise algorithms this way.

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 1610/2018: Linux 4.19 RC8, Xfce Screensaver 0.1.0 Released

    Links for the day



  2. Judge-Bashing Tactics, Undermining PTAB, and Iancu's Warpath for the Litigation and Insurance 'Industries'

    Many inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) leverage 35 U.S.C. § 101 against software patents; instead of putting an end to such patents Director Iancu decides to just serve the 'industry' he came from (a meta-industry where his firm had worked for Donald Trump)



  3. 'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

    With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. § 101 (Section 101); but courts would still see past such façade



  4. Corporate Media's Failure to Cover Patents Properly and Our New Hosting Woes

    A status update about EPO affairs and our Web host's plan to shut down (as a whole) very soon, leaving us orphaned or having to pay heavy bills



  5. Links 15/10/2018: Testing Ubuntu 18.10 Release Candidates, KaOS 2018.10 Released

    Links for the day



  6. USPTO FEES Act/SUCCESS Act Gives More Powers to Director Iancu, Supplying Patents for Litigation 'Business' and Embargo (ITC)

    Corruption of the US patent system contributes to various issues which rely on the extrajudicial nature of some elements in this system; companies can literally have their products confiscated or imports blocked, based on wrongly-granted patents



  7. Court of Appeals for the Federal Circuit Decides That USPTO Wrongly Granted Patents to Roche

    Patent quality issues at the U.S. Patent and Trademark Office (USPTO) — motivated by money rather than common sense — continue to be highlighted by courts; the USPTO needs to raise the bar to improve the legal certainty associated with US patents



  8. Even Judge Gilstrap From Texas is Starting to Accept That Software Patents Are Invalid

    Amid new lawsuits from Texas (e.g. against Citrix) we’re pleased to see that even “reprehensible” Rodney Gilstrap (that’s what US politicians call him) is learning to accept SCOTUS on 35 U.S.C. § 101



  9. Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

    Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it



  10. Let's Hope Apple Defeats All the Abstract Patents That Are Leveraged Against It

    Apple can be viewed as a strategic 'ally' against patents that threaten Android/Linux if one ignores all the patent battles the company started (and has since then settled) against Android OEMs



  11. EPO Insider/Märpel Says President Campinos Already Acts Like Battistelli

    Unitary Patent (UPC) is a step towards making the EPO an EU institution like the European Union Intellectual Property Office (EUIPO); but it's not making any progress and constitutional judges must realise that Campinos, chosen by Battistelli to succeed him, is just an empty mask



  12. Quality of Patents Granted by the EPO is Still Low and Nobody Will Benefit Except Lawyers, Jubilant Over Growing Lenience on Software Patents

    Deterioration of patent quality at the EPO — a serious problem which examiners themselves are complaining about — is becoming rather evident as new guidelines are very lenient on software patenting



  13. 100 Days Into the Term of Campinos There is Already an EPO Suicide

    A seventh known suicide at the EPO since the so-called 'reforms' began; the EPO continues to pretend that everything is changing for the better, but in reality it's yet more nepotism and despotism



  14. Links 13/10/2018: Ubuntu Touch OTA-5, MidnightBSD 1.0 Ready

    Links for the day



  15. Links 11/10/2018: PostgreSQL 11 RC1 Released, Librem 5 Loves GNOME 3.32

    Links for the day



  16. Friend Brings a Friend, Boss Becomes Subordinate: the EPO Under António Campinos is Starting to Look a Lot Like Team Battistelli 2.0

    The new President of the EPO contributes to the perception that the Office is a rogue institution. Governance is all in reverse at the Office because it still seems like the Office President bosses the Council rather than be bossed by it (as intended, as per the EPC)



  17. UPC Cowardice: Team UPC Uses Cloaks of Anonymity to Discredit Authors of Scholarly UPC Paper They Don't Like

    Team UPC has sunk to the bottom of the barrel; now it uses anonymous letters in an effort to discredit work of Max Planck Institute staff, in the same way (more or less) that ad hominem attacks were attempted against the filer of the constitutional complaint in Germany



  18. New EPO Guidelines: Granting European Patents on Business Methods, Algorithms, Mental Acts and Other Abstract Stuff

    Keeping so-called 'production' high and meeting so-called 'targets' (allegedly set by Battistelli), Campinos relaxes the rules for "computer-implemented inventions" (one among many misleading terms that mean software patents in Europe)



  19. Open Invention Network is a Proponent of Software Patents -- Just Like Microsoft -- and Microsoft Keeps Patents It Uses to Blackmail Linux Vendors

    OIN loves Microsoft; OIN loves software patents as well. So Microsoft's membership in OIN is hardly a surprise and it's not solving the main issue either, as Microsoft can indirectly sue and "Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact," according to Bradley M. Kuhn



  20. Links 10/10/2018: Unreal Engine 4.21 Preview, Red Hat Openshift Container Platform 3.11

    Links for the day



  21. Links 9/10/2018: Plasma 5.14, Flatpak 1.2 Plan

    Links for the day



  22. Greg Reilly Inadvertently Makes a Case for Replacing/Improving the Patent System With a Wiki, Editable by All as Society Moves Forward

    Editable patents make a lot more sense in the age of the Internet and the World Wide Web; companies that rode the wave of the Net are themselves changing their patents on the go, sometimes because they simply attempt to dodge an evolving patenting criterion which nowadays looks down on software patents



  23. The USPTO's Principal Issue is Abstract Patents (or Patent Scope), Not Prior Art Searches

    In spite of the fact that US courts prolifically reject patents for being abstract (citing 35 U.S.C. § 101) Cisco, Google, MIT, and the USPTO go chasing better search facilities, addressing the lesser if not the wrong problem



  24. António Campinos Makes Excuses for Granting European Patents on Software in Spite of the EPC

    Continuing the horrid tradition of Battistelli, António Campinos sends patent quality -- the one aspect which the EPO was once renowned for -- down the drain (or down the shredder, for lack of a better and more timely metaphor)



  25. Antibody Patents Should Not be Allowed (Nor Should CRISPR Patents)

    The patent extremists are still trying to patent life (and/or nature) and their arguments typically boil down to, "there's money in it, so why the heck not?"



  26. Links 8/10/2018: Linux 4.19 RC7, Mageia 6.1, Calculate Linux 18

    Links for the day



  27. The Federal Circuit Continues to 'Lecture' the Patent Office on Patent Scope and Limits, But Iancu Isn't Listening

    Sadly, the district court have not fully caught up (at least not yet) with SCOTUS; they're more USPTO-friendly.



  28. U.S. Patent and Trademark Office Under Andrei Iancu Subjected to an Assault on Patent Quality

    Donald Trump has let the litigation industry 'govern' itself at the USPTO; all it has accomplished so far is even greater divergence between USPTO determinations and those of actual courts (which means that the USPTO does not follow the law, there’s a state of lawlessness)



  29. When It Comes to Patent Quality António Campinos Might be Even Worse Than Benoît Battistelli

    The lack of genuine interest in the quality of European Patents is perhaps a greater threat to the whole of Europe — if not the whole world — than well-documented human rights abuses and corruption inside the Office; António Campinos has shown no interest in improving patent quality as he denies such a problem even exists and he reduces transparency



  30. In Spite of Campaigns Against It, the Patent Trial and Appeal Board (PTAB) Squashes Software Patents by the Hundreds Per Month, Patent Maximalists Still Try to Stop It

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) achieve exactly what they were set out to do; those who view patent quality as a foe, however, aren't happy and they still try to undermine PTAB IPRs by any means possible (or at least slow them down considerably)


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