01.16.18
2018 Will be an Even Worse Year for Software Patents Because the US Supreme Court Shields Alice
Positive vision for the year ahead (if you develop software)
Summary: The latest picks (reviewed cases) of the Supreme Court of the United States signal another year with little or no hope for the software patents lobby; PTAB too is expected to endure after a record-breaking year, in which it invalidated a lot of software patents that had been erroneously granted
THE first year of Donald Trump (anniversary 4 days from now), surprisingly enough, did not have much impact on the patent world or the patent landscape in the United States*. Congress barely did anything. One thing Trump did was, he appointed a new Justice.
Prof. Timothy Holbrook of Emory Law wrote about the US Supreme Court‘s decision to look into WesternGeco. From his introduction:
Patent law remains hot at the Supreme Court. The Court on January 14, 2018, agreed to review WesternGeco LLC v. ION Geophysical Corp. WesternGeco joins two other patent cases at the Supreme Court (so far) for its October 2017 term.
We wrote about this very briefly towards the end of the weekend. The good news is, no case regarding software patents or anything remotely like it will be looked at. There won’t even be another Mayo. It means that we can expect no imminent changes/alterations in Section 101 and the USPTO, for the time being, has only an interim Director. He is actually the recipient of a lawsuit, Bosch v Matal, on which Kluwer remarked yesterday by saying: “The Board [PTAB] erred, however, in denying the patent owner’s request to substitute 16 amended claims for the original claims. The Board impermissibly assigned the burden of proof on patentability of the proposed amended claims to the patent owner.”
This is a CAFC case regarding PTAB. CAFC cases may have some significance, but they hardly set the law at the USPTO. However this ends, it won’t have any impact on PTAB. What can have impact is Oil States at the US Supreme Court (oral hearings already started). It looks, based on the proceedings so far, like all/most Justices will side with PTAB, which is widely supported (also in briefs from industry). Watchtroll’s daily PTAB bashing carries on unabated (not a day without it, even on Sundays, even yesterday on MLK day). They are propping up patent trolls’ agenda like a lobbying group, knowing quite well that Oil States is likely a losing game for them.
PTAB is important because — with or without a trial — it can invalidate any US patent at any time (if petitioned to do so). It has been a serial enforcer of the Alice test and this is why PTAB has been so scary to proponents of software patents. We still see some of these patents in the news**, but they pose a far lesser threat as long as Section 101 remains in tact and PTAB has the capacity to deal with thousands of petitions per year. Sometimes one can find another basis for thwarting litigation. In this new case, for instance, there was “future promise to assign patent rights” (“I hereby do assign” versus “I will assign”) and this meant that the whole lawsuit was baseless if not an act of misconduct (asserting or leveraging patents that aren’t even one’s own). Newman is standing out from the crowd and dissenting as usual. “Judge Newman dissented,” it says, “believing that the employment agreement was sufficient to transfer ownership of the invention to Ms. Hsiun’s employer.”
The bottom line is, the US Supreme Court (SCOTUS) will look only at WesternGeco and will thus not challenge Alice any time soon. We can therefore expect software patents to erode further and further, more so after TC Heartland (keeping litigation away from district courts that are software patents-friendly). █
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* According to IAM, Trump’s regressive tax policy, or tax ‘cuts’ (to billionaires), will help people who price medicine out of patients’ reach. “Analysts at Goldman Sachs predict a $160 billion windfall for the pharmaceuticals industry, with Abbott Laboratories, Johnson & Johnson, Amgen and Merck & Co named among those with most to gain,” it said.
** More software patents, which would be deemed invalid under Alice/Section 101, still make it into the news. This one is the “over the Internet” type:
Packets are the carriers of data on the internet; they consist of user data (a payload), and also of control information about where the data should go (a header). A packet identifies its sender and addressee by their IP addresses but (currently) does not include any information about the sender’s or addressee’s physical location (geolocation); while IP addresses may indicate, generally, a geographical location, they are not an exact and perfectly reliable determinant of the location – for reasons that include, among other things, the possibility of spoofing IP addresses.
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