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Software Patents Are Still Dropping Like Flies in 2018, Thanks to Alice v CLS Bank (SCOTUS, 2014) and Section 101 (USPTO)

Posted in America, Law, Patents at 5:15 pm by Dr. Roy Schestowitz

Keep software out of the patent system, except as tool/aid(e) for patent examiners

Old wires

Summary: Section 101 (§ 101) is thriving in the sense that it belatedly throws thousands of patents — and frivolous lawsuits that depend on them — down the chute; the patent trolls and their allies in the patent microcosm are very furious and they blame PTAB for actually doing its job (enforcing Section 101 when petitioned to do so)

THE changes at the USPTO are well received by many software companies. They can finally waste less money on patents and litigation; instead they can focus on actual work (research and development).

“So why even bother with software patents at all?”The patent microcosm is still trying to scare companies into pursuing patents (lots of events, seminars, webiners, forums, presentations etc. to that effect) and this new article (just promoted by IBM’s patent chief) is a good example of it. It’s that same old patent advocacy, albeit it acknowledges upfront that “Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims.”

So why even bother with software patents at all? Well, to IBM it’s the (almost) last remaining asset, having spent decades applying for a humongous number of software patents. Here are the relevant paragraphs from the article:

During our patent review, patent laws in the United States changed. Shortly after we filed our application, the supreme court’s verdict in Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims. Patents could no longer just encompass an abstract idea.

We had written our application based on previous laws (as one does). But when laws change, your application is reviewed based on the new laws — not the laws of your filing date. We then had to amend our application, which added more delays.

Again, always remember to over budget your time and money.

Does it not seem obvious already that software patents are a waste of both money and time? No matter how one ‘dresses them up’, patents on algorithms are software patents, even if they’re described as “AI” or “machine learning” or whatever. These terms are not new and they are not particularly exciting. They’re a new loophole for software patenting and some patent attorneys now justify them for automatically-generated patents. From down under today (regarding Section 101):

In the United States, 35 USC 101 states that ‘[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…’ – a provision that is ultimately authorised by Article I, Clause 8, Section 8 of the US Constitution, which grants Congress the power ‘[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ Article 60(1) of the European Patent Convention provides that ‘[t]he right to a European patent shall belong to the inventor or his successor in title.’ Section 15 of the Australian Patents Act 1990 stipulates that a patent may only be granted to ‘a person who … is the inventor’, or persons (natural or legal) who legitimately derive the right from the inventor.

So what? So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy? There used to be jokes over a decade ago, back when scientists produced computer-generated academic papers and many were accepted for presentation at conferences (after peer reviewers wasted their time assessing mumbo-jumbo). It was known as SCIgen.

“So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy?”Over the past week we have seen many rants about Alice. Blog posts about it are led by exclamation marks and defenders of patent trolls vent their anger at PTAB. Here’s one of the worst mocking a decision; It’s a “PTAB decision rejecting game modeling using sensor data under 101″ and here’s another with all caps: “FACTS? WHO NEEDS FACTS?” Here he is accusing PTAB of “laziness in assessing 101 eligibility” and more of that habitual mockery of PTAB. Remember that this guy cooperates with a large patent troll. On another Section 101 rant he said: “THEY CAN DO THAT?”

“Over the past week we have seen many rants about Alice.”Anger management 101 seminar might be of some help here. A friend of his similarly complained about Section 101 “in Rejection of Facebook Patent Application” and then about “amino acid sequence of a soluble glycopeptide held patent ineligible under 101/Mayo by the PTAB…”

Section 101 again intercepted (at PTAB) a “Robert Bosch Patent Application” and “PTAB affirmed 101 rejection by Examiner of Change HealthCare patent application” (see the trend yet?).

This latter person likes to say that Section 101 “Kills” (or “Killed”) patents, misusing militaristic narratives as if patents are people. That makes as much sense as claiming teachers who fail their students to be “killers” of children. “PTAB Killed Wireless Communication Patent under Alice,” he wrote.

“This latter person likes to say that Section 101 “Kills” (or “Killed”) patents, misusing militaristic narratives as if patents are people.”Notice how every time Alice and/or Section 101 get brought up the patent/s is/are finished. The PTAB judges are finally cleaning up the mess.

Well, surveillance “on a mobile device” is not a patent-eligible, apparently. Same cause; Section 101.

Then there’s this: [via]

Soil Sample Tracking Patent Not Invalid Under 35 U.S.C. § 101

The court denied defendant’s motion for summary judgment on the ground that plaintiff’s soil sample tracking patent encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea.

It sounds like a very stupid patent, but not pertaining to software directly or even indirectly. Hence it endured the likely irrelevant test (in the Indiana District Court). Alice/Section 101 is no magic wand as some frame it; it’s only useful when applied to actually “abstract” patents on mere ideas like algorithms.

Alice/Section 101 is no magic wand as some frame it; it’s only useful when applied to actually “abstract” patents on mere ideas like algorithms.”R+L is apparently pestering the Supreme Court over Alice even though the decision is a “done deal” and nothing to do with commercial agenda. As Patently-O put it the other day: “In its newly filed petition, R+L asks the Supreme Court to add further depth to the abstract-idea analysis. Namely, the the patentee asks whether Step 1 of Alice can be performed “without analyzing the requirements of the individual claim steps?” The petition also raises the important question of whether the eligibility analysis allows for any factual inquiry.”

Well, it has certainly helped those who actually create and invent things; the only complaints about Alice seem to come from lawyers and trolls. The patent microcosm, as usual, is cherry-picking quotes to harm PTAB. Even though the attacks of PTAB subsided over the past week, there are still some efforts to ‘scandalise’ it. We’ll keep an eye on that. PTAB is by far the biggest enforcer of Section 101 and with growing numbers of rulings/petitions we can expect 2018 to be a very dark year for software patents.

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