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02.05.18

The Efforts to Work Around 35 U.S.C. § 101 and Why IBM is So Afraid of § 101

Posted in America, IBM, Law, Patents at 3:26 am by Dr. Roy Schestowitz

IBM’s actual business has been sent to China (notably Lenovo)

Lenovo notebook

Summary: § 101, which invalidates the lion’s share of software patents in the US, is still the subject of most Internet debates; that’s because restriction/limit on patent scope and almost nothing else really worries the patent microcosm

THE decline/demise of software patents is really hurting IBM because IBM invested/wasted a lot of its cash reserves on a pile of worthless software patents, which are basically worse than worthless. Those patents are bunk, more so after Alice.

We are not arguing that the USPTO stopped issuing software patents. It still issues them (it’s just harder), but courts typically reject these. Yesterday we saw this article titled “Materialise makes software that powers 3-D printing” in which it said that “Materialise now has 165 patents for its software, manufacturing and medical device products.”

How many of these allude just to software and are thus worthless? There’s also an attempt to characterise software patents using all sorts of buzzwords and hype. From the past week alone: “Now Trending in Patent Examination: Cryptocurrencies and Blockchain Technology”, “Filing figures suggest blockchain-related patents boom” and “Financial Services Companies Are Rushing to Patent Blockchain Solutions”. Disguising software patents as “blockchain” isn’t so novel a concept. The applicants or the law firms try to get examiners to say, “well… OK, I don’t get it, I’m not sure what that means, so I’ll grant a patent.”

Here’s one from the weekend: “FOSDEM 2018 blockchain devroom raises questions and discusses #Patents #Povery #Law #Energy #Diversity and #Inclusion aspects of blockchain technology.”

Well, blockchain is software, so forget about patents. Sure, these get granted, but as far as we’re aware, none have been tested in court (yet).

Then there’s the “AI” wave, which IBM keeps riding with publicity stunts like “Watson”. Nobody invented “AI” and its buzzword ‘branches’ (data-driven training/learning). The concepts are very old, but over time there’s more computing power at hand. The corporate media really ought to stop using the “AI” hype because it is being exploited for patent propaganda, such as this from today.

There’s a constant effort to work around Alice and patent software. Watchtroll, for instance, published this thing yesterday, claiming to have come up with new loopholes. It says that the USTPO “recently issued a bulletin explaining that on January 25th, a revised MPEP — Ninth edition (Revision 08.2017) of the Manual of Patent Examining Procedure (MPEP) was made available on the USPTO website.”

None of this really changes anything. They’re talking about semantics. So does Charles Bieneman, who days ago wrote that “CAPTCHA Patent Claims Survive Alice Challenge,” albeit only at a district court (i.e. the lowest possible level). To quote:

Patent claims directed to “generating a completely automated test to tell computers and humans apart” – i.e., improvements to what you’ve seen on the Internet as “CAPTCHA” – have survived a motion to dismiss alleging patent-ineligibility under 35 USC § 101 and the Alice abstract idea test. Confident Technologies, Inc. v. AXS Group LLC, No. 3-17-cv-02181 (S.D. Cal. Jan. 23, 2018).

If they want to seriously debate § 101, then they ought to look at higher courts, such as the Federal Circuit.

Regarding an IBM patent recently rejected under § 101, one troll friend wrote: “Its ]sic] Tuesday, so of course IBM has #patent application improperly rejected under §101 at PTAB, by ignoring 90% of language and boiling them down to simply claiming “logical parsing of information” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017008361-01-30-2018-1 …”

IBM has been losing a lot of software patents lately. PTAB invalidates them every week. “IBM is the only operating company that breaks the top-10,” Patently-O wrote the other day in “Firms with the Most Registered Patent Attorneys and Agents”. Well, IBM is operating less and less over time. Dan Gillmor recently called IBM “a company that basically invented patent trolling and employs platoons of patent lawyers,” having watched the company for decades.

From Patently-O:

According to these records, Finnegan has the most total practitioners while Knobbe has the most patent attorneys. IBM is the only operating company that breaks the top-10. The top 25 firms represent ~8% of all registered patent practitioners. The newest patent attorney on the list is Hallie Wimberley, a first-year associate at Reed Smith. My former firm (MBHB) is now up over 100.

Janice Mueller, writing in Twitter the other day, said: “Delicious irony that IBM now #6 on this list. They were one of the anti-software patent leaders in 1970s. Times do change.”

“IBM is now the biggest lobbyist for software [patents] everywhere,” I replied, “not just the US” (she agreed on that). IBM is like a troll almost. It’s not there yet, but it's already feeding trolls.

Can § 101 put an end to most of IBM’s aggression? We certainly hope so. § 101, based on this tweet, is still being used a lot by PTAB. Another § 101 tweet noted that it’s not § 101 but § 103 that did the trick: “Examiner’s Rejection of Philips Imaging Patent Application Claims under 101 Was Reversed by PTAB; 103 Rejection Affirmed: https://storage.googleapis.com/pbf-prod/pdfs/2018-01-23_13260533_175904.pdf …”

Charles Bieneman’s colleague, Kevin Hinman, wrote about 35 U.S.C. § 112. There’s also this new post regarding § 112 (“aspirational claiming”) and regarding Crane Security Technologies, Inc. et al v Rolling Optics AB § 287 got brought up in the Docket Navigator. There’s more than just § 101 at play; here’s § 287 as explained by Hunton & Williams LLP’s Daniel G. Vivarelli, Christopher J. Nichols and Suzanne P. Hosseini. This too falls under AIA:

The Leahy-Smith America Invents Act (AIA) made various changes to the “marking statute” (35 U.S.C. § 287(a)) to permit virtual marking of patent numbers, effective for any lawsuit that was pending on or commenced after September 16, 2011. The purpose of marking an article is to provide constructive notice to the public that it is patented. More importantly, failure to mark an article can preclude the tolling of legal damages for patent infringement until effective notice is given. Ultimately, “[a patentee] is entitled to damages from the time when it either began marking its product in compliance with section 287(a) [i.e., providing constructive notice], or when it actually notified [the accused infringer] of its infringement, whichever [is] earlier.” Thus, in the event of a failure to mark, § 287(a) provides that “… no damages shall be recovered by a patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.”

Yesterday (or last night) Watchtroll also wrote about § 121: “The safe-harbor provision of 35 U.S.C § 121 is a defense against a double patenting rejection. If it applied, the ‘272 and ‘195 patents could not be used as prior art against the ’471 patent.”

On § 102 (AIA) Gregory Sephton and Anna Schoenfelder (Kramer Levin) wrote:

Over the last few decades, the United States has been incrementally harmonizing its patent law with the rest of the world. Those efforts continued with the signing of the America Invents Act (“AIA”) in 2011. For example, the AIA created a first inventor-to-file patent system, while all but eliminating the best mode requirement. One area where we have not moved as far towards harmonization with the passing of the AIA as some initially thought is patent invalidity based on an “on sale” bar.

What’s worth noting here is that the patent microcosm is typically focused on just one section, namely 101. This is what typically tackles abstract patents such as software patents. What does that obsession imply? They’re mostly concerned/infatuated with patent maximalism, more so than matters like “damages”. That says a lot about them.

The ‘Microsoft Operandi’ of Vaguely Alluding to 200+ Patents to Blackmail the Competition is Now Being Copied by China

Posted in America, Asia, GNU/Linux, Microsoft, Patents at 2:21 am by Dr. Roy Schestowitz

Microsoft did this to demand payments for the use/distribution of Linux

Microsoft mouse

Summary: A look at Microsoft’s latest strategy for ‘monetising’ GNU/Linux and how giants in China now copy that strategy, exploiting a large pile of patents for saber-rattling and demands of ‘protection’ money

THE “NEW MICROSOFT”.

Yes, that’s still a ‘thing’, apparently. So is “Microsoft loves Linux…” (or “Microsoft loves [something FOSS]“)

“When it comes to patents, Microsoft changed the outward appearance of its approach, but the underlying approach is still the same. Microsoft drives up the price of Linux devices and tries to turn these devices into Microsoft cash cows. It’s a racketeering approach, no matter how subtle it may seem.”Smart people fall for neither of the two. Microsoft has not really changed.

When it comes to patents, Microsoft changed the outward appearance of its approach, but the underlying approach is still the same. Microsoft drives up the price of Linux devices and tries to turn these devices into Microsoft cash cows. It’s a racketeering approach, no matter how subtle it may seem. Today we present some evidence from the past week alone.

A week ago Managing IP ran a new series about patents. Watch who sponsors this thing. The patent microcosm does, and the first episode is directly linked to Microsoft through the law firm (Microsoft’s former chief and probably closest business partner). They hope to control the narrative.

“Microsoft is shaking down companies in China, using satellites that prey on Android/ChromeOS OEMs.”But that’s not the ‘smoking gun’. What’s more troubling was already covered here several times last month. Microsoft is shaking down companies in China, using satellites that prey on Android/ChromeOS OEMs. One specific example we gave from China was Nokia‘s taxation of Huawei and Xiaomi.

Nokia was reduced to a minuscule market share after Microsoft had destroyed Nokia and fed its patents to patent trolls. According to this (days ago), the market share may be somewhere around 1%. So Nokia is becoming a troll and/or is feeding trolls. It didn’t do this before Microsoft’s Elop took over.

“Nokia’s licensing team had a huge 2017,” IAM wrote, “but the company is predicting much more to come” according to this latest article, naming some of the affected OEMs:

In 2017 it signed a series of headline deals including with Apple, Huawei and Xiaomi – a run of success which saw patent business chief Ilkka Rahnasto crowned as our top market maker of the year.

[...]

Since Nokia sold its handset division to Microsoft in 2013 and went through an internal reorganisation which saw patent licensing become part of Nokia Technologies, the Finnish company has focused intensely on growing the return from its patent portfolio.

As we said last week, Nokia now goes after the OEMs which Microsoft was never able to shake down over Linux/Android (Microsoft’s patent advantage over Huawei, for instance, wasn’t strong enough). Microsoft is still stockpiling patents on the sorts of things it does not sell or barely ever sells. Its strategy is to just turn patents into a cash cow, helped by trolls and the likes of Nokia. They want a humongous ‘patent tax’ on everything Linux. It’s hardly even a secret.

“As we said last week, Nokia now goes after the OEMs which Microsoft was never able to shake down over Linux/Android (Microsoft’s patent advantage over Huawei, for instance, wasn’t strong enough).”As for Xiaomi, it turns out that it has resorted to a similar strategy, at least in China (for now). As one IAM writer put it the other day, “Jiang Chao tipping his hand here? IP team must have told him they have 200 patents that read on Xiaomi products…”

Microsoft deja vu. Remember those 200+ unnamed patents it claimed were infringed by Linux when it started the blackmail campaign in 2007? Giants in China now use their patents like Microsoft used them a decade ago, in order to bully and blackmail small companies like Coolpad. Here’s the latest:

Coolpad CEO Claims Xiaomi Violated Over 200 of Its Patents & Lawsuit Is To Create Awareness

[...]

The Chinese media was agog recently with news that Coolpad had sued Xiaomi before a Beijing court for patent infringement. Xiaomi had come out after that to deny the allegation and stated that it is yet to receive the court papers. The latest gist coming out of that story comes from Coolpad’s CEO Jiang Chao who revealed that Xiaomi’s infringement of its patents spans more than 200 patents. The CEO, however, stated that they decided to sue Xiaomi for just six out of the 200.

They’re ‘pulling a Microsoft’ here. Xiaomi is behaving like Microsoft but for the time being only in China. Yesterday we saw a report titled “Xiaomi Says Coolpad Didn’t Sue It For Patent Infringement,” refuting some false claims:

Xiaomi denied being sued for patent infringement by Coolpad, with the tech giant’s first comment on the matter claiming that it never received any official notice of such litigation being in the works, Chinese media reports. The statement was meant to reflect on recent reports that Coolpad is targeting several Xiaomi subsidiaries for infringing on a number of the company’s patents related to the Android operating system, though the smartphone maker says its only word of an upcoming legal clash came from those very same reports. It’s presently unclear whether Coolpad made a misstep in the process of filing for litigation or if the leaked lawsuit has yet to be filed in the first place. The supposed plaintiff refused to issue a more in-depth response to the allegations raised by the lawsuit as it said their details remain vague, making it unclear what exactly is Coolpad accusing it of.

Why would Coolpad even sue? It doesn’t have anywhere as many patents as Xiaomi, so in a two-way battle where both companies have products (unlike trolls) it’s only Xiaomi that can win.

“What’s noteworthy here is that we’re seeing US patents being reassigned to companies from China.”According to this, “Chinese smartphone maker Oppo back on the patent purchase trail as it seeks to expand into new markets.”

They know they need patents to avoid being hammered with lawsuits (like Coolpad above). The corresponding article shows that firms from China are now taking over US patents as well:

According to USPTO records, the Dongguan-based smartphone vendor obtained 37 US assets in one assignment on 17th January (the transfers were recorded on Sunday). All the patents involved were formerly owned by Intel, and they were assigned to an entity named Sky Royal Trading Limited before landing in Oppo’s possession. Sky Royal Trading is a Hong Kong registered company with no previous patent assignment record or other online footprint. It’s not clear whether it is a broker or a bespoke Oppo patent acquisition vehicle.

What’s noteworthy here is that we’re seeing US patents being reassigned to companies from China. We saw that before, albeit not often. It’s actually a defensive strategy. The Beijing Higher Court, according Lexfield Law Offices, continues to enforce all sorts of claims, but those are only applicable in China. IAM’s Jacob Schindler, in his latest magazine article, says that “[g]overnment bodies in Asia and beyond say that alternative dispute resolution is underutilised in disputes over fair, reasonable and non-discriminatory licences.”

“That plays a role in the patents gold rush in China and helps explain why there are almost 1.5 million patent filings per year (as per last year at least).”Those are often patent pools, in which the only permitted participants (for free) are companies with loads of patents. That plays a role in the patents gold rush in China and helps explain why there are almost 1.5 million patent filings per year (as per last year at least). WIPO uses these insane numbers for propaganda purposes, neglecting to note that such numbers are MEANINGLESS without QUALITY being taken into account.

Patents on GUIs Are Not Software Patents, But the Software Patents Lobby Ignores Fundamental Facts

Posted in America, Asia, Patents at 1:29 am by Dr. Roy Schestowitz

Factual errors on GUI patents

GUI for error

Summary: When the Federal Circuit said “OK” to patents on GUIs it basically set the patenting bar even lower than China (for that particular family of patents); it should not be framed as a “win” for software patents, however, for GUIs are not algorithms

THE SUBJECT of patents on user interfaces (GUIs) was brought up here several times, e.g. [1, 2], after the Court of Appeals for the Federal Circuit (CAFC) had ruled in favour of patents on GUIs. This is very bad. Do not pay attention to many spinners who now attempt to frame that as a win for software patents. GUIs are not algorithms; patents on GUIs, however, are disturbing for all sorts of other reasons.

“Do not pay attention to many spinners who now attempt to frame that as a win for software patents.”Charles Bieneman wrote the following about this precedential decision: “In my view, this is a significant patent-eligibility case, because it supports the proposition that claims reciting nothing more than a process for displaying or arranging data in a computer interface can be patent-eligible. Anecdotally, I can report that many patent examiners take the position that claims reciting “the mere display of data” are not patent-eligible. The Federal Circuit’s precedential decision in Core Wireless provides a solid basis for traversing Section 101 rejections of claims directed to computer displays, and more broadly supports the proposition that software can be patent-eligible even if claims recite no more than processing or arranging data.”

“GUIs are not algorithms; patents on GUIs, however, are disturbing for all sorts of other reasons.”“Federal Circuit Starts 2018 With Two Favorable Decisions For Software Patents,” one headline said, but this is patently untrue. It’s not a software patent. They are touching on Finjan and also on Core Wireless as though these are inherently the same. Regarding Finjan, as we pointed out before, the decision actually did invalidate many software patents (except one). A pretty reliable Twitter account said: “Core Wireless 1/25/18. Patent claim to display interface with “application summary window.” Not ineligible. INTERESTING: first two S101 cases in 2018 find claims eligible. Break from pattern in 2014-2017 in which only two or so cases in entire year upheld eligibility.”

Actually, not quite. In 2017 virtually none was upheld as eligible and in prior years there were quite a few. We wrote a lot about that. And in the case of a GUI, Section 101 is barely even applicable. We’re not entirely surprised to see the above spin. In fact, we sort of foresaw that and as we explained last weekend, the defense strategy, relying on Section 101, was probably unwise. Core Wireless has a bad patent, but it is not a software patent but GUI-related.

“They are touching on Finjan and also on Core Wireless as though these are inherently the same.”Here’s more of that spin: “If #FedCir continues to follow logic of Finjan and Core Wireless ( http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2684.Opinion.1-23-2018.1.PDF …), it is an overdue watershed in eligibility analysis. Because claimed software innovation is done on a computer does not automatically make it a maligned do-it-on-a-computer claim.”

“You are an attorney,” I told the person, “so what do you know about #swpats and software anyway? Let logic guide policy.” What’s more troubling though were the claims that this case was about software patents. It wasn’t.

It has meanwhile turned out that CAFC has another precedential decision: “Paice v Ford Motor (Fed. Cir. 2018) PRECEDENTIAL–1 of 25 IPRs filed by Ford against Paice Patents…”

There’s also another CAFC cases in which Section 101/Alice got reaffirmed: “Fed. Cir. Affirms PTAB Finding Patent Claims for Real Estate Searching Ineligible under 101/Alice…”

“…in the case of a GUI, Section 101 is barely even applicable.”And another IPR: “Maxlinear 1/25/18. IPR. independent claims held unpatentable on appeal (in related case). Remand on patentability of dependent claims.”

Funny how none of the spinners speak about these cases, instead still obsessing over a case that has nothing to do with software and everything to do with a visual interface. Joseph Robinson and Robert Schaffer at Watchtroll take advantage of this misuse of Section 101 to state:

LG moved for summary judgment that the claims are “abstract” and invalid under Section 101. The district court denied the motion. The claims are not abstract, because the “application,” “summary window,” and “unlaunched state” are applied to specific devices, like cell phones.

Right. This is bad for many reasons, but that does not mean that we’re talking about software patents here.

“This is bad for many reasons, but that does not mean that we’re talking about software patents here.”Looking east (at China), GUI patents actually face some barriers, in spite of an open-armed approach towards software patents and just about any conceivable thing. As one news site put it some days ago: “At the end of December 2017 the Beijing IP Court decided the first graphical user interface (GUI) infringement case in China, in a battle between anti-virus software giants Qihoo 360 and Jiangmin. The court rendered a decision in favour of Jiangmin, which is a heavy blow not only to Qihoo 360, but also to thousands of GUI patentees in China. In view of this decision, software companies could easily avoid infringing a GUI if their software is not pre-installed on any hardware.”

An article by Lexfield Law Offices said something similar:

The Beijing Intellectual Property Court recently issued its judgment in the first-in-China infringement suit involving a design patent on GUI, Qihu v. Jiangmin. The court ruled against the patent owner Qihu on the grounds that its design patent as granted is actually directed to a “computer” which thus cannot be effectively enforce against the software product distributed by Jiangmin.

The judgment, if upheld in appeal, would greatly diminish the practical value of Chinese design patents granted on GUI, especially those granted immediately after China first allowed the registration of such patents in May 2014.

[...]

Since SIPO first allowed design patents on GUI in May 2014, it still required that the title be toward a hardware product like a computer or a mobile phone and the drawings show such a hardware product in solid lines. At the first stage, SIPO strictly enforced such requirement toward the first patents filed. This judgment immediately calls into question the enforceability of these early patents.

Put another way, the CAFC’s decision on GUIs almost places the US at a lower scale on the quality prism than even China (SIPO)! That’s really low and we hope that SCOTUS will deal with an appeal on this, as well as on design patents.

“Put another way, the CAFC’s decision on GUIs almost places the US at a lower scale on the quality prism than even China (SIPO)!”Speaking of China, mind this tweet which said: “Beijing Higher People’s Court issues a ruling further strengthening patent enforcement in China. More good news for IP in China. Wish we had more news like this from the US, where IP is under attack on many fronts, but change is possible.”

Under attack? Really?

“The bottom line is, yes, it’s true that patents on GUIs received a lifeline in the US; it should not, however, be mistaken for acceptance of software patents, no matter what lawyers and attorneys try to say.”“What you mean to say is more litigation and by “we” you mean patent aggressors/lawyers,” I told him, not the 99% of the population (which does not profit from litigation).

The bottom line is, yes, it’s true that patents on GUIs received a lifeline in the US; it should not, however, be mistaken for acceptance of software patents, no matter what lawyers and attorneys try to say.

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