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02.05.18

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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