02.05.18

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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.

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