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02.11.18

Some § 101 Cases That the Patent ‘Industry’ Would Rather Not Talk (Much) About

Posted in America, Courtroom at 6:40 pm by Dr. Roy Schestowitz

Because that might damage faith in software patents

A quiet area

Summary: With § 101 still being entertained by courts and by PTAB, software patents continue to be invalidated, but these cases receive nowhere near the level of attention Berkheimer v HP received (because patent lawyers prefer to focus only on what suits their agenda)

THE existence of software patents at the USPTO gradually becomes more of a legacy. Sure, new ones continue to be granted, but few are asserted in a court of law. Some of them are regarded/considered to be next to worthless.

“The existence of software patents at the USPTO gradually becomes more of a legacy.”Our previous article, regarding Berkheimer v HP, explained that it’s not really about § 101, contrary to what the patent microcosm would like us to think. Michael Borella said some days ago that this decision “may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.”

May.

Maybe.

Like we said in the last article, this isn’t the Supreme Court. Here is what patent maximalists want to believe:

But the impact of today’s decision may be further-reaching than the other three. At the very least, it provides a degree of clarity as to the evidentiary standard applicable to a § 101 challenge on summary judgment. This may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.

No, the same can be said for other sections. All that the court said was, sufficient evidence needs to be provided. That’s all.

“…Even the US government strives to eliminate what it perceives to be software patents…”In another long article (published at 11:20 PM by Joseph Herndon) the same site said that the “U.S. Government Fails in Attempt to Invalidate U.S. Patents under § 101″ (sounds promising for them, at least on the surface).

Even the US government strives to eliminate what it perceives to be software patents and here are the actual details:

In a bit of an ironic outcome, the U.S. government was unsuccessful in invalidating U.S. patents under § 101. It seems odd that the government issued the patents on the one hand, and later, tried to invalidate them.

Plaintiff, Science Applications International Corp. (“SAIC”), claimed that the U.S. government infringed four patents by entering into contracts with plaintiff’s competitors for the procurement of specialized heads up displays (“HUD”) and night vision goggles that allegedly use SAIC’s patented technology. Defendant, the United States, moved to dismiss for failure to state a claim under Rule 12(b)(6), contending that Plaintiff’s patents claim ineligible subject matter under 35 U.S.C. § 101.

The patents at issue here are U.S. Patent Nos. 7,787,012; 8,817,103; 9,229,230; and 9,618,752. The four patents form two patent families due to the interrelatedness of the applications.

These aren’t software patents. They involve actual hardware. So ascribing this to a § 101 failure is misleading at best; this was a poor defense strategy/argument. We see lots of those.

“…the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice)”Remember that just because a defendant invokes § 101 does not guarantee success. Sometimes § 101 just isn’t relevant at all.

In other news (from another site), the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice). Not so exciting for patent maximalists, so of course they mostly ignored it. It’s a § 101 affirmation:

If you want an example of the kind of patent-eligibility question that is now easy to resolve under the Alice abstract idea test, look to the Federal Circuit’s non-precedential decision in Move, Inc. v. Real Estate Alliance, No. 2017-1463 (Fed. Cir. Feb. 1, 2018) (opinion by Judge Stoll, joined by Judges Lourie and Wallach). In this case, the court affirmed a lower court’s summary judgment of invalidity under 35 USC § 101 of claims of two patents directed to computerized methods for locating available real estate, i.e., property for purchase.

[...]

The Court strictly followed the Alice/Mayo test for section 101, and noted that this test is not concerned with whether an artisan skilled in the art can perform the method claimed by the patent nor whether the claim language is sufficiently definite, novel, or non-obvious, but rather whether the character of a claim as a whole is directed to a patent-ineligible subject matter. Taken on the face of the claims and the specification, the Court found that SAIC’s patents combine existing computer technology, sensors, and calculations in an unconventional way in order to reach a solution to the problem of alignment and consistently accurate display. Because SAIC did not stop at the concept of superimposition (in the abstract) but instead provided a solution for achieving accuracy and consistency in image registration, SAIC’s claims are not directed to an abstract idea.

That’s just more of the usual from CAFC. It’s an Alice/Mayo test. More such examples were mentioned in recent days.

“PTAB Reversed Examiner’s 101 Rejection of Robotic Software Claims,” to name one example (but this is merely an examination stage refutation). A much higher level decision wound up as usual: “Zouli v Google (Fed. Cir. 2018); 101/CBM Case; CAFC Affirmed PTAB” (goodbye bogus patent).

“Another showing of disdain for the legal system or for justice itself?”Earlier today Patently-O was bashing rejection of patents using cartoons (those are typically anti-Alice). Another showing of disdain for the legal system or for justice itself? Every lost patent is a tragedy? Some politicians say “corporations are people” and patent lawyers certainly act as though “patents are people”. Maybe one day they’ll carry around billboards that say “patent lives matter”.

This came a few days after a misleading headline from Patently-O‘s Dennis Crouch — in a post which probably constitutes more of his PTAB baiting. How on Earth did he come up with a headline like “Climate Change is an Abstract Idea?”

Here’s how:

In the ex parte appeal, the PTAB has affirmed the examiner’s rejection on eligibility grounds – finding that the claims were directed to the abstract idea of “selecti[ng] data (temperature, radiation) obtained from known and existing technology and then using the data to make a correlation.”

[...]

With respect to Alice/Mayo step-two (“something more”), the PTAB found that the improvement offered by the invention “is an improvement in the application of the mathematical relationship in determining substance concentration, which is, itself, an abstract idea.”

The decision would look like a good candidate for a civil action challenge or appeal – except that the PTAB also found the claims obvious.

So what? That’s justice. It’s not “death squads” as the maximalists want us to believe. It’s just an invalidation of mere patents (or pieces of paper). No life or death at stake. Yet they use words like “kill”.

“No life or death at stake. Yet they use words like “kill”.”“Software Patent Application Killed by the PTAB with 101/Alice,” one of them said. He also said “smokes” (like “kills” and “survives”). “PTAB “Smokes” Another IBM Patent Application with 101/Alice,” says the outline. Notice the terminology of war. They make it sound like some sort of massacre or genocide; never mind if this isn’t criminal law or even immigration law but a bunch of mere patents. Another one about Section 101: “PTAB Affirms Examiner’s 101 Rejection of Method for Measuring IR Absorption by Increasing and Decreasing Temp of a Body…”

“Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles.”At least he didn’t call that “Climate Change” like Dennis Crouch did (perhaps hoping to insinuate, as before, that patent rejection is the moral/scientific equivalent of climate change denial).

Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles. Here’s an article by Charles Bieneman, who again uses the word “Survive” (war lexicon). Patents do not “survive” (the war narrative), they can just be upheld as valid or rejected as invalid. From Bieneman’s article:

A little less than a year after finding that claims of U.S. Patent No. 6,474,159, directed to an inertial tracking system, were patent-eligible under the Alice abstract idea test, the Federal Circuit has affirmed a decision of the USPTO’s Patent Trial and Appeal Board (PTAB) that claims of the ’159 patent have not been shown to be obvious under 35 U.S.C. § 103. Elbit Systems of America, LLC. v. Thales Visionix, Inc., No. 2017-1355 (Fed. Cir. Feb 6, 2018) (precedential) (opinion by Judge Wallach, joined by Judges Moore and Stoll).

[...]

The Federal Circuit sided with the patent owner, whose expert had explained the benefits of the two-step-method over the three-step method. And arguments that the PTAB improperly failed to acknowledge expert testimony that one of ordinary skill in the art would have understood prior art as disclosing the recited integration were merely an attempt to create legal error by looking at PTAB statements in isolation.

Patent maximalists took note of the above decision and Janice Mueller‏ wrote: “Thales Visionix wins again! Elbit v Thales Visionix FedCir 2/6/18 affirms PTAB IPR determination that challenged claims of TV’s ‘159 patent would NOT have been obvious. TV’s expert witness testimony was critical in distinguishing prior art.”

As expected, Patently-O wrote about it:

In its IPR final decision, the PTAB sided with the patentee – holding that Elbit had failed to prove that the challenged claims of Thales patent were obvious. On appeal, the Federal Circuit has affirmed – holding that “substantial evidence” supported the finding.

[...]

On appeal, the Federal Circuit held that the PTAB was the best position to determine expert credibility and thus declined to disturb those credibility determinations. Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) The challenger’s attorneys attempted to support their case with an explanation that PHOSITA would understand the meaning the prior art – That argument was rejected on appeal, however, as attorney argument rather than evidence based. Rather, to make the argument, the party should have actually presented evidence on the level of understanding of a person of skill in the art.

As we said before, not every Alice/§ 101 challenge/defense will result in patent rejection. It’s not a magic wand and it only works where it is applicable. Alice is applicable to just about every algorithm and it should also be applicable where algorithms are being ‘dressed up’ as ‘device’ — something which this new post deals with although it fails to grasp that “mechanical arts” is just a fancy term for machine. To quote: “A listener/reader pointed me in the direction of the recent oral argument at the Federal Circuit in Robert Bosch v. ITC. The case appears to concern patents of inventor/patent attorney Dr. Stephen Gass. The oral argument highlights that §101/Alice arguments are now making their way into the mechanical arts.”

“We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe).”Here in Europe and also in places like India and New Zealand loopholes were intentionally crafted to enable patenting of software by misportrayal thereof. Just claiming some algorithm to be executable/runnable on some particular machine does not change the fact that it’s abstract.

We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe). Over the past few decades patent scope had been stretched to the point where it became laughable. Some companies actually pursue patents on human genome as though it’s an invention and last month CAFC ruled in favour of a patent on GUIs. We hope that the Supreme Court will overturn that latter decision.

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