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02.18.18

Software Patents Trickle in After § 101/Alice, But Courts Would Not Honour Them Anyway

Posted in America, Patents at 12:01 pm by Dr. Roy Schestowitz

Buzzwords are used to disguise patents on algorithms, but in-depth analysis would expose them for what they really are

Swinging ball
Pendulum does not swing back; buzzwords just move back and forth

Summary: The dawn of § 101/Alice, which in principle eliminates almost every software patent, means that applicants find themselves having to utilise loopholes to fool examiners, but that’s unlikely to impress judges (if they ever come to assessing these patents)

THE USPTO will continue to grant software patents in the foreseeable future, but that does not mean that these patents will be able to cause much damage. Why not? As we shall show later today and tomorrow, PTAB smacks down many of these patents. It’s an invaluable mechanism of quality control, akin to oppositions and appeals at the EPO.

One might ask, “why are software patents granted after Alice?”

The answer is simple. There are tricks. The EPO and other patent offices too have tricks. Those are usually designed to bypass examiners’ guidelines — the sorts of guidelines that matter a lot less to courts which assess past court cases and underlying evidence, such as prior art and expert testimonies. Knowing that the courts are hostile towards software patents, many potential plaintiffs (patent holders) will not even bother suing. And that’s a good thing.

This post concerns few of the aforementioned tricks, which exploit loopholes. Many of them are nowadays buzzwords, which help dodge § 101/Alice (at least at a superficial level). At the EPO they like to use terms like “technical effect” or “device”, but in the USPTO it looks like “Artificial Intelligence” (AI) is currently one of the favourites because the corporate media resurrected that hype. Almost any algorithm can be framed as “AI” as it’s a rather nebulous concept. We previously wrote many articles about other buzzwords, such as “cloud”, not to mention the old “over the Internet”, “on a computer” and so on.

Finnegan, Henderson, Farabow, Garrett & Dunner LLP, a very large law firm, is still all about buzzwords in patents. Without even delving into the underlying granularities, the headline alone is rather telling: blah blah blah Artificial Intelligence blah blah.

Wow. Must be innovative because “AI” is supposedly “hot”! Granted! Yesterday Watchtroll wrote about passage of some patents in the “self-driving space,” arguing that it “delivers on Didi’s commitment to invest in artificial intelligence capacity.”

Whatever!

I already wrote some algorithms related to this (self-driving tools) and the only “AI” in it tends to be some classifier trained on an image set to help segment an unseen image (or long sequence thereof). That’s hardly innovative. It could be made to work several decades agp and in fact there were working implementations a long time ago; they just lacked sufficient computing power.

Here’s what Finnegan says in relation to “AI” and § 101:

In addition to § 101 concerns, AI in medicine raises questions of inventorship and ownership in patent law. The US patent system only recognizes individuals as inventors,38 not companies39 or machines.40 But with AI, it may be the machine that is taking the inventive leap, not the human programmer. Recently, both Google and Facebook have seen AI develop its own language to perform the assigned tasks, eschewing known languages in favor of a more efficient means of communication.41 As the use of AI grows in medicine and the life sciences, it is more and more likely that the AI will be the entity taking the inventive step, drawing new conclusions between the observed and the unknown. Indeed, current AI systems develop their own code as a result of the system’s training.42 If that is the case, the United States Patent and Trademark Office (USPTO) and the courts will have to decide whether the current Patent Act encompasses computer-based inventors, and if not, who among the humans responsible for the AI should be considered an inventor.43 The list of possible human inventors includes the AI software and hardware developers, the medical professionals or experts who provided the data set with known values or otherwise provided input into the development of the AI, and/or those who reviewed the AI results and recognized that an invention had been made.

Examiners ought to be reminded that “AI” just means algorithms and patents on algorithms are annulled by § 101. Here’s an example of computer vision patents that have just been granted by the USPTO. This article says: “The last patent includes foreground motion detection in compressed video data with software that can tell the difference between background and foreground features in compressed video streams.”

That’s pure software. Surely they know these are worthless after Alice? Or maybe they delude themselves into thinking otherwise? In relation to an Olympian called Vincent Zhou there was coverage some days ago that said: “One is a 28-year-old from a blue-collar home in Scranton, Pennsylvania. The other is a 17-year-old son of Chinese immigrants, two computer scientists, who hails from California.”

“She owns numerous software patents,” it said further down. Well, too bad they’re worthless now, eh? Here’s another new example of patents on software, this time from LINE. Again, these patents are worthless after Alice. Why are they being granted? As we shall show in a separate article, few grants are even being challenged; those that do typically perish (PTAB overturning examiners’ determinations).

Here’s another software patent. “GBOX develops all software both inhouse and with international subsidiaries,” says the release, “and has been awarded 5 provisional patents for its technology.”

How many of them (if any) are even worth anything?

“With Valentine’s Day upon us, one would rightly suspect that there is already an abundance of patents and patent applications related to online dating software,” lawyers’ media said some days ago. But software patents are worthless now. They themselves call it “software”. Do they conveniently overlook the issue? Don’t they try to disguise it by calling it something like “technology”?

“Blockchain” is another term that we often see used in relation to software patents. That’s just a tired new loophole that software patents proponents love to exploit. It’s an algorithm. And watch the China envy:

China is leading the world in blockchain patents: incoPat published the 2017 Global Blockchain Patent Ranking (top 100) applications for invention-, utility- and design-patents. See: http://www.iprdaily.cn/news_18252.html pic.twitter.com/DZLTnkuXdw

Well, China — unlike the US — actually permits software patents, so there might be nothing wrong about this. There’s something wrong with the policy, sure, but not with the application thereof.

For the record, we’re not against patents that aren’t on algorithms. We’re very picky in selecting what to criticse. Here, for instance, is a press release about a new patent settlement over bar code readers (not software, no problem). It says:

Honeywell (NYSE: HON) today announced that it has reached a settlement with Code Corp., a company that manufactures bar code readers, to settle Honeywell’s claims that Code infringed certain Honeywell patents related to bar code scanning technology.

The scanning techniques tend to involve sensory aspects that are hardware-side, not software-side heuristics. The projection and reflection of infrared lights for instance.

Thankfully, as time goes by we see fewer software patents slipping through the sieve. Does that mean that the USPTO will stop granting software patents altogether one day? We doubt it. But the number of lawsuits over algorithms will decline sharply unless something radical happens (like PTAB getting squashed).

In Aatrix v Green Shades the Court is Not Tolerating Software Patents But Merely Inquires/Wonders Whether the Patents at Hand Are Abstract

Posted in America, Courtroom, Patents at 10:19 am by Dr. Roy Schestowitz

Some bits of sensationalism, motivated by patent maximalism, leave Aatrix v Green Shades somewhat misrepresented (just like Berkheimer v HP Inc.)

Green Shades
Green Shades has not necessarily lost (decision vacated)

Summary: Aatrix alleges patent infringement by Green Shades, but whether the patents at hand are abstract or not remains to be seen; this is not what patent maximalists claim it to be (“A Valentine for Software Patent Owners” or “valentine for patentee”)

SEVERAL DAYS AGO, on Valentine’s Day to be precise, the Court of Appeals for the Federal Circuit (CAFC) ruled in a case [PDF] that law firms rushed to cover (Knobbe Martens). Adam Powell and Diana E. Wade from Knobbe Martens wrote the following with some background:

Aatrix sued Green Shades for infringement of two patents directed to systems and methods for designing, creating, and importing data into a viewable form on a computer. Green Shades moved to dismiss under § 101. The district court granted the motion and denied leave to file a proposed amended complaint. Aatrix appealed to the Federal Circuit.

The main question is, are these really software patents? Not every time Alice gets invoked will it work; it’s not a magic wand.

‘Early birds’ wrote about it in relation to 101/Alice, calling it “PRECEDENTIAL” and dubbing it “A Valentine for Software Patent Owners”.

Another one said: “Aatrix SW FedCir 2/14/18 valentine for patentee: Circuit vacates DCt’s R12b6 dismissal for no 101 eligible s/m; tangible computer system for creating forms; can dismiss on pleadings only if no factual allegn’s prevent resolving eligibility as legal q. No DCt claim constrn either. [] Reyna, J. dissent: disagrees with the majority’s broad statements on the role of factual evidence in § 101 inquiry. “Our precedent is clear that the § 101 inquiry is a legal question.” Majority tries to shoehorn significant fact component into Alice analysis. [Battle is joined!] [] I’m cautiously liking the Moore, J. approach on this. 101 eligibility must logically sometimes raise fact q’s, just like claim construction. If we’re stuck with a ridiculous test like Alice’s step 2 “transformative inventive concept,” at least we should look at underlying facts.”

“Question for en banc review of Aatrix,” added the former person. “Is a consideration whether various claim elements simply recite ‘well-understood, routine, conventionalactivit[ies] a question of Law or Fact?”

In recent days we saw some press coverage about it:

The Federal Circuit faulted a lower court Wednesday for invalidating data manipulation patents as abstract ideas on a motion to dismiss, the second time in days the court has held that a judge too quickly found that patents failed the U.S. Supreme Court’s Alice test.

This is alluding to Berkheimer v HP Inc., which we covered thrice already [1, 2, 3]. One has to be careful not to take the patent microcosm at face value. They’re desperate for CAFC cases in favour of software patents; since they can barely find any they try to make some up.

An Indoctrinated Minority is Maintaining the Illusion That Patent Policy is to Blame for All or Most Problems of the United States

Posted in America, Asia, Deception, Patents at 8:03 am by Dr. Roy Schestowitz

“China” is to the US patent ‘industry’ what “Russia” is to the US defense ‘industry’

The blame games
Imagine if every nation blamed another for its own errors/shortcomings/failings/bad decisions

Summary: The zealots who want to patent everything under the Sun and sue everyone under the Sun blame nations in the east (where the Sun rises) for all their misfortunes; this has reached somewhat ludicrous levels

THE patent policy of a country (or continent in the case of the EPO) matters. But it doesn’t matter so profoundly that slight changes in patent policies will make or break countries. That’s just common sense as there’s so much more in this world than patents. The economy too is more than just patents.

“That’s just common sense as there’s so much more in this world than patents.”The USPTO loosened a little on litigation and tightened patent scope, following decisions that had been made by the US Supreme Court (for the most part). This is a good thing as it enables US science and technology firms to operate in the lab rather than the courtroom. This, once again, is common sense.

The “patents4life” blog (advocates just what it says in the name and by “life” it does not mean patent duration) seems to be upset again. Days ago it bemoaned “Weaknesses in IP Protection” (fancy words for “it’s harder to sue with patents”). So a strength in mental faculties and common sense is being framed as “weakness”? The article is actually a rant about Canada, India and Ecuador, three countries where public interest (the big majority) was put ahead of Big Pharma. Watch who the blog is citing; IPO is just a front group of patent extremists looking to patent everything on Earth. Who else can they rely on? The malicious lobby known as “Chamber of Commerce”, which is constantly attacking India* and is engaged in revisionism right now, calling “Father of American Innovation” a person who was not? He did not even innovate slave ownership (he ‘owned’ plenty of slaves).

“This is a good thing as it enables US science and technology firms to operate in the lab rather than the courtroom.”Quite frankly, we often conclude that these people are just delusional. How about this guy called Moskowitz? We mentioned him before. He claims that Big Tech’s or China’s rise is “Enabled by a weakened patent system.” (in the US)

I said he was “[s]till perpetuating the myth that the “patent system” is responsible for everything because this is what they do for a living” and his only response to me was something along the lines of me being an agent for China or whatever (even though I berate China for its own patent policies too — policies that mostly enrich oligarchs). Other people are attempting/pulling the “China” smears against me as well (as recently as last night; several times even).

Notice the theme here; just like the United States often blames Russia for just about anything the patent microcosm blames China for just about anything. Watch another emerging theme, which is shaming of technology firms. The patent microcosm is growingly vocal in its smearing of technology firms. It’s partly ironic because those are the firms that often bring money to lawyers.

“Notice the theme here; just like the United States often blames Russia for just about anything the patent microcosm blames China for just about anything.”The above claim (saying that “patent trolls” as a concept was made up by technology firms) is patently false. They used to be called “sharks” and other words. The graph that the person shows does not support what he says about it. It’s about one particular label, which is predated by other labels (for the same thing). But they carry on with this fiction, ignoring the growing concentration of patent trolls in the United States until some years ago (when the problem was belatedly being put under control).

Citing this new article about China (from The Economist, which blogged a chart), here we have another ‘genius’ who — seeing how the US continues its relative demise (e.g. compared to China) — blames it all on patents (not enough lawsuits?). China was actually making things while other nations got busy litigating and marketing. It spent decades regenerating itself for manufacturing. That’s why China is prospering now (in terms of measures that aren’t per capita).

“Look at this from the viewpoint of when patent reform (the PTAB specifically) really took hold,” the ‘genius’ said. “Correlation is not causation but the timing is hard to ignore.”

“China was actually making things while other nations got busy litigating and marketing.”No, he is just trying to superimpose what he does for a living over a chart that has virtually nothing to do with it. Another person might look at this same chart and blame “Obama” or “liberals” or “piracy” or “hacking”. Here is another slightly older tweet from the same ‘genius’. It links to an article, then ranting about patents and Google. But the article in question has nothing to do with patents, it has nothing to do with Google, and this obsession with patents and Google simply clouds the person’s judgment. These people blame everything (in their own trade, which revolves around lawsuits) on technology firms and they are constantly using China as a scapegoat. It’s just so easy when you cannot make an economic argument/excuse for your own failures. Russia is typically used as a scapegoat for military aspects, on- and off-line. Externalising blame. China is for economic aspects. The name of the ‘genius’ by the way is Gatlin McArthur and based on the Twitter activity it’s some sort of a patent lawyer or troll (it does not say).
___
* The Chamber of Commerce viciously attacked India’s reputation last year and IAM helped the Chamber of Commerce do this. A few days ago IAM again found a way to attack the credibility of the Indian patent office. IAM actually attacked that office about a dozen times last year alone and it’s not hard to see why. India repels software patents and law firms based in India still obsess over this matter “This case is a classic example where the Patent Office has interpreted the words “computer program per se” to include software programs,” said one firm in a days-old article which digs the archive and says:

This article focuses on the involvement of Section 3(k) in the process of patent application of Apple titled ‘a method for browsing data items with respect to a display screen associated with a computing device and an electronic device’. For reference to those unaware of this section, S 3 of the Indian Patents Act, 1970 bars patent eligibility of some inventions.

Berkheimer Decision is Still Being Spun by the Anti-Section 101/Alice Lobby

Posted in America, Courtroom, Patents at 6:23 am by Dr. Roy Schestowitz

Spinning and twisting; herein lies their specialty

Spinning

Summary: 12 days after Berkheimer v HP Inc. the patent maximalists continue to paint this decision as a game changer with regards to patent scope; the reality, however, is that this decision will soon be forgotten about and will have no substantial effect on either PTAB or Alice (because it’s about neither of these)

TECHRIGHTS has repeatedly written about Berkheimer, foreseeing a distortion and then rebutting it. Berkheimer does not change anything at the USPTO and it’s unlikely to change anything at the courts either (contrary to what patent maximalists are saying). The patent maximalists just cherry-pick sentences to bolster their bogus narrative that PTAB disregards facts or isn’t pursuing any facts.

“The patent maximalists just cherry-pick sentences to bolster their bogus narrative that PTAB disregards facts or isn’t pursuing any facts.”Finnegan, a very large lawyers’ firm, now joins the Berkheimer spin wave. Days ago it wrote:

In Berkheimer v. HP Inc. (Fed. Cir. Feb. 6, 2018), the Federal Circuit affirmed the district court’s finding that certain claims of U.S. Patent No. 7,447,713—directed to digital processing and archiving in a digital asset management system—were indefinite, and affirmed-in-part and vacated-in-part the grant of summary judgment that other claims were invalid under 35 U.S.C. § 101.

It wasn’t a victory, it was not about Section 101, and it’s not the Supreme Court. It’s just one among thousands of decisions about patents at this level. So a lot of the headlines we’ve seen so far are extremely and perhaps intentionally misleading. “Berkheimer is waaaaaaay overhyped by the patent ‘industry’,” I told this Federal Circuit watcher after she had written: “Automated Tracking FedCir 2/16/18 NON-precedential; affirms DCt’s dismissal of case on pleadings bcz no eligible s/m; cites new Berkheimer decision but nothing here supports patentee’s contention of fact dispute re whether claims recite routine and conventional RFID components.”

“It wasn’t a victory, it was not about Section 101, and it’s not the Supreme Court.”So Berkheimer made no substantial difference here, just as we expected.

What also ought to be expected, at least for days if not weeks to come, is a misstatement about what Berkheimer really was about. Earlier today we found a couple more examples of patent maximalists misrepresenting this decision. Friends of a disgraced Federal Circuit judge said this:

The phrase “minimal redundancy” in a patent claim was indefinite under 35 USC § 112 where the patent specification inconsistently described levels of redundancy achieved by its system. Berkheimer v. HP, Inc., No. 2017-1437 (Fed. Cir. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Accordingly, the court affirmed a district court’s summary judgment that claim 10 of US Patent No. 7,447,713 was indefinite. The court also addressed the patent-eligibility of other claims of the ’713 patent; the patent-eligibility issues are dealt with in another post.

And later came this generalisation which made it seem like Berkheimer was a push against Alice itself. This refers to two decisions:

In a pair of interesting software-related cases, the U.S. Court of Appeals for the Federal Circuit appears to push back on one of the supposed goals of the U.S. Supreme Court’s Alice v. CLS Bank International decision. In Alice, the U.S. Supreme Court clarified and restated the Mayo Collaborative Services v. Prometheus decision’s test concerning patent eligible subject matter. In doing so, the Supreme Court started a new era of U.S. patent law which made patent eligible subject matter a very important inquiry with respect to the patentability of inventions, particulary those in the software space—although Alice’s impact is felt in other technological areas. Since Alice issued, the U.S. Court of Appeals for the Federal Circuit has clarified the Alice test and notably provided guidance to patent lawyers on how to “avoid” or “comply” with Alice.

Importantly, one of the purported benefits of Alice was to allow for the early dismissal of claims based on patent eligible subject matter. An alleged infringer could conceivably quickly raise patent eligible subject matter and get a claim dismissed on either a 12(b)(6) motion for failure to state a claim or a motion for summary judgment. In additional push-back to Alice, the Federal Circuit in Berkheimer v. HP (February 8, 2018) has recently held that even after claim construction a motion for summary judgment on patent eligible subject matter may be improper because of genuine issues of material fact.

Berkheimer v HP was not about Alice. So why even lump that in? And back we go to Finnegan, an integral part of the patent microcosm, which in this particular case scrapes deep down the barrel in an effort to bypass Alice and ‘sell’ software patents (services) to gullible clients. To quote:

Since the Supreme Court decided Alice v. CLS Bank in June 2014, the USPTO regularly issues new memoranda explaining its implementation of the § 101 framework. This includes some of the more notable memos for prosecutors: the memo on Enfish v. Microsoft from May 2016, the memo on McRO and BASCOM from November 2016, and dozens of eligibility examples. The USPTO also maintains a quick reference sheet on decisions holding claims eligible and identifying abstract ideas, and a chart of subject matter eligibility court decisions.

Pretty much all of these memos are from 2 years ago. Like we’ve said many times, in 2017 the Federal Circuit was quite unambiguous in its acceptance of Alice and lack of support for software patents. To suggest something has changed for the ‘better’ (of the microcosm) when the Supreme Court refuses to revisit the matter is misleading, but we know what they’re trying to sell and how they sell it.

Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

Posted in Patents at 5:37 am by Dr. Roy Schestowitz

Even some US colleges are funded by patent lobbies

Antonin Scalia Law School

Summary: Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles

THE US has a problem of corporate influence in universities. Not only the US has this problem. As a former academic myself (I worked a few years as a postdoc), I’ve seen it from the inside and I still hear about it from friends or former colleagues. Corporations funnel money in exchange for things; even the EPO now pays scholars in the UK and in the US (in exchange for papers that help promote the UPC). Certainly the policy of the USPTO is impacted by this; a lot of academic papers should state openly which corporations fund the authors’ (or investigators’) department/s. There’s danger, however, that by insinuating such corruption of academia one leaves room for patent extremists to attack academics they dislike. So let’s just say that scholars are, in general, more credible than think tanks and front groups (like IPO); but they’re not impenetrable to outside influence or even soft bribes.

Why are we saying all this? Well, Scott McKeown, writing at Ropes & Gray’s site, has just written about an old subject which we covered here before, noting that a federal court will soon wrestle with the questions about “sovereign immunity” for academic institutions, specifically in relation to PTAB.

Why should universities that hold questionable patents be immune from the law and from scrutiny? That seems to make no sense at all, but never underestimate the power of lobbying. And what makes them a separate sovereignty to begin with? (sovereignty as in “sovereign immunity”)

State-affiliated entities enjoy immunity from suit in federal courts under the 11th amendment. To date, a handful of such entities have successfully leveraged the same immunity theory to avoid review of their patents before the Patent Trial & Appeal Board (PTAB). While still other Patent Owners have aligned themselves with Native American Tribes in an effort to benefit from their sovereign status in the hopes of avoiding PTAB review.

More recently, in Ericsson v. Regents of the University of Minnesota the PTAB has determined that sovereign immunity is waived where the sovereign entity files an infringement suit.

Another law firm wrote about this the other day, noting that the State, as per an infamous old law, enabled universities to abuse taxpayers’ money to collect patents and then give these to trolls (who soon attack these very same taxpayers). Why should they — the universities that nowadays incubate startups and privatise publicly-funded research — at the same time they pursue these patents also be immune from scrutiny?

Here’s more on the University of Minnesota:

The PTAB’s decision also did not state whether UMinn had any input in Toyota’s strategy to request adverse judgment. Thus, from the record, it is not clear whether Toyota adequately represented the interests of UMinn in this case.

Right now, owing to the above cases, Big Pharma is attempting to shelter its controversial patents using tribes (for tribal immunity). The situation has become quite unreal.

Meanwhile, judging by this new paper from Saurabh Vishnubhakat, he continues to feed the anti-PTAB (often pro-trolls) lobby. From his abstract: “The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority. A relatively little-known aspect of that authority is the agency’s statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal. Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in order to intervene in this way.”

Patently-O (i.e. Crouch) continues to feed that same lobby too by publishing this guest post by Matthew J. Dowd and Jonathan Stroud, citing Vishnubhakat’s work. From their long post:

Professor Saurabh Vishnubhakat’s recent well-reasoned post and longer article add much to the discussion about standing to appeal from the PTAB. Standing has recently garnered significant interest from the Federal Circuit. Building on existing scholarship, we have written a concise synopsis of standing law as applied to PTAB appeals, forthcoming in Catholic University of America Law Review.

[...]

In our view, as a matter of standing alone, the PTO can participate as an intervenor in virtually all AIA appeals from the PTAB—and many reasons are consonant with the principles on which Professor Vishnubhakat bases his reasoning. We make no judgment here on the merits of the positions the PTO solicitor has or will adopt, or the frequency of intervention. While there is a valid debate about the policy choices and the frequency with which the PTO has intervened, that debate is distinct from the legal question of whether the PTO has, or must have, standing as an intervenor beyond their express statutory grant. Professor Vishnubhakat reasons correctly; he just goes a bridge too far.

We already know what they’re trying to accomplish because it’s well documented (for years). They hope to weaken if not abolish PTAB by comparing patents to “property” (a lie) or “rights”, then alluding to terms like “property rights” (which meant an entirely different thing when the term was conceived).

Last but not least, there’s this new paper from Jason Reinecke. It makes one wonder if Stanford University is now lobbying against software patents and — if so — who’s paying their School of Law for it (patent extremists will no doubt blame Google, for it’s closely connected to Stanford). Even though the title of the paper is a loaded question (“Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous?), the conclusion seems to be an effort to debunk a myth promoted by patent extremists.

From the abstract (about abstract patents):

In four cases handed down between 2010 and 2014, the Supreme Court articulated a new two-step patent eligibility test that drastically reduced the scope of patent protection for software inventions. Scholars have described the test as “impossible to administer in a coherent, consistent way,” “a foggy standard,” “too philosophical and policy based to be administrable,” a “crisis of confusion,” “rife with indeterminacy,” and one that “forces lower courts to engage in mental gymnastics.”

This Article provides the first empirical test of these assertions. In particular, 231 patent attorneys predicted how courts would rule on the subject matter eligibility of litigated software patent claims, and the results were compared with the actual district court rulings. Among other findings, the results suggest that while the test is certainly not a beacon of absolute clarity, it is also not as amorphous as many commentators have suggested.

When lobbyists such as David Kappos say there’s lack of “clarity” regarding Alice they contribute to these myths. As we’ll show in our next post, the latest myth is that PTAB relies not on facts.

UPC Optimism Languishes Even Among Paid UPC Propagandists Such as IAM

Posted in Deception, Europe, Patents at 4:17 am by Dr. Roy Schestowitz

The lie told by Bristows last week

Kluwer fake news

Summary: Even voices which are attempting to give UPC momentum that it clearly lacks admit that things aren’t looking well; the UK is not ratifying and Germany make take years to look into constitutional barriers

JUST before the weekend we noted that the EPO had virtually stopped talking about the UPC. The acronym or the words “unified” and “unitary” recently escaped the EPO’s lexicon. It wasn’t always like that.

Even “UPCtracker”, a Twitter account dedicated to UPC jingoism, has just said that “if UPC complaint not on list this could simply mean that a) Chamber has not made up its mind as to whth case should be admitted or b) the Senate thinks the case will not be decided within the next year (but possibly later). Refusal to admit wd become known v quickly.”

“They’re also totally silent regarding the inaction some days ago in the British political scene (Bristows too chose to remain silent about it).”We mentioned the context to this before; “Indications so far mostly point to admissibility,” I told him, “including next week's debate in Bavaria” (it’s only a couple of days away).

What we found fascinating, however, was this new self-promotional piece from Joff Wild (IAM). A year ago IAM was pushing fake news about the UPC [1, 2, 3] (after the EPO’s PR firm had paid IAM). Now? Not so much optimism. They’re also totally silent regarding the inaction some days ago in the British political scene (Bristows too chose to remain silent about it).

To quote the portion about UPC:

Brexit and the UPC: Of course, no patent-related event in Europe these days is going to escape discussion of either Brexit or the potential impact of the Unified Patent Court – should it ever get up and running.

On the former, there was wide agreement that as things stand, no-one has much idea what is going to happen. Patents and patent owners are not directly affected by Brexit because there is no unitary patent system in Europe, but it was noted that over recent years there has been a trend for European patent judges to spend more time talking to each other, with courts in one country now prepared to give much more weight to judgments handed down in others when hearing similar cases. As England and Wales is perhaps Europe’s most important life sciences venue, there is no doubt that decisions reached by judges in the jurisdiction are currently looked at very closely by their peers elsewhere. Whether this will continue post-Brexit remains to be seen.

As for the UPC, there was widespread scepticism about it seeing the light of day pre-Brexit and around the UK’s participation in the system at any time. However, some at least are continuing to make preparations on the off chance that the UK does ratify the UPC Agreement and the case currently before the German constitutional court on the legality of Germany’s ratification goes nowhere quickly. One interesting point raised was whether the opting in and opting out regime might give rise to generic companies making accusations of patent owners gaming the system, with all the consequences that might have as they seek to enforce their rights. Like the UPC itself, it was an issue left hanging in the air. Perhaps one day, though, we might find out whether it has some legs.

Several days ago IAM responded to misinformation from Bristows, correctly noting (in a blog comment) that the most important item is in Germany, not the UK. Joff Wild left that comment.

We remain rather overwhelmed by the silence about what happened (or did not happen) in the UK some days ago, but this is what we predicted (in advance) would happen.

Bejin Bieneman Props Up the Disgraced Randall Rader for Litigation Agenda

Posted in America, Courtroom, Patents at 3:36 am by Dr. Roy Schestowitz

Bejin BienemanSummary: Randall Rader keeps hanging out with the litigation ‘industry’ — the very same ‘industry’ which he served in a closeted fashion when he was Chief Judge of the Federal Circuit (and vocal proponent of software patents, patent trolls and so on)

ABOUT a month ago we wrote about Bejin Bieneman planning to give a platform to the man who is responsible — via the courts system — for a lot of patent trolls and out-of-control patent scope at the USPTO. He was pretty much forced to quit after he had been caught making a mockery of the court he headed (as Chief Judge of the Federal Circuit).

“He was pretty much forced to quit after he had been caught making a mockery of the court he headed (as Chief Judge of the Federal Circuit).”The patent trolls’ lobby loves him, no matter the scandals, and this propped-up-by-IAM person is still out there, lobbying and seeking more power in institutions including the USPTO. He’s getting all cozy with patent maximalists, as always, and days ago, as expected, they tweeted about it: “For those of you who missed yesterday’s webinar, Settlement Strategies, featuring Judge Randall R. Rader, Joseph Dunn, and Thomas Bejin, here is the YouTube recording…”

“Sadly, as we noted some days ago, the “revolving doors” culture is alive and well at the USPTO and US patent courts.”So Mr. Rader is not so ‘retired’ after all, he’s just ‘hibernating’ whilst lobbying. He’s looking for ways to get back into the system, even as Director of the USPTO.

Sadly, as we noted some days ago, the “revolving doors” culture is alive and well at the USPTO and US patent courts. We already mentioned David Kappos and Paul Michel four days ago.

There are other such ‘webinars’ which push an agenda and front groups. How about this upcoming one (2 days from now): “Attend our webinar on patent portfolio monetization on Feb 20, hosted by the Knowledge Group @Know_Group, with speakers from TechInsights, @KnobbeMartens and @Oblon_IP”

“All these echo chamber-type ‘webinars’ are nothing but marketing; for Rader to participate in these says a lot about Rader.”Those are prominent elements of patent maximalism. Don’t say patent trolls however; It’s nice(r) to say “patent portfolio monetization” (like giving patent for trolls to bully one’s competitors). How about terms such as “Asserting Patent Rights” from Watchtroll (the headline from Meredith Addy 3 days ago)? They keep coming up with all sorts of terms like “efficient infringers” and “death squads” (this one is Rader’s). Addy said: “While my patent litigation practice represents both patentees and defendants, I remain concerned about developments in our patent laws that undercut protections for innovators. I continue to believe that the playing field is unfairly tipped to accused infringers.”

Why does she care? Because she profits from litigation. The more litigation, the more money she makes (no matter if she represents a plaintiff or a defendant). All these echo chamber-type ‘webinars’ are nothing but marketing; for Rader to participate in these says a lot about Rader. This is why he’s kept away from his old job. He can go hang out with patent trolls all he wants, but not while he holds a key position in a high court.

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