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02.26.18

US Patent Courts Gravitate Towards Patent Justice Rather Than Patent Maximalism

Posted in America, Courtroom, Law, Patents at 4:32 am by Dr. Roy Schestowitz

Less focus on the flow of money (between lawyers) and more focus on science and technology

A gaol

Summary: The rational approach adopted by the US courts, all the way down from the Supreme Court to Sharon Prost of the Federal Circuit (CAFC), means that technology companies can finally focus on actual work and pay less to a bunch of lawyers

THE court system in the United States isn’t exactly renowned for justice (that’s a gaol at the top; the US has actual market “demand” for prisoners as jails are run like proper, for-profit businesses). The USPTO too has a certain “demand”, which explains why many low-quality patents have been issued. It’s difficult to say the same thing about patent courts however. They’re not so “demand”-driven and their success is measured by criteria like the number of times their decisions are overturned.

The Court of Appeals for the Federal Circuit (CAFC) saw many decisions it had made (under the disgraced chief judge Rader) being overturned by the Supreme Court. It appears to have decided to change that under Sharon Prost. CAFC is now a lot better. Just days ago it once again rebuked the disgraced judge Gilstrap.

Very good. Another case of Alice thwarting bad patents.

CAFC has come under attack from patent extremists, such as Watchtroll, who went as far as to call/ask judges to step down after they had ruled against software patents. This is ridiculous, but that’s how much respect those people have for judges. Watch what Dennis Crouch did some days ago.

Here we have a new article from the patent microcosm portraying CAFC as unreasonable just because it’s efficient. To quote:

The number of patent cases the Federal Circuit ruled on without writing an opinion is in decline for the first time in recent years, amid criticism over the court’s use of these “silent decisions” and a plateau in its patent workload.

Statistics compiled by Law360 show the court affirmed patent decisions from the Patent Trial and Appeal Board or district court without a written explanation 161 times in 2017, which accounted for 38 percent of its patent rulings.

PTAB deals with literally thousands of legitimate petitions, so it’s unreasonable for PTAB (and CAFC too) to always delve down to written determinations. Surely they understand that, no? Patently-O attempted to play this card about a year ago in order to slow down the courts.

Elsewhere in last week’s ‘news’ (more like shameless self-promotion by the patent microcosm) we saw Squire Patton Boggs’ Daniel Rabinowitz writing about software patents (in National Law Review with paid-for copies elsewhere). He said: “In Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the Supreme Court of the United States established a two part test for determining patent subject…”

As usual, the patent microcosm (not just Rabinowitz) looks for ways to dodge the rules. This is their main expertise or service. The demise of software patents is not a “problem” but a blessing. It’s a belated act of justice from the Justices, but watch this new article by Benjamin Hattenbach and Rosalyn Kautz (“A Recurring Problem In Patentability Of Computer Software”). It’s a rant about the Federal Circuit:

Section 101 of the United States Patent Act protects “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”[1] Historically, this been interpreted to “include anything under the sun that is made by man.”[2]

From 2014 to 2017, however, the Federal Circuit has rejected an overwhelming majority of patents for computer-implemented inventions as ineligible for protection under Section 101.

That’s not a problem, it’s a desirable thing and the US Supreme Court (SCOTUS) should have made it so decades ago.

“Did the Supreme Court rely on extra-record evidence in its assertion of an abstract idea in Alice v. CLS?”

So asks another person from the patent microcosm. It’s quite revealing that SCOTUS decisions drive them nuts. Other courts too have become unsympathetic towards the patent microcosm. Software parents are dead ducks in the US; there’s no imminent turnaround because SCOTUS isn’t interested in revisiting the matter.

How about this new example where the court rejected a patent under § 101? Docket Navigator called it an “abstract idea.”

The court granted defendant’s motion for summary judgment because the asserted claims of plaintiffs’ audio/visual playback patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.

“We’re seeing a lot more companies actively exploring what they can do with their unused IP,” IAM wrote the other day. Well, all those low-quality patents, as they eventually find out, are typically a waste of time and effort (for startups anyway). As it turns out, decisions on the matter are not being challenged as much anymore. Here are some new statistics: “From July 25, 2016 to February 22, 2018, Fish & Richardson had 143 appeals. Finnegan was second with 78 appeals. And Knobbe was third with 60 appeals. While Fish and Knobbe had roughly the same number of patent applications (60,916 and 58,170, respectively) across all customer numbers searched, Fish had more than double the appeals. Even Finnegan, which totaled a third fewer applications (41,194) than Knobbe, had more appeals than Knobbe.”

Watchtroll wrote about something related to this a couple of days ago. What we have here is Amanda G. Ciccatelli and Watchtroll speaking to a lawyer about his ‘agony’, alluding explicitly to the “intellectual property industry.”

“According to Storm,” Watchtroll said, “the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will the win? After a win at trial, the law of damages has made large damages less and likely to achieve in the first place, and keep even if awarded after trial.”

It’s just not worth the risk anymore. This is a real problem for the “intellectual property industry,” as the above dubs it (this ‘industry’ just a parasite looking to inflame more lawsuits and a legal mess; Like the arms industry which lobbies for tensions and wars).

With PTAB’s Growing Role in Assessing Patent Applications, Pursuing Software Patents is a Dangerous Gamble

Posted in America, Patents at 3:07 am by Dr. Roy Schestowitz

An unseen Hawaii

Summary: With § 101 increasingly being enforced by PTAB both before and after a patent grant — as recent trends serve to suggest — the whole strategy of pursuing low-quality software patents in high quantities looks like a misguided one

THE Patent Trial & Appeal Board (PTAB), which improves patent quality at the USPTO, is loathed by patent maximalists. Low-quality patents mean business to them; more lawsuits, more applications, more threatening letters to dispatch and so on…

Scott McKeown, writing for his firm of patent maximalists, is cherry-picking PTAB cases in an attempt to influence Oil States and sabotage PTAB. Watch his 5 picks and how these relate to Oil States:

With so much attention being paid to Oil States, it was easy to lose sight of many of the more noteworthy Patent Trial & Appeal Board (PTAB) related decisions of 2017. Last year brought significant feedback from both the Federal Circuit and Board on a number important aspects of administrative trial practice. From important issues of appellate standing, the use of ancillary petition art, to a crack down on follow-on petitions and recycled prior art, both the Board and Federal Circuit delivered a host of critical clarifications.

The reality of the matter is, the Federal Circuit continues to agree with the Board and almost always rejected software patents last year. 2017 was a nightmare year for patent maximalists, so these people (like Scott McKeown) now pray for Oil States to cause PTAB to collapse. But worry not, that won’t happen. Their lobby is losing momentum and Watchtroll, for example, barely managed to squeeze out any anti-PTAB articles this past week. Watchtroll wrote about thwarting PTAB IPRs a few days ago, but that’s about it.

Other PTAB bashers, like those who are connected to literal patent trolls, ranted a little less than usual. “Once again,” this one said, Section “101 rulings PANEL SPECIFIC at PTAB: “Claim 6 explicitly recites “an engine including an exhaust gas conduit”… reasoning used to determine that the claimed subject matter…excepted from patent eligibility under § 101 is therefore inadequate https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016006129-02-16-2018-1 …”

Chalk up another win for § 101.

Then there’s the PTAB case of Exxon (a mere application). Section 101/Alice ended it. To quote another PTAB basher: “PTAB Reversed Examiner’s 101/Alice Rejection of Exxon Patent Application Claims: [] (1/2) Reversal by PTAB of Examiner’s 101 Rejection in Exxon Shows Internal USPTO Dispute–Can an improvement in an algorithm satisfy step 2 of Alice or…: https://storage.googleapis.com/pbf-prod/pdfs/2018-02-13_14484603_176360.pdf [] (2/2)…Must the improvement be in the CPU; Algorithm improvements don’t count in an Alice analysis.”

So again it just goes “poof!”

Arendi v Google is another such example. PTAB is doing very well against such software/abstract/baseless patents and from the decision we learn that “the PTAB found that Goodhand shows all of claim 1’s limitations, when giving effect to the prosecution disclaimer and limiting the scope of the “single entry” command. This finding is supported by substantial evidence. On the PTAB’s findings, the alternative conclusion of unpatentability on the ground of obviousness in view of Goodhand is sustained.”

Here’s how Patently-O covered it:

In its petition for inter partes review (IPR), Google argued the obviousness of all 79 claims of Arendi’s of U.S. Patent No. 6,323,853. The PTAB granted the petition (acting on behalf of the PTO Director) and issued a final decision cancelling the claims. In its decision, the PTAB followed a common district court practice of issuing alternative reasons for its judgment – holding that (1) its preferred broad claim construction rendered the claims invalid; but (2) the claims would still be invalid under a more narrow construction. On appeal, the Federal Circuit disagreed with the broad construction, but agreed with the alternative reasoning – thus affirming the obviousness holding.

This is noteworthy because it’s “PRECEDENTIAL”, as noted here. Another person (more moderate than all the above) wrote: “Arendi v Google FedCir 2/20/18 PTAB erred by not considering applicant’s prosecution disclaimer BUT PTAB correctly rejected as obvious claims to method of “single command” information handling under its alternative, more limited (correct) construction recognizing the disclaimer.

Going back to the angry person, here’s another example of Section 101 in action: “Infineon loses at USPTO under 101 because claim “when interpreted under the broadest reasonable interpretation, is capable of being performed “mentally” or “with pencil and paper,” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017008563-02-13-2018-1 … suggesting that all autonomous vehicle patents are void bc people can drive…”

“They are correct,” I told him. “Autonomous driving means software, and thus software patents. I say this as one who actually developed programs to do this…”

It’s interesting that the “pencil and paper” analogy was resurrected there. A revived trend?

Here’s a long new article dealing with an older case where PTAB let a software patent be. These people cling pretty hard onto exceptions. The “patent application was inevitably assigned to the dreaded USPTO Technology Center 3600,” it says, “home to the e-commerce art units, and was destined for certain death following the Supreme Court’s June 2014 decision in Alice Corp. v. CLS Bank Int’l.”

Here it is with some additional background:

In 2012, a fledgling startup, AdSupply Inc., filed a patent application for a method for delivering leave behind ads which are displayed behind the browser window when a user leaves a website. These ads are considered to be one of the most effective ad formats for high viewability and user engagement (5x higher than interstitials and overlays), as they do not interrupt the user’s online experience. An example of a leave behind ad can be viewed here.

The patent application was inevitably assigned to the dreaded USPTO Technology Center 3600, home to the e-commerce art units, and was destined for certain death following the Supreme Court’s June 2014 decision in Alice Corp. v. CLS Bank Int’l. Predictably, the patent examiner rejected the patent claims under 35 U.S.C. 101 “for being directed to an abstract idea of (i) a fundamental economic practice, (ii) a method of organizing human activities, (iii) an idea of itself, or (iv) a mathematical relationship or formula.” Despite the Applicant’s insistence that the patent claims were patent eligible, the patent examiner rejected them repeatedly. Confident in patent-eligibility of their claims, the Applicant appealed the patent examiner’s rejection to the Patent Trial and Appeal Board (PTAB) (Appeal No. 2016-000497; PTAB October 15, 2015) and in Ex parte Adam Carasso, the PTAB reversed the patent examiner’s rejection under 35 U.S.C. 101. The patent was issued on January 25, 2018.

Notice that this ‘case’ was about a mere application. If this is the kind of thing the patent maximalists are celebrating, then they must be pretty hopeless. This same patent, if/once assessed by a court, can be invalidated.

There were also a couple of new articles about 35 U.S.C. §§ 102 and 103 (not just § 101).

Mike McCandlish noted that the “Federal Circuit held a distribution agreement including transfer of title to the distributor and exclusivity in the United States for three years to be an “offer for sale” under the on-sale bar.

“In The Medicines Company v. Hospira, Inc., (Fed. Cir. Feb. 6, 2018) the Medicines Company (MedCo) appealed findings of no infringement made by the U. S. District Court for the District of Delaware. Hospira cross-appealed the district court’s finding that a distribution agreement did not constitute an invalidating “offer for sale” under 35 U.S.C. §102(b).”

In Blacoh Fluid Controls, Inc. v Syrinix, Inc., as the Docket Navigator noted a few days ago, a “court granted defendant’s motion to stay pending its petition for inter partes review because the potential simplification of issues and lack of undue prejudice favored a stay.”

The bottom line is, the past week lacked much opposition to PTAB. Even PTAB haters didn’t have much to say. In the interim, quite a few software patents got rejected, some of them before they even became patents (axed at the examination stage).

Artificial Intelligence is Just Software, So EFF Misses the Point/Reason Why USPTO Should Reject Such Patents

Posted in America, EFF, Patents at 1:50 am by Dr. Roy Schestowitz

It’s about Alice, not just public interest

20 Buzzwords you have to know in Artificial Intelligence
Reference: 20 Buzzwords you have to know in Artificial Intelligence

Summary: The recent hype about Artificial Intelligence (AI) — hype that further dominated the media over the past couple of months — spurred a response from the Electronic Frontier Foundation (EFF), which could probably make a stronger argument against software patents that are being labeled "AI"

THE Manual of Patent Examining Procedure (MPEP) at the USPTO is noteworthy. Examiners should no longer grant software patents, no matter how patent attorneys attempt to disguise these. In Europe, for example, EPO examiners see all sorts of software patent applications (or categories) with buzzwords like “4IR”.

The other day we saw this patent maximalists’ site speaking of the subject under “USPTO Releases Revised MPEP”. To quote: “The U.S. Patent and Trademark Office announced via a Patent Alert e-mail last month that the Ninth Edition, Revision 08.2017 of the Manual of Patent Examining Procedure (MPEP) has been released. The new version of the MPEP includes changes to chapters 200, 700-1000, 1200, 1400, 1500, 1800, 2000-2300, 2500, and 2700. According to the Office’s Alert, Appendices L and R have been revised to include laws and rules as of August 31, 2017, and Appendices T and AI have been revised to reflect the PCT Articles, Rules, and Administrative Instructions that were in force as of July 1, 2017.”

No indication yet of anything related to Alice, which remains in tact and in force under Section 101.

In the meantime, the EFF’s Vera Ranieri says that “we should give people limited monopolies in the hopes that overall, we end up with more innovation (whether this is actually true, particularly for software, is debatable).”

It’s part of a long post titled “The Federal Circuit Should Not Allow Patents on Inventions that Should Belong to the Public” and it speaks specifically about software patents (among other things). To quote:

One of the most fundamental aspects of patent law is that patents should only be awarded for new inventions. That is, not only does someone have to invent something new to them in order to receive a patent, is must also be a new to the world. If someone independently comes up with an idea, it doesn’t mean that person should get a patent if someone else already came up with the same idea and told the public.

There’s good reason for this: patents are an artificial restraint on trade. They work to increase costs (the patent owner is rewarded with higher prices) and can impede follow-on innovation. Policy makers generally try to justify what would otherwise be considered a monopoly through the argument that without patents, inventors may never have invested in research or might not want to make their inventions public. Thus, the story goes, we should give people limited monopolies in the hopes that overall, we end up with more innovation (whether this is actually true, particularly for software, is debatable).

A few days later IP Watch wrote about the EFF, but only after it had brought up the “Artificial Intelligence” hype once again (an article behind paywall). These were posted in conjunction actually and the latter headline said: “Patenting Artificial Intelligence Might Hamper Progress, EFF Says”

“Patenting Artificial Intelligence” is patenting software because that’s what “AI” is; it’s software. Such patents are not supposed to be granted anymore, but will examiners understand it? To quote IP Watch:

The Electronic Frontier Foundation launched a project last year to measure progress in artificial intelligence innovations and understand the legal, political, and technical issues potentially raised by those inventions. Some eight months later, the project has tracked rapid progress of those technologies, in particular in machine learning. According to the foundation, patents might be hampering the progress of artificial intelligence, and with the risk of patent trolls claiming rights on patents on machine learning systems.

[...]

“Patents don’t seem to be assisting this cascade of invention in the slightest, and there’s good reason to fear that intellectual property can only hamper the progress of artificial intelligence as a field,” he said.

“We can be sure than in five to ten years, patent trolls will be popping up everywhere, claiming to hold patents on all of the machine learning techniques that are currently being invented in universities and commercial research labs, and generally published openly on arXiv and GitHub,” he added.

While this is true (a lot of the code being Free/libre software), it’s baffling to see the EFF framing this as a matter of “hampering the progress of artificial intelligence” etc. Why not just state the obvious? These are algorithms, Alice voids patents on algorithms, and thus all those patents on “AI” should be rejected. It has long been known that patents on algorithms are hampering progress in society, irrespective of whether we call these algorithms “AI” or not.

Marketing and Lobbying Disguised as ‘Articles’ and Microsoft-Connected Firms That Promote Software Patents and a Microsoft Racket

Posted in Deception, Marketing, Microsoft, Patents at 1:18 am by Dr. Roy Schestowitz

Stop SPAM

Summary: More of the usual ‘spam’ that’s tailor-made to look like reporting or advice; the Microsoft connection to some of the latest patent lobbying is also noted

TECHRIGHTS habitually calls out or exposes sites that are paid to promote an agenda (the EPO does this a lot). It also names and shames companies that participate in this, not to mention so-called ‘news’ sites that are just posting as ‘news’ pure PR, shallowly dressed up as ‘articles’.

“An ‘app’ is just a buzzword for software, so this article basically promotes software patents (which is a terrible idea, they’re worthless).”Several days ago CBR published this ‘article’ titled “Patenting your app: Everything you need to know” (sounds like something introductory, but it’s not).

An ‘app’ is just a buzzword for software, so this article basically promotes software patents (which is a terrible idea, they’re worthless). It uses very basic language (like a marketing brochure with generic language) and watch who wrote it. Pure marketing disguised as ‘news’ by John Paul Rooney, partner and patent attorney at Withers & Rogers.

Has CBR sunk this low? Might as well post that under the “spam” or “advertisements” section. It’s just misinformation intended to spur sales.

“Might as well post that under the “spam” or “advertisements” section. It’s just misinformation intended to spur sales.”Sadly, CBR is far from the only site doing so. Watchtroll, where about a quarter of all posts are press releases (or paid-for marketing), is now posting Microsoft marketing as ‘articles’. Truly pathetic. Who next? Monsanto maybe? There are Windows- and Microsoft-aligned sites that glorify Microsoft patents every single day (here’s a new example), but seeing Watchtroll participating in it says a lot about Watchtroll.

Speaking of Microsoft, Aaron Morrow, who works for the firm of a famous felon’s father (K&L Gates is the firm of Bill Gates’ family), now explains how to enforce software patents in spite of them being bogus (under § 101). To quote:

On February 9, 2018, the United States Patent and Trademark Office (“USPTO”) held its first Chicago Regional Seminar, hosted by Northwestern University Pritzker School of Law. Stefanos Karmis, the Acting Director of the Office of Patent Quality Assurance, participated in several of the panels and discussed ongoing patent quality initiatives at the USPTO. Many of those panel discussions centered on the Master Review Form, [1] especially a “Patent Quality Review” segment on patent subject matter eligibility under 35 U.S.C. § 101. Practitioners and applicants should go through the Master Review Form because it sets forth how the USPTO evaluates a subject matter eligibility rejection under 35 U.S.C. § 101.

It is also worth noting this article from the firm of Microsoft’s former patent bully, which then plugs in some Microsoft marketing: “Given that there are no specific allegations at this point against Avi Networks’ Next-gen Application Delivery for Microsoft Azure, it doesn’t appear that Avi Networks could take advantage of the Patent Pick option of the Azure IP Advantage program. But that could always change as the case proceeds.”

“Notice how a Microsoft-connected law firm, speaking about a Microsoft ally, promotes a Microsoft racket and bashes another partner.”“Azure IP Advantage” is a patent racket [1, 2] and the case in question sees Microsoft’s ally Citrix using software patents against a small company. Notice how a Microsoft-connected law firm, speaking about a Microsoft ally, promotes a Microsoft racket and bashes another partner.

Is there a disclosure of the conflict of interest? Of course not.

Hype and Buzzwords Help Disguise Software Patents in the United States, But PTAB Discards Them Regardless

Posted in America, Patents at 12:38 am by Dr. Roy Schestowitz

Trying to make algorithms sound a lot more complicated and sophisticated than they really are

The hype

Summary: Using hype and relying on the notion that novelty is implied from fashionable ‘IT’ trends (like ‘cloud’, ‘AI’ and so on), companies continue to receive software patents, but what happens when closer/stronger scrutiny is applied?

ANY time the USPTO grants a software patent it makes us curious; such patents are noteworthy because these are almost never described as software patents. They use buzzwords and misleading terms (the EPO does the same, e.g. with ‘words’ like “ICT”, “CII” and “4IR”). We have repeatedly named some of the buzzwords that are commonly used in the US. Examiners need to watch out and wise up; don’t be taken for fools by attorneys.

Software patents (“per se” or “as such”) are globally shunned, but they are now formally allowed in China. Not only are these patents counterproductive; they actively harm innovation. But in China, like in the US, the blockchain hype is being exploited to patent algorithms. As one article has just put it:

Apparently, Bank of China, one of the most important commercial banks in the country and the fourth largest, has the intention to work on a solution to scale blockchain systems. The bank has filed a patent application for this process that may help blockchains to scale.

Software patents. A rose by any other name would smell as sweet…

Here’s another new example where software patents are being painted as “drones”. The key admission:

“We’ve effectively made a $1,200 piece of hardware perform like something costing 50 times as much, simply because of our patented software driving the UAS. No one else is doing anything like this,” he says.

So it’s software. No matter if “[n]o one else is doing anything like this,” it’s still not patent-eligible.

Another new example comes from PeerLogix’s press release. PeerLogix is pursuing bogus patents that are algorithms and moreover it euphemises mass surveillance as “Consumer Data”. It’s quite common to label such things “big data” because it’s a buzzword and thus it can sound rather innovative.

How about “cloud”?

“They just try calling software patents “cloud”, as we noted last year. Why are examiners falling for it?”Darryl Taft has just done an IBM puff piece titled “Cloud-centric IBM patents promise payoff” [1, 2]; those are mostly software patents and they’re dropping like flies when asserted against those able to afford a legal defence, e.g. PTAB IPR. The article says that a “substantial number of IBM patents for 2017 — more than 1900 out of 9043 total patents — were for cloud technologies, the company disclosed last month. Those numbers illustrate a clear shift in the company’s roadmap for products and services. In past years chip technology dominated IBM’s patent portfolio, which supported the bulk of the company’s business.”

They just try calling software patents “cloud”, as we noted last year. Why are examiners falling for it? PTAB is thankfully doing a ‘sanity check’. For many years if not several decades IBM amassed a large heap of software patents that are worthless after Alice (IBM just lobbies desperately to crush Section 101). IBM cannot maintain this bubble, so it just retreats to a game of buzzwords. Here’s the latest example of IBM losing a patent: “IBM loses at PTAB bc its Wednesday: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017007705-02-20-2018-1 … “selecting a portion of a document, filtering it to identify a dependent expression,… modifying the document to create a second document.. including a mapping link in a metadata section” is “abstract idea”…”

This is hardly a surprise. We suppose that thousands of not tens of thousands of IBM’s patents are bogus patents. But there are so many of these that it’s hard to keep track.

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