03.19.18
Gemini version available ♊︎From PTAB Bashing to Federal Circuit (CAFC) Bashing: How the Patent ‘Industry’ Sells Software Patents
No, the patent microcosm needs no facts, only innuendo!
Summary: The latest tactics of the patent microcosm are just about as distasteful as last month’s (or last year’s), with focus shifting to the courts and few broadly-misinterpreted patent cases (mainly Finjan, Berkheimer, and Aatrix)
IN OUR previous post we explained how buzzwords were being used by both the EPO and USPTO to allow some software patents. This isn’t good, but one must remember that a patent being granted by a patent office isn’t the final stop; courts too must examine and rule on the matter, but only if it reaches the courts (i.e. not a settlement out of court or ‘protection’ money).
US courts have become very hostile (albeit understandably and suitably — as per the law — hostile) towards software patents. This really, really upsets patent zealots such as IAM and Watchtroll. They seem to have shifted attention away from PTAB and mostly to CAFC, whose judges they are bashing and credibility/legitimacy they question. It’s disgusting because we recently saw even racial smears against Judge Reyna.
Watchtroll used to bash PTAB almost every day — sometimes several times per day — but gone are those days. Several days ago they wrote about the Zeidman lawsuit over “optimizing software code to run on a modern space processor [...] Zeidman was informed that the funding topic was seeking a software tool or tool suite capable of converting high level software languages like C++ or Matlab into a hardware description language (HDL).”
Watchtroll has always been a loud proponent of software patents; so isn’t it a shame that nobody there (with very rare exceptions) even understands how programming works? The founder got so upset when questioned about it that he blocked me in Twitter. He had made a fool of himself, making contradictory statements and showing that he hasn’t the faintest of clue what computer programs are (he thinks a Web page is a computer program, for instance, not hypertext).
About a week or two late Watchtroll wrote about the ‘car parts’ case and yesterday it mentioned Judge Reyna in the context of a case from last week (not about patent scope). The gist:
SimpleAir, Inc. v. Google LLC, No. 2016-2738, 2018 (Fed. Cir. Mar. 12, 2018) (Before Lourie, Reyna, and Chen, J.) (Opinion for the court, Lourie, J.)
The Federal Circuit vacated a district court order dismissing SimpleAir’s complaint as barred by claim preclusion and the Kessler doctrine, and remanded for further proceedings.
Days earlier a patent maximalism site, Patent Docs, cherry-picked a rarity: reversal on § 101 grounds (Mayo and Alice) at CAFC.
The Federal Circuit affirmed the decision on § 101, reversed denial of JMOL on infringement of the ’685 patent, vacated judgment for damages as a result of its decision on ’685 patent infringement, and remanded for the District Court to recalculate damages, in a decision by Judge Moore joined by Judge Bryson; Judge Hughes dissented.
The majority set forth the now canonical two-prong test for subject matter eligibility under Mayo and Alice: the claims need to be “directed to” a law of nature, natural phenomenon or abstract idea, and there must be “something more” amounting to an “inventive concept” that is not merely “routine, conventional, and well-understood” in the prior art. Here, the majority spends little time on the first prong, accepting without comment that the claimed invention is dependent on the “natural law” that body temperature can be measured from skin temperature at the forehead. The District Court had relied on Diamond v. Diehr, 450 U.S. 175 (1981), for the principle that claims can recite “additional steps” that “transformed the underlying natural laws into inventive methods and useful devices that noninvasively and accurately detect human body temperature.” These steps, which included “(1) moving while laterally scanning (’685 patent claims 7, 14, and 17; ’938 patent claims 17, 24, 33, 60, and 66); (2) obtaining a peak temperature reading (’685 patent claim 7; ’938 patent claims 60 and 66); and (3) obtaining at least three readings per second (’938 patent claims 17, 24, 39, 40, 46, and 49)” were known in the prior art but that was not enough. According to the District Court “simply being known in the art did not suffice to establish that the subject matter was not eligible for patenting” because “a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made,” citing Diehr. The distinction (and in some ways the distinction missing from much of § 101 jurisprudence post-Mayo) is that these methods were used for a different purpose in the prior art, in this case detecting “hot spots” indicative of tumors, fractures, or other injuries (and in at least some testimony, used in horses not humans). In addition, the invention here newly provided a “calculated coefficient for translating measurements taken at the forehead into core body temperature readings” which was not routine, well understood or conventional in the prior art.
Notice how none of these cases can really change anything. So patent lawyers reject reality, manipulate law, and latch onto imaginary things. Here we have boosters from Fenwick & West writing about the ‘vibrations’ case (covered here before). They continue to nitpick decisions and try to warp reality against Alice et al (decisions similar to it), borrowing from very old CAFC rulings, e.g.:
I have not spent too much time trying to determine whether the court here accurately applied the tests mandated by Alice, Mayo and their progeny. My discomfort comes from the specific result (that the claims are not, as a whole directed to patent eligible subject matter) more than the general result (patent invalidity) or the path to it. At bottom, all inventions work because of the physics, math, etc. governing their structure and operation. The claims here seem directed, as a whole, to the manufacture of automotive drive shafts. It seems certain to me that even a few years ago, it would have been unthinkable to challenge such a claim on Section 101 grounds. Was the patent bar really that disconnected from the statute for the past century? Is the sea change brought on by Bilski, Alice and Mayo based not on difficult questions brought on by the nature of information age inventions but instead on a longstanding, fundamental misunderstanding of the statutory statement of what our patent system is intended to protect?
Not to our shock, other patent maximalists still hope to make of Berkheimer something that it isn’t (explanation in [1, 2] among other posts of ours). Patently-O mentioned it again the other day:
The case has good shot at being heard by the whole court. I expect that the court would agree with Judge Moore that underlying factual issues are possible in the eligibility analysis, the exercise is not “a predominately factual one that ‘opens the door in both steps of the Alice inquiry for the introduction of an inexhaustible array of extrinsic evidence, such as prior art, publications, other patents, and expert opinion.’” (HP Petition, quoting Judge Reyna’s dissent in Aatrix).
No cartoon of Judge Reyna this time around, for ‘daring’ to express dissent (in Aatrix). Watchtroll is still bringing up Aatrix. Yes, yet again as an excuse to assert (again!) that there’s another route for avoiding rejection of a software patent. This is nonsensical.
Then that’s that old Finjan case from January — a case in which all patents except one were discarded, causing a great deal of commotion among patent maximalists.
Sara O’Connell (Pillsbury’s Internet & Social Media Law Blog/Pillsbury Winthrop Shaw Pittman LLP) recalled this old case, which she pushed out as a “press release” and an ‘article’ (another example of infomercials, like those we referred to earlier today). To quote:
Finjan Inc. owns patents on technology involving computer and network security. Its patents are directed toward behavior-based internet security, addressing a method of “identifying, isolating, and neutralizing” potentially malicious code based on the behavior of that code rather than by scanning and maintaining a list of known viruses and malicious code signatures like so many other providers of internet security software.
Finjan was also mentioned in this other infomercial from a few days ago. To quote:
Patent claims serve to provide notice as to the scope of an invention described in a patent. The claims can be directed to various statutory types, such as an apparatus, article, composition, method, system, or any other patentable subject matter.
[...]
CRM claims combine the functionality of method claims with the tangibility of apparatus claims: they recite operations typically provided in a method while being directed to a physical memory having instructions that are executable to cause such operations. Accordingly, whereas it is uncertain whether a method can be “sold,” “offered for sale,” or “imported” for purposes of infringement under § 271, the Federal Circuit has held that CRMs can be. For example, in Finjan v. Secure Computing Corp., the Federal Circuit affirmed that the defendant infringed the plaintiff’s CRM claims because the defendant had “sold” an infringing software product.[14] And while each step of a method must actually be performed in the United States to be infringed, the court in Finjan did not require that the instructions stored in the infringing CRM actually be executed. The court reasoned that, “to infringe a claim that recites capability and not actual operation, an accused device ‘need only be capable of operating’ in the described mode.”[15] Thus, CRM claims can operate like apparatus claims for purposes of an infringement analysis.
It’s worth noting that all they ever mention is Finjan, Berkheimer, and Aatrix (nothing from 2017). But as we pointed out many times before (in more than a dozen articles), none of this triplet can be considered a real challenge to Section 101 and nothing at all last year even came close to that. Nothing has really changed, except the frequency of infomercials that try to ‘poach’ customers; they used to bash PTAB a lot and now they just basically cherry-pick CAFC cases and argue that they can miraculously enforce software patents. They cannot. █
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