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04.08.18

The Patent Litigation Lobby — by Cherry-Picking Court Decisions — Explores Ways to Work Around 35 U.S.C. § 101 and Patent Software

Posted in America, Courtroom, Patents at 12:58 am by Dr. Roy Schestowitz

Cherry picking
Reference: Cherry picking

Summary: Patent maximalists (mostly lawyers) continue to distort the public debate and interject false claims into news reports in order to maintain a demand for software patents, from which they profit

THE demise of software patents in the United States is very real and we increasingly see/hear of cases where USPTO examiners, not just patent judges, reject applications based on 35 U.S.C. § 101. The entire system has become resistant to — if not intolerant of — software patents. We need to keep it that way.

“The entire system has become resistant to — if not intolerant of — software patents. We need to keep it that way.”As one can expect, software patents proponents are nitpicking in an effort to bring software patents back. This post collates examples from the past week.

Bilski Blog, one of the loudest anti-Bilski and anti-Alice sites (the name of the blog is rather misleading), started toying around with a couple of words, cherry-picked from a recent decision. The term “well-understood” somehow became an entire long blog post and it said:

The Federal Circuit has now had enough opportunity to address Mayo’s “well-understood, routine, conventional” test that we should have a good understanding of it. We don’t (or at least I don’t).

To begin with, the Federal Circuit cases don’t seem to differentiate among these terms. The cases also universally connect the three terms with “and” rather than “or,” but curiously most of the cases don’t seem to actually require all three to be explicitly met for a determination of ineligibility. See, e.g., Content Extraction, where the Federal Circuit noted only that the patent owner had conceded one function as being “routine.” Finally, there seems to be real disagreement about the extent to which these terms address facts as opposed to legal standards. In this post, I’m not going to comprehensively analyze all these issues, but instead will focus primarily on what these common terms mean.

This is another one of many attempts to belittle CAFC judges. It wasn’t long ago that Patently-O mocked a judge and Watchtroll does this kind of thing almost every week. As Judge Lucy Koh continues to reject software patents (in a district court) we expect her too to be targeted. Patently-O resorted to implicit racial insults, so it probably won’t be long before we see sexist insults, too. Koh can be smeared using both the “race” and the “gender” card.

“It wasn’t long ago that Patently-O mocked a judge and Watchtroll does this kind of thing almost every week.”Charles Bieneman, a software patents proponent, mentioned Aatrix at the end of last month and then wrote about Koh’s decision as follows:

A district court has granted a Rule 12 motion for judgment on the pleadings, holding that claims of two patents directed to modifying toolbars of Internet applications are patent-ineligible under the Alice test and 35 USC § 101. MyMail, Ltd. v. ooVoo, LLC, Nos. 17-CV-04487-LHK and 17-CV-04488-LHK (N.D. Cal. March 16, 2018) (Judge Lucy Koh).

What we find interesting about this case isn’t just the judge, who became famous for her rulings in Apple’s cases against Samsung. What’s more interesting here is that we’re seeing district courts, this time in California, increasingly citing 35 USC § 101 when they reject dubious patents. Traditionally it was CAFC — not district courts — that was tough on software patents. The same goes for the Patent Trial and Appeal Board (PTAB), which we’ll be covering separately.

“What’s more interesting here is that we’re seeing district courts, this time in California, increasingly citing 35 USC § 101 when they reject dubious patents.”Not too long ago CAFC dealt with a virtual advertisement patent. James Korenchan liked this case because it stood out from the rest. Cherry-picking this fairly old decision (from last month), the anti-PTAB brigade was attempting to give the impression that 35 U.S.C. § 101 is nothing for software patents proponents (trolls and lawyers) to worry about. To quote the background:

In a decision issued last month, the Patent Trial and Appeal Board reversed the final rejection of all the pending claims in U.S. Application No. 12/628,383. The claims at issue are directed to evaluating an effectiveness of an advertisement in a virtual reality universe of a multiplayer online game. In particular, the claimed invention involves evaluating whether a proximity and direction of a user’s avatar enables the avatar to effectively view a virtual advertisement and, based on this evaluation, providing a virtual barrier (e.g., a virtual landscape element) that induces the avatar to navigate towards viewing the advertisement. The claims had been rejected under 35 U.S.C. § 101 as reciting patent ineligible subject matter in the form of an abstract idea of organizing human activities.

CAFC typically agrees with PTAB on such matters, but the anti-PTAB brigade clings onto the rare cases where a decision gets overturned. Looking at underlying statistics, one must conclude that software patents remain unworthy of pursuing, both at the patent office and the courts. Not that law firms would want to allow clients to think of feel that way…

IAM Encourages Patent Aggression, CCIA Highlights Cost of Being Accused of Infringement, Professor Tun-Jen Chiang Explores Free Speech Aspects of Patents

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

The First Amendment in the United States is contradictory to the notion of code patents (decision from the Court of Appeals for the Federal Circuit, CAFC)

Opinion on IV

Opinion on IV

Summary: A few items of interest which pertain to patent litigation and shakedown, in effect highlighting lesser-explored aspects of legal landscapes wherein being accused alone can cost one dearly

THE patent litigation culture that had become so prevalent in the US before the courts (and to a lesser degree the USPTO) put the brakes on it cost the economy many billions of dollars. Lawyers, trolls and few failing companies had made a lot of money but produced nothing of value. We risk seeing the same thing happening in Europe if EPO management gets its way.

“Software developers do not need patents. It’s an improper and truly unnecessary instrument of law.”IAM spent well over a decade promoting a patent litigation culture everywhere in the world. This is IAM’s bread and butter. What IAM meant by “webinar” the other day is marketing/lobbying. The word “licensing” refers to blackmail, extortion, and coercion with patents (otherwise a lawsuit gets filed). By contrast, the CCIA (Josh Landau in this case) bemoaned the situation, insisting that “[i]n Defending Against Patent Litigation, Even A Win Is A Loss” (except for the lawyers).

To quote:

So what we have is a lawsuit where, based on the statements in the complaint, the patent may not be valid, and where public information strongly suggests that the patent isn’t infringed.

Nonetheless, the Big Ten Network will have to spend money defending themselves from the lawsuit. And baseless patent assertions don’t just hurt large tech companies—they hit everyone, from entertainment companies like the BTN or Disney, to retailers and restaurants like Walmart and White Castle.

These suits, even if the defendant is successful in defending themselves, cost money. According to AIPLA’s 2017 survey, the median cost just to start defending a case with less than $1,000,000 at stake is around $25,000, and the median cost to get through the motions stage is around $250,000. If there’s more at stake? A case with more than $25,000,000 at risk might cost you around $140,000 just to get started, with the cost through the motions stage on the order of $1,700,000. That’s not even to get to trial.

All to defend yourself against a lawsuit that never should have occurred, based on a patent that never should have issued.

Tun-Jen Chiang has just outed/promoted “Patents and Free Speech,” a paper which discusses how patents affect the First Amendment in the United States. It’s no secret that computer code (in the case of software patents) is akin to poetry or speech and thus invokes questions pertaining to the First Amendment. CAFC ruled so specifically (about 2 years ago) while rejecting Microsoft’s patent troll, Intellectual Ventures. From this new introduction to Professor Chiang’s paper:

Scholars have long argued that copyright and trademark law have the potential to violate the First Amendment right to free speech. But in Patents and Free Speech (forthcoming in the Georgetown Law Journal), Professor Tun-Jen Chiang explains that patents can similarly restrict free speech, and that they pose an even greater threat to speech than copyrights and trademarks because patent law lacks the doctrinal safeguards that have developed in that area.

Professor Chiang convincingly argues that patents frequently violate the First Amendment and provides numerous examples of patents that could restrict speech. For example, he uncovered one patent (U.S. Patent No. 6,311,211) claiming a “method of operating an advocacy network” by “sending an advocacy message” to various users. He argues that such “advocacy emails are core political speech that the First Amendment is supposed to protect. A statute or regulation that prohibited groups from sending advocacy emails would be a blatant First Amendment violation.”

Perhaps the strongest counterargument to the conclusion that patents often violate free speech is that private enforcement of property rights is generally not subject to First Amendment scrutiny, because the First Amendment only applies to acts of the government, not private individuals. Although Professor Chiang has previously concluded that this argument largely justifies copyright law’s exemption from the First Amendment, he does not come to the same conclusion for patent law for two reasons.

When it comes to copyright law, one’s ability to speak freely depends on one’s originality. But rephrasing things can help dodge plagiarism/infringement claims, whereas with patents that is not quite possible. This means that when it comes to patents the risk to one’s free speech, e.g. in the code sense, is seriously jeopardised. Code is already covered by copyright law, so for the most part plagiarism is a problem that’s sufficiently tackled without patents. Software developers do not need patents. It’s an improper and truly unnecessary instrument of law.

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