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04.09.18

Hype Waves Exploited by the Software Patents Lobby: Blockchain, Autonomous Driving, Artificial Intelligence, Big Data, and Wearables

Posted in America, Law, Patents at 12:34 am by Dr. Roy Schestowitz

Beach textures

Summary: In an effort to tackle (or work around) 35 U.S.C. § 101 the patent microcosm embraces and overuses a bunch of popular, fashionable, sometimes-revived trends, which nonetheless represent software-implemented concepts and are often not novel at all (except the buzzwords)

THE MOMENT that a buzzword (or a hype wave) gets used to describe a patent (or an invention, whether real or perceived) you just know that someone is trying to bypass 35 U.S.C. § 101 (or a similar section) at the USPTO. It has become so common. Companies disguise software patents as all sorts of things, including “cloud”, “IoT”, and “AI”.

“Companies disguise software patents as all sorts of things, including “cloud”, “IoT”, and “AI”.”There’s an attempt to find new methods to patent software. Over the weekend when Patent Docs did its usual event/broadcast promotions (e.g. [1, 2, 3, 4]) it also revealed this upcoming ‘webinar’ set up by a villainous corporate front group, Intellectual Property Owners Association (IPO), funded by IBM and others like it in order to push software patents and try to change the law. This ‘webinar’ is lobbying on § 101 and it covers “patent eligibility grounds on the basis that there are factual disputes that underlie the determination of patent eligibility under § 101.”

“Over the past week we have seen quite a few buzzwords being used as surrogates for software patents.”These software patents are worthless. But if they’re not challenged at PTAB or in a court, then they might still be useful for coercion purposes.

Over the past week we have seen quite a few buzzwords being used as surrogates for software patents. Blockchain patents, for example, are software patents and are therefore worthless, but don’t think that patent lawyers will allow this hype wave to go to waste. Fritz Wetzel/Ratner Prestia wrote an article titled “Blockchain Technology—Patent Eligible Subject Matter or Just a Business Model?”

It’s introduced as a “software-based technology”:

Briefly, blockchain is a software-based technology that allows the transfer of data in certain divided blocks which are all encrypted. The blocks need to be confirmed from different participants in a network and will be stored decentralized. Hence, it is or should not be possible to manipulate the transferred and stored data because if only one block is manipulated, the system would immediately recognize this manipulation and can prevent any claim or request on this data. Not only can this technology be used to transfer funds between market participants, it can also perform the transfer of any kind of data such as music files, literature, smart license contracts and even sensitive confidential data from governments.

Another so-called ‘software-based technology’ is HEVC, which is full of patents that IAM is promoting this month, along with so-called “autonomous vehicles” patents. It has become another one of those hype waves — to the point where two days ago Watchtroll published “Ford Developing Autonomous Systems for Police Cars, Other Emergency Vehicle” (software again).

These patent maximalists/lawyers are, as usual, attempting to patent software under the guise of “Autonomous Driving”. Here’s the new article titled “The Driverless Race Is On: Patenting Autonomous Driving” (we already wrote some articles on this topic).

“This development is, for instance, focused on platforms, software, navigation and infrastructure,” says the article. It boils down to software which does things inside the car.

There are other renewed hype waves in the headline. Samuel Davis, for example, wrote for IAM about “AI” under the heading “Beyond the hype” (ironically), then alluding to “AI for intellectual property” (alluding to patent management, for example, using computer programs).

“There are other renewed hype waves in the headline.”The patent maximalists, i.e. people who profit from patents, are jumping on revived hype waves here. How about “House Bill Would Establish National Security Commission on Artificial Intelligence”? Patent Docs published that a few days ago and as we noted here last month, Jones Day (Carl A. Kukkonen III, Douglas H. Pearson Ph.D. and Ognian V. Shentov) came up with a slant on “AI” and “BD” hype (they even gave an acronym to “Big Data”). They’re reposting it:

AI and BD inventions can be effectively and concurrently protected via patents, trade secrets, and copyrights, as well as by means of contractual arrangements. Notwithstanding such variety of protection mechanisms, patents remain an essential part of an overall IP strategy for innovation-oriented companies. Given uncertainties over patent eligibility and validity, careful attention must be heeded to optimally capture the value of AI and BD innovations for both defensive and offensive purposes.

“Wearable” is another one of those hype waves. Todd C. Basile and David J. Dykeman decided that a “Patent Strategy is Crucial for Wearable Innovations,” but all we have here is a couple of patent attorneys trying to sell patents on just about anything, this time in the form of a bogus article which is actually lobbying/marketing:

As wearable innovations continue to enhance and shape healthcare and the way we live, innovators must focus on protecting their inventions. By building a strategic patent portfolio that has worldwide patent protection, innovators can thrive in the growing wearables market.

As we recently saw in a district court in California, even patents on so-called ‘wearables’ are nowadays deemed abstract.

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