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04.22.18

The Federal Circuit’s (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

Posted in America, Courtroom, Patents at 11:16 pm by Dr. Roy Schestowitz

Pulling a Berkheimer

Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)

THE USPTO‘s examiner/examination guidelines may soon change. Ignore all the acronyms associated with that; also ignore the propaganda about it, courtesy of the patent trolls’ lobby*. We wrote a couple of rebuttals last week. Will the USPTO change the rules in lieu with a decision or two from CAFC? That partly depends on what CAFC does in the 90-day comment period/window. We’re therefore watching these things pretty closely.

Managing IP, which is a patent maximalists’ Web site, has managed to cherry-pick some patent which “survived” [sic] a Section 101 challenge at CAFC. Is it a software patent? Hell no! To quote:

In its important Vanda Pharmaceuticals v West-Ward Pharmaceuticals opinion, the Federal Circuit found the claims eligible at step two of the Mayo/Alice test whereas the district court found them eligible at step one

The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim. As in, a company files a lawsuit and then pretends that its patents are being “attacked” and that it merely “survives” (not the defendant). This is gross spin or reversal of narratives; it’s so terrible a tactic which sometimes culminates in calling judges who assess legitimacy of patents “death squads” (as though they work for Stalin or Hitler).

“The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim.”We certainly hope that patent administration and examination staff can see these propaganda sites for what they truly are; they attempt to come across as “professional” “journalism”, but they’re merely jingoism for a hostile agenda (involves threats, ruinous lawsuits, and forced/imposed bankruptcies).

Speaking of propaganda sites, Patently-O dresses up the propaganda as “scholarly” (clever ploy) and as we’ll show later today it’s back to PTAB bashing (the so-called ‘death squads’). Noting CAFC’s take on SCOTUS/Mayo (like the above which is more about Mayo than about Alice), Patently-O advocates patenting by “trick” (the word “trick” is actually in the headline) to bypass the law:

The claims at issue in Vanda were roughly parallel to those found unpatentable in Mayo v. Prometheus. In Mayo, representative claim 1 of the challenged Patent No. 6,355,623 was directed to treatment method that involved (a) administering a drug (6-thioguanine); and then (b) determining blood level of the drug. A low blood level (less than about 230 pmol per 8×108 red blood cells) indicates a lack of effectiveness and a need for a higher subsequent dose while a high blood level (greater than about 400 pmol per 8×108 red blood cells) indicates potential for toxicity and that the next dose should be reduced.

In finding the claim invalid, the Supreme Court unanimously held that the correlation between blood level, efficacy and toxicity was an unpatentable law of nature and that the administration and determination steps were already well known in the art and thus insufficient to transform the claim to a patent eligible invention.

In Vanda, representative claim 1 is directed to a method of treating a patient suffering from schitzophrenia by (a) determining whether the patient is genetically a poor metabolizer of the drug (CYP2D6 genotype) then (b) administering iloperidone to the patient (12-24 mg per day if good metabolizer; <12 mg per day if poor metabolizer) in order to reduce the risk of “QTc prolongation” for poor metabolizers.

First the dissent — Chief Judge Prost identified the similarity here and explained her position that “the asserted patent claims [are] directed to a law of nature.” At its crux, the invention began with the discovery of the health problems created by treating folks with lower CYP2D6 activity and recognition that a lower dose would be appropriate.

[...]

I believe that the invention should be patent eligible, the majority’s approach appears to latch onto simple patent drafting tricks as the basis for distinguishing Mayo — an approach directly rejected by the Supreme Court in Mayo.

Of course Patently-O “believe[s] that the invention should be patent eligible”; is there anything which Patently-O believes should not be patentable? Just look at the types the site hangs out with. Look at the constant glorification there of patent quantity (as if constant expansion in monopolies is blindfoldedly desirable).

“They tend to focus only on outcomes that suit them.”Michael Risch, another “scholarly” proponent of patent maximalism (he says he’s agnostic on software patents, but his past writings suggest otherwise) linked to Patently-O (an article from March) a few days ago. It’s about the Federal Circuit statistics, gathered by Jason Rantanen, himself a “scholarly” proponent of patent maximalism. To quote Professor Risch:

Jason Rantanen (Iowa) has already blogged about his new article, but I thought I would mention it briefly has well. He has created a database of data about Federal Circuit opinions.

How many of these cases ever get covered by the likes of Managing IP, Patently-O, IAM and Watchtroll? Not many. They tend to focus only on outcomes that suit them. By “them” we mean financial agenda (of theirs or of their target audience). It’s not about truth, justice, etc. Such selection bias is part of their propaganda pattern, which we’ll revisit later today in relation to the Patent Trial and Appeal Board (PTAB).
____
* Watchtroll and IAM, two sites that promote the interests of patent trolls and other patent extremists, are nowadays doing collaborations and puff pieces with each other. Here’s an example which is only hours old.

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