04.29.18

Gemini version available ♊︎

35 U.S.C. § 101 is Still in Tact and Enforceable En Masse (Thousands of Times) by PTAB

Posted in America, Courtroom, Patents at 4:07 am by Dr. Roy Schestowitz

The Patent Trial and Appeal Board (PTAB) will continue to crush software patents in the foreseeable future

Legal clause

Summary: Ahead of our in-depth coverage of US Supreme Court (SCOTUS) decisions, a quick roundup of recent patent cases and developments, including the push against Alice

THE USPTO is updating some of its guidelines in lieu with last week’s Supreme Court decisions. We’ll cover that separately later. Some patent lawyers hope that guidelines will also be changed in lieu with last month’s (or February’s) CAFC decision/s. The thing about such a change, however, is often overlooked by the patent microcosm; it is actually not final.

Michael Borella wrote about cases when a “claim fails to meet the requirements of 35 U.S.C. § 101.” This is what he said about a week ago:

The second part of the patent-eligibility test of Alice Corp. v. CLS Bank Int’l involves an inquiry into whether certain elements of a claim directed to an unpatentable judicial exception are “well-understood, routine, and conventional.” If this is the case, the claim fails to meet the requirements of 35 U.S.C. § 101. If not, the claim clears the § 101 hurdle. Since Alice, this determination has been largely treated as a matter of law.

There’s great hope among patent maximalists that the Berkheimer case will change everything, but that's wishful thinking (for the most part). First of all, CAFC rarely changes underlying laws and rules, unlike the Supreme Court. Sure, it can be cited (its pertinent decisions), but the impact/weight of CAFC decisions is lessened by this court’s volume of decisions on patents. For every single ruling that patent maximalists like there may be a dozen or more decisions/opinions they do not like and simply try to ignore. Since Berkheimer there has been virtually nothing of interest to patent maximalists. It has been a ‘dry springtime’ for them. Later on when we write about Oil States we’ll show that they’re still in ‘damage control’ mode. CAFC notwithstanding, Justices stand firm behind PTAB, which applies Alice/§ 101 to invalidate many abstract patents, notably software patents. Here’s another example worth noting:

The court granted plaintiff’s motion for summary judgment that the asserted claims of its dietary supplement patent did not encompass unpatentable subject matter and found that the claims were not directed toward a natural phenomena.

The district court, in assessing a case against Zhejiang Medicine, says “[t]hat the asserted claims rely on the ability of certain microorganisms to produce reduced CoQ[10] at a ratio greater than 70 mole % among the entire coenzymes Q[10] under standard culturing conditions does not indicate the claims are ‘directed to’ this phenomenon.”

This is actually more about medicine than anything like software.

In other news, in Acantha LLC v DePuy Orthopaedics, Inc. et al (not covered here before, it’s about surgical technique guides), § 287 is being invoked. It’s about damages, not infringement:

The court granted defendants’ motion for summary judgment to limit plaintiff’s damages for failing to mark its surgical products through its licensee’s surgical guides.

In Dyson, Inc. et al v SharkNinja Operating LLC et al it seems clear that shoddy design patents aren't quite being tolerated, which is good news. To quote a summary of the latest development (not decision yet):

The court granted defendants’ motion for summary judgment of noninfringement of plaintiffs’ vacuum cleaner design patents and rejected plaintiffs’ argument that the ordinary observer test may be satisfied with a “quick glance” to determine “the same basic shape.”

It’s about designs; we don’t believe such things merit patents because trademarks and copyrights already cover such things (to a certain extent). How about patents on GUIs, which generally accompany code? Haseltine Lake LLP, which we recently mentioned here in relation to EPO appeals [1, 2] (“Confidence in European Patents (EPs) is Eroding”), has just published this article by Caroline Day. It’s about the EPO:

In November last year, the EPO updated the Guidelines for Examination in relation to presentations of information, which includes Graphical User Interfaces (GUIs) (see sections G-II, 3.7 and 3.7.1). This provides a useful consolidation of their current approach to such inventions.

As will be familiar to users of the EPO, when assessing patentability of patent applications in this area, the claimed subject-matter is considered as a whole to determine if it has technical character and is thus not excluded from patentability. Only once this test is passed is the application examined in respect of the other requirements of patentability, in particular novelty and inventive step. However, only those features which, in the context of the invention, contribute to producing a technical effect serving a technical purpose can be used to support inventive step.

The new Guidelines confirm that a presentation of information that credibly (i.e. objectively, reliably and causally) assists the user in performing a technical task by means of a continued and/or guided human-machine interaction process may be seen as having a technical effect.

We have almost lost hope in denial of software patents at the EPO, seeing that the management merely attempts to rebrand or rename software patents in order to carry on issuing them.

In other cases of interest, the patents-hostile Kinsella has this new episode about “Argumentation Ethics and Estoppel” (a concept we mentioned some months ago). The show’s summary:

I was a guest last night on Punching Left, with hosts Clifton Knox and David German, discussing argumentation ethics, estoppel, covenant communities, the non-aggression principle, physical removal, Hoppe, Propertarianism, Curt Doolittle, Austin Peterson, and so on.

Kinsella no longer focuses only on patents, but the bringing up of estoppel is noteworthy. It was mentioned by Patently-O several days ago when it wrote:

In EVE-USA v. Mentor Graphics, petitioner raises two important questions of patent law involving assignor-estoppel and damage apportionment respectively. Here, EVE-USA was founded by former Mentor employee-inventors.

We wrote about this case before. It serves to highlight certain injustice when it comes to patent assignments for “employee-inventors”. It’s basically the large corporations that derive all the power from the current patent system, not so-called ‘inventors’.

Speaking of which, how about when someone with a patent is accused of “Patent Infringement Through American Subsidiary for Personal Gain”? Such is the case noted by Watchtroll the other day:

On March 30th, Japanese gaming firm Universal Entertainment Corporation (TYO:6425) filed a complaint alleging patent infringement and other claims against Las Vegas, NV-based entity Aruze Gaming America as well as Kazuo Okada, the founder of Universal Entertainment (UEC) and the sole shareholder and director of Aruze Gaming. The suit, filed in the District of Nevada, alleges that Okada directed patent infringing activities of Aruze while he was also an officer with UEC.

[...]

This infringement was allegedly made possible by defendant Okada’s usurpation of corporate opportunities, according to UEC’s complaint. After founding UEC in 1972, Okada served as its Representative Director (Japanese law equivalent to Chief Executive Officer) through September 2004. Between January 2006 and June 2017, Okada served UEC as Chairman of its Board of Directors. In the two years between June 2008 and June 2010, UEC underwent a corporate restructuring that wound up with Okada being placed in charge of UEC’s foreign businesses, including those in the U.S.

This basically boils down to somewhat of a software (or game) patent — a subject we covered here as recently as last week (not the case of Okada but a similar one).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. EPO-Bribed IAM 'Media' Has Praised Quality, Which Even EPO Staff (Examiners) Does Not Praise

    It's easy to see something is terribly wrong when the people who do the actual work do not agree with the media's praise of their work (a praise motivated by a nefarious, alternate agenda)



  2. Tux Machines is 17.5 Years Old Today

    Tux Machines -- our 'sister site' for GNU/Linux news -- started in 2004. We're soon entering 2022.



  3. Approaching 100

    We'll soon have 100 files in Git; if that matters at all...



  4. Improving Gemini by Posting IRC Logs (and Scrollback) as GemText

    Our adoption of Gemini and of GemText increases; with nearly 100,000 page requests in the first 3 days of Decembe (over gemini://) it’s clear that the growing potential of the protocol is realised, hence the rapid growth too; Gemini is great for self-hosting, which is in turn essential when publishing suppressed and controversial information (subject to censorship through blackmail and other ‘creative’ means)



  5. Links 4/12/2021: IPFire 2.27 Core Update 162 and Genode OS Framework 21.11

    Links for the day



  6. Links 4/12/2021: Gedit Plans and More

    Links for the day



  7. Links 4/12/2021: Turnip Becomes Vulkan 1.1 Conformant

    Links for the day



  8. IRC Proceedings: Friday, December 03, 2021

    IRC logs for Friday, December 03, 2021



  9. Links 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  10. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  11. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  12. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  13. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  14. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  15. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  16. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  17. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  18. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  19. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  20. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  21. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  22. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  23. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  24. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  25. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  26. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  27. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  28. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  29. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  30. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts