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05.13.18

Software Patents in the United States: It’s a Lot More Difficult, But Patent Examiners Must Watch Out for Buzzwords and Hype/Marketing

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

Patent lawyers/applicants try to describe algorithms in terms which are deliberately misleading

Pep vibrates
Anxious to see if they can mislead the examiners

Summary: A roundup of announcements and news pertaining to software patents in the US, including some of the latest ‘trendy’ ways for bypassing Alice/Section 101 (in effect a ban on abstract patents, such as patents on algorithms)

THE USPTO does not grant software patents as easily or as frequently as it did before. Sure, many of these slip in and of course the courts (and PTAB) throw many of these away. We happen to be watching (and have watched) patent lawsuits and grants. We try to understand what’s going on. Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then. But PTAB’s capacity is limited, so there aren’t always appeals. PTAB rarely gets involved at this particular stage (when it does, as happens more over time, a grant typically gets denied).

A few days ago this press release came out, bragging about nothing but new patent grants. Some of these patents are software patents based on my fast reading of the press release. It’s likely that patent law (e.g. assessment by PTAB) would render them worthless. From the press release: “Covering a spectrum of technologies including: vehicle-to-grid power integration, vehicle controls software, exportable power, and unique powertrain architectures, these recent patent grants further strengthen the international IP position for EDI.”

“Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then.”Based on another new press release, Bigbelly continues in its patent lawsuits expedition/campaign, using what seems like software patents. Techrights covered this quite a few times in the past. Bigbelly seems like somewhat of a troll. The press release says that “the cloud-connected Bigbelly smart waste and recycling system combines smart, sensing, compacting stations with real-time software.” (yes, they say software)

Another litigious firm, 3Shape, uses patents — apparently software patents included [1, 2] — to harass a rival. It’s doing it again. Its press release says:

3Shape A/S today announced that it has filed a patent infringement complaint asserting its Patent No. US 9,962,244 B2: Focus Scanning Apparatus Recording Color against Align Technology, asserting that Align Technology’s ITero Elements intraoral scanner infringes the 3Shape patent.

We’ve already explained why at least some of these patents seem to cover software.

If lawsuits aren’t bad enough, how about patent-induced embargo (ish) over “motion sensor hardware, software and/or design” (which might be deemed invalid if actually properly assessed)? To quote this days-old announcement:

The District Court has issued an injunction against PPG and its principals, officers, directors, shareholders, employees, affiliates, agents, successors and assigns are, as of May 9, 2018, enjoined from making, using, selling, importing, or offering motion sensor hardware, software and/or designs that operate (and/or would enable products to operate) in the same or substantially similar manner as the PPG technology accused of infringing multiple claims for U.S. Patent No. 8,903,521.This injunction shall continue until the expiration of the ’521 patent or until modified by the Court.

There are even patents that mention software explicitly, e.g. [1, 2] in recent days. ‘Cloudwashing’ and other buzzwords such as “IoT” are exploited to patent software as well. Such patents are bunk, void, rubbish, but here they go again with “Internet of Things” in the headline (4 patents). CloudTrade too does not seem to be aware that software patents are nowadays pretty much void and invalid, worthless at best. It still brags about these. To quote: “CloudTrade’s patent-protected software uses unique rules-based technology with backward tracking search, to interpret, validate, and extrapolate semantic meaning from complex documents, of any type.”

“We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one ‘slaps’ onto it.”We should probably note that Alice-dodging has become rather common a practice — one that we’ll cover separately in a later post. Among the tricks? Having software disguised using “AI”, “Internet of Things”, or “blockchain” hype (there are many others). Here is a new example of it — one wherein bunk patents and likely worthless patents are painted/framed as “blockchain”. On April 24th the patent maximalists wrote about “blockchain patent trends” (basically software patents). “Johan Ståhlberg and Isabel Cantallops Fiol of Valea AB consider developments in the field of blockchain patents, examining the number of blockchain patents applied for and granted in various jurisdictions and fields,” said the summary. Weeks later colleagues like Karry Lai in Hong Kong wrote about “blockchain and AI”. “The chief IP counsel of the fintech leader tells Managing IP about the challenges of blockchain and AI patent filing,” says the summary. They actively promote all this hype and they avoid speaking about software (which is, inherently, what all those things boil down to). Software patents are bunk, even if one labels algorithms “AI” or “blockchain” or whatever.

A few days ago Susan Y. Tull from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) wrote about “machine learning” and said that “[n]ewly published patent application and granted patents reveal applications of artificial intelligence software” (notice the word software).

She correctly attributed this kind of ‘trick’ to IBM, which nowadays calls many of its software patents “cloud” or “AI” (we covered this before). To quote:

In 2017, IBM received a patent for drug discovery using machine learning.

[...]

Software and software applications are increasingly being applied to the medical device and health tracking fields. Apple recently obtained a patent directed to an “electronic device that computes health data.” U.S. Patent No. 9,723,993 is directed to an electronic device including a camera and sensors to compute the health data of the user. Of note, the patent’s illustrations show Apple’s iPhone performing this function. Oxygen saturation, pulse rate, and perfusion index are among the tracked conditions identified in the patent.

When they speak about stuff like “computes health data” they talk about data processing using algorithms; they want the readers to think that supposed “intelligence” (as in AI) somehow makes that an invention and therefore patent-eligible. We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one ‘slaps’ onto it.

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