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06.10.18

Deception on § 101/Alice Continues, Courtesy of Firms That Are Making Money From Worthless (Bunk) Software Patents

Posted in America, Free/Libre Software, Law, Patents at 5:49 am by Dr. Roy Schestowitz

Just projecting their personal agenda

35 U.S.C. 101 mirror

Summary: 35 U.S.C. § 101 does not seem to matter to people whose living is made from litigation and patent pursuits on (or pertaining to) algorithms; we rebut a few examples from the past week, reminding readers that lawyers aren’t credible advisors on issues they stand to gain from (at clients’ and innocent companies’ expense)

THE collapse of software patents is very much a reality in the US. Don’t ask law firms; they just want to sell more ‘services’ (e.g. lawsuits and patent applications) around that.

The other day in Law.com there was an article with the term “Open Source” in the headline, which got our attention. Don’t be misled though; Law.com is traditionally a Free/Open Source software-hostile site, typically helping lawyers sell services around licence compliance and other things which are marketed by FUD. “Patents and open source are not mutually exclusive,” someone (a self-appointed expert) is quoted as saying in this new piece.

“They’re alluding to the corporate ‘flavour’ of “Open Source”, not Free/Open Source software.”Actually, they are. They’re not compatible. Software patents and Free/Open Source software cannot co-exist. “You can do both and do both correctly,” continues the self-appointed expert, “but it takes education, especially for people who are newer in the industry.”

They’re alluding to the corporate ‘flavour’ of “Open Source”, not Free/Open Source software. “Moore said engineers often join Pure Storage from companies that were not engaged in open source projects,” the author writes, “and expect a similar policy. Others are pro-open source, but may not know the benefits of patents.”

So they’re trying to market software patents to companies which claim to be “Open Source”, such as Red Hat (it’s applying for software patents and really ought to stop doing that). “That’s one reason why Gideon Myles,” continues the author, “lead IP counsel at San Francisco-based Dropbox Inc., said his company educates new employees on both processes.”

“When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.”In other words, they’re wasting employees’ capacity and reducing their productivity because of silly patents.

Are these actually worth pursuing anymore? No.

But that’s not what lawyers (with fanciers job titles like “IP counsel”) want companies to believe, or else they’ll lose their job if not the entire legal department.

When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.

Sadly, as media in this domain remains dominated by law firms (or authors who extensively quote them), one may easily get the impression that software patents are still potent, even in the face of § 101/Alice.

In a new guest post by “Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan” (i.e. mostly the patent ‘industry’) they suggest workarounds to bypass § 101. They’re also trying to water down § 101 or obliterate it by any means possible/available.

From the outline:

We offer an alternative approach for amending § 101 to allow some range of patentability for inventions directed to judicially-recognized eligibility exceptions. Rather than attempting to redefine the line between eligible and ineligible subject matter (a revision that preserves the current all-or-nothing approach), we propose amending §101 to implement disclosure-based limits on the scope of claims directed to judicially-recognized exceptions (abstract ideas, laws of nature, and natural phenomena).

It’s the same old tricks; IBM and IPO lobby along those lines, as we shall show later today. They say they want to “amend” § 101, but what they mean to say is “weaken”. § 101 is based on several judgments from the Supreme Court, yet these people think that some blog post of theirs, based on their financial agenda, has relevance to § 101?

“There’s no quantitative/numerical data to support an assertion like “comeback” for software patents.”§ 101 is already very clear, but Iancu (who is acting like a ‘mole’ of the patent microcosm, at least thus far in his term, serving or speaking for the litigation ‘industry’ he came from) does’t like it and wants it thwarted in defiance of the Supreme Court. Here’s a new tweet about it: “#BIO2018 IP track kicked off with opening remarks from Andrei Iancu of the @uspto. Clarifying #section101 and changing the dialogue to focus on brilliance of #inventors high on agenda.”

Well, the Biotechnology Innovation Organization (BIO) is an anti-PTAB lobbying body and for Andrei Iancu to even attend this event says a lot about his interests. Also on the subject of § 101, Mondaq republished a piece from Charlene Lipchen (Field LLP). She is misleading people if she seriously thinks that there’s a software patents rebound in the US (there’s none), calling it a “Glimmer Of Hope” and stating the following upfront: “It remains a general rule, in patent law, that one cannot obtain a patent for an abstract idea. Over the years, patent claims for methods implemented by computers and software have been struck down by the courts, on the basis that merely using a general-purpose computer to implement an abstract idea does not make the abstract idea patentable. More recently, since the Supreme Court of the United States’ 2014 decision in Alice Corp. v. CLS Bank, a software patent case providing a revised test for determining what is patentable subject matter, most patents containing claims to software challenged in US courts have been struck down. The patent claims at issue in Alice were directed to a method for implementing an intermediated settlement between parties.”

“A fortnight ago we began seeing pure spin by patent extremists, claiming that § 101 would see the US Congress/Senate involved, but that was something that people nowadays call “fake news”.”That’s that same optimism we’ve just responded to. There’s no quantitative/numerical data to support an assertion like “comeback” for software patents. And Iancu cannot change that either; he’s not a judge. Law is outside his scope of authority.

A fortnight ago we began seeing pure spin by patent extremists, claiming that § 101 would see the US Congress/Senate involved, but that was something that people nowadays call “fake news”.

A new article by Matthew Bultman (with his usual patent maximalist slant, which we took note of before [1, 2, 3, 4]) speaks of a “High Court” being “begged”, but no such thing happened. A high court wasn’t mentioned at all. This is more of that pure spin, a 180 degrees spin in Law 360. To quote:

The Cleveland Clinic Foundation on Friday seized on a Federal Circuit judge’s recent call for a “higher authority” to clarify what is eligible for a patent, telling the U.S. Supreme Court a current state of confusion begs for intervention.

The clinic, which is fighting a decision that invalidated three patents on cardiovascular disease tests, highlighted comments Circuit Judge Alan Lourie made last week when the appeals court denied separate rehearing requests from HP Inc. and Green Shades Software Inc.

The term “higher authority” does not imply “High Court” like Bultman’s headline insinuates. In fact, there’s no evidence at all that anyone at all is going to revisit these cases. § 101 remains in tact.

As is widely known, § 101/Alice isn’t taken as seriously by the lower courts. Yes, at the lower courts (District Courts) as opposed to the Federal Circuit (CAFC), § 101 is more likely to be swept aside, as was the case in Hybrid Audio, LLC v Visual Land, Inc.

Joseph Herndon, writing about a trial in a California District Court, managed to find one of those 35 U.S.C. § 101 cases in which judges dismissed the defendant’s argument:

In the U.S. District Court for the Central District of California, Hybrid Audio, LLC sued Visual Land, Inc. for patent infringement with respect to audio signal processing technology used in conjunction with MP3 technologies. Defendant filed a motion to dismiss, alleging that the patent was invalid under 35 U.S.C. § 101. Despite seemingly very broad claims, the Court found that it was clear from the asserted patent that the claims were directed to an improvement in the functioning of a computer, and thus, were patent eligible.

The patent at issue is entitled “Signal Processing Utilizing a Tree-Structured Array,” which originally issued as U.S. Patent No. 6,252,909 on June 26, 2001. After a reissue application was filed for the ’909 Patent, the ’909 Patent reissued with certificate number RE40,281, and subsequently, a request for reexamination of the ’281 Patent was filed, and the PTO issued a reexamination certificate for the ’281 Patent confirming patentability of the reexamined claims.

[...]

Thus, despite broad claims that recite only functional aspects, and no physical components or elements that perform the functions, the claims were found to be patent eligible because the patent disclosure clearly set forth how the claimed processes improved computer functionality as compared to prior art. This enable the plaintiff to show that the claims were necessarily rooted in computer technology, solved a technical problem with a technical solution, and improved upon prior computer technology—all factors weighing in favor of patent eligibility.

If this gets appealed (to CAFC), this patent will likely be invalidated as per/in lieu with § 101 (as usual).

Have we come to the point where it’s so hard for patent lawyers to find CAFC rulings in favour of software patents? Are they now looking for supportive cases at lower courts?

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