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07.05.18

Abstract Ideas and Mental (Thoughts) Type of Claims Still Deemed Patent-Ineligible, Buzzwords Are Used Instead

Posted in America, Asia, Europe, Patents at 9:02 am by Dr. Roy Schestowitz

“Cloud Computing”, “AI” etc. in so-called ‘IP Five’

Cityscape Delaware

Summary: The District Court for the District of Delaware (above) now attracts a lot of patent litigation; this court, however, isn’t so tolerant of software patents (more like the Federal Circuit and less like East Texas); in East Asia buzzwords are also being used, but courts aren’t necessarily tolerant of abstract patents; Europe is a mess because of the EPO’s abuses

THE Patent Trial and Appeal Board (PTAB), together with the USPTO as a whole, is doing what patent law firms fear the most. There’s a wide-ranging patents cull and the most common criterion for culling is abstract claims.

Ancestry (the company), according to this new tweet, “Argues that the 23andMe Patent Asserted Against It is Invalid under Mayo/ Alice: https://dlbjbjzgnk95t.cloudfront.net/1059000/1059443/show_temp%20(25).pdf…”

“Buzzwords like “cloud” don’t magically render algorithms more “concrete”.”It is. We wrote about it before. It probably won’t be long before this whole lawsuit collapses, sending a warning sign to anyone who feels courageous enough to still use software patents in 2018. They can call these anything they want, but the courts eventually assess whether claims are abstract or not. The cloudwashing of software patents, for example, won’t work either. Buzzwords like “cloud” don’t magically render algorithms more “concrete”.

Covering a relatively new case from the District Court for the District of Delaware (where much of the litigation now happens), patent maximalists speak of “§ 101 issues in light of Federal Circuit patent-eligibility decisions since early 2016.”

To quote the entire opening paragraph:

This month, in an infringement case against Defendant Amazon, Judge Stark of the U.S. District Court for the District of Delaware ruled that Plaintiff Kaavo Inc.’s cloud computing claims are patent-ineligible under 35 U.S.C. § 101. In related cases dating back to 2016, the Court ordered that the asserted independent claims be found patent-ineligible, as well as one of the dependent claims. The Court later ordered limited discovery, claim construction, and summary judgement briefing with respect to the eligibility of the remaining dependent claims. Kaavo then moved for reconsideration of the Court’s Order invalidating all of the asserted independent claims and the one dependent claim, whereas Amazon moved for summary judgement. The Court denied both motions without prejudice and instead ordered new briefing to allow for consideration of the § 101 issues in light of Federal Circuit patent-eligibility decisions since early 2016. Renewals of both motions were at issue in this latest decision, in which the Court granted Amazon’s renewed motion for summary judgement of invalidity of the remaining dependent claims and denied Kaavo’s renewed motion to reconsider.

Looking eastwards towards China, the main/only country that still permits software patents, Jacob Schindler wrote about declining winning rates in courts there. To quote:

IP House – a litigation analytics outfit based in Beijing – recently released a Chinese-language study of cases involving semiconductor patents from its database. It has been shared an analysed by Berkeley professor Mark Cohen on his China IPR site. Of note: this sample of cases does not yield the high plaintiff winning rates we are used to seeing in macro-level Chinese patent statistics. First off, the selection of cases is relatively small. IP House turned up 133 first instance civil trials which yielded a judgment containing the word ‘chip’.

So even in China patent litigation is still not a “winning” strategy. Here is another new article about China, this one about abstract patents on GUIs:

In 2014, the number of design patents with GUI in China was more than 5,000, which was 6,638 in 2015, and 9,864 in 2016, a growth rate of up to 48.6%. In 2017, this number basically equaled that in 2016.

Is the bubble in China starting to burst? It is no secret that China just grants far too many low-quality patents (not even patent maximalists are disputing it!), which means that they make a mockery of the very concept of patents.

“Software patents by any other (buzz)name/word…”Earlier this week Managing Intellectual Property wrote about patent filings in China and then did another piece about “blockchain, AI, software patents” in China. Well, those are pretty much the same thing. Software patents by any other (buzz)name/word…

Artificial intelligence (“AI”) is nothing news. They just call more and more old stuff “AI” in an effort to generate public interest/hype. For the third time this week the same site did a piece dedicated to “AI”, in which Ellie Mertens said:

Artificial intelligence will have a big impact on IP prosecution and litigation. Ellie Mertens takes a look at how it will change life for patent practitioners

Artificial intelligence (AI) relates to patents in two main ways. First, advancements in the technology can be protected by patents. Second, AI can be applied to the patent space to reduce inefficiencies.

They’re talking about whether automation (not “AI”) can make some tasks of law firms (e.g. search) more efficient and thus render some workers redundant.

Looking at Europe, there’s this new article by Frances Wilding, David Lewin, James Ward and James Sunderland (Haseltine Lake LLP). It promotes hype and buzzwords as surrogates for software patents at the EPO (“Neural Networks, Machine Learning And Artificial Intelligence”), in effect parroting Battistelli-produced propaganda from earlier this summer:

A recent EPO report talks about “A new era of technological development characterised by digital transformation”, based on “information and communication technologies” (“ICT”) and amounting to a “fourth industrial revolution”. The present review looks at three specific aspects of ICT – neural networks, machine learning and artificial intelligence – which the EPO report groups together as “enabling machine understanding”.

Developments of these aspects may relate to their implementing hardware and software or to any of the extensive range of their possible applications, for example from assisting medical diagnosis to image recognition to natural language understanding to operating wind turbines to playing the game of go. This means that capture of relevant patents and applications using the International Patent Classification (IPC) is challenging, as incidentally illustrated by the EPO report.

This review takes a simple and direct approach: using full texts and keywords “neural network”, “machine learning” and “artificial intelligence”, searches for European patents having patent (B1) publication dates over the 10-year period 2008 to 2017 were carried out.

Notice how many other buzzwords they throw into the mix, including the EPO’s favourites, “ICT” and “fourth industrial revolution”.

Over at the Battistelli-leaning IP Kat (it became the opposite of what it used to be) there’s this new lengthy post about rulings from the EPO. “According to UK case law and the Technical Boards of Appeal (TBA) of the European Patent Office (EPO),” it said, “for a range overlapping with a known range to be novel, the prior art must at least not disclose specific values within the overlapping range. This is the principle that a generic disclosure is not novelty destroying for specific examples covered by the generic.

“The TBA have established further criteria for an overlapping range to be novel. The claimed range must also, for example, have a technical effect. These criteria can seem addressed to the question of inventiveness as opposed to novelty. For this reason, the UK courts have previously been reluctant to adopt the TBA approach. The recent decision by the Court of Appeal has now firmly incorporated part of the EPO’s approach into UK case law.”

As a reminder, the TBA does not enjoy independence anyway. The Boards of Appeal (BoA) are being threatened and the EPC was essentially killed by corrupt Battistelli (shredding it to pieces over the years). Mind the following new comment:

For me, this is a fine example of different jurisdictions helping each other to feel their way forward under the substantive provisions of patentability/novelty of the EPC. I like it, when the jurisprudence of English law, and that of the Boards of Appeal, converges, despite the gulf of difference between them in how they assess evidence of fact.

It seems to me that, because of rivalry between EPC jurisdictions, progress under the EPC is almost Darwinian, survival of the fittest legal logic. Keeping novelty distinct from obviousness is easier said than done but here again, Europe leads the way, thanks to the EPC, Art 54(3).

Where else in the world, outside Europe, is there so much legal certainty, what is patentably novel, and what is not? Why, in the USA, they seem not yet to have got as far as considering elementary quesations about novelty, like whether D1 is to be construed as of its date of publication, or as of the day before the date of the claim.

UPC threatens to change all that. It would broaden patent scope in the whole of Europe in one fell swoop if somehow (miraculously) it became a reality.

Going back to East Asia, there’s this news about standard-essential patents in Japan, alluding to patent lawyers as “IP [sic] lawyers” or “Practitioners”; they’re neither because “IP” is just a misleading term and because they practice nothing, they’re blood-sucking parasites looking to exploit (or prey on and tax) those who practice technology. Those are the types of people who lobby hard for the UPC. Anyway, the article says the following:

IP lawyers in Japan say the standard essential patent guidelines are a good start but will not have much case impact because they are not legally binding

The Japan Patent Office has released guidelines to licensing negotiations involving standard essential patents (SEPs).

Japan has attempted to reduce abuse and aggression with patents. Remember that the JPO and Japan’s patent courts aren’t the same thing. Software patents and other abstract patents aren’t favoured there unless buzzwords are used, e.g. IoT.

Oddly enough, citing just one person (whose blog post IAM reposted) IAM now says this: “Business method patents may be out of favour in the US, but in Japan they are enjoying a comeback, while in China they are surging.”

Well, China suffocates itself with low-quality patents on mere ideas, guaranteeing its industry will sink under lawyers’ weight. As for Japan? It has only gotten tougher. But IAM, being the lobby of patent litigators, focuses on China instead when it says:

When people talk about Chinese innovation, e-commerce is often among the first subjects to come up. Mobile payments and related technologies are ubiquitous, as anyone knows who’s tried to pay cash for anything in Shenzhen or Beijing recently. So it is not much of a surprise that SIPO patent applications covering business methods are swelling. Policy changes implemented last year point toward continued meteoric growth. For each of the past couple of years, the Japan Patent Office has compiled an update on the status of business method patents in Japan and around the IP Five.

IAM calls this “favourable policy environment”; favourable to whom? Trolls? What about those whom they target? If IAM was to speak honestly, it would rename and the acronym IAM would be expanded to “International Attorneys’ Mind-control”.

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