EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

07.10.18

The Demise of East Texan Courts and the Ascent of PTAB, Alice and a SCOTUS-Compliant CAFC May Mean That US Software Patents Are Officially ‘Dead’

Posted in America, Australia, Patents at 5:08 am by Dr. Roy Schestowitz

In the US and in Australia we’re seeing signs that software patents have been left behind, whereas SIPO (China) and the EPO remain stuck in the past

Sam Houston
Sam Houston, going back to away from Houston?

Summary: Companies come to grips with the need to divest and distance themselves from abstract patents; such patents are simply not tolerated by courts anymore (even if patent offices continue granting many such patents for the sake of profit)

THE USPTO is the world’s most influential patent office, so it’s hardly a surprise that we dedicate so much time (and words) to it. We watch it very closely.

“Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren’t getting anywhere near the filings they used to get.”Yesterday we saw this article about patents on cars — surely a physical thing. What about software patents? As we wrote yesterday, some continue to be granted. But do courts accept them? If so, which courts? After TC Heartland we’ve been seeing different district courts getting involved (before the Federal Circuit is even invoked).

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals.”
      –New Judgment
Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren't getting anywhere near the filings they used to get. We mean lawsuit filings in the docket, not patent applications or Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). Here’s yesterday’s example from the Eastern District of Texas, one wherein:

The court denied plaintiff’s motion for summary judgment that its wireless communication patent was not invalid for improper inventorship on the grounds that defendant could not identify a purported inventor.

With some double negation there it may be hard to digest, but ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.

“…ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.”The Australian Financial Review has meanwhile published this article about Rokt’s highly misguided lawsuit. Bruce Buchanan is angry at IP Australia (Australia’s patent office) because Australia correctly rejects software patents (it should!). From the article:

Former Jetstar chief executive and current CEO of fast-growing Australian marketing technology start-up Rokt Bruce Buchanan has hit out at IP Australia for discouraging innovation through its approach to software patents, saying the government agency doesn’t properly understand the tech industry.

Rokt is considered to be one of the country’s next potential tech unicorns, having raised $34.5 million in venture funding last year, but is heading to a court battle with IP Australia over a patent it attempted to lodge to protect a method it has developed to sequence messaging between retailers and shoppers in e-commerce transactions.

So in Australia — like in the US — software patents are hopeless. They’re not even worth pursing. We recently wrote several dozens of articles about court decisions and legislation in Australia. They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).

“They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).”We have meanwhile found this new article from Mass Device. It’s about “Nevro’s patent spat with Boston Scientific” — a spat which seems to involve nothing but software patents. “The inventive concept appears to be based almost exclusively in the software,” the Judge rightly asserted, rejecting the claims. Here’s the relevant part, in the judge’s own words:

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals. Yet, in most of the asserted system claims, there is no mention of the programming function – no mention of the one aspect of the system that is actually inventive,” he wrote.

They are trying to pass off algorithms as “medical” (we gave several examples over the past month alone). I’ve seen these tricks in my profession, I saw that in Patrick Corcoran's last decision 4 years ago and it’s a trick that all patent examiners need to become familiar with. US patent number 10,000,000 uses a similar trick and should therefore be invalidated, based on Alice/Section 101. If all one does is pick some signals/inputs from some “devices” and then processes that using a computer program, this program is then still abstract; the “devices” (which the program is oblivious to) do not add a “physical” element to the patent. In fact, they’re irrelevant to it because they’re not at all part of the supposed “innovation” or “inventive step”.

“If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).”2 patents of ARANZ Medical have just been bragged about [1, 2] in yesterday’s press release, perhaps attempting to conflate programs with “skin” (or “skin surface”).

If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 26/4/2019: Best GNU/Linux Laptops and More

    Links for the day



  2. Research Into Who's Putting DRM Inside Linux

    Back doors may be hard to detect (requires understanding a lot of underlying code), but how about malicious 'features' or antifeatures that are put in the kernel to serve Hollywood at the expense of the kernel's users?



  3. "Dia da Liberdade" in Portugal -- Wilted Carnations in EPOnia

    "Reliable sources report that the discontent continues to simmer among the EPOnian peasantry and that the steam is slowly but inexorably building up inside the pressure cooker," tells us a guest writer



  4. The Quality of Patents is Connected to the Quality of Life of Patent Examiners

    EPO staff is not happy (a new President has not changed things) and the problems associated with low quality of patents become more visible in courtrooms



  5. American Patent Courts Keep Narrowing Patent Scope, No Matter What Few Politicians Are Doing on Behalf of Litigation Firms and Patent Trolls

    Acts of desperation in the patent microcosm of the United States, where judges now overwhelmingly reject software patents at all levels (tribunals, lower courts, higher courts)



  6. Links 25/4/2019: Rancher Labs Releases Slim OS, OpenBSD 6.5 is Ready

    Links for the day



  7. Links 24/4/2019: Chrome 74, QEMU 4.0 Released

    Links for the day



  8. Supreme Court of the UK, Which Habitually Throws Out European Patents, May Overturn Troublesome Unwired Planet v Huawei Decision

    A lot of European Patents are facing growing scrutiny from courts (Team UPC, including Bristows, publicly complains about it this month) and "greenwashing" of the Office won't be enough to paint/frame these patents as "ethical"



  9. German Federal Patent Court Curbs the Patent Maximalism of the EPO, Which Promotes Patents on Nature and/or Maths Every Single Day

    European courts are restraining the EPO, which has been trying to bypass or replace such courts (with the UPC); it certainly seems as though European Patents rapidly lose their legitimacy or much-needed presumption of validity



  10. Any 'Linux' Foundation Needs to Be Managed by Geeks, Not Politicians and PR People

    Linux bureaucracy has put profits way ahead of technical merits and this poses a growing threat or constitutes risk to the direction of the project, not to mention its ownership



  11. Links 23/4/2019: Kodi 'Leia' 18.2 and DeX Everywhere

    Links for the day



  12. Code of Coercion

    Entryism is visible for all to see, but pointing it out is becoming a risky gambit because of the "be nice!" (or "be polite!") crowd, which shields the perpetrators of a slow and gradual corporate takeover



  13. António Campinos Would Not Refer to the EPO's Enlarged Board of Appeal If He Did Not Control the Outcomes

    António Campinos and his ilk aren’t interested in patent quality because his former ‘boss’, who publicly denied there were issues and vainly rejected patent quality concerns as illegitimate, is now controlled by him (reversal of roles) and many new appointees at the top are "yes men" (or women) of Campinos, former colleagues whom he bossed at EUIPO (as expected)



  14. Links 22/4/2019: Linux 5.1 RC6, New Release of Netrunner and End of Scientific Linux

    Links for the day



  15. USPTO and EPO Both Slammed for Abandoning Patent Quality and Violating the Law/Caselaw in Order to Grant Illegitimate Patents on Life/Nature and Mathematics

    Mr. Iancu, the ‘American Battistelli’ (appointed owing to nepotism), mirrors the ‘Battistelli operandi’, which boils down to treating judges like they’re stooges and justices like an ignorable nuisance — all this in the name of litigation profits, which necessitate constant wars over illegitimate patents (it is expensive to prove their illegitimacy)



  16. IRC Proceedings: January 27th, 2019 – March 24th, 2019

    Many IRC logs



  17. IRC Proceedings: December 2nd, 2018 – January 26th, 2019

    Many IRC logs



  18. Links 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  19. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  20. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  21. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  22. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  23. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  24. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  25. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  26. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  27. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  28. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  29. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  30. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line


CoPilotCo

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

CoPilotCo

Recent Posts