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08.08.18

Patent Maximalists — Not Reformers — Are the Biggest Threat to the Viability of the Patent System and Innovation

Posted in America, Patents at 4:20 pm by Dr. Roy Schestowitz

Rants about PTAB, Alice and so on merely make things worse. Limits exist for a reason and these limits need to be honoured.

Low maximum speed

Summary: Those who strive to infinitely expand patent scope are rendering the patent system obsolete and completely losing sight of the very purpose of the patent system, whose sanity US courts and lawmakers gradually restore (one ruling and one bill at a time)

THE USPTO will have granted fewer patents than before by year’s end. Recent numbers (a subset of the total) reaffirm rumours we’ve heard about that. That’s not bad news. To patent law firms that may be bad, but for society at large this may simply mean that patent quality is improving, unlike at the EPO, as we've just noted.

“Not every patent represents an invention; some are more like a rendition.”Not everything needs to be patented. Not every patent represents an invention; some are more like a rendition. Like music. It is not hard to understand that design patents are rubbish and the Supreme Court (SCOTUS) ought to reassess their necessity, or the lack thereof. We continue to be amazed at the sorts of design patents that we find out there; here’s a new example from Apple. Why are these not being covered solely by trademarks and copyrights, which already cover software as well (the latter does)? I suppose hardware patents (like these new ones) are OK and I’ve no real issue with those assuming prior art search was properly done and the innovative steps are sufficiently large.

“Watchtroll has created a caricature of the patent system. Judges are being mocked, courts that simply apply the law are being dubbed “anti-patent” and technologists themselves (or those who support them) are constantly derided.”Patent maximalism is a threat to the patent system because it merely serves to harm the legitimacy of this system. This means that whenever courts push back against patent maximalists they actually guard the patent system. PTAB, for instance, is still being supported by the Federal Circuit (as usual). Earlier today Patent Docs wrote about Otonomy, Inc. v Auris Medical, AG. To quote the gist of it all: “The Federal Circuit also affirmed the Board’s determination that certain claims of Otonomy Inc.’s application are not anticipated by the publication of Auris Medical’s International application. [...] The Federal Circuit therefore affirmed the Board’s determination that the WO ’949 does not anticipate Otonomy claim 38.”

Watchtroll has created a caricature of the patent system. Judges are being mocked, courts that simply apply the law are being dubbed “anti-patent” and technologists themselves (or those who support them) are constantly derided. Here comes Watchtroll ‘chum’ Steve Brachmann (simply a writer) mocking PTAB again. Watchtroll did it again today and yesterday it was Burman York (Bud) Mathis III with a rant about PTAB, Alice and so on. To quote a portion:

For those patent professionals and inventors who are not yet convinced that the exceptions to § 101 under Alice/Mayo are not presently swallowing the rule, I invite you to read the district court decision of American Axle v. Neapco. As a spoiler, I’ll tell you that the district court judge addressed the inevitable pesky preemption issue by citing Ariosa. While the Federal Circuit has yet to decide the case, which involves an apparently novel and non-obvious way to dampen engine vibrations, I am not hopeful given the Federal Circuit’s love for Ariosa, and the fact that internal combustion engines are ubiquitous and really, really old things.

Well, § 101 is something to be celebrated, not opposed. They protest what simply doesn’t serve their financial agenda; never mind if their business is nontechnical. So does this blog called “patents4software”, which has just published “Is Machine Learning Technology Going to be Collateral Damage under the Abstract Idea Exception?” [via Janal Kalis, a.k.a. Patent Buddy]

Of course. These are just software patents (glorified with buzz/hype) and they are thus invalid; they’re false ‘trophies’. They don’t represent inventions. I say this as someone who spent years working in the area of Machine Learning (I wrote detailed reports on it even a decade and a half ago). The blog says: “My colleague Janal Kalis identified 21 PTAB decisions directed to machine learning patent applications published since 4/1/2018. According to Janal, seventeen of the patent applications considered had been rejected by examiners with 101. The PTAB affirmed examiners’ 101 rejections in 16 cases and reversed in only 1 Case.”

“…§ 101 is something to be celebrated, not opposed.”We mentioned this a few days ago.

Either way, the improvement in patent quality is something that society at large should praise, not condemn. We recently wrote about how patent maximalism reduced choice in the market (Arista’s loss). That’s still in the news today and yesterday [1, 2, 3]. Cliff Saran wrote:

Arista Networks has settled its ongoing patent dispute with Cisco, making a payment of $400m to its rival.

Arista got into a legal spate over 14 Cisco patent infringements in December 2014. While Cisco claimed patent infringement, Arista argued that Cisco went after it because it was gaining share in the lucrative datacentre market.

Cisco — like IBM — makes technical people better aware of its real intentions, which are to guard a monopoly and profit from patents rather than sales. This is what patent maximalism generally leads to. It’s bad for society; it’s a fat ‘thicket’ (about 100,000 patents for some companies) which increases barrier to entry.

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