08.26.18
Posted in America, Deception, Patents at 11:22 pm by Dr. Roy Schestowitz
Summary: The reemergence of abstract patents using trendy hype waves and buzzwords notwithstanding, there’s no evidence suggesting that courts really fall for these
AS WE last noted yesterday, patent law firms try really hard to convince people and firms to still pursue software patents, based on their misinformation. Sure, major patent offices like the EPO and USPTO may grant such patents, but that does not mean that these patents become (successfully) enforceable. Failed enforcement can cost the plaintiff a fortune (paying the defendant’s legal bills as well). Nowadays, patents can also be invalidated outside the courts, owing to Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) which receive affirmations from the Federal Circuit.
“Some applicants are using buzzwords to patent software, but these patents are still not honoured by courts and Iancu hasn’t changed this.”Hours ago Watchtroll published yet another attack (among many attacks) on PTAB’s credibility; these people are simply afraid of PTAB, knowing that PTAB is voiding thousands of software patents. Hours ago another site of patent maximalists published this “Guest Post” (advertisement/advocacy) from Richard P. Beem, falsely claiming that “[s]oftware patents and applications are making a quiet comeback under Director Andrei Iancu’s leadership of the U.S.”
This is totally false; it’s what some call “fake news” because there’s no evidence backing it. Some applicants are using buzzwords to patent software, but these patents are still not honoured by courts and Iancu hasn’t changed this. He does not control the courts. From Beem’s post:
In the hands of reductionists, the Alice formula for rejection/invalidation was easy to apply. Every invention can be reduced to an abstract idea. Whatever is left can be explained away as “routine” or “conventional.” In the last four years, many software patent applications suffered repeated rejection and the ignoble death of abandonment for lack of will or lack of funds. Even when granted, many software patents were mowed down in inter partes review (IPR) in the Patent Trial and Appeal Board (PTAB).
Yes, this has not actually changed. Iancu cherry-picked some court cases, resulting (at best) in some negligible changes.
We understand that patent law firms are desperate to sell their ‘products’ and ‘services’ (such as lawsuits), but lying to prospective clients only harms their cause. Clients don’t appreciate poor advice. In the remainder of this post we shall present our observations from this past week, showing that the only resurgence — if it can be called that at all — is that of buzzwords.
“PTAB keeps breaking new records every year (e.g. number of filings, even in spite of soon-to-be-repeated fee hikes) and its invalidation rates are very high, some might say extremely high.”
–AnonymousPTAB has not relented. PTAB keeps breaking new records every year (e.g. number of filings, even in spite of soon-to-be-repeated fee hikes) and its invalidation rates are very high, some might say extremely high. Not only for Section 101, either. Earlier this month a technical attorney, Peter Keros, wrote about Sections 102 and 103 (prior art) in relation to a case which was mentioned here before. What’s exceptional about this case is that the Federal Circuit did not agree with PTAB, which is rare. To quote:
The Court disagreed with the PTAB, noting that while Perrodin discloses an embodiment that “happened to result in continuity,” “[n]othing about Perrodin’s algorithm required contiguity.” In re Facebookat *5. Perrodin disclosed another embodiment in which resizing one image element resulted in a grid that lacked images in one or more spaces in the grid, i.e., the image elements were not contiguous in the grid. Perrodin’s algorithm allowed noncontiguous image elements in the grid, so “Perrodin could not have disclosed the ‘rule requiring the image elements to be contiguous’” as recited in claim 1. Id.at *6. The Federal Circuit reversed the PTAB’s decision and remanded for further proceedings.
This case isn’t about Section 101. It’s quite rare and unusual for CAFC judges to disagree with PTAB on Section 101. Berkheimer was the only memorable exception.
A few days ago Suzanne Monyak wrote about another case of patents perishing at PTAB because Nomadix was foolish enough to think that trivial patents have merit. This one was obvious:
The Patent Trial and Appeal Board on Wednesday refused to revive claims from a Canadian hotel entertainment company that two patents owned by network device maker Nomadix Inc. are invalid as obvious.
In a pair of decisions, the PTAB denied Guest-Tek Interactive Entertainment Ltd.’s request to rehear its challenges to Nomadix’s computer network systems patents, after the PTAB granted review of the patents, and then expunged that decision and denied review 10 days later.
On a move which was covered a lot earlier month (PTAB and Ex Parte Jung) Christopher Francis wrote: “This case nonetheless raised an interesting discussion of SuperGuide Corp. v. DirecTv Enters., Inc., 358 F.3d 870 (Fed. Cir. 2004), which interpreted language in the form of “at least one of A and B” to mean at least one of A and at least one of B, as well as the line of subsequent cases discussed in the Jungdecision that distinguish SuperGuide.”
“It’s quite rare and unusual for CAFC judges to disagree with PTAB on Section 101.”This isn’t about Section 101, but it shows PTAB on top of its agenda.
For new examples involving Section 101, see what the patent maximalist Charles Bieneman wrote some days ago. When even the Eastern District of Texas accepts that software patents are bunk and someone like Bieneman accepts this decision it’s pretty clear that hope for such patents is irrational and chances of withstanding a court’s scrutiny (even in Eastern Texas) are slim. The Federal Circuit, upon appeal, agrees:
In a one-line order under its Rule 36, the Federal Circuit has affirmed a decision of Judge Schroeder in the Eastern District of Texas granted a Rule12(b)(6) motion to dismiss claims of patent infringement where claims were directed to “adjusting the number of devices allowed to use a digital product (e.g., software) under a license.” Uniloc, USA, Inc. v. Amazon.com, Inc., No. 2017-2051 (Fed. Cir., Aug. 9, 2018). The district court decision finding claims of U.S. Patent No. 8,566,960 patent-ineligible under the Alice/Mayo test and 35 U.S.C. § 101 is discussed in this post.
Charles Bieneman separately acknowledged that at the Federal Circuit not even a Microsoft patent case can salvage software parents. This time too it’s the Eastern District of Texas backed by the higher court:
The Federal Circuit has affirmed a summary judgment from the Eastern District of Texas holding that claims directed to indexing and accessing information in large databases are patent-ineligible under 35 U.S.C. § 101 and the Alice/Mayo test. BSG Tech LLC v. BuySeasons, Inc.,No. 2017-1980 (Fed. Cir. Aug. 15, 2018) (precedential) (opinion by Judge Hughes, joined by Judges Reyna and Wallach). The patents at issue, U.S. Patent Nos. 6,035,294,6,243,699, and 6,195,652, “have substantially overlapping specifications and are directed to a ‘self-evolving generic index’ for organizing information stored in a database.”
Texan judges too are starting to ‘get’ it. As Karen Kidd put it, the “Federal Circuit affirms Texas judge’s ruling that database patents failed Alice/Mayo test” (Section 101). To quote:
Three indexing software patents allegedly infringed by a Wisconsin-based party supply company are invalid because they only contain abstract ideas, a federal appeals court ruled in an East Texas case earlier this month.
The patents failed both steps in the so-called “Alice/Mayo” test, the industry standard for analyzing inventions under Section 101 of U.S. code, the U.S. Federal Circuit Court of Appeals ruled in a decision handed down Aug. 15.
“If a claimed invention only performs an abstract idea on a generic computer, the invention is directed to an abstract idea at step one,” the appeals court decision said. “…We must, therefore, consider whether the focus of the claims is on a specific asserted improvement in computer capabilities or, instead, on a process that qualifies as an abstract idea for which computers are invoked merely as a tool.”
The Federal Circuit agreed with an earlier ruling by a Judge Robert W. Schroeder III of the Texarkana Division of the Eastern District of Texas, who granted summary judgment in BSG Tech LLC v. BuySeasons Inc. after finding that plaintiffs’ allegations were directed to abstract ideas rather than patentable inventions. The Federal Circuit affirmed the district judge’s ruling, affirming that none of the patent claims were eligible under 35 U.S.C. § 101.
So just because the USPTO grants some software patents doesn’t mean they’ll be honoured by courts, not even in Texas (not anymore).
“In 1990,” an article said some days ago, “software accounted for just 5% of patents filed to the United States Patent and Trademark Office. In 2015, that number reached 40%.”
“So just because the USPTO grants some software patents doesn’t mean they’ll be honoured by courts, not even in Texas (not anymore).”That’s the hallmark of a bubble; and that bubble is nowadays bursting. That’s really bad for the USPTO’s reputation because all these software patents that it granted for a number of decades are now bunk, worthless. The worst it can do it continue to grant these.
We’ve been carefully watching patent news over the past week, with particular focus on software patents. We are still seeing many such patents being granted despite the above trends (in courts). Odessa American, for instance, said that “Princeton Identity Receives Three New Patents for Iris Recognition Technology”. Citizentribune and other sites soon published the same thing [1, 2]. These are just software patents again. Computer vision is just software, maths. I know this because it is my field of research, which I practiced for about a decade. Can the examiners at the USPTO not see this (pun intended)? Computer vision (not processing but analysis) tasks are just algorithms.
“That’s the hallmark of a bubble; and that bubble is nowadays bursting. That’s really bad for the USPTO’s reputation because all these software patents that it granted for a number of decades are now bunk, worthless. The worst it can do it continue to grant these.”At around the same time/day we saw this new article claiming “worldwide patented software system for driver recognition.”
These are software patents and hence bunk patents except perhaps in China. SIPO is just about the only major patent office that formally accepts software patents; Software patents are not allowed in India and the rest of IP5 (China is the only exception). An article by Stuti Sinha (Khurana and Khurana) would have us believe otherwise because, quite frankly as usual, patent law firms lie or at best embellish on such matters. Citing an Amdocs case (35 U.S.C. § 101), Sinha talks about “Surviving The Clouds Of Alice Rejections” (the term “surviving” is a loaded one, insinuating that patent invalidation is the moral equivalent of manslaughter). To quote:
The Patent Statute of the US defines patentable subject matter as ‘any new and useful process, machine, manufacture, or composition of matter’ and any improvements. But patent cannot be granted for laws of nature, natural phenomena or abstract ideas. On June 2014, the US Supreme Court’s ruling in the Alice Corp. v. CLS Bank sent software patents down the rabbit hole. Essentially, the Court ruled that ‘implementing the abstract idea’ on a computer does not make it patentable. To determine whether claims are patent eligible or not, the Supreme Court gave a two-part test- In step 1, the Court has to determine whether the claims are directed to an abstract idea or not; Step two- If the claims are directed to an abstract idea, then the Court determines whether the claims include elements showing an inventive concept that transforms the idea into patent- eligible invention. Within two years of the decision, more than 8400 applications got abandoned while 60,000+ applications got rejected due to the decision. The ambiguity and uncertainty still reigns for both the patent owners and the defendants, making it difficult to navigate the eligibility issue.4
Amidst the rejection of software patents, there have been some decisions where the claims of the patents overcame the 35 U.S.C. § 101 challenge under the Alice Decision, giving us a hope that even this tunnel of uncertainty can reach an end.
Hope for who? Who’s “us”? Patent lawyers? Patent trolls? Besides, these people merely cherry-pick outcomes that favour their agenda while mostly ignoring the rest (the vast majority).
“…these people merely cherry-pick outcomes that favour their agenda while mostly ignoring the rest (the vast majority).”A few days ago Peter Leung (Bloomberg Law) wrote about Genedics’ US patent numbers 8,319,773, 8,477,098, 8,730,165, 8,902,225, 9,110,563, and 9,335,890. Genedics is like a patent troll (last mentioned here back in March). Leung asserted that “Vagueness of 3D Interface Patents May Have Saved Them, For Now…”
Using buzzwords and hype (trendiness) to make abstract patents look as though they’re valid even when they’re not isn’t too novel a trick. Quoting Leung:
A California-based company that makes augmented reality headsets lost its bid to knock out a patent infringement suit related to 3D user interfaces.
The U.S. District Court for the District of Delaware Aug. 21 rejected Meta Co.’s arguments that six patents owned by Genedics LLC, a Massachusetts-based patent licensing company, are ineligible for patent protection because they cover abstract ideas without an inventive concept.
The decision shows some of the difficulties courts face when determining whether a patent covers eligible subject matter.
The Federal Circuit can overturn such decisions, as it often does.
“Iancu isn’t bringing software patents back. Iancu just strives to lower patent quality, thereby reducing confidence in US patents even further and in the process devaluing the whole.”To give some more blatant misuses of hype and buzz, here we have Intuit trying to set up patent traps to ensure its competition cannot develop (without risk of litigation). These are bunk software patents — one of which we mentioned before (Intuit has worried the cryptocurrency community with this patent). Microsoft too wants a monopoly on something evil: ‘Trusted’ Computing in relation to blockchains. As a cryptocurrency-centric site put it:
Two new patents from Microsoft reveal that the tech giant is looking to bolster its blockchain solutions with the use of trusted execution environments (TEEs), according to two filings published by the U.S. Patent and Trademark Office (USPTO) August 9.
Both applications outline how the use of TEEs could further improve security within a consortium blockchain network, which requires that specific nodes are endorsed to act as validator nodes (VNs) on the blockchain.
Those are patent applications on abstract ideas. Clearly! Will examiners see that? Also on the subject of cryptocurrency and blockchains, days ago there was a lot of press coverage such as [1, 2, 3, 4] (dozens more). The Bank of America continues to assemble a patent thicket around its perceived threat/competition:
The U.S.’s second-largest bank, Bank of America (BofA), has applied for another blockchain patent on the development of a secure crypto storage system, according to a patent document published by the U.S. Patent and Trademarks Office (USPTO) August 23.
The patent, entitled “Block Chain Encryption Tags,” describes a system of recording and storing cryptocurrency-related transactions that are handled by enterprises. In short, the invention offers a system of data security for blockchain networks by implementing encryption and linking data units to the blocks of a certain blockchain.
In the patent document filed on April 18, 2018, the North Carolina-based bank introduced a system that includes a device with a processor that first receives a set of data elements, and then acquires an encryption key prior to encrypting the elements within the first block on a blockchain.
Why are patents like these ever being granted? Why does the USPTO openly promote blockchain patents? When will courts finally have the opportunity to tackle such patents and make it clear that adding “blockchains” to software does not make that software any less abstract? Adding words like “cloud”, “AI” and “IoT” to patents is no magic recipe, unless the principal goal is to fool examiners rather than manipulate judges.
Iancu isn’t bringing software patents back. Iancu just strives to lower patent quality, thereby reducing confidence in US patents even further and in the process devaluing the whole. █
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Posted in America, Law, Patents at 9:42 pm by Dr. Roy Schestowitz
Summary: Major reforms reinforced by SCOTUS (e.g. Alice against software patents, TC Heartland against patent trolls, Oil States in favour of mass invalidations on the cheap) are unchanged for the foreseeable future; we take stock of what’s coming next…
THE USPTO is not above the law. In fact, law is very much in the hands of US courts, such as the Federal Circuit or the Supreme Court, SCOTUS. Examiners at the USPTO receive guidelines, based on courts’ rulings — essentially rules by which to assess and judge patents/patent applications. They are not judges in the legal sense, but they judge applications and decide whether to award a patent.
“It is worth noting that none of these cases can impact patent scope, Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), or the Leahy-Smith America Invents Act (AIA).”The difference between judgments and assessments (or a court ruling and examination) is profound; it’s important to distinguish between those two things because patent lawyers certainly conflate whenever it suits them, as we last noted yesterday. We shall revisit this subject again in a few hours.
A few days ago Alex Moss from the EFF (together with the R Street Initiative, which is typical) wrote about Ariosa v Illumina, which is an upcoming SCOTUS case concerning novelty. To quote:
There is room to debate what makes an invention patentable, but one thing should be uncontroversial: patentable inventions should actually be new. That’s what EFF and the R Street Initiative told the Supreme Court this week in an amicus brief urging it to grant certiorari and reverse the Federal Circuit’s decision in Ariosa v. Illumina [PDF]. We explained that the Federal Circuit’s decision is wrong on the law and bad for innovation, access to knowledge, and the patent system.
In Ariosa, the Federal Circuit departed from more than a century of case law to uphold a patent that claimed an “invention” that someone else had already described in a published patent application. According to the court, the description didn’t qualify as material that could invalidate the patent being challenged because it did not appear in the “claims”—the section specifying the legal boundaries of the applicant’s rights – but rather in the section of the patent application describing the nature and operation of the applicant’s work.
This case is not about patent scope (the aspect most cherished by us), but it’s still important. Watchtroll is meanwhile writing about amicus briefs striving to influence other cases dealt with by SCOTUS — something which we doubt will happen for several reasons outlined before.
It is worth noting that none of these cases can impact patent scope, Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), or the Leahy-Smith America Invents Act (AIA). “The Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public,” the EFF said, so it’s mostly about prior art. The latter is about medicine and it says that “the U.S. Supreme Court agreed to hear Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., on appeal from the Federal Circuit. The case will ask the Supreme Court to decide whether an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention under the terms of the Leahy-Smith America Invents Act (AIA).”
So this too deals with prior art. Hatch-Waxman ANDA is nowadays back in the headlines and 6 days ago at Watchtroll Theodore Chiacchio remarked on the Federal Circuit in relation to Hatch-Waxman:
When conducting an obviousness analysis, courts examine the scope and content of the prior art; the differences between the patent claims at issue and the prior art; the level of ordinary skill in the art; and relevant secondary considerations that may shed further light on the inquiry. Graham v. John Deere Co. Of Kansas City, 383 U.S. 1 17-18 (1966). One such so-called secondary consideration is the degree to which one or more commercial embodiments of the claimed invention has enjoyed success in the marketplace. Id. The rationale behind taking into account commercial success is, to the extent the claimed invention has been commercially successful (as reflected, for example, by strong sales and profits, gains in market share, and meeting and exceeding sales projections), the associated market demand would have led to development and marketing of the claimed invention sooner if the subject matter was in fact obvious (or so the thinking goes). Merck & Co., Inc. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1376 (Fed. Cir. 2005).
In order to establish that the commercial success factor supports a non-obviousness finding, the patentee must establish that a connection (or nexus) exists between the novel aspects of the patent claim(s) and the alleged commercial success. Id.; WesternGeco LLC v. ION Geophysical Corp., 889 F.3d 1308, 1330 (Fed. Cir. 2018). In other words, the patentee must show that the novel aspects of the claim(s) are driving sales and not aspects of the claim(s) that were known in the prior art. In re Huai-Hung Kao, 639 F.3d 1057, 1069 (Fed. Cir. 2011); WesternGeco, 889 F.3d at 1330. In cases brought pursuant to the Hatch-Waxman Act, while there are exceptions, it is most common that patent challengers’ arguments focus predominantly or entirely on an alleged lack of nexus given the substantial sales typically enjoyed by the brand-name drug products that are the subject of such litigation. Though it bears noting that the mere fact that a company is pursuing a generic version of a brand-name drug, by itself, does not support a “commercial success” finding. Galderma Labs., Inc. v. Tolmar, Inc., 737 F.3d 737, 740 (Fed. Cir. 2013).
WesternGeco v Ion Geophysical was mentioned by Chiacchio extensively, just as it was mentioned by Managing IP alongside TC Heartland — a case which limits litigation venue/s, especially for domestic (US) companies. The summary says:
Managing IP explores the foreseeable impact of the US Supreme Court’s rulings in WesternGeco v Ion Geophysical and TC Heartland v Kraft on patent damage awards
Thugs and liars from the U.S. Chamber of Commerce will lobby Congress regarding patents. As noted yesterday: “As part of its 2018 Driving Innovation Roadshow, the U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) will host three intellectual property and innovation business roundtables in Minnesota and Illinois.” Members of Congress are specifically being targeted and lobbyists are bashing their own country, based on falsehoods, to push their agenda.
Based on another post from yesterday, the effect of Mayo (SCOTUS) on large pharmaceutical firms’ drugs has attracted further flirtations, e.g.:
Assessing the latest decisions on § 101 and their implications for branded pharmaceuticals;
Those are often critical drugs whose research and development was actually funded by taxpayers’ money. They just want price hikes, exploiting a monopoly that mostly harms poor countries. Does SCOTUS take such considerations into account? What magnitude do ethical factors have? Should competition be blocked? Should generics be banned?
Josh Landau’s (from the technology-centric CCIA) latest post on the bad approach of the ITC, which overzealously embargoes products when it should not and does not have to. Quoting the outline:
The International Trade Commission’s (ITC) basic function is to protect American industry against unfair foreign competition by prohibiting the importation of unfairly produced trade goods. That includes preventing the importation of goods that infringe a valid U.S. patent through what are called “exclusion orders.”
But that function is limited by the second part of its mission—a requirement that the ITC consider the impact of such protection on the American economy, American consumers, and public health and welfare. If ITC action excluding a product from importation would significantly harm the economy, consumers, or health and welfare, the ITC isn’t supposed to issue an exclusion order.
The ITC’s present practice has resulted in an all-or-nothing approach to remedies; either a product is excluded, or it isn’t. But the ITC has the power to tailor its remedies more narrowly.
As always, when it comes to patent law, embargo should be the very last resort if any resort at all. Embargoes benefit nobody except one monopoly. Recall what Microsoft did to TomTom less than a decade ago.
In summary, not much is changing in the US and that is a good thing. Software patents and trolls generally languish. █
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Posted in America, Patents at 8:42 am by Dr. Roy Schestowitz
Hvítserkur Rock Formation – The Troll of North-West Iceland
Summary: A quick weekly look at actions by and against parasites that produce nothing but patent lawsuits, typically with unoriginal software patents that have no footing in today’s patent climate in the United States
THE USPTO has fed the trolls. Yes, it has. By granting millions of patents that are of questionable validity it created an ‘underworld’ or a ‘black market’ of blackmail and extortion. Trolls with such dubious patents go after small businesses that are unable or unwilling to pursue legal defense; if the patent ‘protection’ sums (it’s really just a racket) don’t add up as much as litigation against large firms with deep pockets, then the trolls make up by ‘volume’ (targeting potentially thousands of small businesses with threatening letters).
“Bounties nowadays help invalidate patents of patent trolls (i.e. disarm/neutralise them), as we first noted some months back.”It is important to name and shame the trolls, which are often pseudo-(or poly-)nymous. They keep shifting shapes and names so as to better cover their tracks and hide who’s behind them (subsidising them and sometimes directing them, as Microsoft often does).
Several days ago when we wrote about patent trolls dropping like flies (because of legal challenges to their patents) we could just about predict/foresee Watchtroll writing in defense of these trolls. We don’t want to feed the (Watch)trolls, but let’s just say that it’s pretty revealing who supports them and props up their agenda. It’s often the sites sponsored by the trolls (like IAM) or authors to whom trolls are clients.
Bounties nowadays help invalidate patents of patent trolls (i.e. disarm/neutralise them), as we first noted some months back. Days ago Unified Patents (prolific filer of inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB)) posted not just one but two new examples of this. Someone “received a cash prize of $2000 for his prior art submission for U.S. Patent 6,434,599, owned by Epic IP,” Mr. Jain wrote. Here’s some background:
Unified is pleased to announce the PATROLL crowdsourcing contest winner, Nikhil Bhaskar, who received a cash prize of $2000 for his prior art submission for U.S. Patent 6,434,599, owned by Epic IP, an IP Edge subsidiary and well-known NPE. The ’599 patent, directed towards an online chatting method, has been asserted against numerous companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.
We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.
Another patent troll was tackled by patent prior art and bounties help motivate submissions to that effect. To quote:
Unified is pleased to announce the PATROLL crowdsourcing contest winner, Sachin Srivastava, who received a cash prize of $2000 for his prior art submission for U.S. Patent 8,023,647, owned by Cumberland Systems, LLC, a well-known NPE. The ’647 patent, directed to a password encryption system and method, has been asserted against numerous companies in 24 district court litigations. To help the industry fight bad patents, we have published the winning prior art below.
Josh Landau (from the technology-centric CCIA) has meanwhile written about software patents which enable patent troll (“NPE”) MacroSolve to blackmail restaurants. “NPE Resurrects Canceled Patent To Go After Restaurants—Questionable questionnaire patent revived to go after restaurant mobile apps,” said the accompanying tweet and here’s the gist of it (the patents at hand):
A few years ago, a company called MacroSolve stopped creating products and started creating patent litigation. Its tool was a patent that claimed to cover mobile questionnaires. But after several of their targets decided to fight back, filing an ex parte reexamination request that wound up cancelling all of the claims of its patent, MacroSolve dropped their litigation campaign.
That should have been the end of the story—a poor-quality patent is issued, a company asserts the patent, and the patent gets invalidated. But as of last week, a new patent claiming the same basic idea is being used to go after a wide variety of restaurants under a new company name—Fall Line.
Questionable Patent #1
MacroSolve’s original patent on a “System and method for data management”—the ‘816 patent—claimed to cover taking a questionnaire, turning the questionnaire into tokens, wirelessly sending the tokens to a remote computer, using the tokens to collect a survey response from a user, and sending the results back.
In other words, the same online web survey using HTML forms that I filled out when I registered for college classes, years before MacroSolve “invented” the idea.
Say Goodbye To Questionable Patent #1
MacroSolve took the ‘816 patent and sued over 60 different companies, ranging from airlines to retailers to hotels. They filed their suits in the Eastern District of Texas. Rather than face the expense of litigation, a number of companies took inexpensive licenses, but eventually MacroSolve sued Newegg and Geico. They chose to fight, rather than settle, filing a request for ex parte reexamination.
The USPTO took a look at the ‘816 patent and agreed that it should never have issued—they cancelled all of the claims of the ‘816 patent.
And Hello To Questionable Patent #2
That should have been the end of the story. It wasn’t.
MacroSolve had filed a continuation application, which creates a separate patent application unaffected by the first patent being invalidated. After the ‘816 patent was invalidated, MacroSolve transferred the patents to a new company, Ediche, which continued to try to patent the same basic idea
We have meanwhile found Kluwer Patent Blog covering the recent Facebook case, which was first mentioned here last week (days after the decision from the Federal Circuit). It’s one of the latest defeats for software patents in this high court for patents (highest bar SCOTUS). To quote:
In a challenge to Facebook’s patent application for a method for arranging images contiguously in an array, a prior art reference—a patent application filed by Perrodin that related to placing images on a grid and did not require contiguity in response to resizing or rearranging in all cases—could not have disclosed the limitation of Facebook’s application that required all of the image elements to be contiguous, the U.S. Court of Appeals for the Federal Circuit has ruled.
Last but not least, here’s an oddly-titled report, “Blackberry Patent War Mostly Survives Attack by Facebook, Snap” (very gross inversion of narratives).
Blackberry barely acts like a real company anymore (some call it a “troll”), so Facebook and Snap are defending themselves from the troll’s (Blackberry) attack. It’s not Blackberry “surviving” and being “attacked” but its questionable software patents reassessed. The lawsuit/battle is still in its early stages and here is what has happened thus far:
A federal judge on Tuesday kept intact the bulk of Blackberry’s patent infringement claims against Facebook and Snap, finding it’s too early in the proceedings to say Blackberry’s patents aren’t valid.
Blackberry sued the social media titans in March, claiming it pioneered the “sense of real-time presence” that is now standard in instant messaging applications when it developed the first messaging platform with timestamps.
The Canada-based smartphone maker accused Snap and Facebook of copying patents covering the timestamp tool, message notification icons, push notifications for ads and mapping media activity by users for their services.
Like we said at the time, these are software patents which PTAB would likely deem/consider to be invalid. Patent lawsuits such as these, however, can take a long time (years) and cost millions of dollars irrespective of the outcome. █
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Posted in Deception, Patents at 6:50 am by Dr. Roy Schestowitz
Mainstream media saturated/flooded by sales pitch rather than information
Summary: Even though software patents are still abstract and are therefore disallowed in courts, those who are in the business of patent litigation try hard to convince people/firms to pursue such patents
THE LEGALITY or rather the legitimacy of software patents was once the subject of interest in Europe, even more than a decade before EPO scandals. Can patents be granted which courts would, as a matter of law, repeatedly reject? Can patent offices and patent courts be so out of tune? The USPTO has, in recent years, faced a similar dilemma. What if US patents are granted on algorithms and these patents consistently get knocked out in the courtroom? What would be the effect on confidence in patents at large?
As we have been saying for a number of years, software patents are a waste of time and money; if disguised somehow as non-abstract, examiners might award them. But what kind of “award” are these really if granted patents aren’t admissible in courts? Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) often eliminate these even outside the courts.
As always, the patent ‘industry’ does not like to acknowledge the above because it’s “not good for business” (their business). Don’t ask patent lawyers about software patents. These patent-centric lawyers will lie to anyone about needing a patents arsenal or portfolio (potentially billions to be made in the process of applying, selling and suing). Even if most of these patents are bunk, toothless and worthless, law firms stand to benefit financially.
There’s this new article titled “Ask a Lawyer: How do I patent my tech innovation?”
The aforementioned observations about legitimacy of software patents are set aside and this article by Brett Slaney, who says he “is a patent agent,” misleads on the matter. He is giving the false impression, as usual, that these patents are worth pursuing. Here’s the relevant part:
Patenting software-based methods
For most software patents, particularly those focusing on algorithms, the claimed invention is typically embodied as a method that involves carrying out particular steps (e.g., according to an “algorithm”) to provide an inventive contribution to a technical field.
For example, a mathematical algorithm or function that can reduce the size of a data packet or encrypt that data packet, when recited as a series of steps applied to the data packet to create a compressed or encrypted data packet in a new way, could be patented as a method. Similarly, an algorithm that reduces the computational efforts in traversing a neural network or that creates a more accurate classifier in a machine learning application, could be patented as a method.
Furthermore, any system (i.e. machine) that includes the necessary technical components (transceivers, processors, memory, etc.) to carry out the method, and the computer-executed instructions, that when executed by a computer carry out the method, can also be patented. Far from being excluded from the patent system, here are three types of patent protection Alice and Bob can consider for their tool.
Don’t take lawyers’ advice on patents. They ‘sell’ lawsuits. Even ones to lose (both the plaintiff and the defendant need to hire lawyers). Notice that Alice isn’t being mentioned above, nor is the appalling track record of software patents in the courtroom.
As usual, most patent lawyers lie about software patents in an effort to sell their crappy services. Honesty is not “not good for business” (their business) and here we have a new article from James J. DeCarlo and George Zalepa (Greenberg Traurig) saying that “[t]he last four years have posed significant hurdles to software patents…” (correct)
“…nevertheless they continue to be filed and allowed,” says the summary.
Allowed by who? The office. They’re very rarely allowed in courts. It’s that latter that matters a lot more. █
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Posted in America, Deception, Patents at 1:08 am by Dr. Roy Schestowitz
Mere months after Oil States, which dealt with this matter already
Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) still exploit 35 U.S.C. § 101 to invalidate a lot of abstract patents; in between rants about § 101 itself, proponents of software patents (typically patent lawyers) try to undermine the very mechanism of applying § 101
THE U.S. Patent and Trademark Office (USPTO), taking precedential Federal Circuit (CAFC) rulings into account, already limits patent scope — to the point of patent grants decreasing in number.
“They just want to waste even more of the courts’ time, giving perception of interim legitimacy for their massive, elaborate ‘scam’.”Patent lawyers’ interests, which are purely financial (because they do not create anything), aren’t served by this trend. Some have already attempted dirty tricks by which to avoid patents being rechecked (knowing that a reassessment would likely void patents). Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), for example, are being dodged by misusing (claims of) immunity. A few days ago Kevin E. Noonan revisited the patent ‘scam’ from the St. Regis Mohawk Tribe (its law firm along with Allergan’s). They just want to waste even more of the courts’ time, giving perception of interim legitimacy for their massive, elaborate ‘scam’. Eiren O’Keeffe told me: “This is indeed an elaborate scam, designed to further shield big Pharma from opening up to keep profits high and patients subservient. Ridiculous this is even allowed to progress given the obvious motivation behind these actions.”
Here is what Noonan wrote:
On July 22nd, the Federal Circuit issued its opinion in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc., affirming the decision by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office that denied the Tribe’s motion to terminate Mylan’s inter partes review (IPR) proceedings as being barred by tribal sovereign immunity. Yesterday, the Tribe filed its brief in support of its petition for rehearing en banc.
We are pretty certain that SCOTUS won't deal with this. It would be a total waste of the court’s time.
“They are trying to make it seem as though software patents still have some worth, but that’s patently untrue.”Be sure, however, that patent extremists would do anything they can to advocate even ‘scams’ (like the above). They hate PTAB with a passion, so they’d cling onto anything!
The anti-PTAB site Anticipat, for instance, uses or takes out of context very tiny difference which can be easily explained to say “abstract idea reversal rate continues upward trend for July” (that’s the headline). They are trying to make it seem as though software patents still have some worth, but that’s patently untrue. To quote:
Similar to June, in July the PTAB decided a lot of abstract idea rejections. Of 195 total, 32 were reversed, yielding a pure reversal rate of 16.5%. One decision was partially affirmed, yielding a partial reverse rate of 17%.
The difference is minuscule and we offered an explanation for it earlier this month. In a nutshell, fewer people even bother with their patents; only ‘stronger’ cases are even being tested.
Moving on to other anti-PTAB sites, Watchtroll again (and intentionally) conflates patents with innovation or “invention” (yesterday’s guest article from Trevor Day and Neil Ferraro). One can invent things without patent applications, as many have done for centuries. But let’s put this spin aside.
Over at Watchtroll, Burman York (Bud) Mathis III is again heckling judges of CAFC because of their stance on software patents. He sure has a habit of doing so. To quote: “Judge Jimmie Reyna’s decision in McRO v Bandai is without question one of the best decisions to emerge from the Federal Circuit as it competently addressed key elements of Alice Corp. v. CLS Bank. Judge Kara Stoll and Judge Richard Taranto, who signed onto this landmark opinion, should also be praised with Judge Reyna. The McRO decision, among other things, stands for the idea that software is a process under 35 U. S. C. § 101, and that a claim that does naught more than receive data, process data and “apply” the processed data is patent eligible under § 101. The representative claim of McRO is reproduced below for convenience.”
“Watchtroll produced anti-PTAB pieces even twice on the same day (Monday).”McRO is a relatively old decision (a couple of years old) from back when Watchtroll attacked CAFC judges pretty viciously. The site does not care about patent quality at all; to make matters worse, it actively bashes technology companies and judges who oppose abstract software patents. Does Watchtroll stand for science and technology? Or for litigation? For justice? Or just for profits? Watchtroll has always been this crude. Watchtroll’s anti-PTAB agenda resumes, as does the 35 U.S.C. § 101 bashing for abstract ideas, which meant the very end of software patents (at least in US patent courts). These people once again hope that the Justices — however unlikely this may be — would offer redemption to them. Days ago Patently-O wrote: “Whether undisputed evidence that a patented invention is not unduly preemptive, presented to technically proficient judges of the Board, is relevant to the question whether the invention is patent-eligible under 35 U.S.C. § 101.”
Dennis Crouch said it in relation to Smartflash v. Samsung, which saw a SCOTUS petition filed (“Smartflash Patents at issue here: U.S. Patent Nos. 7,334,720; 7,942,317; 8,033,458; 8,061,598; 8,118,221; 8,336,772; and 8,794,516.”).
Watchtroll’s Steve Brachmann wrote about a patent troll’s petition (Advanced Audio Devices) under “Supreme Court Petition Challenges PTAB’s Constitutionality Under the Takings Clause” (this issue or a similar issue was already challenged or tackled only months ago).
“These patent extremists believe that can somehow abolish IPRs, but they cannot.”Watchtroll produced anti-PTAB pieces even twice on the same day (Monday). Gene Quinn did another one, insinuating that there are “Shell Games” at PTAB. Then again on Wednesday Watchtroll was attacking PTAB (over “Transparency”). These patent extremists believe that can somehow abolish IPRs, but they cannot. Justices stand in their way. They know it. Days earlier Jeremy Doerre added another one of those patent maximalist pieces and Patently-O talked about stupid design patents (SCOTUS should knock these out and probably would had it gotten the chance). Here’s what Patently-O said:
During prosecution, the USPTO (examiner then PTAB) rejected the patent — finding the claim indefinite and not enabled. The particular problem with the drawing is that it is a flat plan view and does not show the three-dimensional structure — what do these lines actually represent in terms of 3D hills and valleys? The figures below is more ordinary for a shoe sole design — showing more than just a plan-view of the base.
[...]
In the end, this means that Maatita’s patent will be much broader in scope because it is not limited to any particular three-dimensional shape, but rather only a to the appearance from a particular perspective.
The decision here is also in-line with the Federal Circuit’s ongoing undermining of the indefiniteness doctrine — what does “reasonable certainty” mean to the court?
Patents on shoe sole designs? What next? Things like the patent below… (assigned to Zach Snyder) █
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