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10.21.18

Lack of Patent Quality Means Lack of Patent Validity and Lack of Legal Certainty

Posted in America, Patents at 6:43 pm by Dr. Roy Schestowitz

Why Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) actually help improve justice, whereas embargoes based on bogus patents are a grave injustice

Not sure about the quality
“Not sure about the quality”

Summary: 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) — like the European Patent Convention (EPC) on the Grant of European Patents — stresses patent quality and scope; will patent offices get things right before it’s too late or too expensive to undo?

THE USPTO is supposed to have narrowed patent scope, owing for the most part to court rulings at higher levels. But has much really changed? At the Office rather than court? Well, the USPTO continues to grant a very high number of patents.

Over at Lexology, Maria Reilly (AWA) wrote the usual nonsense a few days ago, conflating patents with innovation. China grants notorious patents, which can barely be understood by outsiders because of the language. Recent reports suggest that some patents are so bad that renewals fees aren’t even being paid to maintain these.

“Recent reports suggest that some patents are so bad that renewals fees aren’t even being paid to maintain these.”Imagine what would happen if anyone could open a patent office at home. Just certify that office of John or Jane (or give them accreditation from WIPO or whatever). One could write a computer program or a script to just grant a billion computer-generated patents per minute and call that “innovation” (by virtue of these patents’ existence, no matter their merit or lack thereof). I am not against patents and certainly not against these offices; like many examiners I am for patent quality, which is another thing altogether. If we grant a monopoly on any conceivable thing (10 million things in the US and about a million things per year in China) we reward crap, not innovation. Days ago the Pittsburgh Post-Gazette published an article titled “His customers wanted a new sound for their electric guitars, so he patented one” (so we can assume patents on sounds are also a ‘thing’ now).

Windows Central, a pro-Microsoft site, wrote about a new Microsoft patent. There’s plenty of prior art all over this one, but Microsoft relies on nobody actually testing its patents. It’s about flinging/bundling/suing using as many bogus ones as possible in bulk. It’s about quantity, not quality.

That now brings us to underlying laws. Daniel Winston and Bryana McGillycuddy try to give lawyers tricks for manipulating courts into tolerating patents that are obvious, thus bunk. Days ago they wrote this:

Secondary considerations, or objective indicia of nonobviousness, can be a useful tool for patent owners attempting to overcome an obviousness challenge under 35 U.S.C. § 103.

Patent Docs has meanwhile (earlier today) advertised a “Webinar on Obviousness Standard” and Watchtroll complained that the “Supreme Court Denies Cert in Two-Way Media v. Comcast, Refuses Another 101 Case” (so SCOTUS is consistent at the very least regarding Alice).

Watchtroll, writing about Comcast again on the same day, said that “Comcast Invalidates Rovi Patents at PTAB that Previously Secured Limited Exclusion Order at ITC” (as a reminder, ITC just ignores Patent Trial and Appeal Board (PTAB) rulings as though embargo is above the
rule of law and burden of proof/presumption of innocence exists no more).

That case just proves that ITC is out of control. To quote:

In recent weeks the Patent Trial and Appeal Board (PTAB) has issued a series of final written decisions terminating inter partes review (IPR) proceedings where Comcast Cable Communications petitioned patents owned by technology developer Rovi Guides. In each of the final written decisions the PTAB determined that Comcast proved the invalidity of all challenged claims. These latest skirmishes relate to an ongoing patent war between the two companies over Rovi patents on remote scheduling services. A little more than ten months ago Rovi had the upper hand, winning a favorable ruling from the U.S. International Trade Commission (ITC).

Two days prior to this Watchtroll complained about PTAB doing its job when it said: “In early October, the Patent Trial and Appeal Board (PTAB) instituted a series of covered business method (CBM) reviews on patents owned by American stock exchange Nasdaq. The CBM reviews were petitioned by trading platform provider Miami International Holdings (MIAX) and challenge the validity of patents which Nasdaq has asserted against MIAX in U.S. district court.”

James Korenchan, looking for some way to twist PTAB news, wrote in his summary: “PTAB Affirms Patent Eligibility of Claims for Using Dwell Time to Rank Search Results” (technically true, but rather abnormal).

By cherry-picking the exception rather than the norm, e.g. Ex parte Bolivar, the patent maximalists dwell or obsess over something that’s not even a patent but a mere application. This is all they’ve got now. Laughable.

To quote: “The claims had been rejected under 35 U.S.C. § 101 as being directed to an abstract idea. [...] In the briefing, the Appellants attempted to argue that the Examiner did not establish a prima facie case of patent-ineligibility, but the Board disagreed. [...] While welcome, this decision is further evidence of the Board’s inconsistent patent-eligibility determinations. One could imagine a different panel reaching the opposite decision. Still, the bar for patent-eligible improvements to computer technology is often set too high, and this decision is a refreshing entry that lowered the bar.”

These people do anything they can to water down 35 U.S.C. § 101 and/or suppress PTAB’s application of it. Watchtroll has a new article entitled “Writing a Software Patent Application” and another (from yesterday) entitled “Patent Drafting Basics (how to fool examiners).

What these people neglect to say is that even when USPTO grants software patents the courts later reject these so the victory (grant/award) is a Pyrrhic one. Software patents are a losing game now.

How about those VoIP patents brought up by Watchtroll some days ago when it wrote: “On October 1st, the Court of Appeals for the Federal Circuit heard oral arguments in an appeal of a patent infringement case decided in favor of Sprint Communications and against Time Warner Cable. The appeal to arose from a jury verdict in the District of Kansas, which awarded Sprint reasonable royalty damages of $139.8 million for Time Warner’s infringement of patents related to voice over Internet protocol (VoIP) technologies developed by Sprint.”

With software patents on their demise, the technology sector is happy. CCIA’s Josh Landau (representing CCIA members, which are technology companies) wrote the following 3 days ago under the headline “IPR And Alice Appear Responsible For Reduced Patent Litigation Costs”:

The AIPLA data illustrates the change in median cost of various forms of IP litigation over time. The blue line, representing the cost of patent lawsuits with over $25 million at risk, shows a general increase from 2005 to 2013, and then significant declines over the next two years. While IPR became available in 2012, the first impacts of IPR on litigation tactics weren’t seen until the beginning of 2013 when merits decisions in IPRs began to issue. And Alice was handed down in 2014, with a similar lag until district courts began ruling on Alice motions. The data illustrates a slower decline from 2013-2015 after IPR became available, and then a steeper decline in the 2015-2017 period with the impact of both IPR and Alice, consistent with the decline being attributable at least in part to IPR and Alice. (As IPR cost estimates are around $350,000 median cost, the increased cost required to file an IPR is more than overcome by the reductions in litigation cost—to the tune of more than $2 billion.)

However, it’s possible that the litigation cost declines seen in patent litigation could have been due to external factors unrelated to changes in the patent landscape like IPR and Alice. In order to control for this, we can compare costs to other areas of intellectual property law that haven’t seen the same major impacts. Using copyright and trademark litigation with similar amounts at risk as a control, the data illustrates that while there have been cost reductions in the 2015-2017 time frame for all three areas of litigation, the reduction has been most pronounced in patent litigation.

This is a much-needed improvement, which the EPO could learn from; in recent years it viciously attacked its appeal boards (similar to PTAB in Europe) — to the point where they constantly complain about lack of independence.

President of the Austrian Patent Office Mariana Karepova, speaking to Neil Wilkof of IP Kat, has just made it implicitly clear that Austria is “currently contemplating a Patent Office copyright or software register” instead of software patents. To quote the relevant passages:

IP in the software domain. The new industrial revolution as well as the Internet of Things entail a preponderance of software in practically all innovations. However, neither Austria, nor Europe more generally, is presently able to provide patent protection for this aspect of an innovation. This is an extremely unsatisfactory situation. In order to rectify this, we’re currently contemplating a Patent Office copyright or software register, which would provide companies with a robust legal instrument enabling them to enforce their rights with a greater chance of success. At least that’s what we’re discussing right now in Austria.

Unlike the EPO, they do not tolerate software patents in Europe, i.e. pretty much the same as in every other member state. Sadly, the EPO quit caring about patent quality altogether. It’s all about quantity now, even in clear defiance of the EPC.

Data Engine Technologies (DET) Just One Among Many Microsoft-Connected Patent Trolls That Pick on Microsoft’s Biggest Competitors

Posted in GNU/Linux, Google, Microsoft, OIN, OpenOffice, Patents at 5:57 pm by Dr. Roy Schestowitz

Data Engine Technologies (DET) and Acacia Research Corp.

Summary: Lawyers’ articles/blog posts continue to obscure the fact that Data Engine Technologies is merely a satellite or unit (one among many) of patent trolling giant Acacia Research Corp., connected to Microsoft and sporting a long history of lawsuits against GNU/Linux

As covered in an earlier post last weekend, potential ‘satellites’ of Microsoft are still attacking Microsoft’s biggest rivals using software patents.

Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) wrote about a patent troll connected to Microsoft through Acacia, but like many others he overlooked or missed out the Acacia connection, having published his detailed analysis in a couple of places to say:

Data Engine Technologies (DET) filed an infringement suit against Google in the District of Delaware contending infringement of U.S. Patent Nos. 5,590,259, 5,784,545, 6,282,551, and 5,303,146. Google responded with a Rule 12(c) motion arguing that the patents are directed to patent-ineligible subject matter under 35 U.S.C. § 101. The District Court agreed and invalidated the patents. DET appealed.

In Alice Corp. v. CLS Bank Int’l, the Supreme Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under § 101. One must first decide whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If so, then one must further decide whether any element or combination of elements in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exclusion. But generic computer implementation of an otherwise abstract process does not qualify as “significantly more,” nor will elements that are well-understood, routine, and conventional lift the claim over the § 101 hurdle.

[...]

I have to agree with PatentlyO, which viewed as “fairly questionable” the reasoning under which the notebook tab was the linchpin for patent-eligibility. And if you contrast the surviving Tab Patent claims with the claims that were held ineligible, this case certainly seems to equate claim breadth with patent-ineligibility – perhaps confirming that, as many of us suspect, an “abstract idea” is simply a really broad idea. In any event, decisions like this highlight the not-infrequent anomaly that claims can survive novelty and obviousness challenges, but fail on patent-eligibility. And as we saw here, the present court’s analysis, stripped down to what it really was, had a lot to do with obviousness.

Dozens of long paragraphs about this decision from Judges Reyna, Bryson, and Stoll (with opinion by Judge Stoll) and Acacia not mentioned even once? It already sued major GNU/Linux companies several times after it had hired from Microsoft. Now it goes after Google, specifically the biggest rival to Microsoft’s cash cow, Microsoft Office.

This same case was mentioned by Charles Bienema, who also overlooked the connection when he focused on patent scope:

Some claims directed to a computer spreadsheet are patent-eligible, while others are not, said the Federal Circuit in Data Engine Techs. LLC v. Google LLC (Fed. Cir. 2018) (precedential). The District of Delaware had granted a Rule 12 judgment on the pleadings of 35 U.S.C. § 101 invalidity of claims of U.S. Patent Nos. 5,590,259; 5,784,545; 6,282,551; and 5,303,146; the Federal Circuit thus reversed-in-part, affirmed-in-part, and remanded.

The three surviving patents (with the exception of one independent claim which had a patentable dependent claim), the ’259, ’545, and ’551) were dubbed the “Tab Patents.” The Tab Patents purportedly solved the problem that “complex commands” were required by “prior art three-dimensional or multipage electronic spreadsheets.” The patent-eligible solution was “a notebook-tabbed interface” to provide users with easy navigation through three-dimensional spreadsheet. Why? Because the notebook tab “allowed computers, for the first time, to provide rapid access to and processing of information in different spreadsheets, as well as easy navigation in three-dimensional spreadsheets.”

A widely-spread article [1, 2] by Joseph Saphia and Bonnie L. Gaudette (Haug Partners) said this:

On October 9, 2018, the Federal Circuit added to its growing collection of favorable Alice step one rulings1 by reversing portions of a decision from the U.S. District Court for the District of Delaware concerning an invention aimed to streamline the technology of electronic spreadsheets—a technology that has been around for twenty-five years. See Data Engine Technologies LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412 (Fed. Cir. Oct. 10, 2018). The Federal Circuit’s decision may be viewed as a not-so-gentle reminder to patent applicants and drafters alike to continue to draft software patent claims narrowly and with specificity if they wish to survive patent eligibility challenges under 35 U.S.C. § 101 and Alice step one.

The court commenced its opinion with a robust overview of Data Engine’s patents-at-issue: U.S. Patent Nos. 5,590,259; 5,784,545; and 6,282,551 (the “Tab Patents”) and U.S. Patent No. 5,303,146 (the “’146 Patent”). See Data Engine, at *2-12. The Tab Patents are entitled “System and Methods for Improved Spreadsheet Interface With User-Familiar Objects.” Id. at *1-2. In its detailed review of the Tab Patents, the court noted that they claim “systems and methods for making complex electronic spreadsheets more accessible by providing familiar, user-friendly interface objects—specifically, notebook tabs—to navigate through spreadsheets while circumventing the arduous process of searching for, memorizing, and entering complex commands.” Id. at *2. In essence, the Tab Patents aim to overcome some of the challenges users encountered when navigating electronic spreadsheets due to complex menu systems that “diminished the utility and ease of use of this technology.” Id. at *3. In an attempt to offer a solution to the challenges of prior art multipage electronic spreadsheets, the Tab Patents are directed to “implementing a notebook-tabbed interface, which allows users to easily navigate through three-dimensional electronic spreadsheets” and “conveniently flip through several pages of notebook to rapidly locate information of interest.” Id. at *4-5. The ’146 Patent is entitled, “System and Methods for Improved Scenario Management in an Electronic Spreadsheet” and is directed to tools that permit “electronic spreadsheet users to track their changes” automatically, as opposed to manually, when testing a multitude of modeling scenarios. Id. at *10-11.

Yes, patents on user interfaces are still being tolerated in the US, at least in the Federal Circuit. Charles Bieneman classifies these as “Software Patents” and recalls a related albeit older case on which he says: “Claims directed to an “information management and real time synchronous communications system for configuring and transmitting hospitality menus” were held patent-ineligible under 35 U.S.C. § 101 and the Alice abstract idea test in Ameranth, Inc. v. Pizza Hut, Inc., No. 3-11-cv-01810 (S.D. Cal. Sept 25, 2018). The court thus granted the defendants’ motion for summary judgment that U.S. Patent No. 8,146,077 is unpatentable.”

“This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing.”“The patent owner,” he later added, “tried to rely on two Federal Circuit decisions, Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (2018), and Visual Memory LLC v. NVIDIA Corp. (2017), as well as a recent district court case. But these cases were distinguishable…”

We covered this before. The above comes from a blog that advocates software patents. Generally speaking, software patents are the joke of all jokes. Not innovation at all. But lobbying from patent law firms has made the unthinkable reality. Bieneman accepted defeat when he wrote about another more neglected case (because it’s a district court): “Agreeing that patent claims “are directed to the abstract idea of facilitating cross-marketing relationships and fail to add any inventive concept” under 35 U.S.C. § 101 and the Alice/Mayo abstract test, Delaware’s Judge Stark granted a Rule 12(b)(6) motion to dismiss a complaint alleging infringement of claims of U.S. Patent No. 8,768,760. DiStefano Patent Trust III, LLC v. LinkedIn Corp., C.A. No. 17-1798-LPS-CJB (D. Del. Sept. 28, 2018).”

“OIN cannot do anything about such a racket.”Why was such a ridiculous patent granted in the first place? The headline should be a “duh” moment: “Linking Web Pages to Each Other Not Patent-Eligible” (based on prior art too, not just obviousness and abstractness).

As the above (main) story shows, however, merely adding tabs to spreadsheets is still considered innovative. The high court considers or determines this to be patent-eligible. This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing. Will the troll go after them too while Microsoft claims to have reached a “truce” and looks the other way? The only known ‘cure’ is buying Microsoft ‘protection’ in the form of “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] — a racket that extends to trolls Microsoft can control. OIN cannot do anything about such a racket.

Alice/Mayo and Hatch-Influenced US Patent Office

Posted in America, Patents at 5:11 pm by Dr. Roy Schestowitz

Older: Orrin Hatch, Sponsored the Most by the Pharmaceutical Industry, Tries to Make Its Patents Immune From Scrutiny (PTAB)

Trump and Hatch

Summary: The U.S. Patent and Trademark Office (USPTO) seems to be serving those who pay the most to define the scope or limits of patenting; this means that even nature and life are being ‘privatised’ (or turned into someone’s “intellectual” property)

In the wake of Mayo the USPTO is supposed to limit patents on life. SCOTUS wasn’t ambiguous about it and then there’s also Association for Molecular Pathology v. Myriad Genetics, Inc.

In politics in the US money buys legislation, laws, outcomes of proposed bills, and even results in elections. It also helps put ‘in charge’ (Congress, departments of government etc.) the ‘right’ people, hence the image above. Those two people seem to have ‘earned’ their job by working with the 'right' companies. So here we are in 2018 and life/nature can still be treated like an "invention". Ridiculous. Long title of the legislation (Hatch-Waxman) is: “An Act to amend the Federal Food, Drug, and Cosmetic Act to revise the procedures for new drug applications, to amend title 35, United States Code, to authorize the extension of the patents for certain regulated products, and for other purposes.” As Wikipedia points out: “The FDA has been slow to adopt regulations for the introduction of generic versions of biopharmaceutical drugs (known as “biosimilars”) because the manufacturing of biopharmaceuticals is so much more complicated than small molecule drugs. Innovator companies have emphasized those complications while generic companies, insurance companies, and consumers have advocated for the FDA to finalize their process.”

Notice Patent Docs with its latest “PTAB Life Sciences Report” by Bryan Helwig (IAM has similar reports). “Life Sciences” is one of those terms that in general ascribe to discoveries that typically exist in nature (already) the same attributes of actual inventions — i.e. things which constitute new ideas.

Patent Docs earlier today advertised “European Biotech Patent Law Webinar”. Authored/posted by Pei Wu today was this piece about patenting “biotech”. Guess where it was published. Watchtroll.

“This month we highlight the possibility that the Supreme Court will consider the standard for adequacy of written description and a Federal Circuit exposition on the relationship between “blocking patents” and objective indicia of nonobviousness,” Morrison & Foerster LLP wrote in a new article that also covers Hatch-Waxman (yes. the Hatch above). Takanori Abe (ABE & Partners) wrote about “biosimilar patent litigation” in Japan and referring to 35 U.S.C. § 102 we have a dispute over prior art; belatedly, as is usual for this blog, Mike McCandlish wrote about the printed publication conundrum in relation to prior art or more specifically Section 102 — a subject recently revisited by the Federal Circuit:

The Federal Circuit held that there was an insufficient record to qualify the reference “IsoMed Constant-Flow Infusion System (“IsoMed”) as publicly accessible and therefore a printed publication under 35 U.S.C §102(b), and remanded for additional fact finding in C.R. Bard, Inc., Bard Peripheral Vascular, Inc., v. Angiodynamics, Incorporated(Fed. Cir. Sept. 28, 2018.)

In all of these cases the prior art is sometimes nature itself. But that doesn’t matter, does it? All that matters is that a lot of patents get granted, giving the illusion of innovation soaring. Under the “Life Sciences” umbrella we nowadays see lots of patents granted on genetics, i.e. the ‘code’ of life. Looking at Hatch’s face (above), we certainly can tell how excited he is by this prospect. Enthusiastic as much as an emotionless zombie. Happy Halloween.

Funded by the Public to Prey on the Public: The Absurdity of Patent Sales and ‘Enforcement’ by Government

Posted in America, Apple, Law, Patents at 4:34 pm by Dr. Roy Schestowitz

Also seeNASA: Funded by the Public to Feed Patent Trolls

Texas Gov House at Austin

Summary: Government or US Government-funded entities are looking to tax private companies using patents that were actually funded by the public; in practice this helps private firms or insiders (individuals) personally gain from something that the public subsidised and should thus be in the public domain

EVIL patents are patents that harm the very people who sponsor them. We have written a great deal about such patents (e.g. the above-mentioned from NASA) and here they go again: “Even though only 130 of the thousands of technologies spun-off by NASA are included in the website, the breadth of technological development represented by even that small number is pretty remarkable. But how exactly does space exploration research result in the commercialization of items like more nutritious baby formula or precision coffee makers?”

It comes at a cost however. They make licensing agreements, i.e. ask for payments. The common euphemisms are “Technology Transfer” or “Licensing Agreements”, as today’s advertisement of a webiner put it. It’s grotesque because those who were funded by taxpayers take it all private and look to gain privately from patents (funded by the public). Consider the recent example from Wisconsin. It’s about Apple’s dispute with the proxy from Wisconsin. It is academics operating through the Wisconsin Alumni Research Foundation for the purpose of ‘monetising’ patents, never mind who sponsored this work, even if it’s the public, in which case seeking to pursue a private monopoly is quite dubious a practice from an ethical point of view. Mark St. Amour put it as follows: “In Wisconsin Alumni Research Foundation v. Apple, No. 2017-2265 (Fed. Cir. Sept. 20, 2018), the Federal Circuit construed a pair of claim terms under their plain and ordinary meaning in reversing summary judgment that Apple was not entitled to a pre-trial finding of non-infringement of U.S. Patent 5,781,752, while affirming a summary judgment that the ‘752 patent was not anticipated.”

They believe that because Apple is a company with plenty of cash in store it should pay for patents that were likely sponsored by taxpayers. Why? Does that even make sense? Will the Federal Circuit take this into account?

Lockpath Patents Demonstrate That the US Patent Office — Unlike US Courts — Keeps Ignoring 35 U.S.C. § 101/Alice

Posted in America, Law, Patents at 3:29 pm by Dr. Roy Schestowitz

Hello? Anybody there to pay attention to the law?

Still ignoring the phone

Summary: 35 U.S.C. § 101 isn’t being entirely followed by examiners of the U.S. Patent and Trademark Office (USPTO); in fact, evidence suggests that mathematics are still becoming monopolies of private firms — something which should never happen

THE corruption at the EPO may mean that examiners who reject software patents in Europe can nowadays lose their job. But are there excuses for US examiners, who have clear rules by which to reject software patents in the US? There have, over the years, been formal complaints about these rules not being followed (we covered some examples).

The US litigation ‘industry’ (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this latest case) keeps moaning about software patents and other dumb/abstract things not being patent-eligible (or, if granted, not being valid anymore). They mention “inventions “against public morality” or “against Sharia law”.” They explore possibilities outside the US.

To quote:

As evidenced recently in the United States, it may be difficult to tell what categories of inventions are eligible for patent protection in foreign jurisdictions. To further complicate issues, standards of eligible subject matter can differ from country to country. What follows is a survey of patent eligible subject matter in various jurisdictions.

A sampling of subject matter eligibility outside of the US is provided below. Certain categories of subject matter are excluded as patent ineligible in all countries discussed, such as scientific discoveries, purely intellectual activities, laws of nature, and mathematical equations; other categories are excluded as culture-specific, such as inventions “against public morality” or “against Sharia law”. Microorganisms can be claimed in all of the jurisdictions included here, and are therefore excluded, as are certain categories of subject matter mentioned in only one foreign jurisdiction, such as the explicit exclusion of methods of horticulture and agriculture in India and personal skills in Japan.

No matter what the highest court (SCOTUS) said, examiners in the US apparently grant patents quite carelessly. Lockpath has just mentioned a new patent on “Formula Engine, which allows customers to easily create risk calculations” (this is clearly abstract, maths, or software patents i.e. bunk). So the USPTO failed to do its job again and to quote the press release:

Lockpath, a leading provider of integrated risk management solutions, today announced the receipt of two newly issued patents related to its Keylight Platform. The patents were granted for the Keylight Formula Engine, which allows customers to easily create risk calculations, and the Dynamic Content Framework, Keylight’s scalable and flexible content engine.

Was this granted just to make money?

The Eastern District of Texas and Its Patent Trolls Affinity Not a Solved Issue

Posted in America, Apple, Patents at 2:42 pm by Dr. Roy Schestowitz

A computer chained

Summary: The American patent system continues to distribute monopolies on algorithms and some of these cause litigation to reach courts that are notorious for intolerance of 35 U.S.C. § 101, resulting in unnecessary payments to lawyers and patent trolls

IN THE WAKE of TC Heartland (last summer) it was hoped that the courts in the Eastern District of Texas would see little or no more patent lawsuit filings. The effect of TC Heartland was profound, but it didn’t go far enough. When will judges follow the law down there? There are signs that they begrudgingly and only belatedly do so.

Meanwhile, there are new Dallas (the east of Texas) patents granted by the U.S. Patent and Trademark Office (USPTO). Some of these seem to have been wrongly granted based on 35 U.S.C. § 101. Those will possibly lead to frivolous lawsuits or at least shakedowns.

The patent maximalist Matthew Bultman says that the Federal Circuit insists Apple should be on trial in a court that advertises being lax to plaintiffs like patent trolls with abstract patents. Never mind if Apple isn’t based in Texas. In Bultman’s words (that aren’t behind paywall):

The Federal Circuit on Tuesday allowed a lawsuit against Apple Inc. over patents covering a communication system to move forward in the Eastern District of Texas…

Based on the above, it’s likely a software patent and the action may have been initiated by a troll (hard to tell because of the paywall).

Speaking of trolls, they nowadays issue press releases in prominent sites; they try to warp the narrative. The spammy Associated Press (press releases as a section) writes nonsense for a patent troll Avanci (we wrote about it before) or rather publishes lies for it, as did other sites. Lies like these: “The Avanci platform simplifies the way companies share technology by licensing intellectual property from many different patent holders in a single transaction. Avanci’s licenses are offered to all competitors in an industry at the same fair, flat rates that will not increase over the term of the license no matter how many patent owners join the platform.”

Avanci is a patent troll that pretends to be “licensing”; we already wrote about its origins. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) would likely not shield against this troll because the number of patents at hand is too large to handle exhaustively by IPRs.

To properly tackle the issue we probably ought to push harder for all examiners — like most courts and judges — to respect and uphold 35 U.S.C. § 101. A lot of software patents are still being granted and some form the basis of lawsuits, as we shall explain in later posts (later tonight).

More ‘Blockchain’ Nonsense in Pursuit of Bogus, Nonsensical Software Patents

Posted in IBM, Microsoft, Patents at 12:36 pm by Dr. Roy Schestowitz

The chaining of software developers

Man chained

Summary: The U.S. Patent and Trademark Office (USPTO) is still granting abstract software patents because words like “blockchain” get mentioned in the applications; companies that do this hope to shield themselves from disruptive technology and possibly facilitate future patent blackmail

BOTH the EPO and USPTO have piggybacked the blockchain hype; they are chaining together a bunch of buzzwords like “AI” and “4IR” to come up with excuses to grant software patents in Europe and even in the US, in defiance of 35 U.S.C. § 101. We wrote a couple of articles about this very recently [1, 2] and Mastercard's role was last mentioned earlier this year (also in prior years).

Big banks are entrapping the market with bogus, abstract software patents whose likely purpose is to fence away disruptive technology, by means of lawsuits or threats thereof. A few days ago Stephen O’Neal wrote:

On October 9, American financial services giant Mastercard was granted a patent for a method to partition a blockchain so that it can store multiple transaction types and formats. The filing published by the U.S. Patent and Trademark Office (USPTO) reveals the details of the new system — not the first of the kind for Mastercard.

Why are such abstract patents being granted? More of that same hype we wrote about before?

Not only big banks are doing this; large technology companies have been doing the same thing, notably IBM. There was this article about it (crossposted in other sites) which spoke about it as follows:

The adoption of blockchain technology is slowly taking shape across a multitude of industries. At the forefront of the amalgamation of payment systems and logistics is US tech giant International Business Machines Corporation (IBM), which has established itself as a leader in terms of blockchain-based products and offerings.

The latest developments aim at the logistics sector – but IBM has been keen on blockchain for over 5 years that reveals a slow and steady approach to the adoption of enterprise-scale blockchain solutions.

If you have an Internet company or merely a Web site, then just remember that IBM has a long and well-documented history of blackmailing such companies/sites under the false pretense of ‘invention’ (rather, having a large pile of bogus software patents). They just wait until the target has enough money. It’s an ambush. What we have here is patent bully and software patents lobbyist carrying on patenting software, knowing these bogus software patents won’t be tested in court (they can be used for blackmail instead).

As another new article makes clear, IBM isn’t alone (Microsoft is in this too, as usual). Proprietary software giants strap patent barbwire — even if those are bunk software patents — to entrap and demolish rivals. These are like submarine patents.

“Big hitters like IBM, Microsoft, Oracle and others,” said this article a few days ago, “have stepped up technology investments in the past 18 months, largely through R&D labs and participation in open source software bodies including the Linux Foundation’s Hyperledger project…”

Remember that the Linux Foundation is not against software patents; it’s into the OIN approach. The problem, however, is that it doesn’t guarantee peace or cooperation, except perhaps among sponsors of the Linux Foundation (i.e. very large companies with seats on the Board).

A Warning About MPEG-G, the Latest Software Patents Trap That Threatens Innovation Everywhere

Posted in Patents at 11:59 am by Dr. Roy Schestowitz

Last year: Patent Troll MPEG-LA Expands From Software Patents to Patents on Life While USPTO is Virtually Headless

MPEG-G

Summary: Combining patents on software and on life, MPEG-G assembles a malicious pool with malignant ramifications for bioinformatics

“You might find it interesting,” a reader told us some days ago, pointing to this article and corresponding comments about MPEG-G, which relates to what we’ve been writing about the MPEG cartel.

We didn’t see this before, at least not under this name, which helps distance the perpetrators from the legacy of trolling and blackmail (amassing pools of USPTO-granted patents). Here are the core arguments against it:

I ended the last blog with the statement “history is resplendent with battles where a good PR campaign won the day”. I truly wish this wasn’t a battle. I engaged with MPEG-G from the moment I heard about it, submitting ideas to improve it, despite being instrumental in recent CRAM improvements. I had hopes of a better format.

I bowed out after a while, making rather weak excuses about work loads. However the honest reason I disengaged was due to the discovery of patent applications by people working on the format. I wanted nothing to do with helping others making profits, at the expense of the bioinformatics community. I regret now that I helped make the format that little bit better. I am guilty of being hopelessly naive.

I am not against commercialisation of software. I use plenty of it daily. Indeed I once worked on software that was sold on a semi-commercial basis, from which I personally benefited.

A commercial file format however is a different beast entirely. It touches everything that interacts with those files. Programs that read and write the format need to be licensed, adding a burden to software developers

I’m also not against patents, when applied appropriately. I can even see potential benefits to software patents, just, although the 25 year expiry is far too long in computing. 25 years ago the Intel Pentium had just come out, but I was still using an 8MB Intel 486 PC. It seems ludicrous to think something invented back then would only just be opening up for others to use without having to pay royalties. Holding a patent for that long in such a fast moving field is extreme – 5 to 10 years max seems more appropriate.

Read on and see the comments.

“The “benevolent monopoly” model obviously has advantages for open source–because the company bankrolls R&D by monetizing something else,” it says, “it can afford to release the results of the research for everyone to use. But it’s not sustainable without the sponsor (and we know this, because open source has been around for a long time, and there is little precedent for a high-performance video codec designed by an independent group of open source developers).”

“Much worse,” told us the reader, “are [patents] for machine learning – if granted, they will paralyze this field…” [1, 2, 3]

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