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10.30.18

Donald Trump’s Choice of Leadership for the USPTO Means That Invalid Patents Continue to be Granted Only for Law Firms to Profit

Posted in America, Law, Patents at 8:30 am by Dr. Roy Schestowitz

Legal departments versus justice and scientific advancement, competition

“It’s certainly a lot more likely that Microsoft violates patents than Linux does [...] Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really ‘fundamental’ patents [...] The fundamental stuff was done about half a century ago and has long, long since lost any patent protection.”

Linus Torvalds, 2007

Summary: Bogus patents (or ‘fake patents’ as today’s President might put it) are being awarded in spite of 35 U.S.C. § 101, almost as though SCOTUS does not exist or does not count; this means that a lot of lawsuits end up nowhere, leaving only a long trail of legal bills

OVER the weekend we wrote that in Australia the large patent law firms (through a front group of theirs) tried to bring back software patents because they assume that litigation and feuds are not only their source of income but something to be imposed on everyone else (taxing society and industry by legal bills). We received some heckling for that, courtesy of the patent trolls’ lobby, so that might mean that we touched a sensitive spot (they didn’t refute anything we had said). There’s now a new article about it (behind a paywall of course) from an Australian site called Lawyerly.

No matter how one looks at it, it’s impossible for law firms to deny that they want more lawsuits; they want to be involved in those because it’s “big money” (to them at least, no matter the outcome of these lawsuits).

“We have reached a sad situation where the Director of the world’s most influential patent office, the U.S. Patent and Trademark Office, simply diverges from the decisions made by courts and instead takes instructions from radicals like IPO, i.e. companies like IBM.”We are saddened to see that the USPTO’s new Director, Mr. Iancu, insists on granting fake software patents that have no legal worth or use. Maybe because the USPTO has been taken over by the litigation ‘industry’? This Director had worked for Trump (his firm had done work for the President), whereupon he was thrust into the very top of the patent office. Somehow.

Earlier this week Marks & Clerk’s Julian Asquith and Tobias Eriksson wrote that this “USPTO Director suggests new test for software patents” and remember that Marks & Clerk has long been very vocal in its support for software patents, even in Europe. It said that it had become easier to get software patents from the EPO than from the USPTO.

It’s concerning that Director Iancu takes advice from and ‘works’ for IPO radicals, a front group funded by the likes of IBM to push for software patents in the US (he should follow the law and courts, not lobbyists), but here’s what Asquith and Eriksson report:

The United States Patent and Trademark Office (USPTO) director, Andrei Iancu, recently gave a talk at the IPO’s annual meeting, and he had some…

The rest is behind a paywall. But what’s important here is the headline and his participation in this event.

Weintraub Tobin meanwhile writes (on October 29th) that “Ordering Pizza Is Not Patentable!” (yes, exclamation mark in the headline) and he refers to the USPTO. A better headline and summary would have clarified (no need for exclamation marks) that courts assure the US patent office that it keeps granting bogus, fake, worthless software patents that have no legitimacy in actual legal processes. To quote Weintraub Tobin:

Some things are not patentable: laws of nature, natural phenomena, and abstract ideas. The Supreme Court has long held that inventions falling within these categories are not patentable; they are patent-ineligible subject matter. In 2014, the Supreme Court relied on this principle in deciding Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347. In that case, the Court invalidated patent for a computerized system for mitigating risks in financial transactions. The Court also established a test for determining patent-eligible subject matter. Since then, Alice has been used to invalidate many patents, particularly software patents. Now it has been used to invalidate a patent for ordering pizza.

Ameranth owned four patents for “an information management system” for transmitting menus from a master database to handheld devices. In 2011, Ameranth filed suit in the Southern District of California against several defendants, including Pizza Hut, Domino’s Pizza, and others, for infringement of the four patents. The defendants challenged the validity of three of the patents in the Patent Trial and Appeal Board (PTAB). The PTAB invalidated many of the claims of the three patents, and, in a subsequent appeal, the Federal Circuit invalidated the remaining claims. All three patents were held invalid on the grounds that they were directed to patent-ineligible subject matter because the invention was an abstract idea.

We have reached a sad situation where the Director of the world’s most influential patent office, the U.S. Patent and Trademark Office, simply diverges from the decisions made by courts and instead takes instructions from radicals like IPO, i.e. companies like IBM.

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