11.04.18

Rather Than Accept That 35 U.S.C. § 101 Has Put an End to Software Patents the Large Law Firms Insist on Working Around the Law

Posted in Law, Patents at 8:39 am by Dr. Roy Schestowitz

Summary: US patent courts/judges quite consistently decline/refuse to accept software patents; so why are patent law firms still advising clients to pursue such patents — or worse — initiate litigation with such patents?

IN A NEW article which uses the terms “software patents” and “patent troll” (“Court irons out disagreements over patents related to Rodeway Inn’s rewards system”) we’re just seeing more of the same, namely a judge who throws out bogus (fake) software patents (or cases associated with these), quite frankly as usual. Why does the USPTO grant these patents in the first place? This will be the subject of a later (separate) post. “A federal court has thrown out a dispute over software patents related to hotel loyalty reward points,” the article says, “dismissing both a lawsuit against an alleged patent troll as well as a countersuit over deceptive trade practices.”

The US patent office continues to grant fake software patents that involve nothing physical, usually mere concepts. Speaking of the hospitality sector, one company called Carnival Corporation has just boasted about such patents in a press release [1, 2] soon followed by very shallow puff pieces [1, 2]; it’s a lot of Bluetooth+software, or Bluetooth Low Energy (BLE) as they call it.

It’s not hard to see that when abstract patents reach actual courtrooms they typically get invalidated. Will patent lawyers deliver/dispense advice accordingly? No, they will not. Most of them will try to maintain the illusion of good odds (of winning cases) and in a later post we’ll show how they continue to name-drop Berkheimer etc.

Charles Bieneman’s tips regarding Section 101 are noteworthy because he runs a whole blog dedicated to patenting software in spite of the rules/law. Only days ago he wrote about 35 U.S.C. § 325(d):

Recent PTAB decisions on petitions for Post-Grant Review (PGR) demonstrate how little deference judges can give to patent examiners patent-eligibility decisions. Even if the USPTO in the form of a patent examiner has deemed claims patent-eligible under 35 U.S.C. § 101 and the Alice/Mayo test, the USPTO in the form of the PTAB may turn around and deem the claims unpatentable under Section 101 . Two recent cases saw the Patent Owner make the argument that it needs to make under 35 U.S.C. § 325(d), namely that the Petitioner was simply rehashing arguments already rejected by a patent examiner. These arguments were to no avail. As the PTAB receives more and more petitions for Post-Grant Review on Section 101 grounds, we may see the PTAB second-guess the examining corps regarding the patent-eligibility of more and more recently-issued patents.

On another day, only days apart, McRO was brought up again by Bieneman. It’s an old Federal Circuit case — one that Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are unlikely to even cite at the end of 2018. This shows how manipulators try bypass Alice/Section 101. From the post:

Patent claims directed to pricing and cataloging products have survived a Rule 12 Motion because the court thought that there was a chance that the patent owner might be able to show a technological improvement as in McRO, Inc. v. Bandai Namco Games Am. Inc. (Fed. Cir. 2016). Vendavo, Inc. v. Price f(x), No. AG et al, 3-17-cv-06930 (N.D. Cal. Oct. 22, 2018). Regardless of whether you think the patent-eligibility test should be more or less stringently applied, you may find this decision vexing if you share my (admittedly subjective) perspective that the USPTO would not today allow these claims, and that many courts would have invalidated them under 35 U.S.C. § 101 and the Alice patent-eligibility test.

[...]

While not new, there are three points to be drawn from this case. First, courts’ applications of patent-eligibility rules remain unpredictable. Second, even though patent-eligibility and prior art invalidity are supposed to be separate questions, they are often conflated; showing novelty or non-obviousness (or a lack thereof if you are the patent owner) can be very important in prevailing on a patent-eligibility motion. Third, if you are the challenger, you have the initial burden to show that there is no technological invention – make copiously clear to the court how that burden is met.

It has become hard to patent software in the US and then actually enforce the patent/s in court. But it doesn’t matter to law firms because the final outcomes have no effect on their ability to bill gullible clients. Here’s Bieneman commenting on the fact that “using a telephone to verify a person registering for an account” isn’t just shallow but also patent-ineligible:

Claims of four patents directed to using a telephone to verify a person registering for an account are invalid under 35 U.S.C. § 101 and the Alice patent-eligibility test, the court held in TeleSign Corporation v. Twilio, Inc., Case No. 18-cv-03279-VC (N.D. Cal. Oct. 19, 2018). Accordingly, the court granted a Rule 12(c) motion for judgment on the pleadings that asserted claims of the four patents-in-suit were invalid under 35 U.S.C. 101. The patents are U.S. Patent Nos. 7,945,034 (“Process for determining characteristics of a telephone number”), 8,462,920, 8,687,038, and 9,300,792(each entitled “Registration, verification and notification system” and sharing a common specification).

This is very much expected. Why was a lawsuit even attempted? Those are software patents, hence fake patents. Sure, they have the ribbon and all, but they’re good for nothing but extortion (outside the courtroom), rendering them a case of gross injustice or a racket. Bryan Hart, a colleague of Bieneman, wrote about Berkheimer in relation to obviously fake software patents that even district courts aren’t tolerating. To quote:

The District of Massachusetts recently granted a motion to dismiss for ineligible subject matter under 35 U.S.C. § 101 and the Alice/Mayo test in a case involving home electrocardiogram sensors, CardioNet, LLC v. InfoBionic, Inc.—demonstrating that despite some courts’ decisions to the contrary, Rule 12 dismissals are available for ineligible subject matter notwithstanding the Federal Circuit’s decision in Berkheimer v. HP that such decisions can involve factual inquiries.

CardioNet and InfoBionic compete selling home electrocardiogram (ECG) sensors that monitor a patient’s heartbeat via the electrical activity passing through the heart muscles. In this dispute—not their first—CardioNet accuses InfoBionic’s MoMe Kardia Systems of infringing CardioNet’s U.S. Patent No. 7,941,207. The ’207 patent covers a way of detecting atrial fibrillation and atrial flutter, two types of heart arrhythmia.

It has actually become very major news when software patent do withstand scrutiny and are upheld as valid by courts. Why are such patents even pursued anymore? And actual lawsuits? Maybe the large and wealthy companies just rely on getting lots of these low-quality patents in large quantities, then cross-licensing to establish a cartel.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

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

Pages that cross-reference this one

What Else is New


  1. EPO Staff Representation Complains That EPO Management Exploits Pandemic and 'House Arrests' to Overwork Staff, Lower Quality

    The EPO keeps breaking its promises to workers; not only are key employees seeing their net salary cut (inflation factored in) but pensioners too are being robbed and in the meantime the total time spent on work is increasing



  2. Fake News is Not a 'Wing' Thing

    The two-party corporate-led system (and media) would have us obsess/bicker about accuracy of news based on some binary/dual system of blind loyalty rather than underlying facts and priorities



  3. Links 25/1/2021: Huawei on GNU/Linux, NuTyX 20.12.1, Whisker Menu 2.5.3, Lutris 0.5.8.3, Linux 5.11 RC5

    Links for the day



  4. Fear, Uncertainty, and Doubt (FUD) in ZDNet is the Norm

    ZDNet continues to emit lots of garbage 'journalism', in effect Microsoft PR and what's known as "black PR" for Linux; just like Bleeping Computer, which ZDNet hired this writer from, there's no adherence to facts, just smears and innuendo



  5. Truth Tellers Aren't an Enemy of Free Software

    There's a perpetual attack on people who speak out against actors and corporations in positions of great power, however subtle and indirect those attacks may seem on the surface (they don't wish to be held accountable for defaming activists)



  6. The Linux Foundation, With Over 124 Million Dollars in Annual Revenue, is in Trouble Because of the Pandemic, So It's Trying to Reinvent Itself as Training and Certifications Outfit

    With mountains of cash and a Public Relations (PR) or marketing business model the so-called 'Linux' Foundation became reliant on travel, lodging, booths and speeches on sale; COVID-19 is a great risk to that business model



  7. IRC Proceedings: Sunday, January 24, 2021

    IRC logs for Sunday, January 24, 2021



  8. Our Move Further Away From the World Wide Web, the Browser Monopolies, HTTP, and HTML

    The World Wide Web (WWW) is going down a bad path and a clearly regressive direction; the solution isn't going 'retro' but exploring more sophisticated systems which are robust to censorship (localised or globalised) and downtime (related to censorship) while reducing surveillance by leveraging encryption at the endpoints



  9. Important Issues Not Entertained in the Community, Especially Critics of the Status Quo

    here's corporate infiltration inside communities (for oligarchy hunts volunteer, unpaid labour) and those who speak about that as a threat to our cause and objectives are painted as misguided outcasts who must be ignored



  10. Internet Origins of the Mob

    Reprinted with permission from Daniel Pocock



  11. When Proprietary Software Users Dictate the Freedom-Leaning Communities

    Fedora doesn't care about software freedom and its steward (or parent company) is sometimes imposing proprietary software on staff; they've quit caring



  12. In 2020 Onwards 'Open Source' is Just a Marketing Ploy of Monopolies, Unlike Free Software

    More people are nowadays seeing or witnessing 'Open Source' for what it truly is; the term has become a misleading marketing term of proprietary software firms looking to rebrand as "ethical" (e.g. by sharing some code with other proprietary software firms, over proprietary platforms such as GitHub)



  13. Microsoft: The Year After We Bought GitHub There Was a Significant Decline in Number of New Projects on GitHub

    Microsoft has just admitted that in 2019 GitHub saw a very significant decline in number of new projects (and users, which it is conveniently miscounting by adding 'phantom' ones) on the site. Just what we had heard before they confirmed it (and they foresaw this effect of the takeover, hence the lies about "loving" Linux).



  14. Social Control Media is a Passing Fad, We Should All Go Back to Blogging and Subscribing to RSS Feeds

    The whole "social control media" phenomenon has been oversold or promoted using lies; in reality, as a mountain of evidence serves to show, it's a way to manage society at a macro scale



  15. As Andrei Iancu Removes Himself From the Patent and Trademark Office All Eyes Are on Biden's Next Nomination

    Patent zealots and their front groups already lobby Joe Biden to put one of them in charge of the U.S. Patent and Trademark Office; we'll soon see if Joe Biden "means business" or simply means monopoly/large corporations (and their law firms/departments)



  16. Data Point: GNU/Linux Share in Desktops/Laptops Nearly Tripled in the Past Decade, Peaking This Past Month (All-Time High)

    Contrary to what some publishers try to tell us, GNU/Linux is still growing and mostly at the expense of Windows



  17. IRC Proceedings: Saturday, January 23, 2021

    IRC logs for Saturday, January 23, 2021



  18. Links 24/1/2021: Nouveau X.Org Driver Release and GhostBSD 21.01.20

    Links for the day



  19. InteLeaks – Part XXX: Harbor Research's Pseudo-scientific 'Research' for Intel, Bizarrely Suggesting a Microsoft Partnership for a Domain Largely Controlled or Dominated by Linux

    The full document that Intel paid for and in turn used to justify cracking down on Free software (obliterating Free software-based workflows inside Intel), instead outsourcing all sorts of things to proprietary software traps of Microsoft



  20. Chromium and Chrome Are Not Free Software But an Example of Microsoft-Fashioned Openwashing Tactics

    It's time to reject Google's Web monopoly (shared with other companies but still an oligopoly); removing its Web browser would be a good start



  21. Links 23/1/2021: Chromium Pains and New Debian Maintainers

    Links for the day



  22. InteLeaks – Part XXIX: Harbor Research Did Not Produce a Study But an Elaborate Hoax for Intel, Suggesting Microsoft Partnership and Outsourcing Based on Zero Evidence and No Solid Rationale

    The pseudo-scientific ‘report’ from Harbor Research is more of the same nonsense we’ve grown accustomed to; unethical if not rogue firms are being paid to lie — or to perpetuate falsehoods which someone stands to gain from



  23. Video: The State of Communities Surrounding GNU/Linux Distributions

    A discussion about the state of volunteer efforts going into the development, maintenance (in the 'maintainership' sense) and support/advocacy of GNU/Linux distros



  24. IRC Proceedings: Friday, January 22, 2021

    IRC logs for Friday, January 22, 2021



  25. InteLeaks – Part XXVIII: Intel Served Report From Microsoft Boosters, Who Provide No Actual Evidence and No Science to Back Their Supposed 'Findings'

    Findings and recommendations from Harbor 'Research' aren't based on any scientific methods, just perceived loyalty, branding, and a bunch of unsourced quotes (from unnamed people with ridiculous job titles like a soup of buzzwords)



  26. Erosion of Communities, Ascent of Corporate-Industrial Fake Communities

    Despite the attempts to manipulate/trick developers (and sometimes users) into becoming unpaid workforce of for-profit companies, there's an exodus back to real communities, which aren't subjected to the fury of wealthy shareholders who utterly dislike or simply don't care for software freedom



  27. The Corporate 'Left' and the Open Source Pseudo 'Movement'

    President Biden may not be as bad as his predecessor, but that hardly means very much; software freedom is still threatened, along with many other things



  28. Links 22/1/2021: pfSense Plus, Endless OS Foundation, and Many Laptops With GNU/Linux

    Links for the day



  29. The Linux Foundation is Trying to Obscure Racism Using Microsoft-Inspired Tactics (Vouchers Disguised as Actual Money)

    The Linux Foundation and its PR stunts don’t help combat racism; one might argue that the Foundation is leveraging racism, which prevails in the US, to paint itself as benevolent and caring (offering immaterial things and self-serving press releases)



  30. InteLeaks – Part XXVII: 'Pulling a Nokia' on Intel (Outsourcing to Microsoft)

    The recommendation of an Intel marriage with Microsoft (even in units that deal mostly with Linux) is an insulting slap across the face of developers employed there; we take a look at recommendations made to IoTG (Intel) by a firm with Microsoft orientation


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts