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11.19.18

A Fresh Look at Recent 35 U.S.C. § 101 Cases Reveals Rapid Demise of Software Patents Even in District (Lower) Courts

Posted in Courtroom, Microsoft, OIN, Patents at 5:23 am by Dr. Roy Schestowitz

Summary: Contrary to narratives that are being spread by the patents and litigation ‘industry’, there’s anything but a resurgence of patents on algorithms; in the United States they’re almost always rejected by courts at all levels

THINGS have come along pretty nicely after Alice (SCOTUS) because in light of 35 U.S.C. § 101 the courts are rejecting a lot of software patents, no matter what the U.S. Patent and Trademark Office (USPTO) said or still says. The law is what matters. If the USPTO grants patents which are then used to subvert justice, the USPTO will suffer in the long run.

Let’s start with some examples of recent rulings. A pro-software patents blog implicitly admits — by way of example/s — that software patents are worthless junk nowadays. They’re nearly impossible to defend. Peter Keros wrote about the Southern District of New York rejecting an asserted patent, citing § 101.

A method for analyzing text to determine a strength of an opinion is not patent-eligible subject matter under § 101. Isentium, LLC v. Bloomberg Fin. L.P., 17-cv-7601 (PKC) (S.D.N.Y. Oct. 29, 2018).

U.S. Patent No. 8,556,056 is directed to a multi-step method for evaluating statements that discuss publicly traded assets to determine whether the statement express a positive, negative, or neutral opinion (i.e., a “polarity”) and to assign a strength value to the opinion. Specifically, Plaintiff analyzed Tweets to provide information for financial professionals. The Court granted a 12(b)(6) motion to dismiss the Complaint, holding that the claims of the ‘056 patent were ineligible under 35 U.S.C. § 101.

The Central District of California, according to Nathan Smith, did similarly. Even district courts are growingly fed up with software patents. As Smith explained:

The Central District of California recently granted, in part, a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,934,535, directed to a method for data compression and decompression. Realtime Adaptive Streaming LLC v. Google LLC, et al., No. CV 18-3629-GW(JCx) (C.D. Cal. Oct. 25, 2018). The court denied the motion for two other patents (U.S. Patent Nos. 9,769,477 and 7,386,046) with claims directed to system of data compression and decompression. The method claims of the ’535 patent were ineligiblebecause the patent failed to state that the claimed method would result in an increased compression speed. Concerning the’477 and ’046 patents, on the other hand, Google failed to show that the claimed systems, which included multiple compression encoders selected for use based on evaluating data, did not impart structural organization to computer processing comparable to the computer memory system in Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017).

Going back again to the Southern District of New York, Bryan Hart wrote about another fake US patent or software patents that § 101 renders obsolete.

Personal Beasties stumbled out of the gate against Nike, with a district court invalidating Personal Beasties’ patent for ineligible subject matter on a motion to dismiss. Personal Beasties Group LLC v. Nike Inc., An animated character—even an encouraging one—did not provide enough to leap the § 101 hurdle.

Personal Beasties accused Nike of patent infringement in the Southern District of New York over U.S. Patent No. 6,769,915 for an “Interactive System for Personal Life Patterns.”

This blog’s sole exception (lately) has been covered by Charles Bieneman. It is from Delware, not the higher court, so this case/outcome can still be overturned on appeal (CAFC is tougher):

Patent claims directed to mapping “a physical location determined by the user . . . to a video game environment” have survived a Rule 12(b)(6) motion alleging patent-ineligibility under 35 U.S.C. § 101 and the Alice patent-eligibility test. Blackbird Tech LLC v. Niantic, Inc., No. 1-17-cv-01810 (D. Del. Oct. 31, 2018). U.S. Patent No. 9,802,127 allows a user to “experience[] objects from the users [sic] entered location while playing the video game.”

[...]

In arguing for application of the Aliceabstract idea test, the defendant took a broad approach in alleging an unpatentable abstract idea: arguing “that the ’127 patent claims are directed to the abstract idea of ‘receiving, processing, and displaying or storing location information.’” The defendant argued that its motion should be decided like a Rule 12 motion in a 2016 Colorado case, Concaten, Inc. v. Ameritrack Fleet Solutions, LLC, which held patent-ineligible claims directed to providing data to assist in snow removal.

But the court here disagreed, because here “[t]he mapping application requires taking camera images of a real physical space, where the user is located, and integrating those images as a video into a virtual video game environment.” Moreover, “the mapping step here is tethered to specific instructions” specifying images to be mapped, their locations, and how to display them. Citing Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016), the court found that the defendant’s proposed abstract idea was too broad, applying “an inappropriate level of abstraction such that its description of the claims is ‘untethered from the language of the claims.’”

Verizon, over at the Eastern District of New York, is mentioned by the patent maximalist Matthew Bultman, who explains that the Federal Circuit is sane/rational/honest enough to explain why patent lawsuits must be filed in the appropriate venue. From the outset:

Verizon subsidiary Oath Holdings Inc. does not have to defend a patent lawsuit over advertisement technology in the Eastern District of New York, the Federal Circuit ruled Wednesday

Not only Verizon grapples with such patent cases; see Motorola’s new press release and shallow press coverage that says: “The U.S. International Trade Commission (ITC) affirmed an administrative law judge’s finding that Hytera Communications of China infringed several Motorola Solutions patents.”

As background to the Hytera case consider this old post of ours; the ITC got involved, leaning towards the American complainant, as usual. Microsoft turned to it over a decade ago when it sought to embargo rival products (mice).

Citing a case just over a month old (October 16th), Bradley Arant Boult Cummings LLP’s Ryan Letson covered in JD Supra and Lexology [1, 2] yet another invalidation based on 35 U.S.C. § 101:

Add internet telephony systems to the list of computer-related technologies considered for patent eligibility under 35 U.S.C. § 101. Under current law, among other requirements, in order to qualify as patent-eligible under § 101, a patent claim involving computer-related technology must be directed to something more than simply an abstract idea that fails to implement an inventive concept. A patent’s claims will fail this test if a court finds that they are simply directed to “method[s] of organizing human activity” or “a known idea” that “is routine and conventional.”

High courts continue telling/signaling to the Office that software patents are bunk, but will the officials at the Office pay attention or just ignore if not ‘diss’ the high courts?

Writing about Ancora’s case against HTC, Michael Borella has just taken note of another 35 U.S.C. § 101 case (one that many wrote about because of the unusual outcome):

Ancora sued HTC in the Western District of Washington alleging infringement of U.S. Patent No. 6,411,941. HTC moved to dismiss the case, contending that the claims of the patent were ineligible under 35 U.S.C. § 101. The District Court granted HTC’s motion. Ancora appealed to the Federal Circuit.

The ’941 patent is directed to mechanisms for preventing a computer from running unlicensed software. While using license keys to control software was well-known at the time of the patent’s earliest priority date (1998), the patent purports to do so in a rather unusual fashion (for that time).

[...]

On appeal, the Federal Circuit rapidly answered the patent-eligibility question in the positive. Relying on recent precedent, such as Finjan, Inc. v. Blue Coat System, Inc., the Court stated that “[i]mproving security—here, against a computer’s unauthorized use of a program—can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a specific computer problem.”

The Court went on to disagree with the District Court, noting that the claim does recite storing the verification structure in a section of BIOS with certain beneficial characteristics, which was asserted to be an unexpected technique at the time of invention. Thus, in the view of the Federal Circuit, the claim does not recite a mere desired outcome, but how to achieve this outcome. Further, the claim addressed a technological problem associated with computers — software license verification — rather than a business, mathematical, or financial problem.

Notice that Finjan got cited. It’s relevant to this because of an exceptional high court (CAFC) judgment from the start of this year. We wrote about it several times at the start of 2018. Finjan is connected to Microsoft. This patent troll had a shareholders’ conference not so long ago. Did Microsoft give some more money to this troll any time lately? Firms (litigation pipelines would be a more suitable description) like Finjan definitely help Microsoft sell ‘protection’ and Finjan always sues Microsoft’s competition. When Microsoft joined OIN some weeks ago it kept promoting Azure as the ‘safe’ (from its patent trolls) option. “Abusix Joins Open Invention Network as Licensee” is the title of this new press release, joining the likes of many recent articles regarding OIN (this for example; it has been circulating lately). Abusix will get virtually nothing out of it, except assurance of no direct lawsuit from particular non-troll companies (except indirectly). It is worth noting that a Microsoft-connected propaganda site last week spoke about FOSS, which it is trying to wed (a shotgun wedding) to software patents.

Going back to the aforementioned HTC case, Matthew Bultman explained it as follows: “The Federal Circuit on Friday reversed a lower court ruling that a computer security patent asserted against HTC Corp. is invalid under the U.S. Supreme Court’s Alice standard, saying the patent…” (paywall hereon).

“Fed. Circ. Revives Computer Security Patent Axed Under Alice” is the headline and noteworthy is the word “revive” here; It was used by Suzanne Monyak as well as her colleague Matthew Bultman almost at the same time (“Fed. Circ. Won’t Revive Xactware Patent Challenges” was the headline). They try to insinuate that fake patents that should never have been granted in the first place got ‘killed’ or ‘murdered’ or something equally criminal.

“The Federal Circuit on Tuesday refused to revive Xactware Solutions Inc.’s challenges to two patents related to aerial rooftop measurement software,” Monyak wrote, “rejecting the company’s bid to nix two Pictometry International Corp…”

Noteworthy were the responses from patent maximalists. Janal Kalis quoted the filing: “the claimed advance is a concrete assignment of specified functions among a computer’s components to improve computer security, and this claimed improvement in computer functionality is eligible for patenting. As a result, the claims are not invalid under § 101.”

He also took note of “Another Very Creepy Facebook Patent Application; This one killed at the PTAB with 101; Run, Don’t Walk Away from Facebook: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001718-10-22-2018-1 …” (and as we mentioned yesterday, there’s this bunch of articles with headlines like “Who lives with you? Facebook seeks to patent software to figure out profiles of households”).

What’s noteworthy in all the above is that it’s very rare nowadays for software patents to withstand 35 U.S.C. § 101, even in the face of the Berkheimer and Aatrix nonsense (or hype).

“Aatrix Expands Their Payroll Tax Reporting Offerings,” said a widely-spread new press release [1, 2]. It was published a few days ago. It’s another one of many which take note of the software patents. Aatrix has become associated with software patents predation and Aatrix the company might find it hard to dissociate from it (like Alice and Bilski).

“Apprenda sells assets for $1.55 million,” says this new headline, even though software patents are not an “asset” but an illusion thereof as they’re useless and immaterial.

As we approach 2019 we must wonder how many companies still think that it’s worth pursuing software patents in the US.

All the Usual Suspects Are Still Working Hard to Harm the Legitimacy if Not Existence of Patent Quality Control

Posted in America, Deception, Patents at 1:13 am by Dr. Roy Schestowitz

Low-quality, dubious and illegitimate patents are being used by them to extract money from productive companies

David Ruschke

Summary: With David Ruschke (above) out of his role and other former judges leaving the Office one wonders if the new Office leadership is just scheming to hide a decline in patent quality by simply removing quality assessors

THE Patent Trial and Appeal Board (PTAB) deals with thousands of inter partes reviews (IPRs) which invalidate thousands of software patents, typically with the Federal Circuit affirming (or declining to deal with appeals). The European Patent Office (EPO) has a similar mechanism and it came under many attacks in recent years. Those who dislike PTAB generally dislike patent quality. It’s as simple as this.

“PTAB would not be necessary had the U.S. Patent and Trademark Office (USPTO) stopped granting fake patents on algorithms and other dubious patents.”Days ago we noticed that Michael Rosen continues to bash PTAB for the greedy sponsors of the American Enterprise Institute. We have bo idea why Google News syndicates as ‘news’ this propaganda of patent trolls-affiliated think tanks. It’s connected loosely to Koch-funded think tanks and scholars, who also meddled in Oil States, hoping to influence the outcome at SCOTUS, potentially ending IPRs.

PTAB would not be necessary had the U.S. Patent and Trademark Office (USPTO) stopped granting fake patents on algorithms and other dubious patents.

Unified Patents has just stopped another patent troll in its tracks, owing to PTAB as usual. In its own words:

On November 13, 2018, the Patent Trial and Appeal Board (PTAB) issued a final written decision in Unified Patents Inc. v. Plectrum, LLC, IPR2017-01430 holding claims 8 and 11 of U.S. Patent 5,978,951 unpatentable. The patent is owned and asserted by Plectrum, LLC, a new NPE [troll] formed after acquiring several patents formerly owned by Hewlett Packard.

No doubt we’ll keep seeing new attempts to discredit if not destroy PTAB. The Federal Circuit Bar Association (FCBA), patent maximalists [1, 2] who have nothing to do with the Federal Circuit itself, are advertising webcasts [1, 2]. Trying to work around PTAB challenges is their goal; the same is done by law firms directly, e.g. this other newly-advertised upcoming ‘webinar’ about PTAB (there are others). Patent Docs keeps pushing these every weekend. We already explained how politicians, lobbyists etc. are pitted against PTAB and if one check who pays them, then the motivations become pretty clear.

“The future of PTAB may sadly depend on lobbyists, i.e. bribes. There’s a powerful lobby doing anything it can to scuttle PTAB, but there’s a reactionary lobby from technology companies (CCIA, HTIA and so on).”Robert Schaffer, Joseph Robinson and Dustin Weeks recently wrote about PTAB, not adding anything particularly new about the recently-alluded-to Arista PTAB IPRs (ITC arrogantly ignores these).

Gene Quinn, joining the above trio, also published a little note about an exceptional “mixed decision”. To quote: “When determining if a reference was a printed publication mere indexing is insufficient – you must prove that the indexing was “meaningful” enough to provide access to the public. Also, when challenging substitute claims during an IPR, the Petitioner must provide claim construction if it is important to their invalidity argument; otherwise, it is not error for the Board to focus on the ordinary meaning of the substitute claim language.”

So again they just try to work around the challenges, knowing that IPRs are typically successful and PTAB typically squashes patents it looks into (based on reasonable evidence). The future of PTAB may sadly depend on lobbyists, i.e. bribes. There’s a powerful lobby doing anything it can to scuttle PTAB, but there’s a reactionary lobby from technology companies (CCIA, HTIA and so on).

The U.S. Patent and Trademark Office Must Be Based on Justice, Not Profits

Posted in America, Europe, Law, Patents at 12:15 am by Dr. Roy Schestowitz

It’s all about money now, not invention

Trump and Iancu

Summary: With obviousness grounds, prior art and tests for how abstract ideas may be, there’s no excuse left for patent maximalism; will patent offices listen to courts or defy caselaw (in pursuits of fulfilling greed)?

THINGS have taken a turn for the worse since Donald Trump put an old business ally in charge of the U.S. Patent and Trademark Office (USPTO). “USPTO Director Andrei Iancu speaks on [Section] 101 and USPTO affairs at the 10th annual patent law and policy conference at @GtownTechLaw,” the USPTO wrote. The CCIA‘s chief patent person soon responded. “Well, so far,” he said, “this is Iancu saying “let’s listen to Rich, not SCOTUS.” We’ll see what the guidance says, but so far the speech sure sounds like it’ll be contrary to established case law.”

“It’s all about legal bills and patent income (the performance of the Office is measured using a misleading, misguided yardstick).”Who cares about courts and judges anyway? It’s all about legal bills and patent income (the performance of the Office is measured using a misleading, misguided yardstick).

Law360‘s coverage by Jimmy Hoover now says that the “USPTO [is] Testing AI Software To Help Examiners ID Prior Art” as if prior art is the main issue. As we recently explained on a couple of occasions, it is not. Focus on quality instead. Better yet, the USPTO should teach examiners to better apply Section 101 and reject all software patents before courts do so (at huge expense to defendants wrongly accused). From the report: “The U.S. Patent and Trademark Office is testing new software that gives patent examiners additional tools to identify whether a patent application incorporates existing technology, USPTO Director Andrei Iancu said Thursday…”

Still addresses the wrong issue, doesn’t he?

“Does the USPTO care about justice? Does it pay attention to the courts? No, not really…”Abstract or not (or original or not), patents can also be squashed for just being darn obvious (§ 103). “Woss argued that the asserted claims were invalid under 35 U.S.C. § 103 grounds for obviousness,” Watchtroll noted in relation to TRX Fitness Equipment. In a separate article, one regarding § 103 as well, Watchtroll also complains that the notorious patent associated with Restasis is a “victim” because it’s a fake patent “under 35 U.S.C. § 103 grounds for obviousness.” Up in flame (see picture), says Watchtroll, even though many people’s lives may be saved due or owing to the Federal Circuit‘s judgment.

Does the USPTO care about justice? Does it pay attention to the courts? No, not really…

How about public interests? Some patents literally kill.

Iancu has truly become an ‘American Battistelli’; the chief judge of the Patent Trial and Appeal Board (PTAB) is no longer the chief judge. Reminiscent of anything?

“If patent offices diverge further and further away from caselaw, then they risk breaking the patent system as a whole. Patents granted by offices would be presumed invalid as if it’s just a filing mechanism.”As someone anonymous has just put it in relation to the European Patent Office (EPO), “If you were Patrick Corcoran and the ILOAT would have not yet rendered its judgement, would you “consider reaching an amicable settlement with the Office”?” (to use the insulting proposal of António Campinos).

If patent offices diverge further and further away from caselaw, then they risk breaking the patent system as a whole. Patents granted by offices would be presumed invalid as if it’s just a filing mechanism.

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