12.28.18
The Demise of Patent Trolls and Software Patents in the US Continued in 2018
Summary: With patent trolls’ bankruptcy filings, advocates’ departures and a decline in the number of granted US patents we’re seeing a sort of recession if not depression in the patent microcosm; that being the case, we’ll shift our focus to other things in 2019
THE year 2018 was a positive one for the US patent system if one skips the parts about Iancu’s controversial remarks and moves at the U.S. Patent and Trademark Office (USPTO). Iancu has already made himself enemies among scientists and technologists, unlike law firms.
“Iancu has already made himself enemies among scientists and technologists, unlike law firms.”Watchtroll’s Quinn, who is connected to Iancu, is stepping down as editor after 2 decades. His site will stagnate and we’ll no longer link to it. Patently-O‘s Crouch is barely writing anymore (maybe less than half what he did before) and he has just pointed out that the number of granted US patents decreased (as we expected) but not sufficiently as many fake patents like abstract patents are still being granted, contributing to the bubble associated with worthless patents (presumed to have value). “The USPTO has indicated that it “remains in normal operating status” despite the Federal Government funding crisis,” Crouch added.
In 2018 we saw SCOTUS ruling in ‘our’ favour and 35 U.S.C. § 101 wasn’t sabotaged in spite of many efforts. As a result of that, litigation ‘businesses’ perished. Here’s a report from Ruth Simon about one patent troll that we’ve covered here before: “Shipping & Transit LLC sued more than 100 mostly small companies in 2016, making it the largest filer of patent lawsuits that year. But when the Florida company recently declared bankruptcy, it valued its U.S. patents at just $1.
“Its demise followed three cases where companies fought back and were awarded legal fees after Shipping & Transit decided not to pursue the patent claims against them. Judges in the cases awarded a total of more than $245,000 in attorneys’ fees and costs to businesses in 2017.”
“Seeing that Watchtroll bashed SCOTUS at least 3 times this month (we’re omitting links, but the bashing is even in those headlines), it’s hardly surprising that Quinn steps down. All they have left is judge-bashing and court-bashing.”This “bankruptcy filing,” United for Patent Reform wrote, “shows how effective patent reform has been, and how it must continue.”
It will. The EFF wrote: “Lobbyists for patent trolls and patent lawyers keep seeking to roll back the Supreme Court’s crucial Alice decision. We expect those bills to keep coming in 2019, but we’ll be there to fight against them.”
By “lobbying” they also mean bribery by patent trolls, who are still a threat (incidentally, Microsoft patent trolls Intellectual Ventures and Finjan both lost important cases earlier this month). From the corresponding EFF post:
In 2018, technologists and users continued to be plagued by abstract, ridiculous software patents. The good news is there are more ways than ever before to fight back against those patents—some of them pretty effective.
Unfortunately, patent trolls and abusive patent owners are working overtime to knock down those recent improvements, and bring the patent system back to the proverbial “bad old days.” Before the Alice v. CLS Bank decision—four years old as of last June—it could cost millions of dollars just to convince a court to invalidate a single abstract patent. That was true even when those patents clearly described aspects of everyday life, like running a contest, displaying a menu with pictures, or teaching a foreign language.
Lobbyists for patent trolls and patent lawyers keep seeking to roll back Alice, promoting terrible legislation like the STRONGER Patents Act. Such proposals weaken our systems to challenge bad patents, and will hurt U.S. entrepreneurs and send innovation overseas. Despite that, we expect bills like that to come back in 2019, and we’ll be ready to fight back on behalf of startups and innovators.
Patent owners are pushing to neutralize Alice through the courts, as well. The most recent attempt is a case called Berkheimer v. H-P, in which a panel of Federal Circuit judges ruled that patent eligibility under Alice can require a full trial. This makes Alice much harder and more expensive to apply and, in our view, is inconsistent with the Supreme Court’s ruling. Last month, we asked the Supreme Court to take up the case and consider overturning Berkheimer.
Joe Mullin has meanwhile named “Stupid Patent of the Month”; the USPTO is making a farce of itself by granting these laughable software patents. As Mullin put it:
We’ve written many times about how the patent system is a poor fit for software. Innovation in the U.S. software industry happens despite, not because of, the thousands of software patents that are granted each year.
But software is not the only industry where patents make very little sense. In the 1990s, the Federal Circuit opened the door to patents on methods of doing business. While the Supreme Court tried to undo some of that damage, financial institutions are still hit with patent lawsuits. Many of these suits come from trolls that don’t produce anything. And yet, just as in the tech sector, there are some financial companies that keep heading back to the U.S. Patent and Trademark Office seeking a 20-year monopoly on some tactic or another.
This month, we’re highlighting U.S. Patent Number 10,147,140, which was recently granted to BNY Mellon Bank. The first claim of the ’140 patent uses a lot of financial jargon to describe an extremely simple process: checking social media for a particular event or statement, then making a trade based on that “investment triggering content.” One example of that: making a trade because someone put a hashtag in a tweet.
Even if this was a new product idea or investment strategy, it is not a new invention. The trend of stock market trading has been clear now for decades: automated trading has become faster and more computerized each year. BNY Mellon Bank did not invent computerized trading, social media, or anything else remotely technical. Rather, its patent proposes the idea of trading based on a social media event.
One can expect that a simple inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) would eliminate it; the Federal Circuit would likely not even consider an appeal.
In 2019 we intend to cover USPTO matters less than in prior years. Seeing how things are going, we feel like goals have been fulfilled. Iancu is not a judge and he’s very limited in what he can do except grant even more bogus patents. Eventually the courts call the shots. Seeing that Watchtroll bashed SCOTUS at least 3 times this month (we’re omitting links, but the bashing is even in those headlines), it’s hardly surprising that Quinn steps down. All they have left is judge-bashing and court-bashing. █
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