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03.31.19

Technology Groups Implore the Deplorable Patent Office of Iancu and Trump

Posted in America, EFF, Patents at 10:59 pm by Dr. Roy Schestowitz

Old: Andrei Iancu’s Firm Has a History Working With Trump, But Senate Says OK to Him Becoming USPTO Director

Trump and Iancu

Summary: The “New USPTO Patent Eligibility Guidelines,” as Stuart Meyer (Fenwick & West LLP and Bilski Blog) puts it, have been broadly condemned by technical people, unlike lawyers and attorneys who thrive in frivolous litigation

35 U.S.C. § 101/Alice (SCOTUS) has compelled the U.S. Patent and Trademark Office (USPTO) to either stop granting software patents or risk the perception that it is granting patents it knows courts would reject (if a lawsuit was filed).

Last year the USPTO received fewer quantities from its “customers” or “clients” (what it calls applicants) and the number of granted patents decreased (compared to what it had granted the prior year, under Michelle Lee).

Iancu is trying to turn things around by simply ignoring the courts and mistreating the law. Having asked for public feedback (in an open consultation), the vast majority of letters condemn him for it. So the patent maximalists keep pretending it’s all “EFF” (simply because the EFF wrote a blog post on the subject) and days ago Stuart Meyer (Fenwick & West LLP) wrote [1, 2] about it as follows:

Compared with the organizations discussed above, the Electronic Frontier Foundation had quite a different view. EFF, on behalf of “its more than 39,000 dues-paying members,” said that the Guidance “effectively instructs examiners on how to narrow the Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” EFF faulted the Guidance for defining ineligible abstract ideas to include only mental processes, mathematical formulas, and methods of organizing human activity; EFF asserted that cases have identified others “that do not neatly fit into those three narrow categories.” EFF also asserted that the Guidance creates “an entirely new and unprecedented step” for eligibility. EFF argued that even if the Federal Circuit can resolve patent-eligibility as a matter of law at the first step, “the same is not true for examiners,” who EFF argued should “conduct the full, two-step patent-eligibility analysis in the first instance” to fend off “a loophole that allows applicants to avoid the inventive concept requirement.” EFF noted that the Guidance sets up a situation in which “examiners will apply a substantially different test than district courts.”

More generally, EFF argued that “Alice has been a critical tool” in helping software developers and users “defend against meritless patent lawsuits and litigation threats.” EFF attributed a rise in R&D spending on “software & Internet” as attributable to Alice; it said the Guidance would “guarantee that patents on basic ideas continue to issue despite Alice, and thus continue to tax and impede research and innovation….”

EFF’s attempt to elicit input from opponents of the guidelines also experienced significant success. The organization’s “Save Alice” campaign provided model language for detractors to paste into their comments, and many individuals did just that. There were about 2,500 comments submitted to the USPTO by individuals, and a sampling suggests that the vast majority of these comments were cut-and-paste from the text EFF suggested for this campaign. By way of comparison, in the “pro-Guidance” camp, a far smaller but still significant number of comments were cut-and-paste from campaigns of one or more inventors’ associations. The number of bespoke comments from individuals paled in comparison to the cut-and-paste numbers.

Also somewhat critical of the Guidance was the Software & Information Industry Association. SIIA noted that its “members have benefitted greatly from the patents they own. Yet they also rely on the limits of patent protection, as those limits preserve and protect their ability to innovate. As such, SIIA’s collective membership sits at the crossroads of the countervailing interests….” SIIA asserted that synthesizing just a few categories from the judicial decisions resulted in pairings of cases and categories that “may or may not fit.” SIIA proposed “a fourth category to capture all precedent,” thereby allowing examiners to reject claims more directly based on a prior judicial opinion. SIIA said that with such a category, examiners would have more freedom to make initial rejections in appropriate circumstances without the need for higher level approval. In addition, SIIA worried that, “By specifying that the abstract idea must be ‘recited on [its] own per se,’ the 2019 Guidance may encourage clever drafting efforts to avoid explicitly reciting an exception in the claim.” SIIA saw this as a departure from prior guidance and the caselaw. Finally, SIIA said that the USPTO “should be clearer with respect to the specificity of the computer implementation necessary to amount to an integrated practical application.”

It is worth noting that technology companies oppose Iancu’s proposal. They also support Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — another thing that has come under attack from Iancu. In many ways he turned out to be an 'American Battistelli'.

Who likes Iancu? The people who come from the same profession as him. The patent litigation giants are still panicking over Alice and seeing that they are running out of ‘business’ (not many new patent lawsuits are being filed), they regroup and come up with ridiculous new headlines, such as “Who Will Win the Alice Race?”

A belated Happy New Year to all of you! As I reflect on this column, which has gone through various permutations over the past seven years, I am amazed how readership has grown organically via the Tangible IP website from a dozen (including several family members) to more than 15,000 professionals in the IP and business communities.

I must admit, this baby is a real time investment. But every time I think of retiring it, someone new tells me that he or she actually reads it and even enjoys it. Go figure!

A lot of these people will need to change jobs. Some already have. IPO is now training people on PTAB and there’s another new example about “[t]he “new” § 101 landscape in the PTO and District Courts…”

Maybe these people can make a living by invalidating ridiculous patents rather than flood the system with more and more of them (plus lawsuits).

Patent Trolls Are Not a Solved Problem

Posted in America, Apple, Patents at 10:18 pm by Dr. Roy Schestowitz

New York Times on patent trolls. Image snapped by Josh from CCIA.

New York Times on patent trolls

Summary: New claims that trolls are making a comeback are difficult to verify; these may be as unreliable as claims of a software patents comeback

THE European Patent Office (EPO) and the U.S. Patent and Trademark Office (USPTO) both support patent trolls. The latter pretends they don’t exist or aren’t a problem and the former keeps legitimising trolls — a subject we’ll deal with later in a separate post.

“Patent Assertion Entities Are on the Comeback Trail,” said patent litigation and software patents booster Scott Graham a few days ago. He calls “patent trolls” just “Patent Assertion Entities” (although he uses the word “trolls” in the body, so maybe the editor is to blame). To quote: “Patent assertion entities seem so 2012. Businesses that acquire patents and then enforce them—sometimes criticized as “patent trolls”—have largely dropped out of the headlines since the America Invents Act (AIA) and the Supreme Court’s Alice decision simplified the process of challenging patent validity in many cases.”

Nothing has changed as far as Alice goes — a subject that we’ll write about later (separately). Since there’s a paywall, it is hard to verify the accuracy of the above claims (that there’s a comeback of trolls).

“Several years after a series of Supreme Court decisions reduced the threat to companies from ‘non-practicing entities,’ patent trolls may be climbing back out,” Crain’s Cleveland Business wrote some days ago in “NEO faces a resurgence of patent trolling” (not accessible in the EU).

These two articles make somewhat surprising claims, but the basis is not accessible to a broad audience, only subscribers and such.

What is known for a fact, however, is that patent trolls are widely reviled (see the above crossword puzzle, which is new) and they damage local economies.

New reports such as “Apple Stores reshuffled in Texas to foil patent trolls” from Apple fan sites (alluding to high-profile cases like VirnetX v Apple) still talk about this problem:

Apple is closing a pair of retail stores in east Texas, and opening a new one nearby to take on their traffic. But this has little to do with customer convenience; it’s likely all about patent lawsuits.

The courts in east Texas, as we’ve noted many times before, wanted to attract patent trolls and this is ruining retail jobs. It also discourages participation over there at a technical capacity (server hosting, development and so on).

Microsoft ‘Bought’ the LOT Network Like it Did the ‘Linux’ Foundation and It’s Now, as a Result, Yet Another Microsoft PR Front

Posted in GNU/Linux, Microsoft, Patents at 9:04 pm by Dr. Roy Schestowitz

The ‘business-friendly’ (run by the big businesses and patent trolls) foundations

Eating snake
It’s OK as long as "Microsoft loves Linux"

Summary: Microsoft is infatuated with “Linux patent tax”; it’s trying to characterise itself as the very opposite of that however, having found some cooperative or gullible ‘journalists’ and having paid groups which pretend to care about Linux

JUST before the weekend James Bottomley (formerly Novell) wrote about patents in relation to Free software1. It is encouraging to see the subject brought up because anyone with a clue knows too well that software patents and Free software are not compatible.

Over the past couple of years we’ve seen Microsoft trying to collect “Linux patent tax” through “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19] and we’re still seeing something similar.

“…this is what Microsoft now boils down to; it’s describing itself as the very opposite of what it is while continuing to attack GNU/Linux vendors with patents, even as recently as weeks ago.”Days ago it restarted with dedicated Microsoft propaganda sites (like MSPoweruser with “Azure IoT customers can now get access to 10,000 Microsoft patents“). This latest lie from Microsoft is a reversal of narratives (e.g. “Microsoft gives 500 patents to startups” — a bizarre spin on the word “give”). Then, citing the above, another site called it a “donation”. Looking a little deeper into it, it reinforces our asseration that Microsoft 'bought' LOT Network for PR purposes. Here they go:

“The LOT Network is really committed to helping address the proliferation of intellectual property losses, especially ones that are brought by non-practicing entities, or so-called trolls,” Microsoft Corporate Vice President and Deputy General Counsel Erich Andersen said in the report. “We want to help the LOT Network grow its network of startups. To provide an incentive, we are going to provide these patents to them.”

We’ve long been sceptical of LOT Network and at times vocal critics (even well before Microsoft even touched it). At SiliconANGLE News, a Microsoft-friendly writer then wrote “Microsoft to shield startups and IoT developers from patent trolls”; never mind if Microsoft is the one arming the trolls, siccing them on competitors.

Microsoft Corp. today launched an initiative to provide legal protection against so-called patent trolls for startups, as well as for larger companies that use its Azure cloud platform to power “internet of things” projects.

Patent trolls, or nonpracticing entities as they’re formally known, are an oft-discussed concern in the tech industry. They’re firms whose business model is to acquire technology patents and use them to launch lawsuits against other companies. Such litigation poses a particularly big threat for startups, which often don’t have the resources to engage in a prolonged legal battle.

This is a shameless lie. Yet it is very typical of Microsoft’s PR strategy these days. Consider how Microsoft funded the patent troll Finjan. Days ago it bragged about its lawsuits against Microsoft’s rivals. But this is what Microsoft now boils down to; it’s describing itself as the very opposite of what it is while continuing to attack GNU/Linux vendors with patents, even as recently as weeks ago [1, 2, 3].

References:

  1. James Bottomley: A Roadmap for Eliminating Patents in Open Source

    The realm of Software Patents is often considered to be a fairly new field which isn’t really influenced by anything else that goes on in the legal lansdcape. In particular there’s a very old field of patent law called exhaustion which had, up until a few years ago, never been applied to software patents. This lack of application means that exhaustion is rarely raised as a defence against infringement and thus it is regarded as an untested strategy. Van Lindberg recently did a FOSDEM presentation containing interesting ideas about how exhaustion might apply to software patents in the light of recent court decisions. The intriguing possibility this offers us is that we may be close to an enforceable court decision (at least in the US) that would render all patents in open source owned by community members exhausted and thus unenforceable. The purpose of this blog post is to explain the current landscape and how we might be able to get the necessary missing court decisions to make this hope a reality.

    What is Patent Exhaustion?

    Patent law is ancient, going back to Greece in around 500BC. However, every legal system has been concerned that patent holders, being an effective monopoly with the legal right to exclude others, did not abuse that monopoly position. This lead to the concept that if you used your monopoly power to profit, you should only be able to do it once for the same item so that absolute property rights couldn’t be clouded by patents. This leads to something called the exhaustion doctrine: so if Alice holds a patent on some item which she sells to Bob and Bob later sells the same item to Charlie, Alice can’t force Bob or Charlie to give her a part of their sale proceeds in exchange for her allowing Charlie to practise the patent on the item. The patent rights are said to be exhausted with the sale from Alice to Bob, so there are no patent rights left to enforce on Charlie. The exhaustion doctrine has since been expanded to any authorized transfer, even if no money changes hands (so if Alice simply gave Bob the item instead of selling it, the patent still exhausts at that transaction and Bob is still free to give or sell the item to Charlie without interference from Alice).

    Of course, modern US patent rights have been around now for two centuries and in that time manufacturers have tried many ingenious schemes to get around the exhaustion doctrine profitably, all of which have so far failed in the courts, leading to quite a wealth of case law on the subject. The most interesting recent example (Lexmark v Impression) was over whether a patent holder could use their patent power to enforce any onward conditions at all for which the US Supreme Court came to the conclusive finding: they can’t and goes on to say that all patent rights in the item terminate in the first authorized transfer. That doesn’t mean no post sale conditions can be imposed, they can by contract or licence or other means, it just means post sale conditions can’t be enforced by patent actions. This is the bind for Lexmark: their sales contracts did specify that empty cartridges couldn’t be resold, so their customers violated that contract by selling the cartridges to Impression to refill and resell. However, that contract was between Lexmark and the customer not Lexmark and Impression, so absent patent remedies Lexmark has no contractual case against Impression, only against its own customers.

Microsoft Loves Linux

Posted in GNU/Linux, Humour, Microsoft at 8:29 pm by Dr. Roy Schestowitz

It tastes good.

I'm not eating

Summary: GNU/Linux, the main competitor of Microsoft, is what Microsoft loves the most

OK, so it’s April 1st already. People are starting to play along with it (“Microsoft is Creating Linux-based Smartphone OS” has just been published). In recent years we made some jokes about the EPO and USPTO (on April 1st), but quite frankly April 1st on the World Wide Web has become somewhat of a passing fad. More than a decade ago it was a real sensation, but nowadays it’s a source of annoyance and confusion; it can be a nuisance trying to figure out what’s true and what’s satire; the latter concept has been conflated with so-called ‘fake news’.

So anyway, Microsoft loves Linux, as we shall show in our next post, based on a true story.

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