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07.16.18

Alliance for US Startups and Inventors for Jobs (USIJ) Misleads the US Government, Pretending to Speak for Startups While Spreading Lies for the Patent Microcosm

Posted in America, Deception, Patents at 12:12 am by Dr. Roy Schestowitz

Alliance for U.S. Startups and Inventors for Jobs (USIJ)

Summary: In the United States, which nowadays strives to raise the patent bar, the House Small Business Committee heard from technology firms but it also heard from some questionable front groups which claim to support “startups” and “jobs” (but in reality support just patents on the face of it)

More than a decade ago we wrote quite a lot about front groups like ACT and Computing Technology Industry Association pretending to speak for small businesses whilst actually speaking for Microsoft (in exchange for money).

Days ago there was a hearing/debate similar to those infiltrated by ACT (they have renamed since). Watchtroll called it an “Anti-Patent Panel” and obsessed over talking points from Chris Israel, Executive Director of Alliance for US Startups & Inventors for Jobs. It’s just preaching to patent maximalists, who are a tiny minority (less than one in a thousand US citizens). CCIA has already responded to Chris Israel’s claims, labeling them misleading and worse. For example:

Israel complains that there’s been an increase in investment in social networks, platforms, software apps, B2C technologies, and financial services. He claims that “these are not sectors that are investing heavily to push the outer boundaries of science and technology to remain competitive in a global market.”

But that’s simply false.

For example, social network and platform companies have invested billions of dollars in developing new software improving the efficiency of high-performance databases and new technologies that enable more efficient data centers for large-scale computing. Without that kind of technology, data centers like the ones that are enabling current advances in AI and drug discovery aren’t feasible. In fact, next week the National Institutes of Health are holding a workshop—participants will “hear from leading industry experts and scientists who are employing AI/ML in biomedical research settings.”

That’s not the only connection to AI, either. Social networking and platform companies have invested in (and released for public use) basic AI research, producing tools like TensorFlow (Google) and PyTorch (Facebook). These direct products also have follow-on impacts, enabling others to push the outer boundaries of science and technology.

There’s a ton of amazing work going on out there in AI right now. A lot of small companies are creating new ideas built on a machine learning substrate.

But that machine learning substrate probably utilizes one of those AI tools produced by a social network or platform company, and many of them run on ubiquitous compute platforms like Amazon Web Services provided by B2C service companies. Those “platform” and B2C VC investments that Israel is complaining about are why AI is now within the reach of any company, not just companies with the capital to build their own compute farm.

And once a small company has built their AI-driven product? That small company can begin selling to anyone, anywhere, using a service like Amazon or eBay’s B2C platforms.

Why have there been so many lies?

Thomas A. Hemphill meanwhile promotes the ‘STRONGER’ (actually weaker, low quality) Patents Act. This misguided anti-PTAB bill died last summer and will die again this summer, more so in light of Oil States. Here is what Hemphill wrote:

In March, Reps. Steve Stivers, R-Ohio, and Bill Foster, D-Illinois, introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act of 2018.

This bill has a companion piece of the same name in the Senate, co-sponsored by Sens. Chris Coons, D-Delaware, Tom Cotton, R-Arkansas, Dick Durbin, D-Illinois, and Mazie Hirono, D-Hawaii.

[...]

Heard before the Patent Trial and Appeals Board (PTAB), an inter partes review (IPR) is a trial proceeding where a non-patent owner may challenge (after either nine months’ post-grant patent-grant, or after the termination of a post-grant review, whichever occurs later) the validity of a patent based on prior art patents and publications.

[...]

Not surprisingly, this list of organizations does not include the biggest Silicon Valley companies — Apple, Google, Intel and Cisco, whose business models involve products with “patent thickets” of hundreds or even thousands of patents, in contrast to life sciences or small software and hardware companies who may have three to five patents protecting their product investment. For these tech giants, the status quo is working just fine.

[...]

Creative legislative and executive branch solutions, based on industry characteristics, can go a long way in ameliorating the patent validity issue.

This is being framed as a fight between technology giants and pharmaceutical giants, but as we explained in past years it’s a totally bogus framing that seeks to mislead readers. What we really have here is a fight between patent maximalists (e.g. law firms) and everybody else, including a lot of pharmaceutical companies (maybe not the very big ones) and especially generics. On the technology side both large and small companies support PTAB; we can think of no exception to that. Patent trolls with software patents aren’t technology companies but litigation operations. Like we said last week, groups which claim to support the bill led by Thomas Massie and Marcy Kaptur (and advertised by patent trolls, as one might expect) don’t help small businesses but merely harm them, just like the Alliance for US Startups and Inventors for Jobs (USIJ) does. It makes one wonders what members they have and what motivations are there; grossroots or AstroTurfing?

07.15.18

‘Blockchain’, ‘Cloud’ and Whatever Else Gets Exploited to Work Around 35 U.S.C. § 101 (or the EPC) and Patent Algorithms/Software

Posted in America, Europe, Patents at 11:39 pm by Dr. Roy Schestowitz

Hype waves that technical people can’t quite make sense of (so they issue a patent anyway)

50 cents

Summary: Looking for a quick buck or some low-quality patents (which courts would almost certainly reject), opportunists carry on with their gold rush, aided by buzzwords and hype over pretty meaningless things

Dallas, Houston and other large Texan cities have been trying to attract patent trolls with their software patents that courts in Texas would blindly accept after the USPTO granted them (instituted a monopoly). It was a short-sighted strategy because it’s a deterrence for practising companies, more so after TC Heartland (a decision issued by SCOTUS just over a year ago).

A patent boosters’ site, “Dallas Invents” (or “Dallas Innovates”) being its name, took note of some recent patents. From the summary:

Patents granted include Toyota’s steering wheel that illuminates via touch; AT&T’s electrical switch that generates signals through acoustic inputs; Frito-Lay’s method for removing part of a food product through an “abrasive stream”; and Conduent Business Services’ method to create a classifier that predicts a user’s personality type.

A lot of these are software patents, including the “method to create a classifier that predicts a user’s personality type.” These are, once again, just software patents disguised as something else — something that a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would likely characterise (to reject) as abstract under Section 101 (35 U.S.C. § 101). Is the USPTO asleep at the wheel? Has it not been paying attention to SCOTUS and CAFC (Federal Circuit) decisions? Even District Court cases are nowadays mostly rejecting such patents. Towards the end of the week, for instance, Donald Zuhn covered a District Court case in which one party was “arguing that the claims of the ’831 patent are invalid under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter and for being void of any inventive concept.”

It’s about DNA, not software. From Patent Docs‘s concluding part:

The District Court therefore determined that the ’831 patent is directed to patent-ineligible subject matter.

With respect to the second step of the patent eligibility analysis, Natera argued that the ’831 patent does not contain an inventive concept because the selective enrichment of DNA in the patent involves well-known, routine, and conventional amplification techniques. Illumina responded by arguing that the ’831 patent improves upon prior art techniques by addressing a need for selective enrichment of DNA sequencing for aneuploidy analysis to avoid producing non-target amplification products.

In denying Natera’s motion, however, Judge Illston determined that “at this stage in litigation the factual record is not sufficient for the Court to conclude whether there is an inventive concept.” In particular, the District Court noted that it “cannot determine whether the amplification of ‘at least 100 different non-random polynucleotide sequences’ and the performance of ‘successive rounds of amplification using primers that are directed to sequences within the products of prior amplification reactions’ are routine or conventional” (emphasis in order). In addition, the District Court noted that it “cannot determine whether the claimed selective enrichment leads to a technological improvement.”

Watchtroll has just found an opposite example — one which involves drugs rather than DNA:

AstraZeneca owns the ‘237 and ‘767 Patents, which are directed to pharmaceutical formulations, intranasal administration devices, or aqueous solutions of zolmitriptan, a selective serotonin receptor agonist. The ‘237 and ‘767 Patents are embodied in Zomig® (zolmitriptan), a nasal spray AstraZeneca developed for the treatment of migraines. In 2012, AstraZeneca and Impax entered into an exclusive agreement for the distribution, license, development, and supply of Zomig®. In June 2014, Lannett filed an Abbreviated New Drug Application (ANDA), seeking approval for a generic version of Zomig® Nasal Spray, alleging non-infringement and/or invalidity of the ‘237 and ‘767 Patents.

Obviousness could not be established in this case and it’s considered patent-eligible subject matter. But what about software?

What we’ve been finding more and more of (over the past year or two) is the use or misuse of buzzwords. Richard Kemp from Kemp IT Law, for instance, has just perpetuated this lunacy of calling software patents "cloud" in order to bypass the rules (using a buzzword that typically means server/s). From the article:

The migration to the cloud and transformation to digital now so visibly under way are moving intellectual property (IP) centre stage as all businesses become software companies.

[...]

Waiving LOT membership fees suggests expectations are defensive rather offensive. In this use case, access to a large defensive portfolio like Microsoft’s Azure IP Advantage should also be considered.

He’s promoting Microsoft’s protection racket, “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20] as well as LOT Network.

Elsewhere in the news, e.g. these two pages [1, 2] (“IBM Receives Six Blockchain Related Patents In One Week”) we’re seeing patent thug IBM. It is still harvesting bogus software patents by calling them “blockchain”, “AI”, and “cloud”. In this particular example:

IBM is actively working on innovations in the distributed ledger technology (DLT). In the span of a week, the US tech giant was awarded six blockchain-related patents by the United States Patent and Trademark Office (USPTO). Two of the patents were awarded on Thursday, while four patent applications were approved last week.

“Blockchain” has become a catch-all phrase for “database” in some contexts (or simply storage). Servers are “cloud”. Algorithms are “AI”. Watch what Typerium is doing [1, 2]; it’s pursuing bogus software patents that PTAB would likely reject as abstract under Section 101, but with words like “Innovative” and “Blockchain” maybe these applications will be successful. Blockchain has become the hype/buzzword of choice these days [1, 2], especially in the financial sector when one seeks patents on software/business methods.

Software patents on DRM, for example, are something to be condemned, not hailed/celebrated. But what happens when the term “blockchain” is thrown in [1
2]? CoinGeek and other cryptocurrency-centric sites were absolutely giddy about it [1, 2, 3]. nChain pretends that it is “Open Source”, but actually it’s a force for bogus software patents (even in Europe or the EPO). No such thing can ever help Free/Open Source software and because the patents pertain to digital rights management (DRM) it couldn’t get any worse. “nChain,” one item says, “the global leader in research and development of blockchain technologies, is pleased to announce issuance of another three patents by the European Patent Office. These three patents, issued on July 11, 2018, are all methods to enforce digital rights through the use of blockchain technology.”

Watch the EPO falling for buzzwords:

European Patent (EP) No. 3295349, entitled “A method and system for verifying integrity of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” describes a system that uses a standard BCH transaction, with additional metadata, to reference an entry within an external distributed hash table (DHT). To show the integrity of a digital asset, its signatures must align with the signatures on the DHT as well as the signature on the blockchain transaction itself.

The second patent, EP3295362, is for “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger.” Just as its name suggests, this invention adds another set of cryptographic operations based on the first patent’s technique to validate a digital asset’s current owner.

Finally, there’s EP 3295350. This invention, titled “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” is described as a logical extension of the technique in EP 3295362, which allows a computer software to check the user’s right to execute it before the software is launched.

Why are these patents being granted? That’s software! Here’s more from Bitcoin News:

The blockchain technologies research and development firm, Nchain, has acquired three new patents that have been issued by the European Patent Office. The company’s latest intellectual property invented by Nchain’s chief scientist, Dr. Craig Wright, cover “digital rights management using blockchain.”

nChain, as we noted here before, seems to be doing nothing but harvesting software patents (even at the EPO where it’s not allowed). It’s even buying patents. Lawsuits to come? It these patents ever get tested in courts (in Europe or elsewhere), expect them to perish. But at what cost to innocent defendants?

PTAB Defended by the EFF, the R Street Institute and CCIA as the Number of Petitions (IPRs) Continues to Grow

Posted in America, EFF, Patents at 9:52 pm by Dr. Roy Schestowitz

Things one can accomplish with pen and paper just aren’t patent-eligible anymore

Just pen and paper

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) come to the rescue when patently-bogus patents are used, covering totally abstract concepts (like software patents do); IPRs continue to increase in number and opponents of PTAB, who conveniently cherry-pick Supreme Court (SCOTUS) decisions, can’t quite stop that

THE encouraging developments at the USPTO mostly revolve around invalidations. And why? Because many patents had been granted in error over the decades, all this (or most of this) prior to AIA, whereupon many of these were taken away. It’s no secret that the EFF speaks out in support of PTAB, for instance, which is why the anti-PTAB lobby hates the EFF so viscerally. PTAB basically helps raise patent quality in the US. PTAB is being regularly defended by the EFF and also by the R Street Institute and CCIA, as the EFF noted a few days ago. To quote:

It’s already much too difficult to invalidate bad patents—the kind that never should have been issued in the first place. Now, unfortunately, the Patent Office has proposed regulation changes that will make it even harder. That’s the wrong path to take. This week, EFF submitted comments [PDF] opposing the Patent Office’s proposal.

Congress created some new kinds of Patent Office proceedings as part of the America Invents Act (AIA) of 2011. That was done with the goal of improving patent quality by giving third parties the opportunity to challenge patents at the Patent Trial and Appeal Board, or PTAB. EFF used one of these proceedings, known as inter partes review, to successfully challenge a patent that had been used to sue podcasters.

Congress didn’t explicitly say how these judges should interpret patent claims in AIA proceedings. But the Patent Office, until recently, read the statute as EFF still does: it requires the office to interpret patent claims in PTAB challenges the same way it does in all other proceedings. That approach requires giving the words of a patent claim their broadest reasonable interpretation (BRI). That’s different than the approach used in federal courts, which apply a standard that can produce a claim of narrower scope.

Using the BRI approach in AIA proceedings makes sense. Critically, it ensures the Patent Office reviews a wide pool of prior art (publications and products that pre-date the patent application). If the patent owner thinks this pool is too broad, it can amend claims to narrow their scope and avoid invalidating prior art. Requiring patent owners to amend their claims to avoid invalidating prior art encourages innovation and deters baseless litigation by giving the public clearer notice about what the patent does and does not claim.

[...]

We hope the Patent Office will reconsider its proposal, after considering our comments, as well as those submitted by the R Street Institute and CCIA, a technology trade group. Administrative judges must remain empowered to weed out those patents that should never have issued in the first place.

We regularly take note of the good work of the EFF (recent examples [1, 2]). It wasn’t always the case because the strategy/policy of the EFF used to be a tad different when it comes to software patents. One reader sent us the pointer to an article titled “No, you can’t patent the ability to pause a lesson recording, EFF says” (relating to the original from the EFF, which we mentioned before). Here’s their latest target:

The Electronic Frontier Foundation has stepped up to represent a small, independent online language teacher who has been threatened with a lawsuit by a British publisher that claims the teacher is infringing an American patent issued back in 2000 for a particular audio-based teaching technique.

What’s the secret sauce? Amazingly, the use of a pause button to temporarily stop the lesson.

Well, software patents are a stain on the patent system. The Office ought to stop granting these, as per Alice. But will it? At the moment many rely on courts (or PTAB) to do this. This is why courts have been coming under many attacks from patent maximalists. It’s pretty ugly to watch.

With borderline abuse, patent maximalists still try (almost every day) to discourage me from writing about patents. Little do they know that they only embolden me; if it upsets them, it means there’s impact. They just don’t like to see the “other side” expressing its views, hence the attacks on the EFF as well.

Dealing with two SCOTUS decisions regarding PTAB, this upcoming webinar has been titled “Protecting and Licensing University Patents in a Post-Oil States and SAS World” (they allude to immunity universities typically enjoy).

Michael Loney has meanwhile written about the latter decision, under a headline which later extended from “SAS appeal – how the Federal Circuit has interpreted PTAB cases” to “SAS appeal – how the Federal Circuit has interpreted PTAB cases since Supreme Court ruling” (why this revision? Clarity?).

We recently mentioned how they obsess over SAS rather than Oil States, the far more important decision.

All this cherry-picking of SCOTUS cases is quite revealing, as was yesterday’s promotion of a Practising Law Institute (PLI) webcast on WesternGeco. Loney’s colleague, Sanjana Kapila, is trying to figure out what Trump’s SCOTUS ‘coup’ means for patents, especially knowing what Gorsuch said about SAS and Oil States. Well, initially an "unknown" on the subject of patents, Gorsuch has thus far been a total disaster. As many feared, he now parrots talking points from think tanks funded by the Koch Brothers. To quote Kapila’s article:

The US Supreme Court ruled on three intellectual property cases this term, all concerning patents. This was far fewer than the eight IP cases in the previous term.

Loney is meanwhile taking note of key PTAB decisions, remarking that “PTAB designates five informative decisions” and to quote:

The Patent Trial and Appeal Board has designated five decisions as informative, two ex parte review and three inter partes review decisions

Dennis Crouch also listed these cases. He wrote: “The USPTO has recently designated five PTAB decisions as “informative.” (I have also included the recent Western Digital decision as well).”

On the 12th of July Loney revealed that filings/petitions (IPRs) were on the “up”, still. That means more patents being scrutinised. Here are the numbers:

June included an increase in Patent Trial and Appeal Board petition filing, two PTAB-related bills being introduced in Congress and the first reversal of a PGR final written decision

The first half of 2018 ended with 817 petitions filed at the Patent Trial and Appeal Board, up from 766 in the second half of 2017.

The Federal Circuit weighs in occasionally. Here’s a new example of “CBM Decision Vacated: the patent does not qualify as a covered business method.”

To quote Crouch:

Apple and Google both challenged ContentGuard’s U.S. Patent 7,774,280 under the Covered Business Method Post Grant Review proceedings. The challenges raised eligibility, novelty, and obviousness challenges to several of the claims, but the Director (acting via the PTAB) only partially instituted: instituting only on novelty and obviousness, and only to three of the claims. In the end, the PTAB found those claims obvious, but also allowed the patentee to add Claim 37 as a substitute for Claim 1 and found the new claim valid (not proven invalid).

On appeal, the Federal Circuit ruled the entire event a nullity — finding that the patent does not qualify as a covered business method. See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323 (Fed. Cir. 2015) and Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 1379 (Fed. Cir. 2016). A key case on point is also Secure Axcess, LLC v. PNC Bank National Ass’n, 848 F.3d 1370, 1381 (Fed. Cir. 2017). However, that case was vacated as moot by the Supreme Court in PNC Bank Nat. Ass’n v. Secure Axcess, LLC, 138 S. Ct. 1982 (2018).

The “Transitional Program for Covered Business Method Patents” is not codified within the United States Code (35 U.S.C. ___) because it is only a temporary program that sunsets in September 2020. Thus, the CBM program is generally cited as Section 18 of the Leahy-Smith America Invents Act.

Factual errors in Patently-O (not for the first time, either) were later noted by Patently-O itself. “On July 11,” Crouch said, “I wrote about the recent Federal Circuit decision in Apple v. ContentGuard. My post erroneously stated that the court found that the patent does not qualify as a “covered business method” patent. The court did not take that bold of a step of a reversal. Rather, the court vacated the PTAB’s finding that was based upon an improper legal standard and remanded for a reconsideration.”

This was mentioned some hours ago by Watchtroll.

Google too is involved in this fight because it is also affected. And after all, Google too has challenged ContentGuard’s patent number 7,774,280. Google is just harvesting patents nowadays (new example from the news); it is patenting software, relying on patents that restrict Public Domain material/knowledge and occasionally Google sues as well. One day PTAB will turn against Google itself, rendering its own patents invalid as well.

IAM/Joff Wild May Have Become a de Facto Media Partner of the Patent Troll iPEL

Posted in America, Asia, Patents at 8:53 pm by Dr. Roy Schestowitz

Now producing a puff piece every week

Some pig

Summary: Invitation to trolls in China, courtesy of the patent trolls’ lobby called “IAM”; this shows no signs of stopping and has become rather blatant

THE legal terrain in the US has become trolls-hostile, as we last noted yesterday. Having run short of opportunities in the gradually-reformed US (especially the courts, not the USPTO), some patent trolls now look at China for litigation opportunities. That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).

“That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).”Joff Wild and his colleagues/writers/lobbying team have been doing puff pieces for iPEL, e.g. [1, 2]; the matter of fact is that almost nobody else writes about it and they speak directly to the troll, issuing puff pieces (and threats) every week or so. Yesterday’s latest puff piece was about “game-changing patent case” and by “game” they mean “trolling”. To quote:

After all, $100 million of damages from one company indicates that there is considerable further upside in the wider industry or sector the patents cover. To hand over the ability to tap that amount of revenue for anything other than a huge sum of money would be extremely careless – to say the least. From what I know of the likes of Huawei, ZTE and others that iPEL has bought from, such as Panasonic, it’s hard to see them doing such a thing.

Although Yates has been a long-time player in the US monetisation [trolling] market – and filed over 500 suits during 2015 and 2016, before falling foul of Judge Gilstrap in the Eastern District of Texas last year – he does not seem to have done much work in China up to now. It is likely, though, that he has done plenty of research and spoken to a lot of people. They would surely have told him that discretion is the better part of valour in a jurisdiction that, although it generally treats plaintiffs well, is increasingly complex and political.

Yeah, trolls are “increasingly complex and political.” So are extortion rackets.

We suppose many of our readers already know what IAM stands for (e.g. lies for Battistelli and EPO revisionism). But one must understand that these people are shown in “news” feeds and apparently pay other sites to reprint this tosh.

“We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain.”Patent Docs is another mouthpiece of patent maximalists’ agenda. Webinars from the Intellectual Property Owners Association (IPO) and other proponents of software patents are still being advertised there this weekend (coming soon). It’s quite fitting that patent lawyers nowadays use the term “unclean hands” (brought up a lot recently). Webinars like this upcoming one deal with questions such as: “How will Supplemental Examination effect both unclean hands and inequitiable conduct?”

We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain. In the case of IAM, it’s borderline lobbying, pure and simple.

Asking the USPTO to Comply With 35 U.S.C. § 101 is Like Asking Pentagon Officials to Pursue Real, Persistent Peace

Posted in America, Courtroom, Patents at 1:15 am by Dr. Roy Schestowitz

Related: Michael Frakes and Melissa Wasserman Complain About Low Patent Quality While Watchtroll Lobbies to Lower It Further

What bombs do
These cost $132,000 each about 60 years ago (more than $3 million by today’s money)

Summary: Some profit from selling weapons, whereas others profit from patent grants and litigation; what’s really needed right now is patent sanity and adherence to the public interest as well as the law itself, e.g. Supreme Court (SCOTUS) decisions

THE SCOTUS ruling on Alice more than 4 years ago ought to have sufficed. It ought to have stopped software patent grants in the US. Sadly, however, parties often need to appeal to the Federal Circuit (very expensive) in order for such patents to be intercepted; sometimes a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would suffice, but not always. Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB. For small businesses in particular, PTAB is all they can afford. Embargoes to them may mean life or death. They may declare bankruptcy overnight.

“Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB.”In spite of Mayo, another SCOTUS decision that shaped 35 U.S.C. § 101, the USPTO is still granting patents on life itself (the EPO increasingly does this too, in arrogant defiance of the EPC). Here is a press release that is only a few days old:

Inscripta Granted Patents for CRISPR Gene-Editing Systems

Inscripta, a leading gene-editing technology company, today announced two significant milestones. First, the USPTO granted Inscripta its first patent covering systems using MAD7, the company’s first free CRISPR enzyme, as well as patent coverage for systems using another MADzyme, MAD2. Second, Inscripta released new data run by external partners showing MAD7 can edit mammalian cells.

“Today marks a major step forward in the gene-editing revolution we started seven months ago when we released our own, unique CRISPR enzyme (MAD7),” said Kevin Ness, CEO of Inscripta. “We and our partners have shown that MAD7 is an effective tool in editing microbial and mammalian cells. All researchers, both academics and industrial scientists alike, can use MAD7 confidently, and Inscripta is committed to providing a license to its related patents for customers to perform free research and development using the enzyme.”

Why was this granted? Need someone petition PTAB now (IPR)? Does someone have the financial incentive to do so? We sure hope so. Otherwise we need to wait for some court battle, knowing that Inscripta might prey on small companies that simply cannot afford court battles (and would rather shell out ‘protection money’). This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation. The US does not, in principle, allow CRISPR monopolies. There are SCOTUS precedents to that effect.

“This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation.”Cellspin Soft, Inc. v Fitbit, a case that we mentioned days ago in this post, is now being covered by Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) in Patent Docs (reposted here, maybe for a fee so as to appear more widely). Here’s the part relevant to 35 U.S.C. § 101 although the more interesting angle is the possibility that the plaintiff will get punished for frivolous litigation. Quoting Borella:

Cellspin sued Fitbit and thirteen other defendants in the Northern District of California alleging infringement of U.S. Patent Nos. 8,738,794, 8,892,752, 9,749,847, and 9,258,698. The defendants filed a motion to dismiss, alleging invalidity of the patents under 35 U.S.C. § 101.

As we said some days ago (for the second time), we hope this case can become a deterrent against frivolous litigation in the US, but we can’t quite count on it. Many courts, especially the lower ones, don’t pursue fact-finding. Instead they let juries decide. It’s pretty silly to do patent trials by jury, for reasons we’ve explained many times before (many in the jury are incapable of understanding the technical details inside patent claims), yet here we are in Mass Engineered Design, Inc. v Planar Systems, Inc. — the case which now potentially deals with treble ‘damages’ over alleged infringement. As Docket Navigator put it yesterday:

The court granted plaintiff’s motion in limine under FRE 403 to preclude defendant from telling the jury that damages could be enhanced or trebled at a willfulness retrial and rejected defendant’s argument that its supplier’s indemnification agreement should similarly be excluded.

What does the jury know? These aren’t professionals in the said field? It’s understandable that juries can decide cases like homicide or drug sale/use, but patents? Seriously?

“If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms.”In another new development, in Shire LLC et al v Abhai LLC, “[t]The court granted in part plaintiffs’ motion for discovery sanctions and sanctioned defendant $1.5 million after defendant disclosed corrected stability dissolution testing data during a bench trial,” according to this new Docket Report.

The way things stand at the moment — and we shall elaborate on that later in the week — patent justice isn’t easy to find in the US. The law is still dominated by law firms (they write the law by lobbying/lobbyists) and patent examiners are better rewarded for granting a lot of patents rather than rejecting most. If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms. The latter want eternal war.

07.14.18

Jim Skippen, a Longtime Patent Troll, Admits That the Trolling Sector is Collapsing

Posted in America, Patents at 11:27 pm by Dr. Roy Schestowitz

Old wing barn

Summary: Canada’s biggest patent troll (WiLAN) bar BlackBerry doesn’t seem to be doing too well as its CEO leaves the domain altogether

IAM, which is sponsored by MOSAID, writes about patent troll Jim Skippen (as it habitually does), who came from there to another troll, WiLAN, last mentioned here a few days ago in relation to its latest shakedown. According to him, says IAM, “the licensing [trolling] market” should get “used to the new normal,” in which even the father of patent trolling and his firm are both dead (literally). From the outline:

Last month Quaterhill announced that Jim Skippen, CEO of its WiLAN subsidiary [proxy], was retiring after more than a decade leading the business [sic]. Skippen was instrumental in turning the Ottawa-based NPE [troll] into a patent licensing [trolling] business [sic] which today has a portfolio [arsenal] of thousands of assets [USPTO-granted patents] and one of the leading players in the monetisation [trolling] market [sic]. Having joined from MOSAID, now Conversant [sponsor of IAM], where he served as general counsel and senior vice president of patent licensing [trolling], Skippen has had as good a view as anyone of how things have evolved over the last 20 years.

The terrain for trolling has changed. Skippen recognised it and stepped down (maybe got demoted/fired). He has clearly too young to have willfully retired. “My undergraduate courses were focused on computer science, and after law school in the mid-1980s I went to work as an associate in a technology transfer practice under Fraser Mann,” he told IAM 3 years ago (they keep promoting him, not mentioning the financial relations). So he’s probably in his fifties.

“His accomplishment was basically the massive handover of patents from practicing firms to parasites.”“WiLAN controls approximately 15,000 patents,” according to Wikipedia. His accomplishment was basically the massive handover of patents from practicing firms to parasites. Well done, Jim! He used to be connected with Nokia (about a decade ago), where Microsoft arranged to pass a lot of patents to MOSAID (more than half a decade ago). Having been renamed “Conversant”, this classic patent troll habitually attacks companies that distribute Linux. So Jim’s legacy is just a big stain.

From East Asia to the Eastern District of Texas: XYZ Printing, Maxell, and X2Y Attenuators

Posted in America, Asia, Patents at 10:31 pm by Dr. Roy Schestowitz

XYZ Printing
Permanent/archived copy

Summary: The patent aggression, which relies on improper litigation venues, harms innocent parties a great deal; only their lawyers benefit from all this mess

THIS WEEKEND we shall focus on USPTO news, then release some new material about the EPO. But before we get around to it all, we’d like to highlight the above post, which someone brought to our attention yesterday. It’s an attack on Open Source and it’s happening in China, courtesy of XYZ Printing, an entity we’ve never mentioned before. What is it exactly? Is XYZ Printing just another patent troll as alleged above?

“As it turns out, it’s yet another patent lawsuit in the Eastern District of Texas. And against Chinese companies!”Speaking of which, Bing Zhao, who typically writes about China for the patent trolls’ lobby (IAM), wrote about Maxell a few days ago (it’s a Japanese company that manufactures consumer electronics). As it turns out, it’s yet another patent lawsuit in the Eastern District of Texas. And against Chinese companies! It shows that for companies to operate anywhere near there is a major liability/risk. More so after TC Heartland (although the applicability to foreign companies is limited, as per recent Federal Circuit decisions). It has become very unwise for any company — US-based or foreign — to have any sorts of operations in Texas, whose patent agenda has clearly backfired.

“Yes, the patent trolls’ lobby (IAM) is always eager to give publicity to, i.e. amplify, the aggressors, not the defendants. This is what IAM exists for.”“Earlier this month,” Zhao wrote, “Maxell won a $43.3 million damages award against ZTE in the Eastern District of Texas. It was the first jury decision for the Japanese electronics company, formerly a unit of Hitachi, since it began a US patent enforcement campaign back in 2016, with Huawei and ZTE as its initial targets. The company still has pending US patent suits against companies including Huawei, Asus and BlackBerry. IAM had an exclusive sit-down interview in Tokyo with Tatsuya Yamamoto, senior manager, IP licensing and legal at Maxell, to hear his insights into the company’s current enforcement campaign and its overall patent strategy.”

Yes, the patent trolls’ lobby (IAM) is always eager to give publicity to, i.e. amplify, the aggressors, not the defendants. This is what IAM exists for. See who’s funding it.

“These sorts of issues need to be tackled because when entities simply wrestle with (or twist) patent law justice itself is the principal casualty.”It has meanwhile been noted that patent thugs try to find artistic new ways for venue shifting (after TC Heartland). Citing X2Y Attenuators, LLC v Intel Corporation as a new example, Docket Navigator writes: “The court granted defendant’s motion to dismiss for improper venue because defendant did not have a regular and established place of business by placing four employees at a university lab in the district.”

In spite of the “LLC” and a similar mame to “XYZ Printing” at the top, X2Y Attenuators is not a troll. It’s also not about software patents. But it seemingly looks for the big bucks from Intel, even in an improper venue.

These sorts of issues need to be tackled because when entities simply wrestle with (or twist) patent law justice itself is the principal casualty.

07.12.18

The Anti-35 U.S.C. § 101 Lobby Pushes Old News Into the Headlines in an Effort to Resurrect/Protect Software Patents

Posted in America, Apple, Law, Patents at 2:15 am by Dr. Roy Schestowitz

Advanced Voice Recognition Systems, Inc. (“AVRS”) has meanwhile sued Apple with what looks like software patents “in the field of speech recognition and transcription” (according to its own press release)

AVRS history
So the whole ‘company’ is just a pile of patents (since its inception)

Summary: The software patenting proponents (law firms for the most part) are still doing anything they can — stretching even months into the past — in an effort to modify the law in defiance of Supreme Court (SCOTUS) rulings

35 U.S.C. § 101 isn’t too complicated. Based on (or partly inspired by) several SCOTUS decisions, Section 101 limits patent scope and notably eliminates patents on abstract things (or ideas, including algorithms). The USPTO‘s current guidelines ought to assure that no software patents will be granted anymore; nevertheless, there are conflicting interests. That’s why inter partes reviews (IPRs) and court challenges are needed. But, as one might expect, the patent maximalists aren’t happy; they see this as an “attack” (a word they use) on their occupation or an attempt to “kill” (also a word they sparingly use) patents. They nowadays sling their guns and shoot from the hip at IPRs, at judges, and at courts. Some if not many are based in Texas, so the gun-slinging metaphor seems apt; not to mention their obsession with words like “attacks” and “kills”. They call some tribunals “death squads”, evoking a colourful metaphor of genocide.

“They don’t profit from innovation; they make a living from extortion and lawsuits.”Anything that these patent maximalists (some we call “extremists” because they go even further) throw at 35 U.S.C. § 101 is easy to debunk; they just cannot tolerate patent quality, patent justice and so on. They want a culture of protection rackets, not of innovation. They don’t profit from innovation; they make a living from extortion and lawsuits. Their trade involves writing threatening letters, demanding money.

35 U.S.C. § 101 hasn’t been in the headlines lately, partly because of the summer vacation. Some pundits wrote about Mayo, which also helped shape 35 U.S.C. § 101. We wrote about Vanda 3 weeks ago in "The Dangerous Adoption of Patents on Life and Nature" and 3 months ago in "The Federal Circuit's (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites". The case is about Mayo, not about Alice, and it isn’t as “high level” as either of them. In a sense, it’s hardly even a big deal at all. This is very old news, too. Why is Donald Zuhn catching up with it weeks if not months late? Is this the best method for pushing their anti-35 U.S.C. § 101 agenda yet again (as news is slow)?

Earlier this week Zuhn (McDonnell Boehnen Hulbert & Berghoff LLP) wrote:

The memorandum explains that in Vanda, the Federal Circuit determined that the claims at issue are “patent eligible under 35 U.S.C. § 101 because they are not ‘directed to’ a judicial exception” (emphasis in memorandum).

Why is this being brought up in July? Heck, why does Managing IP now cover SAS Institute v Iancu? Its latest issue is summarised as follows (this week): “The issue’s cover story assesses the impact that the US Supreme Court’s SAS Institute v Iancu decision has had– and will have – on the Patent Trial and Appeal Board.”

The Patent Trial and Appeal Board (PTAB) is safe owing to Oil States (the far more important decision). No coverage of the more important decision? Not even in the cover story? Intentional bias? Bias by omission again?

Even Watchtroll’s PTAB bashing has slowed down considerably, knowing that — as per recent events (notably Oil States) — the quality of patents in the US will continue to be scrutinised and PTAB not crushed. This is sadly what we’ve come to expect from media which is literally run by law firms — an epidemic that suffocates real journalism regarding patent matters.

Yesterday Watchtroll resumed its PTAB bashing, cherry-picking an old Apple case. Another patent maximalist has since then brought up a Federal Circuit case, saying that in “Apple v Contentguard (Fed. Cir. 2018); Fed. Cir. Held that Patent Claims for a Copyright Management System Do Not Qualify for CBM Review: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2548.Opinion.7-11-2018.pdf …”

Anything which concerns Apple is, as usual, receiving a lot more attention. In fact, yesterday we saw this new press release from Advanced Voice Recognition Systems, which is a “patent assertion” entity (more or less), as covered in the past weekend's posts. There seem to be no actual (finished) products and they merely list lawsuits and patents in their Web site as though these are their products. From their press release:

Advanced Voice Recognition Systems, Inc. (“AVRS”) (OTC: AVOI) announced today that it has filed a lawsuit in the United States District Court-Northern District for Arizona against Apple, Inc. (“Apple”) for infringement of U.S. Patent No. 7,558,730 entitled “Speech Recognition and Transcription Among Users Having Heterogeneous Protocols” (the “’730 Patent”). The ’730 Patent is the first of AVRS’ family of patents in the field of speech recognition and transcription

Those are software patents. They’re algorithms. Watchtroll is also (on the same day) promoting the HEVC patent trap [1, 2] — a trap which very clearly concerns patented software in large amounts (many patents, probably too many to challenge at scale, as per the MPEG-LA strategy). Watchtroll wrote:

HEVC (also known as H.265) is a video compression standard originally developed to provide high quality video coding using half the bandwidth.

Software patents all over this. All should be considered void under 35 U.S.C. § 101, but there are so many patents that nobody has the funds or will to challenge them all. Certainly not companies like Apple, which actively pariticipate in this “thickening” or “thicketing” (setting up barbwire around industry ‘standards’).

“Mozilla complained about it yesterday, dubbing it “An Invisible Tax”.”The Section 101 conundrum will no doubt continue to occupy the media for a year (if not years) to come. The “thickening” (as in patent thickets) of software standards/APIs, preventing participation by those who lack a large number of patents, is what’s at stake. Mozilla complained about it yesterday, dubbing it “An Invisible Tax”.

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