Narrowly covering Enfish v Microsoft as though it’s the only case law in the world, in order to bypass the law-making process, hoping to salvage software patenting
Summary: Under the guise of reporting/analysis/advice the community of patent lawyers is effectively lobbying to make software patents popular and widely-accepted again, based on one single case which they wish to make ‘the’ precedent
OVER the past week we have composed not one but two articles about how the USPTO distorts patent law [1, 2]. We showed examples of USPTO bias when it comes to software patents, which are a source of USPTO revenue (at everyone else’s expense). The bias is showing, as even post-Alice the USPTO cherry-picks cases about software patents, trying to re-enable them. Reed Smith LLP, i.e. patent lawyers, is reaffirming what we wrote [1, 2] and so do people from the “The Software Intellectual Property Report” (Bejin Bieneman plc). Another firm of lawyers, Burns & Levinson LLP, is framing this as an “availability” problem, as if software patents are products. Where are the voices of reason in all this and why aren’t actual developers consulted on these matters? Ricardo Ochoa of PretiFlaherty (patent lawyers) failed to even hide his bias on the subject. They all try to attract customers based on the misguided belief or hope that they’ll manage to sneak software patents into the system, with help from an apathetic (about quality) USPTO. Where does this end? The most vocal longtime proponents of software patents even try using CAFC to broaden the appeal and scope of such patents. All of them rely on pretty much one single case which we mentioned here before, namely Enfish v Microsoft [1, 2, 3].
“Quite simply, being sincere and honest would not be convenient a strategy for people who make money ramming software patents down the USPTO’s belly.”Jason Rantanen, writing as a guest at Patently-O, deals with Enfish v Microsoft and In re TLI Communications. He is now comparing cases/studying CAFC to better understand how to get software patents granted in spite of the Alice decision.
“This month’s decision in Enfish,” he writes, “was an overnight sensation—almost literally, as mere days later the PTO issued the new examiner guidance to implement the decision that Dennis wrote about last week. That guidance emphasizes the Federal Circuit’s recognition of Mayo Step-1 as a meaningful inquiry and focuses on particular aspects of Enfish that relate to that inquiry: comparisons to prior abstract idea determinations; a caution against operating at too high a level of abstraction of the claims, and the rejection of the tissue-paper argument that use of a computer automatically dooms the claim (it doesn’t).”
But actually, those two cases are just a couple among many more (even at CAFC alone), and the overwhelming majority of them were against software patents. Patent lawyers latch onto Enfish v Microsoft as opportunists with agenda and the public is barely told anything at all about this overwhelming majority of cases, which reaffirm the demise of software patents. One person, writing about another CAFC case, says: “This case is notable mainly because it is the first Federal Circuit decision to distinguish itself from Enfish LLC v. Microsoft Corp., and also because it is another reminder that the wall between patentable subject matter, obviousness, and written description is now rubble.”
But why only rely on the latest two cases to discern/differentiate between patent-eligible and patent-ineligible? Why not rely on Alice and all the cases that cite it (probably many hundreds if not over a thousand)? Quite simply, being sincere and honest would not be convenient a strategy for people who make money ramming software patents down the USPTO’s belly.
One new report, titled “Claims to Devices Sharing GPS Addresses Not Patent-Eligible in E.D. Texas”, says:
Claims to Devices Sharing GPS Addresses Not Patent-Eligible in E.D. Texas
Judge Schroeder began by explaining that the magistrate judge was correct to decide the patent-eligibility question at the pleadings stage. The plaintiff had objected to the court’s refusal to consider its expert’s declarations, which were outside the pleadings. However, the magistrate properly relied on the plain language of the patent claims, and the plaintiff’s own description of the claimed subject matter. The expert’s declarations were not material to patent-eligibility and failed to provide adequate basis for their conclusions. Where “patent claims on their face are plainly directed to an abstract idea,” a dismissal at the pleadings stage was appropriate.
Moreover, Magistrate Judge Love properly “found that the ’503 Patent is directed toward the abstract idea of address retrieval.” The plaintiff argued that the magistrate judge had improperly used the “machine-or-transformation” test. Instead, Judge Schroeder explained, the magistrate judge had simply found that each of the problems the ’503 patent purported to solve “simply relate[s] to ease, accuracy, and efficiency benefits achieved when any fundamental or well-known concept is implemented on a computer device.”
Finally, addressing the second prong of the Alice/Mayo test, the claims recited no inventive concept. The plaintiff had essentially argued that “that the ‘503 Patent is inventive because it requires specialized hardware and software, and is limited to a specific type of data.” However, as the magistrate judge found, “a GPS device performing generic computer tasks does not transform the claims into patent-eligible subject matter.”
That last sentence is interesting because it shows how much effort was made to exploit EPO-style loopholes, wherein one tries to portray software as “hardware” using the device it happens to be running on (even a generic computer or GPS device).
The US is moving away from software patents. Many patent lawyers are either in denial about it or hope to use self-fulfilling prophecies to impose their will on the system. █
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Media continues to highlight the symptoms (personified), but not the core issue/s
Summary: Some of last week’s more important reports, which serve to demonstrate how the system is attempting to tackle a side-effect of software patents rather than the patents themselves (their irrational scope)
“We are entering a Post-NPE world for patent litigation,” Kevin Rhodes, 3M counsel, is quoted as saying at a recent AIPLA meeting. “NPE” is just a euphemism for one of the worst types of trolls (a “type” being the business model and structure/formation/master/modus operandi). 3M itself can be rather aggressive and litigious, as we noted here in past years (e.g. monopoly on a colour).
The post-patent trolls world is sadly not within sight, whereas the post-Alice world often means that a lot of software patents, including those that patent trolls are using, simply perish in courts (the innocent defendants still lose a lot of money in legal fees).
Among the active patent trolls there are some who stand out and are ‘celebrities’, so to speak. Some of them got mentioned in the media last week.
One such celebrity troll (shown above) was mentioned in this previous post about Spangenberg at/with Marathon. This notorious patent troll, Spangenberg, goes further and targets more geographies now (MIP took note of it last week). A pro-trolls site, IAM, says: “A couple of stories hit the news last week which might give some in the patent industry reason to hope that the market is beginning to turnaround. First up was the announcement that Erich Spangenberg was joining Marathon Patent Group as director of acquisitions, licensing and strategy.”
According to MIP’s summary: “Marathon Patent Group has named Erich Spangenberg as director of acquisitions, licensing and strategy. He will spend most of his time in Europe and Asia working with large corporate patent owners on monetisation opportunities” (“monetisation” is euphemism for shakedown using threats if not legal bullying as well).
Jay Mac Rust
Recall Jay Mac Rust, who sent out nastygrams to 16,465 businesses some years back, trying to effectively blackmail them using ludicrous patents. This has become an epic example of the harms of patent trolls. According to this new report, Jay Mac Rust is now being sued by the SEC. What took so long? To quote the report: “The SEC filed suit in Manhattan federal court against Jay Mac Rust, a Stephenville, Texas-based lawyer who also owns the litigious patent holder MPHJ Technology Investments LLC, and Christopher Brenner, a onetime Fulbright & Jaworski and Bracewell lawyer now at Houston’s Martin, Disiere, Jefferson & Wisdom. The SEC alleges that Rust and Brenner perpetuated a fraud by Atlantic Rim Funding, a purported loan company operated by “a convicted felon and recidivist securities law violator” who is identified in the complaint as “Individual X.” (The suit indicates that Individual X is currently serving a 20-year prison sentence following an unrelated criminal securities fraud prosecution.)”
“EFF Patent Reform isn’t going to happen,” wrote a person who focuses on eliminating software patents. “Probably better to overturn the precedent that allows cases to be filed in EDTX” (Eastern District of Texas).
The above alludes to this news and open letter from the EFF. It wrote the following to Senator Grassley:
You know this better than anyone: patent trolls are not an academic issue for Iowa businesses. They’re a serious threat. In the words of Ames businessman and repeat troll target Al Meyers, “The harm is real, as it reduces the investments that can be made to make Iowa’s and the nation’s products more competitive in the world market.”
We were glad when you told Politico that fighting trolls is still a top priority for you. EFF has a great deal of admiration for the Protecting American Talent and Entrepreneurship Act (PATENT Act), a bill that you shepherded into the Senate. But we were puzzled to hear that you’re not planning for the Senate Judiciary Committee to move forward with the Venue Equity and Non-Uniformity Elimination Act (VENUE Act), a bill whose reforms complement those in the PATENT Act perfectly.
We wrote about the VENUE Act more than half a dozen times and we don’t think it will solve the biggest problems. It can cause inconvenience to patent trolls, but not eliminate them or their patents (usually software patents).
“I’m not going to give up on patent trolls,” Grassley told the press or the public. Here is one decent article about it, titled “Another patent reform bill just died in Congress”. Here are the relevant parts:
But Politico’s Morning Tech reported earlier this week that Grassley is “not looking at the venue bill because approving a smaller measure could hurt the chances of moving something more comprehensive later.” Indeed, while many in the tech sector support limiting venue choice, they would prefer a complete bill that addresses all issues at once.
Still, Grassley told the site, “I’m not going to give up on patent trolls.” Yet whether Grassley’s determination to advance legislative patent reform can withstand the deadening inertia of election-year politics remains to be seen.
In the past, as we noted here repeatedly, Grassley was involved in patent reform [1, 2] and he also took on Microsoft and Bill Gates [1, 2, 3], so we have respect for his intentions and courage.
Javris Article and Ed Lee Paper
There is a relatively new scholarly paper whose headline (title) says “Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform” and it was mentioned by Professor Crouch’s site the other day. “I’ll highlight the Javris article once it is out,” Patently-O wrote. “Meanwhile, you may want to check-out the article by Professor Ed Lee (Kent-IIT) titled Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform. The article “provides the first empirical study of the use of the term “patent troll” by U.S. media.””
Well, the definition of “patent troll” is quite clear and those who reject the term are unsurprisingly paid by patent trolls.
The problem popularly known as “patent trolls” is real, but debating it without context (like patent scope and a greedy patent office/courts with nepotism) is like speaking about the “war on terror” without entertaining the motivations, which include imperialism, economic disparity, religion and so on. █
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Like asking army generals about the needs of war…
Summary: A look at some of the latest oddities in the US patent system and much of the reporting about software patenting (more or less monopolised by those who profit from it, not harmed by it)
THE USPTO keeps snubbing SCOTUS (the Supreme Court) and ignoring decisions like those which annihilate software patents, unlike the Enfish v Microsoft decision [1, 2, 3]. What kind of a rigged office is this? And it’s not even a private company, it’s portrayed or framed as an institution that exists for the common good.
Based on what we constantly find online, patent lawyers are now selling services (like a webinar in this case) around the uncertainty, promising to be the ‘experts’ for getting around the rules at the USPTO (while the USPTO often accommodates this, for various different nefarious reasons). Some people in this meta-industry even produce some kind of ‘cheatsheet’, or “Top Ten 101 Patent Eligibility Patent Drafting Rules…and an Enfish Sideshow,” as one patent attorney has just put it, linking to this PDF.
“See what David Kappos is doing nowadays on behalf of large corporations that pay him, including his former employer.”The USPTO, as we noted here several days ago, is heavily biased, sometimes by omission. It just wants to grant more and more patents, so restrictions (like patent scope limitations) are considered to be an ‘enemy’ and a perceived threat to ‘results’ (or ‘growth’). Matt Levy, whose wife works at the USPTO, has just posted a list of USPTO case studies following additional reports (patents ‘industry’ sites [1, 2]) which say that the USPTO adopts a pro-software patents decision, incorporating it into the examiners’ guidance. Why not do anything about a decision from the same court that was against software patents just a few days later? Or many dozens before it, which were also against software patents (at CAFC)? Let’s face it, this system is rigged and money (or moneyed interests, or large corporations with their lobbyists) determine what happens. See what David Kappos is doing nowadays on behalf of large corporations that pay him, including his former employer. Kappos was the Director of the USPTO until not so long ago, namely a few years. Like David Petraeus (see image above), the former CIA Director, David Kappos now makes a killing by selling influence and suggesting horrific policies to his ‘connections’ (doors have revolved). Kappos is paid to do this. His mouth is basically up for sale. He is a lobbyist of the most dangerous kind and thus a source of shame to the system he came from (as it’s indicative of institutional corruption).
As one might expect, especially because we showed dozens of examples in the past week alone, patent lawyers continue to ignore almost every CAFC case and instead cherry-pick to add ‘detergent’ to their shameless never-ending brainwash. Here are 4 new examples [1, 2, 3, 4]. They just keep cropping up at an amazing pace, sending across the message that software patents are now magically patentable again, provided one hires the ‘witty’ lawyers who write these columns. It’s all marketing. Lawyers are typically liars, with few exceptions in many people’s experience. They have a client to serve, they’re not judges. Brainwash from them can be found aplenty in the Oracle v Google case right now, where the jury and judge hardly know what FOSS and API are. Lawyers of Oracle mislead them every day (we post a lot of links about this case) and the more ignorant the judge and jury remain, the better off Oracle will be. In fact, this whole case is ludicrous and should have been thrown out before it even reached a court. Unfortunately, not programmers assess such cases for their actual merit (or lack thereof).
“They just keep cropping up at an amazing pace, sending across the message that software patents are now magically patentable again, provided one hires the ‘witty’ lawyers who write these columns.”Some of these same patents ‘industry’ sites now use the aforementioned cases to further stretch the limits of patenting (see “Patents For Self-referential Computer Database Are Not Categorically Unpatentable as Abstract”), but it isn’t exactly shocking, is it? We found only one single new report about the Vehicle Intelligence case (a case we have covered here for months), which resulted in software patents being chucked away, as is usually the case after Alice. That’s not what the patents ‘industry’ wants people to hear about, so it nonchalantly ignores this ruling. █
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Just a money-making operation where corporate lobbying is more than welcome
Summary: The US patent system (USPTO) is so obsessed with granting as many patents as possible — even bogus patents in areas that are no longer patent-eligible — that its guidelines are further perturbed and whose appeals board is massively overwhelmed/overworked/understaffed
THE USPTO has been a huge booster of software patents for a long time. For the USPTO it’s a growth (profit) area, so it’s unwilling to compromise on the subject. As we have repeatedly shown for years, the USPTO begrudgingly (at best, if at all) adopted the Alice decision and it continued to grant a lot of bogus software patents (which PTAB helped confirm are bogus after IPRs).
Regarding IPRs, which essentially trash a lot of software patents that the USPTO erroneously (if not fraudulently) grants to increase revenue, Patently-O had this to say the other day, shedding light on key figures:
The Patent Office routinely publishes statistics on IPR and CBM proceedings, but their methodology suggests that the petition institution rate is lower than it really is.
Inter partes review and covered business method review have undoubtedly changed patent litigation. No patent assertion campaign or defense strategy is complete without considering the implications of these AIA procedures.
The Patent Office publishes statistics on these new AIA trials roughly once a month. Practitioners can easily see how many petitions are filed in various technology areas, as well as how often claims survive or are canceled. They say that a picture is worth a thousand words, and this visual and easy-to-read resource gives stakeholders a quick sense of how the new tribunal is affecting patent law.
But as Mark Twain once said, “[f]acts are stubborn things, but statistics are more pliable.” In publishing these statistics, the PTO has made choices in methodology that may underreport the institution rate of IPR and CBM proceedings.
To put it less politely, the USPTO is lying, as usual, in order to glorify itself. As the USPTO is not a private entity, this is totally unacceptable. According to MIP (this morning), “PTAB designates five decisions as precedential” and to quote the summary: “A total of eight Patent Trial and Appeal Board decisions have now been designated precedential. At the PTAB Forum 2016, acting PTAB chief judge Nathan Kelley provided detail on the process of approving precedential decisions” (PTAB, the Appeal Board — much like the Boards of Appeal at the EPO — may be the only element that’s not dysfunctional due to dependence and fear from above).
“Basically, as everyone ought to know by now, virtually all if not the overwhelming majority of software patents that go to a high(er) court or PTAB get invalidated.”Suing a government for $1 billion over patent infringement (surveillance) may sound mad, but here is another new report from MIP. It’s about PTAB again: “The Department of Justice has filed petitions at the Patent Trial and Appeal Board for the second time, targeting the patents involved in a suit brought by Discovery Patents and 3rd Eye Surveillance that seeks $1 billion in compensation from the US government” (yes, that’s $1,000,000,000).
Basically, as everyone ought to know by now, virtually all if not the overwhelming majority of software patents that go to a high(er) court or PTAB get invalidated. Small companies cannot afford to defend themselves from such patents because the process of reassessment or court proceedings is expensive (prohibitive costs with risk and no assurance of legal fees compensation/reimbursement).
“In fact, the USPTO is again latching onto one single pro-software patents decision (reaffirming its desired bias), in spite of a vast number of decisions (even at CAFC) against these patents.”Adding insult to injury, citing the over-hyped Enfish v Microsoft decision [1, 2, 3], watch how the USPTO sneakily changes its guidelines. To quote Patently-O: “The Enfish case is important in the way that it gives teeth to step-one of the Alice/Mayo test for subject matter eligibility. Notably, the unanimous panel of Judges Moore, Taranto, and Hughes (author) held that neither the software-implemented data structure nor its method of creation were “to be directed to a patent-ineligible abstract idea” and thus did not pass Step-1 of Alice/Mayo. Prior courts usage of the “gist” analysis for Step-1 left many of us with the feeling that almost all inventions could be boiled-down to an ineligible concept. Enfish rejects that conclusion and instead held that that Step-1 is designed as a meaningful test.”
“The USPTO rapidly turns into a joke and the numbers suggest so too.”But what the Supreme Court said has not changed. In fact, the USPTO is again latching onto one single pro-software patents decision (reaffirming its desired bias), in spite of a vast number of decisions (even at CAFC) against these patents.
Consider the fact that the former Director of the USPTO is now a lobbyist for software patents, paid for this lobbying by some of the largest self-serving proponents of software patents.
The USPTO rapidly turns into a joke and the numbers suggest so too. Low patent quality has had it subjected to occasional ridicule in the media and it risks becoming a laughing stock worldwide. The USPTO has become a grossly overpriced registration/filing system (more so than an examination office). The public pays the price for all the resultant damage and it is obvious who gains. █
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Only an article or two about the decision against software patents and two dozen or so about a decision in their favour
Reference: Status quo bias
Summary: In an effort to protect software patents in the United States, where these patents came from in the first place (and continue to spread from), patent lawyers pretend not to see cases where software patents get invalidated and instead focus on the rare exception
The Supreme Court ruled against software patents two years ago. Things have changed thoroughly since then. Right now patent lawyers hope that another software patent/s case will reach the Supreme Court, which can potentially change course and reset the record (precedence).
“It doesn’t seem as though anything that can change Alice is on the horizon.”Patent maximalists (lawyers) watch closely as the Supreme Court picks up cases. To quote Professor Dennis Crouch’s overview (he keeps updated this kind of SCOTUS zeitgeist): “It is now time to begin looking for an opinion in the Halo/Stryker regarding whether the Federal Circuit’s test for willful infringement is too rigid. Those cases were argued in February 2016. We can also expect a decision in Cuozzo prior to the end June 2016.”
It doesn’t seem as though anything that can change Alice is on the horizon. This is good news. The Cuozzo case we have already mentioned here earlier this month and last month. It’s not going to change takeaways from Alice.
“They would rather ignore or hide it from the public/judges/clients.”According to this new post, Enfish v Microsoft [1, 2] is already forgotten as CAFC rules against software patent, quite frankly as usual. It’s only when it rules for software patents that there is typically a media frenzy, initiated by self-serving patent lawyers. To quote IP Kat: “The patentability of computer-implemented inventions has been in doubt in the United States since the U.S. Supreme Court decision Alice Corp. v. CLS Bank. However, the recent Enfish v. Microsoft case provided some hope to those who favor patentability of computer-implemented inventions. The Federal Circuit has issued another patent eligibility decision, TLI Communications v. AV Automotive, et al. Notably, both Enfish and TLI Communications are authored by Judge Hughes–and reach opposite results, but on different facts.”
We actually found out about this two days ago. Patent Buddy showed that CAFC got back to killing software patents when he wrote: “(1/2)The ’295 patent killed by the CAFC today w/101 has a priority date of 1996. Its a pioneer patent.”
Are they already fixing the Enfish v Microsoft error? After less than a week? As Patent Buddy put it: “Federal Circuit Held Image Manipulation Claims Ineligible under 101/Alice Today: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1372.Opinion.5-12-2016.1.PDF”
“Such is the nature of media that is dominated by patent lawyers and their interest groups…”Will patent lawyers quiet down now that this decision is out? Or maybe not mention this newer decision at all? Were the celebrations short lived? So far we have found just one article about this decision (and we watch these things very closely). At the same time, in spite of this newer decision (against software patents), patent lawyers are evidently desperate enough to latch onto the older decision. They just wish to make software patents stay in the US. See for example what Michael D. Van Loy and Howard Wisnia from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. have just published. Stinson Leonard Street LLP, likewise, cherry-picks the pro-software patents decisions, as usual. Gerard M. Donovan, Richard A. Graham, Amardeep (Sonny) Grewal and Marc S. Kaufman say that “Federal Circuit’s Enfish Is An Important 101 Decision” because it serves their agenda and it’s only a case like this which they are likely to cite in the future, not TLI Communications v. AV Automotive, et al.
MIP rightly called Enfish v Microsoft as it should. A “rare boost” is the way it got dubbed and MIP added: “The Federal Circuit has found software patents valid under Alice for only the second time, in Enfish v Microsoft.”
Compare that to the many times CAFC ruled against software patents, including the latest decision. Where were software patents lobbyists/proponents/boosters when these decisions happened? They would rather ignore or hide it from the public/judges/clients. Such is the nature of media that is dominated by patent lawyers and their interest groups… █
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And the microcosm of patents lawyers helps CAFC by selective coverage and accompanying hype that is hardly justified
Summary: The highly biased Court of Appeals for the Federal Circuit (CAFC) rules in favour of a software patent, so the crowd of patent lawyers (or their sites) goes wild and makes it seem like an Earth-shattering development that suddenly makes software patents very eligible in spite of Alice/§ 101
CONCERNS about the EPO‘s rogue management and the EPO scandals are globally justified as these matters impact not only Europe. And it’s not just because the EPO is not a European body (it’s international/globalist) but because it inspires moves in other countries/continents, where labour rights gradually get abolished/eroded and patents get expanded in terms of scope, number, injunctions, damages, and so on.
“New USPTO Patent-Eligibility Guidance Not So New,” according to this pro-patents site. Lawyers’ sites which comment on USPTO guidelines would rather have us believe nothing has changed. This one says that “this memorandum simply lays out the by now well-known two-part Alice/Mayo test, spells out explanations that examiners are supposed to give when making Section 101 rejections, and provides examiners with responses to arguments that applicants may make. Applicants may find this guidance useful in pressing examiners for better explanation of rejections based on allegedly unpatentable subject matter. However, I suspect applicants will continue to be frustrated by the seemingly subjective, and undeniably unpredictable, nature of many rejections under 35 U.S.C. § 101.”
“The USPTO does not care what the Supreme Court says.”Will this patent office stop issuing software patents at long last? We doubt it. The USPTO does not care what the Supreme Court says. It’s pretty much the same at the EPO, where the EPC is repeatedly ignored (on multiple levels).
EPC rules are being ignored/crushed by Battistelli with his lousy leadership (while he makes up the EPO rules/guidelines with zero oversight) and in the mean time we learn that: “The CAFC in Enfish v Microsoft employed the EPO technical test to define what, if anything, was abstract.”
Worth noting, as we have indicated before, is the gross deception (by omission) from lawyers’ sites. When decisions are made against software patents in the US the lawyers’ blogs and sites are mostly quiet; but they’re all in hype and joy otherwise, amplifying the news. This is why the lawyers’ sites were all over this case a few days ago [1, 2, 3, 4, 5, 6, 7, 8, 9], with headlines like “Federal Circuit Clearly Says Software Can Be Patentable” and summaries such as this: “A Federal Circuit panel (Judges Moore, Taranto, and Hughes) has unambiguously stated that some — one might even say much — software is patent-eligible, reversing findings of invalidity under 35 U.S.C. § 101 for two patents “directed to an innovative logical model for a computer database.” Enfish, LLC v. Microsoft Corp., No. 2015-1244 (Fed. Cir. May 12, 2016) (opinion by Judge Hughes). In addition to reversing a summary judgment of Section 101 invalidity, the court vacated a summary judgment of invalidity under 35 U.S.C. § 102, and left intact a summary judgment of non-infringement. But the reason why this case will be a big deal is the holding — and analysis — pertaining to the patent-eligibility of software inventions.”
“Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents.”“The EPO tech feature test is 40 years old,” one person wrote. “Why didn’t CAFC use it before and avoid all this jurisprudential bullshit?”
As Benjamin Henrion put it, “because the EPO test is garbage.”
Another opponent of software patents asked, “US Court now using EU rules?”
A later question was, “so they just take rules from other Countries when they decide to?”
“The GAO Report has already cited the role of Software Patents in the problem,” it was added, “FTC Report will probably say the same” (the patent maximalists slam it before it’s even released).
“In her Dissent in Bilski,” said one patent attorney, “J. Moore said that the abstract test would swallow circuit court decisions. It did. Hence, Enfish Today.” Another tweet said: “Enfish v Microsoft et al.–Only 1 of 2 Fed Cir Decisions Holding Software Eligible under 101; Held Software Not Inherently Abstract”
“Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news.”Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents. To quote: [1, 2] “Some much-needed sanity in #patent law: Fed Cir says today in Enfish v. Microsoft that #software NOT automatically “abstract” under 101 test [...] unfortunately, Alice left much to interpretation by courts & PTO, who took it as anti-software patent mandate” (still slamming the Supreme Court because, once again, CAFC is trying to promote software patents, which it made up or introduced in the first place).
Here is a press release about the case. Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news. This is their time to deceive, mislead, and engage in shameless self-promotion/marketing. IAM wrote: “Since the Supreme Court handed down its decision in Alice, many in the patent market have been searching for a case that provides some greater clarity on the Justices’ thinking or, at the very least, doesn’t simply see the Court of Appeals for the Federal Circuit (CAFC) affirm a lower court ruling and invalidate the patent in question. Those cases have been few and far between but the market took some encouragement this week from the CAFC’s decision in Enfish LLC v Microsoft, when the majority ruling explicitly stated that Alice did not simply eliminate broad swathes of software from patent eligibility.”
“So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.”Here is what Gene Quinn’s site and IP Kat wrote. So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.
National Law Review went with the headline “CAFC Finds Software Patent Eligible Under 35 U.S.C. §101″ and Andrew Chung from Reuters said “Federal Circuit revives patent, expands software eligibility”.
Software-related patents will survive challenges to their validity despite a U.S. Supreme Court precedent that has led to the widespread cancellation of patents, if they improve the way computers operate, a federal appeals court ruled on Thursday.
In a dispute involving Enfish LLC and Microsoft Corp, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit revived two Enfish patents on an advanced database, agreeing with the company’s Cooley attorneys that the technology improves the functioning of a computer and thus deserved to be patented.
As Microsoft lobbies so hard for software patents, losing this case is possibly good news to Microsoft. One might argue that they’re winning by losing here. This case isn’t about patent trolls but about patent scope and the former “patent reform is minimal,” Benjamin Henrion reminds people, “real reform involves discussing patents for software.”
“Why did it rely on the EPO? It seems totally improper a thing to do.”Right now there’s just one case that shows digression (moving in the opposite direction) as “patent courts are always biased.” (especially true in the case of CAFC, which is full of well-documented corruption)
“In a rare win for a software patentee,” Patently-O wrote, “the Federal Circuit has rejected a lower court ruling that Enfish’s “self-referential” database software and data-structure invention is ineligible under 35 U.S.C. § 101 as effectively an abstract idea.”
Why did it rely on the EPO? It seems totally improper a thing to do.
In other cases — not the type of cases that patent lawyers want the public to know about, § 101 kills patents because it’s about an “electronic device to obtain clinical trial data that would otherwise be collected by pen-and-paper diary” (to quote the decision, not the Docket Report):
The court granted defendant’s motion to dismiss because the asserted claims of plaintiff’s clinical drug trial patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.
Another § 101 article from the Docket Report says “Popularity of § 101 Motions Weighs Against Certification for Interlocutory Appeal”. To quote: “The court denied defendant’s motion to certify for interlocutory appeal an earlier order denying defendant’s motion to dismiss for lack of patentable subject matter because, although there was a controlling question of law that would materially advance the litigation, the court exercised its discretion not to grant appeal given the popularity of 35 U.S.C. § 101 motions.”
The bottom line is this: Most decisions which involve § 101 wind up eliminating software patents. But reading the patent lawyers-dominated media (or their own ‘news’ sites) one might give the opposite impression. █
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They want us to believe that 90% of patents will be eliminated unless SCOTUS is stopped
Summary: The corporate media resorts to more personal attacks on SCOTUS Justices, unnecessary drama, and framing of PTAB as “death squad”
EVERY now and then we find some jaw-dropping nonsense about patents. It often comes not from misinformed tiny blogs but from large ‘reputable’ corporate media, where facts don’t matter as much as agenda (and it’s obvious whose).
The Cuozzo case, which we mentioned earlier this month and last month (beginning and end), got mentioned in “A World Without Patents” — an article from a rich people’s outlet (owned by the rich to promote their agenda) which said:
Late last month, the United States Supreme Court heard oral arguments in the most consequential case you never heard of. On the surface, Cuozzo Speed Technologies v. Lee is about whether the Patent Office (PTO) can use a different standard in hearing…
The author says “I write about how intellectual property” because in his view these can “enhance corporate success.” Maybe he thinks of large corporations which use patents for protectionism. The purpose of the article is to bemoan bogus patents being invalidated. To quote:
But the larger issue in Cuozzo is this: Has the U.S. government made it too easy for companies to invalidate the patents of their competitors?
To judge from the evidence, the answer is yes. Of the 4,288 patent challenges brought to PTAB since the September, 2012 inception of these IPRs, nearly 90% have resulted in the cancellation of patent claims. Not surprisingly, 70% of those challenges have been brought by defendants facing patent infringement suits in U.S. district courts.
Now watch the author showing his laughable inability to comprehend mathematics (like software patents) and statistics:
In truth, the whole system defies logic. Even if you stipulate that there are bad patents that shouldn’t have been issued, is it really believable that 90% of all patents granted are invalid — despite being issued only after careful review by PTO examiners in a process that takes over two years and results in the rejection of half of all patent applications?
If we really believe that 90% of Patent Office output is garbage, then we should just shut the agency down and save everyone all the trouble.
90% of patents challenged is not the same as 90% of patents granted. Any high school student would easily manage to tell the difference, but not Forbes… because it has an obvious agenda that’s hardly even cryptic.
“It is possible, for instance, that upon proper examination/scrutiny with § 101, 90% of all software patents would be deemed invalid and thrown in the ashtray of history.”Speaking of agenda, watch what other rich people’s (billionaires) media is doing. “In an effort to protect its innovation investments in highly competitive areas such as mobile and analytics,” says Wall Street’s mouthpiece (Rupert Murdoch’s Wall Street Journal), “banking giant J.P. Morgan Chase & Co. filed at least 22 patent applications in 2015. And the number of patent filings so far this year is running 50% higher than last year, Daryl Wooldridge, head of intellectual property management at J.P. Morgan, tells CIO Journal’s Kim S. Nash.”
The headline says “J.P. Morgan Intensifies Tech Patent Drive” and it tries to convince the reader that more patents are indicative of greater success. Nothing could be further from the truth. Patently-O, by contrast, a more scholarly site, takes design patents as an example and says: “Some commentators have suggested that design patents, being sought and accumulated differently from utility patents, are not likely to stimulate much PAE interest.”
These so-called ‘PAEs’ are essentially patent trolls (they cannot be sued, that’s why they sue as an intermediary, a loophole) and they typically use software patents. We generally need to eliminate software patents to eliminate patent trolling and therein lies the pool of patents that PTAB keeps invalidating at amazing rates (see above). It is possible, for instance, that upon proper examination/scrutiny with § 101, 90% of all software patents would be deemed invalid and thrown in the ashtray of history.
“If programmers fail to get involved in this public debate, they may lose everything and be taxed by everyone.”Meanwhile, FOSS-hostile software patent thickets are being promoted by a software patents advocacy site, which is also perpetuating the myth that startups need patents from the large corporations-led USPTO (it’s a waste of time and money as they will likely get sued to trolls and intermediaries, not large corporations such as IBM).
We are sadly besieged by a media of patent lawyers, patent trolls, and large corporations like IBM (which use patents offensively to eliminate the competition). If programmers fail to get involved in this public debate, they may lose everything and be taxed by everyone. █
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Publicado en America, Courtroom, Law, Patentes a las 6:46 am por el Dr. Roy Schestowitz
Las Cortes de los EE.UU continúan rechazándo patentes de software, pero a la USPTO no le importa y continúa emitiéndolas de todas maneras
“LinuxFest Northwest 2016: Las Patentes de Software después de Alice: Una larga y triste cola” [via Montana Linux, que dice “Deb Nicholson habló acerca del estado de las patentes de software en los EE.UU después del veredicto de la Corte Suprema en el caso clave Alice vs. CLS Bank case.”]
Sumario: La “línea de producción”, que la USPTO ha degenerado a (limitarse a aceptar casi todo lo que entra) pasándo los costes de los procesos espurios al público (externalidad para ser gravados por los monopolistas, trolles, y los abogados de patentes) y la nueva información sirve para destacar esta gran injusticia que está motivado por la codicia y el control corporativo de la USPTO (cautiverio a manos del proveédor)
El Profesor Dennis Crouch, todavía se mantiene al corriente de los “casos pendiéntes de patentes en la Corte Suprema” (hay casos de patentes interesantes a nivel de SCOTUS en el camino), trayéndo actualizaciones sobre las adaptaciones de la USPTO a resoluciones como Alice, que básicamente trajó el fin a una gran cantidad de patentes de software (la USPTO debería obedecer los fallos judiciales y terminar las patentes de software, pero es demasiado codiciosa para hacerlo). Los artículos constituidos por Dennis Crouch son en realidad muy informativos ya que nos ayudan a rastrear cómo las cosas están cambiando (la obra del Profesor Crouch es académica/científica, por lo que no tiene mucho que ganar personalmente del maximalismo de patentes). Al escribir sobre lo último en el caso de Fitbit, un sitio de abogados de patentes dice: “Como una actualización de nuestros 13 de abril de, el año 2016 entrada del blog, la Comisión de Comercio Internacional de Estados Unidos juez administrativo (ALJ) Dee Lord ha concedido la determinación de resumen que las pretensiones formuladas de dos de las patentes restantes de la quijada en su acción contra el artículo 337 de Fitbit se dirigen a la materia inelegible bajo 35 USC § 101.”
“No es díficil ver el porqué de que las grandes corporaciónes estén en armas.”
Este es básicamente el último legado de alto perfil de Alice, que la USPTO (a diferencia de los tribunales, incluido SCOTUS) todavía está tratando de ignorar. La USPTO sigue teniendo discusiones sobre el tema. De acuerdo con un nuevo fragmento de texto encontrado por Benjamin Henrion hace unos días, la USPTO dice “Funciones que no son funciones computadora genéricas, por tanto, no son significativamente más que una idea” (PDF en el mismo).
¿Intentará la USPTO obedecer los decretos de la corte? ¿O es tán reacia/pícara a aceptar que las cosas han cambiado? Su antiguo director, el néfasto David Kappos, actual Delfin de la Sagrada Familia de Patentes (IBM, Microsoft, Apple, HP entre otros) está actualmente cabildeándo contra la Corte Suprema a favor de sus amos – un movimiénto que contribuye a la percepción de corrupci ón en el sistema en su totalidad.
“Otro nuevo análisis del Profesor Crouch refuérza la idea de que la oficina de patentes debería enforzar las fronteras de las patentes, y restr íngir su esfera.”
No es díficil ver el porqué de que las grandes corporaciónes estén en armas. Dennis Crouch, el académico pro-patentes, ha hecho algunas cartas de investigación y gráficos que muestran que el porque el sistema de patentes fue creado por no lo es más. El análisis de Crouch ha demostrando cómo las grandes empresas obtienen la mayor parte de las patentes (primer autor más jefes, etc y las personas que quieran obtener parte del crédito), no los desarrolladores independientes (lo mismo en Europa) y añade la siguiente interpretación de los números/gráficos:
El objetivo principal del sistema de patentes es fomentar la innovación – “. Promover el progreso de la ciencia y las artes útiles” Para mí, la naturaleza de la paternidad de la invención es una actividad fascinante: ¿cuáles son los factores que llevan a la invención y cuáles son los resultados de la invención ?
Un cambio importante en los últimos decenios en términos de los inventores que figuran en las patentes de EE.UU. es el aumento de la calidad de inventor en equipo. En 1975, la gran mayoría de las patentes de Estados Unidos se emitieron a un único inventor. Desde entonces, ha habido una tendencia constante hacia más inventores-por-patente. Alrededor de 1990, llegamos a un punto en el que, por primera vez, más de la mitad de las patentes de EE.UU. que aparecen múltiples inventores. Esa tendencia hacia más inventores por patentes continúa en la actualidad.
La perforación hacia abajo, el aumento se observa en las patentes con tres o más inventores. La siguiente tabla muestra el porcentaje de patentes de utilidad, ya sea con un inventor que aparece (pendiente negativa doble línea) o tres inventores que figuran + (pendiente ascendente línea). La caída en el primero se correlaciona casi exactamente con el aumento en el segundo. A lo largo de este tiempo, el porcentaje de las patentes de dos inventor se ha mantenido estable en torno al 25%.
Otro nuevo análisis del Profesor Crouch refuérza la idea de que la oficina de patentes debería enforzar las fronteras de las patentes, y restr íngir su esfera. Sin embargo, su enfoque, sin embargo, es el número de demandas por patentes, que muestra un descenso muy pronunciado el los últimos diez años (las barreras de patentes tal vez caendemasiado bajo, lo que permite prácticamente todas las aplicaciones de patentes sean aceptadas, o más del 90% de ellos). Él llama a esto “Patentes de Tamaño Adecuado“, y añade:
Muchas de las políticas progresistas se centran en la reducción de las disparidades (ingreso, la riqueza, la educación, y oportunidades) que reflejan alguna injusticia social entre los de arriba y los de abajo de nuestro espectro social. Los conservadores suelen reconocer los vacíos, pero no están de acuerdo acerca de si el resultado se califica como la injusticia, así como sobre el papel del gobierno en la redistribución.
política de patentes a menudo es más fácil de implementar que la política social (sobre todo en comparación con otros cambios en la ley de propiedad), ya que una nueva generación de patentes emerge cada veinte años y la vieja generación no se cuelga-en torno a la protección y la dirección de la riqueza, sino que se funde con el destino nos alcance de la dominio público.
En algunos aspectos, sin embargo, las patentes están revirtiendo la tendencia social y paso a una uniformidad y menos diversa – al menos por algunas mediciones externas tales como el tamaño del documento, las reclamaciones por patentes, y esté pendiente de persecución.
Para reformular la última frase (arriba), las patentes están revirtiendo la tendencia corporativa y convirtiéndose de baja calidad y más triviales. Esto significa que aquellos que son pobres serán más pobres y los que son ricos y poderosos tendrá más municiones para marginar a los chicos pequeños (o chicas). Cada vez más chicos pequeños (o chicas) estarán bajo más amenazas de más patentes en manos de las grandes corporaciones. Esto significa que pierden el control; que están siendo dominados. Las patentes falsas que son posibles para invalidar en un tribunal son demasiado caras para invalidar, ya todos aquellos que están en contra se enfrentan a enormes daños que no pueden justificar las facturas legales (por lo que se asientan el caso o quiebran). ¿Para esto se creó el sistema de patentes? Seguramente fué lo contrario. Lo más triste es que la EPO también se está convirtiendo poco a poco en lo mismo gracias a Battistelli, sus chácales y políticos corruptos.
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